Matheson v. Ocwen Federal Bank FSB ( 2010 )

08-3650-cv
Matheson v. Ocwen Federal Bank FSB
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 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 22nd day of February, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges,
JOHN G. KOELTL,*
District Judge.
Marilyn E. Matheson,
Plaintiff-Counter-
Defendant-Appellant,
v. 08-3650-cv
Ocwen Federal Bank FSB, Delta Funding
Corporation, Wells Fargo Bank Minnesota,
National Association, as trustees for Delta
Home Equity Loan Trust, Delta Funding Home
Equity Loan Trust, Banker Trust Company of
California, N.A., as Trustees for the Delta
Funding Home Equity Loan Trust, Norwest Bank
Minnesota, also as Trustee for the Delta
Funding Home Equity Loan Trust,
*
The Honorable John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.
Defendants-Counter-
Claimants-Appellees,
Allstate Consultant, Inc., also known as
City Mortgage Bankers, Doe Corporation,
1 through X,
Defendants-Appellees.
___________________________________________
FOR APPELLANT: Marilyn E. Matheson,pro se, Rosedale, N.Y.
FOR APPELLEES: Kyra A. Grundeman (Daniel L. Cantor, Brian P.
Brooks, on the brief), O’Melveny & Myers LLP, New
York, N.Y.
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Vitaliano, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal be DISMISSED for lack of jurisdiction.
Marilyn E. Matheson, pro se, appeals from the district
court’s order granting summary judgment in favor of all
defendants except Delta Funding Corporation and Delta Financial
Corporation. We assume the parties' familiarity with the facts
and procedural history.
Upon review of the record and case law, this Court has
determined sua sponte that it lacks jurisdiction over this appeal
because a final order has not been issued by the district court
as contemplated by 28 U.S.C. § 1291. See Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978). Appellant’s claims against
Delta Funding Corporation and Delta Financial Corporation remain
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unresolved because those defendants are protected by a bankruptcy
stay, see Manufacturers Hanover Trust Co. v. Yanakas, 7 F.3d 310,
314-15 (2d Cir. 1993), and a final judgment as to fewer than all
parties has not been entered as contemplated by Fed. R. Civ. P.
54(b). See LTV Steel Co., Inc. v. United Mine Workers of America
(In re Chateaugay Corp.), 928 F.2d 63, 64-65 (2d Cir. 1991)
For the reasons stated above, the appeal is DISMISSED
without prejudice to a reinstatement should the district court
certify “a final judgment as to one or more, but fewer than all,
claims or parties” based on a finding of “no just reason for
delay.” Fed. R. Civ. P. 54(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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