     Case: 09-20426     Document: 00511200959            Page: 1     Date Filed: 08/11/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            August 11, 2010
                                     No. 09-20426
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

In the Matter of: MICHAEL M. EULER

                                     Debtor

                                    ------------------------------

MICHAEL M. EULER

                                     Appellant

v.

MILES MARKS, Trustee, and TEXAS DOW EMPLOYEES
CREDIT UNION

                                    Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:09-CV-803


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 09-20426

      Michael Euler (“Euler”) appeals the district court’s affirmance of the
bankruptcy court’s judgment that the foreclosure sale of his home was valid.
Finding no error, we affirm.
                                I. BACKGROUND
      Euler mortgaged his house to Texas Dow Employees Credit Union. When
he failed to pay the mortgage note, Texas Dow foreclosed on his home. Euler
then filed for bankruptcy which automatically stayed the foreclosure. The
bankruptcy court issued an order which permitted the continuance of the
automatic stay of foreclosure on the condition that Euler pay Texas Dow post-
petition monthly payments in the amount of $594.01 per month and carry
casualty insurance on his home. The order further provided that in the event
Euler failed to make timely payments or otherwise defaulted, Texas Dow was to
give notice of the default to Euler and allow him 10 days to cure the default. If
Euler failed to cure the default, the order provided that the automatic stay
would terminate without further notice or court action allowing Texas Dow to
foreclose on the property in accordance with Texas state law.
      Euler failed to keep the home insured and Texas Dow notified him of his
default on October 25, 2005. Euler also did not pay Texas Dow the installments
for October and November 2005 and he was notified of his default on November
10, 2005. Euler failed to cure his default within 10 days. Texas Dow then filed
a notice of termination of the automatic stay with the bankruptcy court and
served it on and Euler and his lawyer on November 29, 2005.
      On December 12, 2005, in accordance with Texas state law, Texas Dow
sent a notice of foreclosure to Euler. See T EX. P ROP. C ODE 51.002(b) (requiring
the mortgagee to notify the debtor and public in writing of the foreclosure sale
of the debtor’s property at least 21 days before the sale). The notice clearly states
that a foreclosure sale of the property would take place on January 3, 2006. As
stipulated in the notice, the property was sold at foreclosure on January 3, 2006.

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                                  No. 09-20426

Before the bankruptcy court, Euler argued that the sale was not valid for three
reasons: (1) the stay was not properly lifted; (2) his counsel was not notified of
the foreclosure; and (3) he reasonably relied on assurance from Texas Dow that
the property would not be sold. Lastly, Euler argued that he should be entitled
to amend his bankruptcy plan. The bankruptcy court disagreed with Euler and
held that the sale was valid and that Euler was not entitled to amend his
bankruptcy plan. Euler then appealed to the district court who affirmed the
bankruptcy court’s ruling. This appeal followed.
                               II. DISCUSSION
      “We review a district court’s affirmance of a bankruptcy court decision by
applying the same standard of review to the bankruptcy court decision that the
district court applied.” In re Martinez, 564 F.3d 719, 725-26 (5th Cir. 2009). “We
thus generally review factual findings for clear error and conclusions of law de
novo.” Id. at 726 (quoting In re OCA, Inc., 551 F.3d 359, 366 (5th Cir. 2008).
      Euler alleges that the district court erred when it affirmed the bankruptcy
court’s judgment. We disagree. The automatic stay immediately terminated
when Euler failed to fulfill his obligations to Texas Dow as required by the
bankruptcy court’s order. Texas Dow fully notified Euler and his counsel of the
stay’s termination. After the stay was properly lifted, Texas Dow proceeded to
foreclose on the property in accordance with Texas law as Euler and the public
were both given 21 day notice of the foreclosure. See 11 U.S.C. § 362(d)(1)
(noting that once the automatic stay is lifted, foreclosure can proceed if the
foreclosure accords with state law); see also T EX. P ROP. C ODE 51.0002(b).
Nothing in Section 51.002 required that notice of the foreclosure be sent to
Euler’s bankruptcy counsel after the stay was properly lifted. Furthermore, we
find no error in the bankruptcy court’s determination that Euler was not entitled
to amend his bankruptcy plan because the agreed to order specifically provided
that post-petition payments be made to Texas Dow on specific dates. Lastly, our

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                                  No. 09-20426

review of the record reveals no writing that would provide a scintilla of evidence
that Texas Dow agreed that the foreclosure would be postponed. Rather, the
notice of termination of stay and notice of foreclosure provided to Euler by Texas
Dow directly contradict Euler’s assertion that the foreclosure would be
postponed.
                              III. CONCLUSION
      For the foregoing reasons, the district court’s judgment is affirmed. All
pending motions are denied.




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