             Case: 12-14984   Date Filed: 07/29/2013   Page: 1 of 3


                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                                _____________
                               No. 12-14984
                           Non-Argument Calendar
                              _____________


          D.C. Docket Nos. 1:11-cv-04595-RLV; 11-bkc-81588-MHM
In Re: Mary Kay Pullen,
                                                       Debtor.
_____________________________________________________________
ATTORNEY GARY C. HARRIS,
                                                       Plaintiff,
CAIN V. HARRIS,
                                                       Plaintiff- Appellant,
                                    versus
MARY KAY PULLEN,
                                                       Defendant -Appellee.
                                ____________
                  Appeal from the United States District Court
                     for the Northern District of Georgia
                                ____________
                                (July 29, 2013)
Before HULL, JORDAN, and HILL, Circuit Judges.
                 Case: 12-14984     Date Filed: 07/29/2013   Page: 2 of 3


PER CURIAM:

         Cain Harris appealed the bankruptcy court’s vacation of its order lifting the

automatic stay entered on behalf of Mary Kay Pullen. The district court held that

the bankruptcy court did not abuse its discretion in vacating its prior order. We

agree.

         The relevant facts are that Pullen filed for bankruptcy the day prior to the

scheduled foreclosure sale of her property. Harris, her creditor, filed his

emergency motion to modify the automatic stay, certifying that he had served

Pullen by email notifying her of his emergency motion. Based in part upon this

representation, the bankruptcy court lifted its stay and the foreclosure sale took

place. In its order, the bankruptcy court also directed Harris to file a motion within

48 hours to annul the automatic stay, stating that the limited relief granted by the

modification would be vacated unless Harris timely filed such motion. Harris did

not do so (he filed an untimely motion) and the bankruptcy court’s modification of

the stay expired by its own terms.

         Subsequently, the bankruptcy court held a hearing on these proceedings and

found as a matter of fact, conceded by Harris, that, contrary to his certification, he

did not email notice of his emergency motion to Pullen. The court stated that it

relied upon Harris’ representations to the contrary in granting ex parte the

                                             2
               Case: 12-14984     Date Filed: 07/29/2013   Page: 3 of 3


emergency motion. The court vacated its prior modification of the automatic stay

and denied Harris’ motion for emergency relief. It is this order that Harris

appealed to the district court.

      The district court denied Harris’ appeal, affirming the bankruptcy court’s

vacation of its order modifying the stay. The district court held that the bankruptcy

court did not abuse its discretion when it vacated its prior modification of the stay

that was granted upon a false or mistaken representation that Pullen had been

notified of the motion.

      We agree. Under these circumstances, the bankruptcy court was entitled to

vacate its prior modification of the stay. The bankruptcy court found as a matter of

fact that Pullen did not have adequate notice of the motion. The district court held

that this finding of fact is not clearly erroneous and we agree. Therefore, we shall

affirm the district court’s judgment affirming the vacation of the modification of

the stay.

      AFFIRMED.




                                          3
