Bank of Boston v. Wallace ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1551



                         BANK OF BOSTON,



                      Plaintiff, Appellant,



                                v.



             WILLIAM B. WALLACE AND JOAN M. WALLACE,



                      Defendants, Appellees.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Edward F. Harrington, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

                Campbell, Senior Circuit Judge,

                   and Lipez, Circuit Judge.









     Matthew J. McGowan and Salter, McGowan, Swartz & Sylvia on

brief for appellant.











December 2, 1998



















     Per Curiam.  Upon careful review of appellant's brief and the

record, we conclude that the district court did not err in

dismissing this appeal from a bankruptcy court order.  The appeal

was moot for the reasons stated in the district court's Memorandum

and Order dated March 6, 1998.

     Further, the appeal was not excused from the requirement of a

live case or controversy.  Although the bankruptcy court proceeding

of which appellant complained may be "capable of repetition," we

cannot say that appellant's underlying issue will "yet evade

review."  See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498,

515 (1911).  Appellant may yet be able to litigate the issue in

other cases, in particular ones where the bankruptcy court rejects

the reaffirmation agreement.  Other avenues may conceivably exist.

Compare Whitehouse v. United States District Court, 53 F.3d 1349,

1353 (1st Cir. 1995) (declaratory judgment action was the "proper

method" to challenge a local rule); United States v. Arthur

Andersen & Co., 623 F.2d 720, 723 (1st Cir. 1980) (suggesting

contempt proceedings as a possible method to obtain appellate

review).

     As an additional ground for dismissal, it appears that

appellant lacks standing to appeal from the order at issue here.

The show cause order on its face was addressed to another party,

did not require any action of appellant, and did not threaten or

impose any sanction against appellant, and so the denial of

appellant's motion to vacate that order had no practical effect on

appellant.  Although appellant  has  complained of various  costs

                                2



incurred to prepare for and attend such show cause hearings and

also of a general "chilling effect" arising from the possibility of

such hearings, it does not appear that the show cause order or the

denial of appellant's motion to vacate had any direct, adverse,

pecuniary effect on appellant, as required to vest appellant with

standing to appeal.  See In re El San Juan Hotel, 809 F.2d 151,

154-56 (1st Cir. 1987).

     We intend no comment on the merits, if any, of appellant's

underlying issue.

     Affirmed.  See 1st Cir. Loc. R. 27.1.