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BAMC Development Holding, LLC v. Larry S. Hyman

Court of Appeals for the Eleventh Circuit

Sep 30, 2026

Judgment

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CaseIQ

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 25-11006

____________________

In Re: BAMC DEVELOPMENT HOLDING, LLC, Debtor.

___________________________________

BAMC DEVELOPMENT HOLDING, LLC,

ROBERT PRESCOTT,

1802 W PLATT ST LLC,

TAMPA HYDE PARK CAFE PROPERTIES, LLC,

Plaintiﬀs-Appellants,

versus

LARRY S. HYMAN,

Defendant-Appellee.

2 Opinion of the Court 25-11006 ____________________

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:23-cv-02939-MSS, Bkcy No. 8:22-bk-01487

____________________

Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.

P ER CURIAM:

This case started as a simple state court foreclosure action. More than a decade later, it's mushroomed into a complicated fed- eral appeal with four appellants raising over a dozen issues related to the sale of a property as part of BAMC Development Holding, LLC's bankruptcy. The appellants—BAMC, Tampa Hyde Park Cafe Properties, LLC, 1802 W Platt St LLC, and Robert Prescott— challenge the bankruptcy court's order approving a settlement of the foreclosure with BAMC's biggest creditor, the order approving the sale of the property and the order denying reconsideration of the sale, and the order modifying the terms of the sale. After care- ful review, and with the benefit of oral argument, we dismiss BAMC's appeal because it was not a person aggrieved by the bank- ruptcy court's orders. But we affirm as to everyone else.

I. FACTUAL BACKGROUND

A. The Property Chris Scott owned a property in Tampa, Florida. In 2002, he leased it to Hyde Park. As part of the lease agreement, Hyde Park had an exclusive option to purchase the property.

25-11006 Opinion of the Court 3 Scott mortgaged the property twice: first to First Nation- wide Mortgage Corporation in 2002, and a second time to Robert Prescott in 2012. After Scott defaulted on the first mortgage, First Nationwide filed a foreclosure action in Florida state court in 2013. B. The State Court Foreclosure Action

Years of litigation followed in the state court. During the litigation, First Nationwide transferred its first mortgage to MTGLQ Investors, L.P., while Scott transferred his interest in the property to BAMC.

In 2018, the state court entered a foreclosure judgment of $206,887.32 in favor of MTGLQ Investors, but reserved ruling on the amount of attorneys' fees. After several years of litigation de- lays, MTGLQ Investors assigned the first mortgage to Wilmington Savings Fund Society, FSB. Wilmington Savings asked the state court to rule on the motion for prejudgment attorneys' fees. The state court denied the motion because it was filed more than three years after the foreclosure judgment. Wilmington Savings ap- pealed the denial to the state appellate court.

In the meantime, the state court set a foreclosure sale for April 14, 2022. But the sale was not to be. On April 11—three days before the sale—Hyde Park exercised its option to purchase the property. BAMC and Hyde Park entered into an "Option Exercise and [Chapter] 11 Plan Sponsor Agreement," which required BAMC to file for chapter 11 bankruptcy and obtain an order authorizing

4 Opinion of the Court 25-11006 the sale of the property to Hyde Park free and clear of all encum- brances. Under the agreement, closing on the option was contin- gent on the confirmation of BAMC's chapter 11 plan. C. The BAMC Bankruptcy

In line with the agreement, BAMC filed for chapter 11 bank- ruptcy the day before the foreclosure sale, on April 13. Because the bankruptcy triggered an automatic stay of litigation against BAMC, see 11 U.S.C. § 362, the state court cancelled the sale. But the bankruptcy court found that BAMC was "at- tempt[ing] to game the system," and that its bankruptcy was "not [] legitimate." So, the bankruptcy court exercised its discretion to convert the BAMC bankruptcy to a chapter 7 proceeding. See 11 U.S.C. § 1112(b).

D. The Hyde Park Bankruptcy

The other party to the option agreement, Hyde Park, also ﬁled for bankruptcy protection under chapter 11. Like it did for the BAMC bankruptcy, the bankruptcy court converted Hyde Park's chapter 11 petition into a chapter 7 proceeding. The BAMC trustee moved for relief from the automatic stay in the Hyde Park bank- ruptcy to allow the BAMC trustee to dispose of Hyde Park's option to buy the property. The bankruptcy court granted the motion. As part of its bankruptcy, Hyde Park sold substantially all of its assets—including its option to buy the property—to Hyde Park Cafe, LLC. Hyde Park Cafe, LLC then transferred and assigned its rights and interests in the property to another entity, 1802

25-11006 Opinion of the Court 5 W Platt St LLC. Because of the transfers, we grant Hyde Park's request to substitute 1802 W Platt for the two other entities. See Fed. R. App. P. 43; Fed. R. Civ. P. 25. But, for ease of reference, we'll continue to refer to them together as Hyde Park.

