                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 03-1862           IN RE PHILLIPPE CHARLES,

                                   Debtor.


                 WELLS FARGO HOME MORTGAGE, INC.,

                         Plaintiff, Appellant,

                                      v.

              PHILLIPPE CHARLES; DOREEN B. SOLOMON,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Edward F. Harrington, Senior U.S. District Judge]


                              Before
              Torruella and Lipez, Circuit Judges,
                    and Lisi*, District Judge.


     Lawson Williams with whom Shapiro & Kreisman was on brief for
appellant.
     Richard S. Hackel for appellee.
     Doreen Solomon, Chapter 13 Trustee.


                              March 15, 2004




     *Of the District of Rhode Island, sitting by designation.
                 LISI, District Judge.      Wells Fargo Home Mortgage, Inc.

(“Wells Fargo”), appeals from a district court order denying an

appeal from a determination of the United States Bankruptcy Court

for the District of Massachusetts. The bankruptcy court denied two

motions filed by appellant: (1) a motion to approve a stipulation

between Wells Fargo and the debtor, Phillippe Charles (“Charles”);

and,       (2)   an    “assented   to”   motion    to   enjoin   the   debtor   from

encumbering certain real property located at 33 Wellington Hill

Street, Mattapan, Massachusetts, and to vacate a previously entered

discharge order as it pertained to Wells Fargo’s interest in the

Mattapan realty.           We affirm.

                                           I.

                 In April 1996, Charles filed a voluntary Chapter 13

petition.1        An order confirming the debtor’s Chapter 13 plan was

entered by the bankruptcy court on July 31, 1997.                        Under the

confirmed plan, Charles was to make monthly payments to the Chapter

13 trustee.           A portion of each payment was to be applied toward the

secured claim held by Lehman Capital Corporation (“Lehman”), Wells

Fargo’s predecessor in interest.                Lehman’s claim was secured by a

mortgage on the Mattapan realty.                Also, the debtor was to make a

final “balloon” payment to Lehman. The order provided in pertinent

part:




       1
           See 11 U.S.C. §§ 1301-1330.

                                          -2-
                d) Debtor shall make payments totaling
           $97,350 to the Trustee, which shall constitute
           payments toward the secured claim of Lehman
           Capital Corporation.     Debtor shall make a
           final “balloon payment” in the exact amount of
           $64,565.40 (or such other amount as may be
           hereafter stipulated to between the parties
           and approved by this Court). This payment may
           be made directly by debtor to creditor and is
           not required to be paid through the Chapter 13
           Trustee.   Trustee must receive evidence of
           this “balloon” payment from Debtor and
           confirmation of payment from Creditor before
           Debtor will be deemed to have fully [complied]
           with this provision of this Order. No Order
           for Discharge shall otherwise enter.

                e) Upon the entry of an Order of
           Discharge under 11 USC Section 1328, the
           discharge so entered shall constitute a
           discharge of the above referenced secured
           mortgage claim.

Order of Confirmation, C.A. No. 96-12305-JNF (Bankr. D. Mass. July

31, 1997).

           In June 2001, after Charles failed to make the final

balloon payment in accordance with the confirmation order, Wells

Fargo filed a motion for relief from the automatic stay and for

leave to foreclose the mortgage on the Mattapan realty. The motion

was granted on July 3, 2001.          Charles then filed a motion for

reconsideration of the July 3 order and a motion to refinance the

Mattapan property.

             In October 2001, during the pendency of the debtor’s

motions,   Charles    and   Wells   Fargo   entered   into   a   stipulation

pertaining     to   Charles’   outstanding    obligation.        Under   the

stipulation, Charles was to refinance the Mattapan realty on or

                                    -3-
before November 17, 2001.     From the proceeds of the refinancing,

$71,000.00 was to be remitted to Wells Fargo in full satisfaction

of Charles’ obligation to the company.

           The refinancing transaction was closed on October 29,

2001.    The debtor’s attorney, Michael G. McDonald (“McDonald”),

served as settlement agent for the new mortgage lender, Long Beach

Mortgage Company.      Although McDonald retained $71,000.00 of the

loan proceeds for the purpose of disbursing those funds to Wells

Fargo, he failed to do so.

           On or about April 15, 2002, more than five months after

the closing, McDonald tendered a check, drawn on either his client

trust or business account,2 in the amount of $71,000.00 to Wells

Fargo.   The   check   subsequently   was   dishonored   by   the   drawee

financial institution for the reason that there were insufficient

funds in the account.

