UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: MISTY MOUNTAIN VINEYARDS,

INCORPORATED,

Debtor.

MARIE L. CERCE, No. 96-1942

Plaintiff-Appellant,

v.

SECOND BANK & TRUST,

Defendant-Appellee.

In Re: MISTY MOUNTAIN VINEYARDS,

INCORPORATED,

Debtor.

MARIE L. CERCE, No. 96-1969

Plaintiff-Appellee,

v.

SECOND BANK & TRUST,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CA-95-64-3-C, BK-93-01178-WA3-7)

Submitted: February 10, 1998

Decided: August 4, 1998
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

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No. 96-1942 affirmed and No. 96-1969 dismissed by unpublished per

curiam opinion.

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COUNSEL

Marie L. Cerce, Appellant Pro Se. Neal Lawrence Walters, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Marie Cerce appeals the district court's order upholding

the bankruptcy court's denial of her motion for a refund. After

reviewing the record, we find no reversible error. We therefore affirm

the order of the district court.

On May 6, 1995, Cerce successfully bid at a foreclosure sale on the

principal asset of Misty Mountain Vineyards, Inc. The Appellee, Second Bank & Trust (the bank) held the deed of trust on the property.

According to the published terms of the auction, Cerce paid a ten percent deposit of $53,500 and the remainder of Cerce's $535,000 bid

was due at closing on May 26, 1995. Unfortunately, Cerce failed to

close on May 26, and the bankruptcy trustee declared her bid in

default after granting her a two-week extension to obtain financing.

The trustee scheduled another auction for July 17, 1995. Cerce

objected to the subsequent auction, and the bankruptcy court held a

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hearing on Cerce's motion to have the bank cancel the auction and

close the sale according to the terms of the May 6, 1995 auction.

Cerce acknowledged that she was unable to immediately close with

the bank, but asserted that she would obtain financing for settlement

by July 19. The bank objected to canceling the auction because

Cerce's failure to close had forced the bank to incur additional advertising, legal, and interest expenses. However, the bank offered to

assign its rights in the property to Cerce if it were the high bidder at

the July 17, 1995, auction, and if Cerce tendered the necessary funds.

Cerce accepted the proposal. The bank was the high bidder at the July

17 auction with a bid of $509,477.75. As agreed, the bank assigned

its rights in the property to Cerce, and Cerce closed on the sale with

the trustee on July 20, 1995. Seven days later, Cerce moved in the

bankruptcy court to have her $53,500 deposit from the May 6 auction

returned to her. The bank contended that no refund was due because

its bid of $509,477.75 reflected the principal and interest then owing,

all properly recoverable expenses, and delinquent taxes required to be

paid prior to sale, less a credit for the $53,500. The bankruptcy court

denied Cerce's motion because Cerce had agreed that terms of the

July 17 auction apply to the sale, and therefore Cerce was not entitled

to a refund. Accordingly, the bankruptcy court denied Cerce's motion.

Cerce appealed the bankruptcy court's order to the district court

asserting that she was entitled to a refund because she should not be

liable for advertising expenses, legal fees, taxes, and interest that had

accrued since May 26. Thus, Cerce sought a refund of $27,947.75.

Finding that the bankruptcy court did not err by finding the additional

expenses properly charged to Cerce, the district court affirmed the

bankruptcy court's decision that Cerce was not entitled to a refund.

This court evaluates an appeal of a bankruptcy matter from the district court directly, without being bound by the district court's

determinations.1 When the bankruptcy court's account of the evidence

is plausible in light of the record viewed in its entirety, this court may

not reverse the decision to deny Cerce's motion for refund even

though convinced that, had this court been sitting as the trier of fact,

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1 See In re Weiss, 111 F.3d 1159 (4th Cir. 1997), cert. denied, ___ U.S.

___, 66 U.S.L.W. 3316 (U.S. Nov. 3, 1997) (No. 97-366); In re

Charfoos, 979 F.2d 390 (6th Cir. 1990).

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it would have weighed the evidence differently. Where there are two

permissible views of the evidence, the factfinder's choice between

them cannot be clearly erroneous.2 Additionally, this court reviews

the bankruptcy court's conclusions of law de novo. 3

Applying this standard of review to the bankruptcy court's decision, we find the bankruptcy court did not err by finding that Cerce

was not entitled to a refund of monies. The bank offered to assign its

rights in the property if it was the high bidder at the auction, and

Cerce had the financing. Cerce accepted the proposal; thus, according

to the bankruptcy court, agreeing that the terms of the July 17 auction

would apply. This is a plausible interpretation because if the bank was

not the high bidder, there would have been nothing to assign to Cerce.

Additionally, there was no need to conduct the July 17 auction if the

parties had merely intended to continue the terms of the May 6 auction. Therefore, the bankruptcy court did not err by denying Cerce's

motion for refund.

Finally, it is unnecessary to act upon the bank's cross-appeal;

therefore we dismiss appeal No. 96-1969.4 Accordingly, we dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

No. 96-1942 -- AFFIRMED

No. 96-1969 -- DISMISSED

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2 See Anderson v. Bessemer City , 470 U.S. 564, 573-74 (1985).

3 See In re Bryson Properties, 961 F.2d 496, 499 (4th Cir. 1992).

4 See In re Weisman, 5 F.3d 417, 419 (9th Cir. 1993).

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