II. PROCEDURAL HISTORY

With that setup, we'll focus the rest of our discussion on four orders from the BAMC bankruptcy: the bankruptcy court's order approving the settlement of Wilmington Savings's foreclosure judgment; the bankruptcy court's order approving the sale of the property and the order denying reconsideration of the sale; and the bankruptcy court's order modifying the terms of the sale. A. The Settlement Order

The BAMC trustee entered into a settlement agreement with Wilmington Savings and moved the bankruptcy court to ap- prove the settlement. In the motion, the BAMC trustee explained that Wilmington Savings's judgment in the foreclosure action had accrued significant interest and attorneys' fees since the BAMC bankruptcy began. The judgment ballooned to $391,454.14 and would continue to grow if the BAMC bankruptcy and foreclosure action dragged on. If that happened, Wilmington Savings's claim would eclipse the value of the property (which the BAMC trustee estimated at $400,000.00) and destroy any chance of recovery for BAMC's other creditors.

Under the settlement, the BAMC trustee would auction off the property free and clear of all liens, claims, and encumbrances—

6 Opinion of the Court 25-11006 including any interest held by BAMC, Hyde Park, or Prescott—un- der 11 U.S.C. section 363(f). Wilmington Savings would receive $327,267.37 in full satisfaction of the foreclosure judgment while the rest of the money from the sale, up to a maximum of $64,187.00, would be carved out to distribute to BAMC's unse- cured creditors. In exchange, Wilmington Savings would volun- tarily dismiss the foreclosure action upon approval of the settle- ment.

Prescott objected to the settlement (joined by BAMC and Hyde Park). First, he argued that the Rooker-Feldman doctrine barred the bankruptcy court from considering prejudgment attor- neys' fees in assessing the fairness of the settlement because the state court had already denied the fee request and any decision to the contrary would effectively be an appeal of the state court's rul- ing. Second, Prescott asserted that the settlement was not fair be- cause he was owed $276,343.86 (plus interest) as the second mort- gagee, and the settlement would likely leave him with no distribu- tion from the sale because the carve-out was capped at $64,187.00 and the unsecured creditors would receive a "guaranteed distribu- tion," "all of which rightfully belong[ed] to Prescott under his [s]econd [m]ortgage."

The bankruptcy court overruled the objections and ap- proved the settlement. Concluding that the Rooker-Feldman doc- trine did not apply, the bankruptcy court found that the settlement was fair, reasonable, and adequate because: (1) Wilmington Sav-

25-11006 Opinion of the Court 7 ings was likely to succeed in getting its attorneys' fees in the fore- closure action; (2) collection by other creditors would be impossi- ble if Wilmington Savings's claim exceeded the value of the bank- ruptcy estate; (3) continued litigation would add expense and de- lay; and (4) the settlement benefitted the creditors because it en- sured a distribution for the unsecured creditors (who would other- wise get nothing) while Prescott was "going to be a loser anyway or st[ood] very little to gain" in asserting a claim based on his sec- ond mortgage given that Wilmington Savings's claim had priority. B. The Sale Order and the Order Denying Reconsideration As part of the settlement, the BAMC trustee moved to sell the property at auction under section 363(f) free and clear of all liens, claims, and encumbrances. Hyde Park, BAMC, and Prescott objected to the sale.

First, Hyde Park argued that the property was not "property of the estate" under 11 U.S.C. section 541 because Hyde Park be- came the equitable owner of the property when it exercised the option before the BAMC bankruptcy. Second, BAMC objected that the proposed sale would result in a windfall for Wilmington Savings because the proceeds of the sale would be used to satisfy Wilmington Savings's $327,267.37 claim, which was greater than the $206,887.32 Wilmington Savings was entitled to under the fore- closure judgment. Wilmington Savings's claim, BAMC argued, in- cluded attorneys' fees and interest in the foreclosure action, but the state court had denied the request for prejudgment attorneys' fees. Although Wilmington Savings was appealing that ruling, BAMC

8 Opinion of the Court 25-11006 maintained that the state court would likely dismiss the appeal be- cause MTGLQ Investors was the nominal plaintiff in the case, which meant that Wilmington Savings was not the proper party. And third, Prescott—who submitted an unsigned objection pro se—also objected that the sale would give Wilmington Savings more than it was entitled to, leaving Prescott with potentially no distribution from the sale.

After a hearing, the bankruptcy court overruled the objec- tions and approved the sale of the property. Hyde Park, the bank- ruptcy court explained, did not have standing to object because its option was controlled by the trustee in the Hyde Park bankruptcy. Because the Hyde Park trustee did not join the objection, and Hyde Park didn't get relief from the automatic stay to object, it had no basis to object to the sale.