           On May 1, 2002, Charles, through McDonald, filed a motion

to vacate the bankruptcy court’s July 3, 2001 order granting Wells

Fargo relief from the automatic stay.       The motion was assented to

on Wells Fargo’s behalf by its attorney, who, apparently, lacked




     2
      It is unclear from the record whether following settlement of
the refinancing transaction McDonald deposited and maintained the
$71,000.00 in his client trust account. That issue is not before
us for determination.     However, we note that Rule 1.15 of the
Massachusetts Rules of Professional Conduct requires that a lawyer
maintain funds belonging to clients or third parties in a trust
account, separate from the attorney’s own funds.

                                  -4-
knowledge     of   the   check’s   dishonor.3     The     motion    provided   in

pertinent part:

            1.    The Debtor[’]s counsel has provided
            Shapiro and Kreisman [Wells Fargo’s counsel]
            with a check in the amount of $71,000.00 for
            the balloon payment of the bankruptcy.

            2.   The Debtor has therefore completed it’s
            [sic] debt to the creditor Wells Fargo in full
            according to the Confirmed Chapter 13 Plan for
            bankruptcy.

C.A. No. 96-12305-JNF (Bankr. D. Mass. May 1, 2002).                  On May 3,

2002, the bankruptcy court granted the motion and vacated its July

3, 2001 order.

            On June 21, 2002, the Chapter 13 trustee submitted a

report and accounting and requested the debtor’s discharge.                     An

order discharging Charles was entered on that same date.                       The

trustee’s final report and account was filed on August 12, 2002.

The trustee was discharged on September 16, 2002.            As of that date,

Wells Fargo had not provided the bankruptcy court with notice that

the debtor’s obligation had not been satisfied.

            Thereafter, on September 19, 2002, Wells Fargo requested

a   hearing    “relative     to    Debtor’s     failure    to      satisfy   plan

obligations” and “for determination of manner in which outstanding



     3
      Wells Fargo received notification of the check’s dishonor on
or before May 7, 2002.      However, according to the company’s
attorney, that information was not communicated by Well Fargo’s
cashiering department to its bankruptcy department, or to its
counsel, until late-June 2002, following entry of the bankruptcy
court’s June 21, 2002 debtor discharge order.

                                      -5-
obligations     will   be    satisfied.”         By   that     date,       McDonald    had

tendered a second check which had also been dishonored.

           A hearing was conducted by the bankruptcy court on

November 14, 2002.           McDonald appeared as counsel for Charles.

McDonald   represented       to   the   court     that       funds,    including       the

$71,000.00 in refinancing proceeds that were designated for payment

to Wells Fargo, had been misappropriated from his client trust and

business accounts during his extended absence from his law office.4

           At    the    hearing,     McDonald         told    the     court    that     he

personally    planned       to   satisfy   the    Wells       Fargo    obligation       by

refinancing     some   commercial       property      and     that    he    anticipated

completing the process within 45 to 60 days.                     Counsel for Wells

Fargo agreed to provide McDonald with 60 days within which to

satisfy the outstanding obligation.              The court directed counsel to

submit a proposed order reflecting that agreement.

             On November 14, apparently following the hearing, Wells

Fargo filed its “assented to” motion to enjoin the debtor from

encumbering the Mattapan property and to vacate the discharge order

as it pertained to Wells Fargo’s interest in the realty.                          Wells

Fargo sought the requested relief pending satisfaction of the

outstanding     obligation.         McDonald     assented       to    the     motion    on

Charles’ behalf.       The bankruptcy court scheduled a hearing on the



     4
      McDonald cited his spouse’s death and his own serious illness
as the reason for his absence.

                                        -6-
motion for November 20, 2002.

     On the day of hearing on the motion to enjoin/vacate, Wells

Fargo filed the second motion at issue in the instant appeal, the

motion to approve a stipulation between Wells Fargo and Charles.

The stipulation was signed by McDonald on Charles’ behalf and

provided, in pertinent part:

          1. Debtor’s counsel, Michael McDonald, shall
          complete payment to Wells Fargo Home Mortgage,
          Inc[.] (“Wells”) of $71,000 within 60 days of
          the date hereof.
          . . .
          3.   Debtor agrees that from the date hereof
          until the date of satisfaction of the
          obligation to Wells through payment of funds
          referred to above, debtor and anyone acting on
          his behalf or at his direction shall not
          undertake to transfer, encumber or otherwise
          diminish the interest held by debtor in the
          property that is the subject of the payment
          obligation referred to above, 33 Wellington
          Hill Street, Mattapan, Massachusetts.

