Green v. Traditional Heritage Village Homeowners Ass'n , 668 F. App'x 86 ( 2016 )

Case: 15-10872 Document: 00513640130 Page: 1 Date Filed: 08/16/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-10872
Fifth Circuit
FILED
Summary Calendar August 16, 2016
Lyle W. Cayce
In the Matter of: ALVIN GREEN, Clerk
Debtor.
_________________________
ALVIN GREEN,
Appellant.
v.
TRADITIONAL HERITAGE VILLAGE HOMEOWNERS ASSOCIATION,
INCORPORATED; KINGMAN HOLDINGS, L.L.C.,
Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CV-2571
Case: 15-10872 Document: 00513640130 Page: 2 Date Filed: 08/16/2016
No. 15-10872
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Rosanna Silverio owned a residence in Frisco, Texas. She was in
Chapter 13 bankruptcy. Traditional Heritage Village Homeowners
Association (the Association), complaining of unpaid assessment fees, sought
relief from the automatic stay and permission to foreclose on Silverio’s property
pursuant to an assessment lien. 1 The order obtained by the Association
required Silverio to make assessment payments and provided that if she did
not do so, “the stay will lift in rem for the [Association], and in any subsequent
bankruptcy of [Silverio] or [Alvin Green, her husband], no automatic stay for
the [p]roperty shall go into effect.” Silverio failed to make the payments, and
a Texas state court authorized the Association to foreclose. The sale of the
property was set for June 2, 2015.
Just one day before that sale, Green himself filed for bankruptcy. As
Silverio’s husband, Green claimed a community property interest in the
property. The sale nevertheless proceeded as planned and the property was
bought by Kingman Holdings LLC (Kingman). Kingman then sought relief in
bankruptcy court from the automatic stay. The court granted that relief on
July 20, 2015, declaring that no stay was then in effect with regard to the
property and authorizing Kingman to take possession of the property as its
rightful owner. Green filed a notice of appeal challenging this order.
Now in district court, Green filed a motion for stay pending appeal,
arguing that his appeal of the bankruptcy court’s July 20, 2015 order was likely
to succeed on the merits and the remaining factors counseled in favor of a stay.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 See 11 U.S.C. § 362.
2
Case: 15-10872 Document: 00513640130 Page: 3 Date Filed: 08/16/2016
No. 15-10872
The district court denied that motion the same day. Green then appealed the
district court’s denial of the motion for stay pending appeal to this court, but
otherwise failed to prosecute his challenge to the bankruptcy court order in
district court. The district court dismissed the appeal for failure to prosecute
on October 26, 2015, providing Green twenty-one days within which to move
to reinstate the appeal. Green did not do so.
In these circumstances, we must dismiss Green’s interlocutory appeal.
It is axiomatic that “[a] claim becomes moot ‘when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome.’” 2
This principle applies with full force to cases in which a final judgment
eliminates the controversy raised by an interlocutory appeal. 3 Here, Green’s
requested stay pending appeal could have no effect because the underlying
appeal—Green’s challenge to the bankruptcy court’s determination regarding
the applicability of the automatic stay—has been dismissed for want of
prosecution and judgment entered. Having determined that no justiciable case
or controversy remains, we DISMISS this appeal as moot. 4
2 Motient Corp. v. Dondero, 529 F.3d 532, 537 (5th Cir. 2008) (quoting Karaha Bodas
Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 365 (5th Cir.
2003)).
3 See Kidd v. Thaler, 460 F. App’x 451, 452 (5th Cir. 2012) (per curiam) (holding that
interlocutory appeal of denial of an injunction was moot after underlying § 1983 action was
dismissed); Childs v. Ball Bros. Trucking Co., 193 F.2d 134, 135 (5th Cir. 1951) (concluding
that appeal of temporary injunction was moot because the case had “already been dismissed
below, taking the interlocutory order with it”).
4 In light of this disposition, we need not address the question of whether we would
have jurisdiction to review this interlocutory appeal. See Conn. Nat’l Bank v. Germain, 503
U.S. 249, 254 (1992) (holding that 28 U.S.C. § 1292 does not preclude “appellate review of
interlocutory orders in bankruptcy proceedings”); McLain v. Beto, 458 F.2d 503, 504 (5th Cir.
1972) (“We pretermit the question of whether the orders appealed from were purely
interlocutory and not appealable . . . because we are of the opinion that in any event the
appeal is now moot.”).
3