BAMC also didn't have standing to object to the sale, the bankruptcy court concluded, because only the BAMC trustee could object on behalf of the company. And the bankruptcy court did not consider Prescott's objection because it was not signed, as re- quired by Federal Rule of Bankruptcy Procedure 9011. Hyde Park, BAMC, and Prescott moved to reconsider, but the bankruptcy court denied the reconsideration motions because they either rehashed the parties' previous objections to the sale or brought new issues not raised in their original motions.

25-11006 Opinion of the Court 9 C. The Modification Order After the property was sold at auction, the BAMC trustee moved to modify the terms of the sale. He requested a modifica- tion to provide the successful bidder with relief as a good faith pur- chaser under section 363(m), to add the legal description of the property, to provide that the sale was free and clear of potential defects in prior deeds, and to authorize the BAMC trustee to exe- cute any deed from the sale. Without objection or a hearing, the bankruptcy court granted the motion, and modified the terms of the sale.

D. The District Court Appeal

BAMC, Prescott, and Hyde Park appealed the bankruptcy court's settlement order, the sale order, the order denying recon- sideration, and the modiﬁcation order. With full brieﬁng, the dis- trict court aﬃrmed.

III. STANDARD OF REVIEW

In a bankruptcy appeal, "we independently examine the bankruptcy court's factual and legal determinations, applying the same standards of review as the district court." In re Coady, 588 F.3d 1312, 1315 (11th Cir. 2009) (citing In re Sublett, 895 F.2d 1381, 1384 (11th Cir. 1990)). That means we review de novo jurisdic- tional issues and legal conclusions, and we review factual findings for clear error. See In re Stanford, 17 F.4th 116, 121 (11th Cir. 2021); Cavalieri v. Avior Airlines C.A., 25 F.4th 843, 848 (11th Cir. 2022). We

10 Opinion of the Court 25-11006 review for abuse of discretion an order denying a motion for recon- sideration, see Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338, 1342 (11th Cir. 2010), and the bankruptcy court's approval of a compro- mise or settlement, see In re Daughtrey, 896 F.3d 1255, 1273 (11th Cir. 2018) (citing Christo v. Padgett, 223 F.3d 1324, 1335 (11th Cir. 2000)). Of course, we "may affirm on any ground supported by the record, regardless of whether that ground was relied upon or even considered below." Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).

IV. DISCUSSION

We divide our discussion into four parts. First, we consider whether BAMC was allowed to appeal under the person aggrieved doctrine. Second, we review the bankruptcy court's order approv- ing the settlement of Wilmington Savings's foreclosure judgment. Third, we examine the bankruptcy court's sale order and its order denying reconsideration. And fourth, we discuss the bankruptcy court's modification of the terms of the sale. A. BAMC and the Person Aggrieved Doctrine

BAMC, as a chapter 7 debtor, cannot appeal the bankruptcy court's orders under the person aggrieved doctrine. "The person aggrieved doctrine limits the right to appeal a bankruptcy court or- der to those parties having a direct and substantial interest in the question being appealed," in other words, parties who are "'di- rectly, adversely, and pecuniarily aﬀect[ed]' by a bankruptcy court's order." See In re Ernie Haire Ford, Inc., 764 F.3d 1321, 1325 (11th Cir.

25-11006 Opinion of the Court 11 2014) (citation modiﬁed).¹"An order will directly, adversely, and pecuniarily aﬀect a person if that order diminishes their property, increases their burdens, or impairs their rights." Id. (quoting In re Westwood Cmty. Two Ass'n, 293 F.3d 1332, 1338 (11th Cir. 2002)).

"The advent of the chapter 7 estate . . . divest[s] the chapter 7 debtor of all right, title[,] and interest in nonexempt property of the estate at the commencement of the case," and "the debtor typically lacks any pecuniary interest in the chapter 7 trustee's disposition of that property." Spenlinhauer v. O'Donnell, 261 F.3d 113, 118 (1st Cir. 2001). "Thus, normally it is the trustee alone, as distinguished from the chapter 7 debtor," who can "appeal from bankruptcy court or- ders which confirm or reject sales of property of the estate." Id.; see also In re Richman, 104 F.3d 654, 657 (4th Cir. 1997) (noting that

"in a Chapter 7 proceeding, the trustee alone" can "raise issues be- fore the bankruptcy court" and "prosecute appeals" of bankruptcy court orders); In re Peoples, 764 F.3d 817, 820 (8th Cir. 2014) ("[D]ebtors, particularly chapter 7 debtors, rarely have a pecuniary interest because how the estate's assets are disbursed by the trustee has no pecuniary effect on the debtor." (quoting In re Nangle, 288 B.R. 213, 216 (B.A.P. 8th Cir. 2003))).

1 Although the person aggrieved doctrine is often described as a standing re- quirement, this is something of a misnomer because, unlike constitutional standing, the doctrine "does not speak to a court's subject-matter jurisdiction." In re Ernie Haire Ford, Inc., 764 F.3d at 1325 n.3. Rather, the person aggrieved doctrine "tells us which parties may appeal from a bankruptcy court order." Id.

