Carroll v. Homecomings Financial Network ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 3, 2008
No. 07-20596 Charles R. Fulbruge III
Summary Calendar Clerk
CHARLOTTE CARROLL
Plaintiff-Appellant
v.
HOMECOMINGS FINANCIAL NETWORK; OPTION ONE MORTGAGE
CORPORATION
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
4:07-MC-82
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Charlotte Carroll filed an application for anticipatory relief under the
Servicemembers Civil Relief Act (“SCRA”). The district court denied Carroll’s
application, and Carroll now appeals. For the following reasons, we AFFIRM
the district court’s order.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-20596
The SCRA gives courts discretion to grant servicemembers relief from
certain contracts entered into prior to their military service. 50 App. U.S.C. §
591. Carroll, an Army reservist, filed an application for relief from her
obligations under mortgage contracts with Option One Mortgage Corporation
(“Option One”) and Homecomings Financial Network (“Homecomings”). The
district court docketed the filing as an application for “Other Miscellaneous
Relief” on the miscellaneous docket.
The district court held an initial hearing with Carroll, during which the
court instructed Carroll to contact her creditors regarding the application. The
district court subsequently held four additional conferences and heard
arguments from Carroll and representatives of Option One and Homecomings.
During the third conference, the district court instructed Carroll to provide
previously-requested financial information by the fourth conference on June 29,
2006, or the court was “going to have to consider a sanction.” Carroll sent the
financial information on the morning of June 29, 2006. During the fourth
conference, the court heard arguments on both the timing of the requested
information and the merits of Carroll’s application, and then advised Carroll
that the court was “going to have to deny the relief [she was] requesting.” The
court subsequently entered a “Memorandum and Order” denying Carroll’s
application for discretionary relief under the SCRA.
The current dispute centers on the characterization of this final action.
Carroll contends that the district court dismissed her case via sanctions. As
such, Carroll contends that the court abused its discretion by not imposing lesser
sanctions prior to dismissal. See, e.g., Gonzalez v. Trinity Marine Group, Inc.,
117 F.3d 894, 898 (5th Cir. 1997) (explaining that “dismissal with prejudice is
an extreme sanction that deprives the litigant of the opportunity to pursue his
claim”).
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No. 07-20596
However, Carroll incorrectly characterizes the district court’s action. The
court’s order did not in fact dismiss Carroll’s case—no case was ever filed.
Rather, Carroll filed an application for discretionary relief that was set on the
miscellaneous docket. Matters filed on the miscellaneous docket are “ancillary
and supplementary proceedings not defined as civil actions.” Matter of Search
of 4330 North 35th Street, Milwaukee, Wisconsin, 142 F.R.D. 161, 163–64 (E.D.
Wis. 1992) (citations omitted). Moreover, no sanctions were ever imposed. After
the court mentioned the possibility of sanctions during the third conference,
sanctions were never discussed again. The Order did identify Carroll’s “prior
unwillingness to provide financial information” as one factor in the court’s
decision to deny Carroll’s application, but this was never referred to as a
sanction.
Thus, it is incorrect to characterize this matter as a dismissal based on
sanctions. Although the district court may have contributed to the confusion by
periodically referring to “dismissal” and unnecessarily entering a subsequent
“Final Judgment,” the overall posture of the case is clear: Carroll filed a solitary
application for Other Miscellaneous Relief, which the district court denied
following several hearings on the merits. Accordingly, Carroll’s present
arguments and supporting authorities—which address the extreme sanction of
dismissal in the context of a civil case—are inapposite. Carroll is in fact
appealing the denial of her application for discretionary relief.
Under the anticipatory-relief provision of the SCRA, an applicant is
entitled to one noticed hearing to show that her ability to meet her obligations
“has been materially affected by reason of military service.” 50 App. U.S.C. §
591. The court then has discretion to grant relief. Id. Here, Carroll received at
least five hearings on the merits, after which the court exercised its discretion
and denied Carroll’s application. Because Carroll makes no arguments as to
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No. 07-20596
how the denial of her application was an abuse of discretion, the district court’s
Memorandum and Order is AFFIRMED.
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