In Re: Donnell Ponton V. , 446 F. App'x 427 ( 2011 )

BLD-292-E NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3028
___________
In re: DONNELL PONTON, and
PERTANIAL PONTON,
Debtors
Donnell Ponton,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-11-cv-04384)
District Judge: Honorable Eduardo C. Robreno
____________________________________
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
10.6
September 20, 2011
Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: September 29, 2011)
_________
OPINION
_________
PER CURIAM
In late November of 2009, Donnell and Pertanial Ponton filed for protection under
Chapter 13 (11 U.S.C. §§ 1301–30) of the United States Bankruptcy Code.1 Their
voluntary petition noted that the sole piece of real property owned by the couple, the
parcel located at 3714 N. 18th Street in Philadelphia, was in foreclosure proceedings.
Vericrest Financial, Inc. (―Vericrest‖) was listed as the relevant secured creditor.
Eventually, the Pontons and Vericrest reached an agreement that allowed, in part,
for a small grace period and a ―shifting‖ of arrears owed on the property to the end of the
repayment period. The Pontons would be responsible for paying the monthly mortgage
payment after the expiration of the grace period. In the event of a default on these
payments not cured within a fifteen-day window, Vericrest reserved the right to ―certify
the default to [the] Court,‖ after which ―an Order shall be entered granting Vericrest . . .
relief from the automatic stay without further notice and hearing.‖ The Bankruptcy Court
approved the arrangement on January 10, 2011.
Détente was to be short-lived. In April, Vericrest (through counsel) sent the
Pontons a notice of default; in May, it filed a Certification of Default with the Bankruptcy
Court, alleging a failure by the Pontons to pay any of the monies owed under the
agreement and requesting a termination of the automatic stay. Donnell Ponton objected
to the Certification of Default, filing a confusing document that accused Vericrest of,
inter alia, ―Perjury in the Judicial Context‖ and sundry violations of the 14th
Amendment. Shortly thereafter, the trustee moved to dismiss the case due to a ―fail[ure]
1
See generally Bankr. E.D. Pa. Civ. No. 09-19141.
2
to commence or continue making timely payments to the trustee as required by 11 U.S.C.
[§] 1326.‖2 The Bankruptcy Court held a hearing on May 26 to discuss the objections to
the Certificate of Default, after which it lifted the automatic stay by order entered on May
31, 2011, allowing Vericrest ―to proceed with foreclosure on the property located at 3714
North 18th Street, Philadelphia PA.‖ Donnell Ponton filed a timely appeal to the District
Court.
Activity in the Bankruptcy Court continued. After a June 23 hearing, the
Bankruptcy Court dismissed the case altogether. Notably, Ponton did not appeal that
decision.
Proceedings in the District Court, meanwhile, commenced and swiftly resolved:
on July 22, the Court dismissed the appeal from the automatic-stay order for failure to
comply with Fed. R. Bankr. Proc. 8006. Several days later, the Court ruled on Ponton’s
in forma pauperis motion and again dismissed the appeal for failure to comply with Rule
8006. Ponton appealed the first decision and amended his notice of appeal after the
second.
Before us, Ponton moves to stay the Sherriff’s sale of his home, which is
scheduled for October 4, 2011. Elsewhere, he accuses Vericrest and its attorney of
perjury, claims that the Bankruptcy Court abused its discretion by allowing such
misconduct and perjury, and appears to charge all prior courts with failing to give him the
2
See 11 U.S.C. § 1307(c)(4) (authorizing dismissal or conversion when payments under
section 1326 have not been timely made).
3
liberal construction of pleadings and submissions afforded to pro se litigants.3 Ponton
also filed a motion requesting that we ―facilitate prosecution‖ of various parties, pursuant
to a federal criminal statute.
We have jurisdiction under 28 U.S.C. §§ 158(d)(1) and 1291.4 JELD-WEN, Inc.
v. Van Brunt (In re Grossman’s Inc.), 607 F.3d 114, 119 (3d Cir. 2010); Solfanelli v.
CoreStates Bank N.A., 203 F.3d 197, 200 (3d Cir. 2000). As an initial matter, we must
address Vericrest’s contention that the action is now moot. Under its reasoning, as the
Bankruptcy Court has since dismissed the actual bankruptcy—an order from which
Ponton failed to appeal—no proceedings are ―left‖ for the purpose of a vacation, reversal,
or remand.
We agree that the appeal is moot. ―[W]hen a notice of appeal has been filed in a
bankruptcy case, the bankruptcy court retains jurisdiction to address elements of the
bankruptcy proceeding that are not the subject of that appeal.‖ Transtexas Gas Corp. v.
TransTexas Gas (In re Trantexas Gas Corp.), 303 F.3d 571, 580 n.2 (5th Cir. 2002). And
although Vericrest cites no case law in its filing in support of its position, decisions on
point do exist; other courts have concluded that the dismissal of an underlying
bankruptcy can render moot or otherwise obviate an earlier appeal. See, e.g., Olive St.
3
See Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d Cir. 2011).
4
We have held that an order lifting an automatic stay is appealable. See In re Connors,
497 F.3d 314, 318 (3d Cir. 2007); United States v. Pelullo, 178 F.3d 196, 200 (3d Cir.
1999).
4
Invs. v. Howard Sav. Bank, 972 F.2d 214, 216 (8th Cir. 1992) (―Once the bankruptcy
proceeding is dismissed, neither the goal of a successful reorganization nor the debtor’s
right to the automatic stay continues to exist. Accordingly, it no longer serves any
purpose to determine whether the bankruptcy court properly lifted the automatic stay; the
appeal has become moot.‖); In re Income Property Builders, Inc., 699 F.2d 963, 964 (9th
Cir. 1982) (per curiam) (―Once the bankruptcy was dismissed, a bankruptcy court no
longer had power to order the stay or to award damages allegedly attributable to its
vacation. A remand by us to the bankruptcy court would therefore be useless.‖).
―[W]hether a case or controversy remains after the dismissal of a bankruptcy case
depends on whether the issue being litigated directly involves the reorganization of the
debtor’s estate.‖ In re Universal Farming Indus., 873 F.2d 1332, 1333 (9th Cir. 1989).
Here, as in Olive Street Investments, it would serve no purpose for us ―to determine
whether the [B]ankruptcy [C]ourt properly lifted the automatic stay‖ now that there is no
bankruptcy proceeding whatsoever in which to ground a stay. 972 F.2d at 216. Simply
put, even if the Bankruptcy Court’s lifting of the stay was somehow erroneous, we could
not redress it now that an order of dismissal, which Ponton did not challenge, has been
entered.
For the reasons given, we will dismiss Ponton’s appeal as moot. His remaining
motions are denied.
5