Bankruptcy filers with two recent dismissed cases cannot get an automatic stay.

Record source: CourtListener

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA In re: Jacqueline Elizabeth Ard and ) Terry Frank Nicola, ) ) Debtors, ) ________________________________) Civil Action No. 9:25-cv-4500-BHH ) Jacqueline Elizabeth Ard, Terry Frank ) Nicola, ) ORDER ) Appellants, ) ) v. ) ) John B. Kelchner, Lucas S. Fautua, ) Julie Franklin, Benjamin E. Grimsley, ) James Wyman, ) ) Appellees. ) ________________________________) This matter is before the Court on Appellants’ pro se appeal from the United States Bankruptcy Court for the District of South Carolina (“Bankruptcy Court”), docket number 25- 1384-JD. For the reasons set forth below, the Court dismisses this appeal and denies Appellants’ various motions. BACKGROUND On April 10, 2025, Appellants Jacqueline E. Ard (“Ard”) and Terry Frank Nicola (“Nicola”) (collectively, “Appellants”), appearing pro se, filed a Chapter 13 voluntary petition in the United States Bankruptcy Court for the District of South Carolina’s (“Bankruptcy Court”). See Bankr. No. 2:25-bk-1384-JD. On April 18, 2025, Appellants filed a motion to impose automatic stay in the Bankruptcy Court. See id. at Doc. No. 15. The Bankruptcy Court held a hearing on the matter on May 21, 2025, and ultimately denied the motion in an order filed on May 23, 2025. See id. at Doc. Nos. 55, 57. Appellants filed a notice of appeal in the Bankruptcy Court, and the Bankruptcy Court transferred the matter to this Court. See id. at Doc. Nos. 59, 65. (See also ECF Nos. 1, 1-1, 1-2.) Appellants paid the appellate filing fee on June 3, 2025, and filed an amended notice of appeal, signed by both parties, on June 25, 2025. (See ECF Nos. 3, 6.) Appellants’ designation of items to be included in the record on appeal and their statement of issues to be presented were ultimately transmitted to this Court on October 1, 2025. In accordance with 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e), D.S.C., the matter was referred to a United States Magistrate Judge for preliminary review. On February 27, 2026, Appellants filed a “motion for leave to participate in electronic case filing (ECF) as pro se appellants,” which the Magistrate Judge denied in an order filed on March 27, 2026. (ECF Nos. 13, 22.) Appellants also filed an “emergency motion for stay pending appeal, injunctive relief, and order compelling advancement of appeal” and a supplement to that filing. (ECF Nos. 15, 16.) On March 13, 2026, Appellants filed an “emergency notice of post-hearing developments and destruction of estate property,” and on March 19, 2026, Appellants filed an “emergency consolidated motion for temporary preservation order, to enjoin creditor interference, to consolidate control of estate assets, and notice of parallel enforcement actions affecting estate property.” (ECF Nos. 17, 19.) On March 27, 2026, the Magistrate Judge issued a Report and Recommendation (“Report”), outlining the issues and recommending that the Court dismiss this appeal and deny Appellants’ pending motions. (ECF No. 24.) Appellants filed objections to the Magistrate Judge’s Report on March 30, 2026, as well as an appeal of the Magistrate Judge’s order denying their motion for leave to 2 participate in electronic case filing. (ECF Nos. 26, 27.) Also, on April 9, 2026, Appellants filed a notice of imminent mootness and request for immediate ruling by April 10, 2026. (ECF No. 29.) STANDARD OF REVIEW The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report to which a specific objection is made, and this Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). This Court also may “receive further evidence or recommit the matter to the magistrate with instructions.” Id. In the absence of specific objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Additionally, in reviewing this matter, the Court is mindful of Appellants’ pro se status, as the Court is charged with liberally construing the pleadings of a pro se litigant. See, e.g., Erikson v. Pardus, 551 U.S. 89 (2007); De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of liberal construction does not mean, however, that the Court can ignore a clear failure in the pleadings to allege facts that set forth a cognizable 3 claim in this Court. See Well v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir.1990) (“The special judicial solicitude with which a district court should view pro se complaints does not transform the court into an advocate.”). DISCUSSION I. The Magistrate Judge’s Findings In her Report, the Magistrate Judge first carefully set forth the relevant procedural background, not only as to the bankruptcy case underlying this appeal but also as to Appellants’ prior bankruptcy actions (and Appellants do not object to this portion of the Report). (See ECF No. 24 at 1-5.) Then, the Magistrate Judge summarized the Bankruptcy Court’s findings in its order currently on appeal, i.e., the Bankruptcy Court’s order denying Appellant’s motion to impose automatic stay. (Id. at 6. (summarizing Doc. No. 57 in Bankr. No. 2:25-bk-1384-JD).) As the Magistrate Judge explained, the Bankruptcy Court found that an automatic stay was not warranted because Appellants had two prior bankruptcy cases dismissed within the previous twelve months of filing their April 2025 bankruptcy petition. (Id.) As the Magistrate Judge further explained, the Bankruptcy Court cited 11 U.S.C. §§ 362(c)(4)(A)(i) and 362(c)(4)(D)(i)(I) in finding that Bankr. No. 2:25-bk-1384-JD was not file

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