12 Opinion of the Court 25-11006 But there are two exceptions to the normal rule. A chapter 7 debtor may be able to appeal a bankruptcy court's order if: (1) the appeal might result in a surplus distribution back to the debtor; or

(2) the appeal implicates the debtor's discharge at the end of the case. See In re Neira, 14 F.4th 60, 66 (1st Cir. 2021); In re Peoples, 764 F.3d at 820; see also 1 Collier on Bankruptcy ¶ 5.07 (16th ed. 2026) ("[D]ebtors in chapter 7 cases only infrequently have standing to appeal an order of the bankruptcy court. The exceptions are in cases in which an appeal might result in a distribution to the debtor or if the debtor's discharge would be affected."). Neither exception applies here.

BAMC did not demonstrate that there was a chance of a sur- plus distribution. In fact, the reason the parties were fighting over the settlement was because there wasn't enough money to go around for all of the creditors. Although there was a carve-out, that money was put aside for the unsecured creditors. So, there was no possibility of a surplus distribution to BAMC, and no indication that any of the bankruptcy court's orders implicated the discharge. At oral argument, BAMC conceded that, as a chapter 7 debtor, it was not a person aggrieved and could not appeal from the bankruptcy court's orders. We accept its concession and dis- miss BAMC's appeal. See In re Bay Circle Props., LLC, 955 F.3d 874, 879-80 (11th Cir. 2020) (dismissing bankruptcy appeal where appel- lant was not a person aggrieved).

25-11006 Opinion of the Court 13 B. The Settlement Order The remaining appellants, Prescott and Hyde Park, chal- lenge the bankruptcy court's order approving the settlement of Wilmington Savings's foreclosure judgment. They raise two is- sues: first, the settlement violated the Rooker-Feldman doctrine; and second, the settlement was not fair, reasonable, and adequate.

1. The Rooker-Feldman Doctrine Prescott and Hyde Park argue that the Rooker-Feldman doc- trine barred the bankruptcy court from considering prejudgment attorneys' fees in assessing the fairness of the settlement. The state court, they contend, had already entered final judgment and denied the fee request, so any review would be a challenge to the state court's ruling.

The Rooker-Feldman doctrine is a "narrow jurisdictional doc- trine" that prohibits a party who loses in state court from "ap- peal[ing] that loss in a federal district court." Behr v. Campbell, 8 F.4th 1206, 1208 (11th Cir. 2021). Importantly, though, "district courts do not lose subject matter jurisdiction over a claim 'simply because a party attempts to litigate in federal court a matter previ- ously litigated in state court.'" Id. at 1210 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292-93 (2005)). In- stead, the doctrine is "confined to cases of the kind from which [it] acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the dis- trict court proceedings commenced and inviting district court re- view and rejection of those judgments." T. M. v. Univ. of Md. Med.

14 Opinion of the Court 25-11006 Sys. Corp., 146 S. Ct. 1739, 1748 (2026) (quoting Exxon Mobil Corp.,

544 U.S. at 284). The Rooker-Feldman doctrine does not apply here because Wilmington Savings did not seek to review and reject a state court judgment. Wilmington Savings sought to settle its foreclosure judgment against BAMC. In approving the settlement, the bank- ruptcy court had to determine the likelihood that Wilmington Sav- ings would be successful on its claim of attorneys' fees in the state court. See In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir. 1990). In doing so, the bankruptcy court "never had to decide the merits of those claims—only the probability of succeeding on those claims." Id. The bankruptcy court's approval of the settlement was not a "review and rejection of" the state court's ruling—only a pre- diction of how it would come out. See T. M., 146 S. Ct. at 1748 (quoting Exxon Mobil Corp., 544 U.S. at 284). So, the Rooker-Feld- man doctrine did not block the bankruptcy court from reviewing the settlement.

2. The Settlement's Fairness, Reasonableness, and Adequacy Prescott and Hyde Park also assert that the settlement was not fair, reasonable, and adequate. We apply four factors to deter- mine "the fairness, reasonableness[,] and adequacy of a proposed settlement agreement" in a bankruptcy case. In re Chira, 567 F.3d 1307, 1312-13 (11th Cir. 2009) (quoting In re A & C Props., 784 F.2d 1377, 1381 (9th Cir. 1986)). They are: (1) "[t]he probability of suc- cess in the litigation"; (2) "the difficulties, if any, to be encountered

25-11006 Opinion of the Court 15 in the matter of collection"; (3) "the complexity of the litigation in- volved, and the expense, inconvenience[,] and delay necessarily at- tending it"; and (4) "the paramount interest of the creditors and a proper deference to their reasonable views in the premises." In re Justice Oaks II, Ltd., 898 F.2d at 1549 (citation modified). Applying the factors, the bankruptcy court did not abuse its discretion in finding that the settlement was fair, reasonable, and adequate. As to the first factor, Wilmington Savings was likely to prevail in the state court foreclosure action on the fee issue. Hyde Park and Prescott argued that the state appeal would likely be dis- missed because MTGLQ Investors—the named plaintiff—was the proper party. But, as the bankruptcy court explained, this was a correctable procedural issue, not a bar to recovery. Florida Rule of Civil Procedure 1.260 provides that, "[i]n case of any transfer of in- terest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the in- terest is transferred to be substituted in the action or joined with the original party." Fla. R. Civ. P. 1.260(c). So, there was no im- pediment to substituting Wilmington Savings for MTGLQ Inves- tors as the proper party.

