Epic Aviation, LLC v. Bonita B. Phillips , 574 F. App'x 926 ( 2014 )

Case: 13-12244 Date Filed: 09/24/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12244
________________________
D.C. Docket Nos. 2:12-cv-00585-JES; 9:06-bk-05685-FMD
In Re: BONITA B. PHILLIPS,
JEFFREY S. PHILLIPS,
Debtors.
______________________________________________________
EPIC AVIATION, LLC,
Plaintiff - Appellant,
versus
BONITA B. PHILLIPS,
JEFFREY S. PHILLIPS,
Defendants - Appellees.
________________________
No. 13-12357
________________________
D.C. Docket Nos. 2:13-cv-00113-JES; 9:06-bk-05685-FMD
Case: 13-12244 Date Filed: 09/24/2014 Page: 2 of 6
In Re: BONITA B. PHILLIPS,
a.k.a. Bonnie B. Phillips,
JEFFREY S. PHILLIPS,
Debtors.
____________________________________________________
EPIC AVIATION, LLC,
Plaintiff - Appellant,
versus
BONITA B. PHILLIPS,
a.k.a. Bonnie B Phillips,
JEFFREY S. PHILLIPS,
DIANE L. JENSEN,
Chapter 7 Trustee,
Defendants - Appellees.
________________________
No. 13-12536
________________________
D.C. Docket Nos. 2:12-cv-00669-JES; 9:06-bk-05685-FMD
In Re: BONITA B. PHILLIPS,
JEFFREY S. PHILLIPS,
Debtors.
______________________________________________________
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EPIC AVIATION,
Plaintiff - Appellant,
versus
BONITA B. PHILLIPS,
JEFFREY S. PHILLIPS,
Defendants - Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(September 24, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Epic Aviation, LLC (Epic) appeals the district court’s consolidated appeal of
three bankruptcy court orders. The first order granted Bonita B. Phillips and
Jeffrey S. Phillips (Debtors) an extension of time to make a settlement payment
(the Auction Order, No. 13-12244). The second order dissolved Epic’s lis pendens
on Debtors’ home (the Lis Pendens Order, 13-12536). The third order authorized
Debtors to sell their home free and clear of any interest held by Epic (the Sale
Order, 13-12357).
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Epic first appealed the bankruptcy court orders to the district court. The
district court affirmed the Auction Order and Lis Pendens Order, and vacated the
Sale Order.
I. BACKGROUND
As the parties are familiar with the history of this case, we only briefly
recount the relevant facts. In May 2007, the Debtors entered into a Settlement
Agreement with the bankruptcy Trustee providing, inter alia, that the Trustee
would receive a lien on Debtors’ home and $825,000 at the time of sale. The
Settlement Agreement did not set a payment deadline or prohibit the Trustee from
selling her contract rights. The bankruptcy court approved the Settlement
Agreement on October 9, 2007.
On September 28, 2012, the Trustee auctioned her rights in the Settlement
Agreement. At the auction, Epic bid $825,000. The Debtors then offered to pay
off the original Settlement Agreement in full. The Trustee told the Debtors to wire
the money by October 2, 2012; otherwise, she would sell her rights in the
Settlement Agreement to Epic.
On October 2, 2012, the Debtors moved for an extension of time to make the
$825,000 payment. The bankruptcy court issued an order a week later stating that
if the Debtors failed to pay the full $825,000 by October 11, 2012, the Trustee
would sell her Settlement Agreement rights to Epic.
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II. DISCUSSION
A. The Auction Order Appeal (No. 13-12244)
We review for abuse of discretion a bankruptcy court’s ruling on a motion
for an extension of time. In re Coady, 588 F.3d 1312, 1316 (11th Cir. 2009).
After reviewing the record, we find no abuse of discretion. The Settlement
Agreement contained no payment deadline, and the Debtors’ motion for an
extension of time was timely filed within the Trustee’s 48-hour deadline.
To the extent Epic argues “[t]he Auction Order is a sale of assets order
governed by Bankruptcy Code § 363[(b)]” (Appellant Br. 33) Epic’s appeal is
moot. Epic failed to obtain a stay as required under § 363(m). In re The Charter
Co., 829 F.2d 1054, 1056 (11th Cir. 1987).
B. The Lis Pendens Appeal (No. 13-12536)
In light of our affirmance of the bankruptcy court’s discretion to grant an
extension of time, the bankruptcy court did not abuse its discretion by dissolving
Epic’s lis pendens on the Debtors’ home.
C. The Sale Order Appeal (No. 13-12357)
Epic’s appeal of the Sale Order is moot. The bankruptcy court granted the
Sale Order. Epic challenged, and the district court vacated, the Sale Order. Now,
even though Epic has already obtained the relief it desired, Epic appeals, arguing
that the bankruptcy court erred by granting the Sale Order in the first instance. In
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essence, Epic is asking this Court to vacate an order that has already been vacated.
There is no controversy here. Thus, entertaining this appeal would amount to an
“impermissible advisory opinion.” Sierra Club v. E.P.A., 315 F.3d 1295, 1299
(11th Cir. 2002).
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order affirming the
Auction Order and the Lis Pendens Order. We dismiss Epic’s Sale Order Appeal
as moot.
AFFIRMED IN PART; DISMISSED IN PART.
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