C.A. No. 96-12305-JNF (Bankr. D. Mass. Nov. 20, 2002).

          During the November 20, 2002 hearing, Charles stated

that, up until that hearing, he had been unaware that McDonald had

not satisfied the Wells Fargo obligation.   Further, Charles denied

that he had authorized McDonald to execute the stipulation on his

behalf.

          Under oath, McDonald admitted that he had not consulted

with Charles before assenting to either the motion to enjoin/vacate

or to the stipulation.   Moreover, contrary to the representation

that he had made to the court during the November 14 hearing,


                                -7-
McDonald acknowledged that he had never informed Charles that the

$71,000.00 obligation had not been satisfied.

            The bankruptcy judge determined that Charles’ assertion

that he had no knowledge of the non-satisfaction of the Wells Fargo

obligation was credible.           The court denied both the motion to

enjoin/vacate and the motion to approve the stipulation. The court

stated: “Clearly . . . Mr. McDonald had no authority from Mr.

Charles to sign those.       They were inconsistent–they were not just

inconsistent.        They   were   patently    opposed   to   Mr.   Charles’s

interests.”

            Wells Fargo appealed the bankruptcy court’s denial of the

motions to the district court.              On June 2, 2003, the district

court, concluding that the bankruptcy court had not abused its

discretion in denying either motion, denied the appeal.                     This

appeal followed.

                                      II.

            On appeal, we directly review the bankruptcy court’s

decision.      In re Watman, 301 F.3d 3, 7 (1st Cir. 2002).

            The issue presented for our determination is a narrow

one: Whether the bankruptcy court abused its discretion in denying

the   motion    to   enjoin/vacate    and     the   motion   to   approve   the

stipulation.      See In re Weinstein, 164 F.3d 677, 686 (1st Cir.

1999).

            The bankruptcy court premised its denial of both motions


                                      -8-
on its determination that Charles had not assented to either motion

and that the relief sought in the unauthorized motions was contrary

to the debtor’s best interests.          We examine the bankruptcy court’s

factual findings for clear error and review its conclusions of law

de novo.    In re Watman, 301 F.3d at 7.

            The bankruptcy court’s finding that the debtor had not

authorized McDonald to execute the motions on his behalf is amply

supported by the record.        Charles denied knowing that the Wells

Fargo obligation had not been satisfied and asserted that he had

neither seen nor assented to the pleadings in issue.           The debtor’s

representations     to   the   court   were   corroborated   by     McDonald’s

testimony    that   he   had   neither    informed   his   client    that   the

obligation had not been satisfied nor obtained Charles’ authority

to assent to Wells Fargo’s motion to enjoin/vacate or to agree on

Charles’ behalf to Wells Fargo’s proposed stipulation.

            Further, the bankruptcy court’s determination that the

relief sought by Wells Fargo through the motions was contrary to

Charles’ interests is clearly supported by the record.              The debtor

previously had obtained a discharge of his obligation to Wells

Fargo.     In furtherance of that objective, Charles had refinanced

the Mattapan property, thereby incurring additional indebtedness

and an additional encumbrance on the realty.           McDonald acquired a

portion of the loan proceeds, $71,000.00, in trust, for payment to

Wells Fargo but, in contravention of his obligations under Rule


                                       -9-
1.15(b) of the Massachusetts Rules of Professional Conduct, failed

to promptly deliver those funds to the company.          The motions, if

granted,   would   have   prohibited    Charles   from   encumbering   or

transferring the Mattapan realty until such time as McDonald

satisfied his obligations to Wells Fargo.          Further, the result

sought by Wells Fargo and purportedly agreed to by Charles would

have deprived the debtor of the benefits of the discharge order

previously entered by the bankruptcy court.

           Because the bankruptcy court’s findings that the motions

were not authorized by the debtor and that they were contrary to

his best interests were not clearly erroneous, the bankruptcy court

did not abuse its discretion in denying the motion to enjoin/vacate

and the motion to approve the stipulation on that basis.5

                                 III.

           For the above reasons, we uphold both the bankruptcy

court’s denial of the motions and the district court’s affirmance

of that decision.

           Affirmed.




     5
      Wells Fargo’s assertion to the contrary notwithstanding,
whether the debtor had complied with the confirmation plan was not
an issue before the bankruptcy court for determination on November
20, 2002 and, accordingly, is not before this court for
consideration on appeal.

                                 -10-