As to the second factor, the difficulty of collection weighed in favor of the settlement because, absent the settlement, the unse- cured creditors "would not get a dime" and "there would be noth- ing to collect." Third, the complexity, expense, inconvenience, and delay of the litigation weighed in favor of approving the settlement. While, as the bankruptcy court acknowledged, the issues involved

16 Opinion of the Court 25-11006 were not "unduly complex," there would inevitably be delay while waiting for the state appeal and this delay would necessarily impose additional expense, both in the continued accrual of post-judgment interest, and in attorneys' fees in the foreclosure action and the bankruptcy case.

Finally, settlement was in the best interest of BAMC's credi- tors because Wilmington Savings's unsettled claim would likely ex- ceed the value of the estate, leaving other creditors with no recov- ery. The settlement preserved a carve-out, which would then be paid out to unsecured creditors whose claims would otherwise be extinguished. Although it was possible that Prescott would not re- ceive any distribution, the bankruptcy court noted that Prescott was "going to be a loser anyway or st[ood] very little to gain" be- cause he was either going to hold a junior lien or be an unsecured creditor, and his interest would likely be swallowed by Wilmington Savings's senior lien. The bankruptcy court reasonably determined that the settlement satisﬁed Wilmington Savings's interest stem- ming from its ﬁrst mortgage and provided the unsecured creditors with a distribution that would not have been possible absent the compromise. We see no abuse of discretion in blessing this ar- rangement.

C. The Sale Order

Prescott and Hyde Park next argue that the bankruptcy court erred in overruling their objections to the sale of the property at auction and in denying their motions for reconsideration. But there was no error.

25-11006 Opinion of the Court 17 First, the bankruptcy court properly rejected Prescott's pro se objection. Rule 9011 requires that "[a] party not represented by an attorney must sign all documents" submitted to the bank- ruptcy court. Fed. R. Bankr. P. 9011(a). A bankruptcy court "must strike an unsigned document unless the omission is promptly cor- rected after being called to the attorney's or party's attention." Id. That's exactly what the bankruptcy court did here. It struck Pres- cott's objection because it was unsigned. Prescott does not contest this ruling on appeal.

Second, the bankruptcy court also properly rejected Hyde Park's objection. Hyde Park was in the midst of its own bank- ruptcy proceeding when it filed the objection. As the bankruptcy court explained, that meant only the trustee in the Hyde Park bank- ruptcy could represent the interests of the company. Hyde Park then shifted gears and argued that it represented the company's equity holders. But Hyde Park's equity holders also had no right to object. Under the automatic stay provision, the Hyde Park bankruptcy "operate[d] as a stay, applicable to all enti- ties, of . . . any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." 11 U.S.C. § 362(a)(3). Because Hyde Park's equity holders did not seek or obtain relief from the automatic stay, they could not object to a sale that would have disposed of the option. Cf. id. § 362(d) (providing that, "[o]n request of a party in interest and after notice and a hearing," a bankruptcy court "shall grant re- lief from the stay" in specified circumstances).

18 Opinion of the Court 25-11006 Third, the bankruptcy court did not err in denying Prescott's and Hyde Park's motions for reconsideration. Prescott and Hyde Park moved for reconsideration under Rule 9023, which incorpo- rates the standard for a motion for a new trial or to alter or amend a judgment under Federal Rule of Civil Procedure 59. See Fed. R. Bankr. P. 9023; Fed. R. Civ. P. 59.

"The only grounds for granting a Rule 59 motion are newly- discovered evidence or manifest errors of law or fact." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (citation modified). "A motion for reconsideration" under Rule 59 "cannot be used to 're- litigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment. This prohibition includes new arguments that were previously available, but not pressed.'" Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir. 2005)).

As the bankruptcy court explained, Prescott's and Hyde Park's motions for reconsideration did not point to any newly dis- covered evidence and did not identify any errors of law or fact in the bankruptcy court's reasoning. The motions either rehashed is- sues brought in their objections or raised new issues that should have been brought the first time. So, the bankruptcy court did not abuse its discretion in denying them.

