Vizvary v. Greater ( 1993 )

USCA1 Opinion

          January 11, 1993      [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________


          No. 92-1795

            


                                  SHERYL L. VIZVARY,

                                Plaintiff, Appellant,

                                          v.

                   GREATER PROVIDENCE DEPOSIT CORPORATION, ET AL.,

                                Defendants, Appellees.


                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________
                                           

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

               Sheryl L. Vizvary on brief pro se.
               _________________
               Patricia K. Rocha and  Adler Pollack & Sheehan on  brief for
               _________________      _______________________
          appellees.



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                    Per Curiam.  Cheryl L. Vizvary appeals a district court
                    Per Curiam.
                    __________

          order denying her request for recusal of the  district judge.  We

          dismiss the appeal as moot.

                    Appellant filed a pro se complaint in the United States

          District  Court for the District  of Rhode Island  in July, 1990,

          requesting  a judicial  declaration that  certain  loan documents

          executed by her, her husband, and the appellee bank were null and

          void.   The  complaint  also demanded  damages  and alleged  that

          appellees'  efforts  to recover  their  mortgage  loan and  other

          amounts due violated appellant's civil and constitutional rights.

          Appellees   moved  to   dismiss  for   lack  of   subject  matter

          jurisdiction and failure to state a claim upon which relief could

          be granted.

                    On  October 5, 1990,  appellant filed  a motion  for an

          order permanently  restraining appellees from foreclosing  on her

          residence,  which was  denied on  October 18,  1990.   During the

          latter  part of  1990, appellant  filed a  voluntary petition  in

          bankruptcy.1   Thereafter, she commenced  an adversary proceeding

          in the bankruptcy court, objecting to the proof of claim filed by

          the appellee  bank  and  challenging  its mortgage  lien  on  her

          residence.

                    On April 29,  1992, the  bankruptcy judge  conducted an

          evidentiary hearing at which  appellant testified, and on May 28,

                              
          ____________________

               1The record  on appeal  does not reveal  whether appellant's
          bankruptcy petition was filed before or after October 18, 1990.

                                          2














          1992,  the  bankruptcy  court  entered its  order  upholding  the

          validity  of  various  loan   documents  and  the  mortgage  lien

          challenged  by appellant in the district  court action from which

          the present appeal emanates.  

                    Meanwhile,  on  May 21,  1992,  three  weeks  after the

          bankruptcy  court  hearing and  one  week  before the  bankruptcy

          judge's order  rejecting her  lien and loan  document challenges,

          appellant filed a motion to disqualify the presiding judge in the

          district  court action.  On June 18, 1992, the recusal motion was

          denied.

                    Upon  the filing of  appellant's bankruptcy petition in

          late  1990, the claims and property interests she asserted in the

          pending  district court  action became  property of  the bankrupt

          estate by operation of law.  See Bankruptcy Code   541; 11 U.S.C.
                                       ___

            541.2   As a consequence, the parallel adversary proceeding was

          litigated  in the bankruptcy court instead.  In due course, three

          weeks  before the  district  court acted  on appellant's  recusal

          motion, the bankruptcy court order dismissing  appellant's objec-

          tions to the  bank's proof  of claim and  upholding its  mortgage

          lien  became final.  Thus, the issues and claims initially raised

          in the  pending  district  court  action were  barred  under  the

          doctrines of issue and claim preclusion.  
                              
          ____________________

               2At a  status conference on February 25,  1991, the district
          court  duly noted:  "Pltf  has filed bankruptcy  petition.  Deft.
          has filed m/dismiss in bankruptcy  proceedings and will be filing
          m/dismiss  in  this  case   after  hearing  in  bankruptcy  Court
          (probably late March)."  The record on appeal thus discloses that
          appellant  lacked standing to prosecute the claims pending in the
          district court action below.  

                                          3














                    As  the bankruptcy court order adjudicating appellant's

          claims in the parallel adversary proceeding became final prior to

          any district  court  action  on  the recusal  motion,  the  order

          appealed from is moot.  

                    Appeal dismissed.
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