In Re Abbott ( 2011 )

10-5246-bk
In re Abbott
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18th day of November, two thousand eleven.
PRESENT: AMALYA L. KEARSE,
REENA RAGGI,
Circuit Judges,
LAWRENCE E. KAHN,
District Judge.*
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IN RE: SUZAN ABBOTT,
Debtor.
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SUZAN ABBOTT,
Debtor-Appellant,
v. No. 10-5246-bk
AURORA LOAN SERVICES, LLC,
Creditor-Appellee.**
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FOR APPELLANT: Suzan Abbott, pro se, White Lake, New York.
*
Judge Lawrence E. Kahn of the United States District Court for the Northern District
of New York, sitting by designation.
**
The Clerk of Court is directed to amend the official caption as shown above.
FOR APPELLEE: Gregg P. Tabakin, Fein, Such, Kahn & Shepard, P.C., Chestnut
Ridge, New York.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Cathy Seibel, Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED as moot.
Appellant Suzan Abbott, proceeding pro se, appeals from the district court’s judgment
affirming bankruptcy court orders issued in Abbott’s Chapter 7 proceedings, specifically:
(1) the September 23, 2009 order granting Aurora Loan Services, LLC (“Aurora”) relief from
the automatic stay imposed under 11 U.S.C. § 362(a); (2) the September 28, 2009 order
denying Abbott’s motions to extend the automatic stay and for permission to sell her home;
and (3) the May 4, 2010 order denying Abbott’s motions to compel Aurora to produce the
original promissory note and for a stay pending Abbott’s appeal of the order granting
Aurora’s motion for relief from the automatic stay. “In an appeal from a district court’s
review of a bankruptcy court decision, we review the bankruptcy court decision
independently, accepting its factual findings unless clearly erroneous but reviewing its
conclusions of law de novo.” In re Enron Corp., 419 F.3d 115, 124 (2d Cir. 2005) (internal
quotation marks omitted). We assume the parties’ familiarity with the facts and record of
prior proceedings, referencing them only as necessary to explain our decision.
On appeal, Abbott challenges the identified orders only on the ground that the
bankruptcy court erred in recognizing Aurora’s standing to participate in the bankruptcy
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proceeding as a creditor because it held a promissory note executed by Abbott and secured
by a mortgage on her home. That issue, however, is now moot.
The automatic stay terminated no later than October 30, 2009, the date on which
Abbott received a discharge in bankruptcy. See 11 U.S.C. § 362(c)(2)(C). Thus, even if the
bankruptcy court had not granted Aurora relief from the stay, the stay would not have
prevented the foreclosure sale of Abbott’s home on December 11, 2009, five weeks after
discharge. Further, the foreclosure sale terminated Abbott’s interest in her home, defeating
the purpose of Abbott’s appeal from the bankruptcy court’s denial of her motion to sell her
home. In sum, because we could not fashion effective relief even if we were to conclude that
Aurora lacked standing to seek relief from the automatic stay, Abbott’s appeal is moot,
leaving this court without jurisdiction to give opinions as to matters no longer presenting a
case or controversy. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992); In re Chateaugay Corp., 988 F.2d 322, 325 (2d Cir. 1993).
Accordingly, the appeal is DISMISSED as moot.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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