D. The Modification Order

Finally, Hyde Park argues that the bankruptcy court erred in modifying the terms of the sale without holding a hearing. Section

25-11006 Opinion of the Court 19 363(b), it contends, required the bankruptcy court to hold a hearing before approving a sale outside the ordinary course of business. A bankruptcy trustee may sell estate property outside the ordinary course of business "after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances." 11 U.S.C. §§ 102(1)(A), 363(b). But section 363(b) "authorizes an act without an actual hearing if such notice is given properly and if—(i) such a hearing is not requested timely by a party in interest; or (ii) there is insuﬃcient time for a hearing to be commenced before such act must be done, and the court authorizes such act." Id. §§ 102(1)(B), 363(b). Here, Hyde Park does not dispute that it received proper notice of the motion, and it did not request a hearing. So, the bank- ruptcy court did not violate section 363(b) by failing to hold one. Even if section 363(b) didn't require a hearing, Hyde Park asserts that Rules 6004(c) and 9014 required the bankruptcy court to hold a hearing before entering the modiﬁcation order. Rule 6004(c) provides that "[a] motion for authority to sell property free and clear of liens or other interests must be made in accordance with Rule 9014," which in turn requires that "[r]easonable notice and an opportunity to be heard must be given to the party against whom relief is sought." Fed. R. Bankr. P. 6004(c), 9014. But the BAMC trustee's modiﬁcation motion did not seek authority to sell the property. The bankruptcy court already granted the authority to sell the property in the sale order and the BAMC trustee had

20 Opinion of the Court 25-11006 already sold the property (after a hearing) before the modiﬁcation request. All the modiﬁcation motion sought was to:

modify the terms of the Sale Order to provide that

(i) the successful bidder shall be provided with relief pursuant to 11 U.S.C. [section] 363(m); (ii) add the le- gal description of the Property to paragraph 6 of the Sale Order; (iii) amend paragraph 6 of the Sale Order to provide that the sale is free and clear of potential defects in prior deeds; and (iv) provide that the Trus- tee is authorized to execute any deed relative to the sale.

None of this was a new request to sell the property. So, the modi- ﬁcation motion did not trigger the right to a hearing under Bank- ruptcy Rules 6004(c) or 9014.

V. CONCLUSION

For these reasons, we dismiss BAMC's appeal. And we af- ﬁrm the bankruptcy court's orders in all other respects.

DISMISSED IN PART and AFFIRMED IN PART.

25-11006 TJOFLAT, J., Concurring 1 T JOFLAT, Circuit Judge, Concurring:

I write separately to underscore that BAMC initiated this Chapter 11 case to collaterally attack the judgment the Hills- borough County Circuit Court entered against it in the state court foreclosure action, which the Second District Court of Appeals (DCA) affirmed. Scott v. MTGLQ Invs., L. P., 263 So. 3d 10 (Fla. Dist. Ct. App. 2019). While Hyde Park and Prescott filed claims in BAMC's bankruptcy estate, they failed to intervene in the foreclo- sure action and submit their claims to the Circuit Court. They therefore abandoned their claims.¹

Bankruptcy Judge Catherine Peek McEwen recognized what BAMC, Hyde Park, and Prescott were doing and deemed their efforts an "abuse of [the bankruptcy] process," and "one of the worst cases of abuse [she had] ever encountered." Judge McEwen rejected Hyde Park's and Prescott's claims and BAMC's collateral attack. In this appeal, we affirm Judge McEwen's decision.

1 The State Court docket in the foreclosure action reflects that Robert Prescott received in-hand service of the "Summons and Complaint and Notice of Lis Pendens" at his home in Arlington, MA on July 22, 2013. Summons Returned Served, Fed. Nat'l Mortg. Ass'n v. Scott, Case No. 13-CA-9150 (Fla. 13th Cir. Ct. August 29, 2013). The docket also reflects individual service of "unknown ten- ant #1" at the property's physical address on August 5, 2013. Id. The clerk's docket for No. 13-CA-9150 is online at https://hover.hillsclerk.com/. I take judicial notice of the docket entries in the mortgage foreclosure case and of the documents the entries identify.

2 TJOFLAT, J., Concurring 25-11006

I. BAMC'S REPEATED ATTACKS ON STATE COURT JUDGMENTS At bottom, Judge McEwen, a highly respected bankruptcy judge of 21 years' experience, correctly identified BAMC's filing as

"an abuse of the bankruptcy process for pure speculation and in- vestment value upside to equity." This is not the first time Judge McEwen has dismissed a Chapter 11 case BAMC initiated for the purpose of mounting a collateral attack on a state court foreclosure judgment.

Consider Judge McEwen's statements in dismissing BAMC's 2016 bankruptcy case, which also involved a last-second Chapter 11 filing after the entry of a state court foreclosure judgment:

THE COURT: You're basically saying there's inade- quate justice in the State Court and, for that reason, I should keep this case here. . . . You are asking me to make a ruling based on the quality of judicial labor in the State Court, and I refuse to do that. . . . [The ar- gument is] one that I reject, it's oﬀensive to me, it's forum shopping—it's blatant forum shopping—and

it's an end run on the regular procedures and pro- cesses that they have in the State Court system to ac- cord due process when people . . . perceive that a wrong has been done.²

2 Transcript, In re BAMC Development Holding LLC, Case No. 8:16-bk-05643- CPM (Bankr. M.D. Fla. Dec. 7, 2016). I take judicial notice of the docket entries in this previous bankruptcy case and of the documents the entries identify in this footnote and in succeeding footnotes.

25-11006 TJOFLAT, J., Concurring 3 Judge McEwen reiterated her collateral attack concerns in a later hearing in the 2016 case:

THE COURT: [W]hat you're doing is, your frustra- tion at losing some issues before the State Court re- ally came out here but it's not really things that relate to here. Because you can't forum shop. What really came out was: The tenor of your arguments were that you were forum shopping; that you had to ﬁle bankruptcy in order to correct a State Court issue.³ So too here. After the state court entered a foreclosure judgment, BAMC attempted to relitigate the issues decided by the state court by filing a Chapter 11 case in attempting to direct the foreclosed property to an affiliated entity through the exercise of an option. BAMC's 2018 bankruptcy filing was also dismissed for abuse of process. In that case, which involved a different creditor, Judge McEwen reprimanded BAMC for purchasing the property at inter- est in the instant case without first seeking approval from BAMC's trustee: "It is an abuse of process [for BAMC] to buy a stay."⁴ In 2022, the hearings in BAMC's latest filing, now before us on appeal, sound like a broken record:

THE COURT: This is a strategic ﬁling. It's improper. You don't have a carve-out. Your original game plan

3 Transcript, In re BAMC Development Holding LLC, Case No. 8:16-bk-05643 - CPM (Bankr. M.D. Fla. Jan. 4, 2017).

4 Transcript, In re BAMC Development Holding LLC, Case No. 8:18-bk-0664 3- CPM (Bankr. M.D. Fla. Aug. 9, 2016)

4 TJOFLAT, J., Concurring 25-11006 was to string the creditor out for 24 months to let Mr. Ortiz⁵do an assemblage that would beneﬁt himself. I lay out the history of BAMC's repeated collateral attacks to underscore that BAMC's behavior undermines the integrity of the bankruptcy system. As the Trustee stated in the instant case:

"This is just kind of an egregious setup. And it appears to be a text- book example of abuse of the bankruptcy process for the beneﬁt of a principal and to the detriment of a creditor." Judge McEwen later echoed the Trustee's statement:

THE COURT: This is one of the worst cases I've ever seen when I juxtapose it by the number of times

we've had hearings where I've clearly telegraphed what was necessary. You're not going to ride a specu- lative investment opportunity for equity on the back of an involuntary lender, involuntary in the sense that they never agreed to do business with BAMC. They

didn't agree to be strung out over time by BAMC.

That said, a quick discussion of claim preclusion will eluci- date my concerns with BAMC's repeated attempts to attack state court foreclosure judgments through strategically initiated Chap- ter 11 cases.

5 Thomas Ortiz is the Managing Member of BAMC. He is also the Managing Member of THPC. Voluntary Petition, In re Tampa Hyde Park Cafe LLC, 8:16- bk-04868-CPM (Bankr. M.D. Fla. June 6, 2016).

25-11006 TJOFLAT, J., Concurring 5

II. ISSUE PRECLUSION

Federal courts, pursuant to the Full Faith and Credit Act, 28 U.S.C. § 1738, must apply state court judgments so long as the state court afforded due process to the parties.

The preclusive effect of a judgment is defined by claim pre- clusion and issue preclusion, which are collectively referred to as

"res judicata." Taylor v. Sturgell, 553 U.S. 880, 892, 128 S. Ct. 2161, 2171 (2008). Issue preclusion forecloses litigation of matters that have been litigated and decided. Res judicata, Black's Law Dictionary 1425 (9th ed. 2009). Claim preclusion forecloses litigation of mat- ters that have never been litigated because they should have been advanced in an earlier suit. Id.

Both issue preclusion and claim preclusion operate across a two-lawsuit continuum. Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). First, parties litigate a dispute to a final judg- ment on the merits. Second, in a later, separate suit between the parties, one party brings evidence of an earlier judgment and con- tends that issue or claim preclusion should apply to prevent her op- ponent from litigating a previously decided issue or cause of action. In this two-lawsuit scheme, the first court is the "rendering" court and the second is the "recognizing" court. As I have previously ex- plained:

When a rendering court decides an issue and a recog- nizing court later accords that issue preclusive eﬀect, two consequences result: First, the precluded party is gagged from litigating that issue. Second, the parties

6 TJOFLAT, J., Concurring 25-11006 are bound to the rendering court's decision with re- spect to that issue. A litigant is therefore susceptible to being denied her due process right of having an op- portunity to be heard on each issue of her case, unless the recognizing court, before giving preclusive eﬀect to an issue determination, ﬁrst identiﬁes with speci- ﬁcity what the rendering court allegedly decided and determines it was, indeed, actually decided. Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1216 (11th Cir. 2017) (Tjoflat, J., dissenting) (internal citations omitted). In decid- ing whether claim preclusion or issue preclusion is applicable, the first question is whether the rendering court's judgment is entitled to full faith and credit. If it is, the question becomes whether the issues or claims presented to the recognizing court—the Bank- ruptcy Court here—was decided by the rendering court. Thus, in order to protect the parties' due process rights, the Bankruptcy Court properly held adversarial hearings to determine what the State Court foreclosure judgment actually decided before giving preclusive effect to the State Court's judgment.

The Hillsborough County Circuit Court, as a court of gen- eral jurisdiction, had the power to entertain and decide an in rem foreclosure action. The State Court obtained jurisdiction to decide claims to the property held by Hyde Park and Prescott because those parties were "properly served in the foreclosure lawsuit," and its final judgment precluded Hyde Park and Prescott from thereaf- ter "seek[ing] to set aside, invalidate or challenge the validity of a final judgment of foreclosure . . . or to establish or reestablish a lien

25-11006 TJOFLAT, J., Concurring 7 or encumbrance on the property in abrogation of the final judg- ment of foreclosure." Fla. Stat. § 702.036.

Here, Wilmington held a foreclosure judgment in its favor. Wilmington's judgment against the BAMC estate's property made Wilmington a "party in interest" to BAMC's bankruptcy. 11 U.S.C. §§ 362(a), 362(d). Wilmington filed a motion to dismiss BAMC's Chapter 11 case as a bad faith filing, or, alternatively, to lift the au- tomatic stay. Id. § 362(d). Opposing Wilmington's motion, BAMC argued its Chapter 11 petition "was not filed in bad faith" and stated it would "propose to pay the Bank in full on the Bank's judgment"

and would "propose to pay a significant dividend to unsecured creditors and some junior secured creditors (in order of priority)."

That was not so. As detailed above, the Court would later find BAMC's Chapter 11 petition was "a strategic filing" and "one of the worst cases [it had] ever seen."

In essence, the bankruptcy court properly concluded that BAMC's filing was nothing more than an attempt to avoid a final state court judgment. Thus, BAMC's attack on the state court's judgment through adversarial hearings is precluded. Under both Florida and Federal law, claim preclusion carries four elements: (1) "a final judgment on the merits"; (2) a "deci- sion . . . rendered by a court of competent jurisdiction"; (3) "the same cause of action . . . involved in both cases"; and (4) "the par- ties, or those in privity with them, are identical in both suits."

Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1246 (11th Cir. 2014).

8 TJOFLAT, J., Concurring 25-11006 Claim preclusion bars litigation both as to issues that were and were not litigated in a prior case. Juliano, 801 So. 2d at 105. In the context of claim preclusion, Judge McEwen's decision to convert BAMC's case to a Chapter 7 liquidation follows as a mat- ter of course. The state court foreclosure judgment was valid, final, and reached the merits. Because Wilmington could litigate the foreclosure in state court without substituting MTGLQ as the plaintiff, those parties are in privity. Fla. Stat. § 1.210(a). Similarly, because Wilmington could litigate the foreclosure action without substituting BAMC for Scott, those parties are in privity. Id. Pres- cott, while not technically a party to the state foreclosure suit, had a full and fair opportunity to be heard in the state court action based on his status as a junior lienholder. The Bankruptcy Court properly noted the Hyde Park entities, before us on appeal, represented nothing more than an attempt to "string this creditor out for 24 months to let Mr. Ortiz do an assemblage that would benefit him- self." Thus, properly squeezed down, the claims of the Appellants here are nothing but a rehashing of the claims available to BAMC in the original state court action.⁶

6 The Bankruptcy Court properly identified this concern at the May 10, 2022, hearing following BAMC's third Chapter 11 filing: [This case] is being run for Mr. Ortiz's beneﬁt to salvage the property he took an option on. . . . [W]hat's the point of the bankruptcy, Mr. Williamson? [Mr. Ortiz] can exercise the price and buy it and pay it oﬀ at his own leisure, if he can beat fore- closure. I don't understand the bankruptcy utility of this case.

25-11006 TJOFLAT, J., Concurring 9 Bound by the state court judgment, the Appellants were pre- cluded from attempting to secure a diﬀerent outcome in bank- ruptcy. Thus, the Bankruptcy Court did not err in eﬀectuating the sale of the property pursuant to the settlement reached by Wil- mington and the Trustee. In doing so, the Court properly observed the principles of full faith and credit, which, as codiﬁed at 28 U.S.C. §1738, require federal courts to "give the same preclusive eﬀect to a state-court judgment as another court of that state would give."

See U.S. Const. art. IV, § 1.

* * *

Finally, I commend Judge McEwen for her diligence in han- dling this case and in sanctioning attorney William Barton Meachem for his inappropriate conduct.