United States District Court, S.D. Florida, Miami Division
MARY A. TUCKER, Appellant,
JP MORGAN CHASE BANK N.A., Appellee.
A. Tucker, pro se
ORDER GRANTING APPELLEE'S MOTION TO
FEDERICO A MORENO, UNITED STATES DISTRICT JUDGE
case is a bankruptcy appeal. Pro se Appellant Mary
Tucker appeals an order by the United States Bankruptcy
Court, Southern District of Florida, granting relief from the
automatic stay to Appellee JPMorgan Chase Bank N.A. to pursue
a state foreclosure action against Tucker. While this appeal
was pending in the Eleventh Circuit, the underlying
bankruptcy case was dismissed for Tucker's failure to
make her confirmed bankruptcy plan payments.
cause comes before the Court upon Chase's motion to
dismiss. Chase argues that this appeal should now be
dismissed as moot because there is no live case or
controversy and this Court cannot provide meaningful relief.
Tucker argues that the appeal is not moot because: (1) she
seeks relief other than reinstatement of the stay; (2) she
could reinstate her dismissed case; or (3) the
appeal is excepted from the mootness doctrine. This Court
agrees with Chase.
initiated the underlying Chapter 13 bankruptcy case in
January 2014. Prior to the bankruptcy case, Chase had filed a
foreclosure action against Tucker in state court. In July
2015, the bankruptcy court granted Chase's motion to lift
the stay to seek relief in the state foreclosure action.
Tucker moved the bankruptcy court to vacate the order, but
her motion was denied. In August 2015, Tucker appealed the
bankruptcy court's order to this Court.
December 2015, this Court dismissed the appeal for
Tucker's failure to comply with the briefing schedule.
Tucker appealed the dismissal to the Eleventh Circuit. On
December 12, 2016, the Eleventh Circuit vacated this
Court's dismissal of Tucker's appeal and remanded.
However, while the appeal was pending in the Eleventh
Circuit, on December 1, 2016, the bankruptcy court entered an
order dismissing the underlying bankruptcy case for
Tucker's failure to make her confirmed bankruptcy
payments. Tucker did not appeal this dismissal nor seek a
stay pending this appeal.
appeal is now moot. The test for mootness in bankruptcy
appeals is whether the court can grant effective relief if
the appellant prevails. See In re Seidler, 44 F.3d
945, 947 (11th Cir. 1995). The automatic stay imposed by the
Bankruptcy Code expires upon dismissal of the case.
See 11 U.S.C. § 362(c)(2)(B). Thus, under the
Eleventh Circuit's standard for determining mootness,
Tucker's request for relief is futile. The remedy Tucker
seeks on appeal includes reversing Chase's relief from
the automatic stay during bankruptcy. However, even if Tucker
succeeds in convincing this Court that the bankruptcy court
abused its discretion in entering its order, this Court
cannot reinstate a stay in a case that has been dismissed.
Accordingly, Tucker's appeal is moot. See In re
Gdowik, 228 B.R. 481, 482-83 (S.D. Fla. 1997) (appeal of
bankruptcy order granting relief from automatic stay
dismissed as moot by virtue of dismissal of underlying
Chapter 13 case); In re Fleming, No.
8:00-CV-2209-T-30tgw, 2001 U.S. Dist. LEXIS 1227, at *l-2
(M.D. Fla. Jan. 9, 2001) (dismissing bankruptcy appeal as
moot where underlying case was dismissed because
"[t]here is no live case or controversy and [the court]
can afford [appellant] no meaningful relief").
argues that her appeal is not moot because she purportedly
seeks relief other than reinstatement of the automatic
stay-she asserts that this appeal challenges Chase's
standing as a secured creditor. However, Tucker's notice
of appeal expressly states that Tucker appeals the bankruptcy
court's orders granting Chase's relief from the
automatic stay and denying Tucker's motion to vacate. If
Tucker were to succeed with this appeal, the result would be
to set aside the bankruptcy court's order granting Chase
relief from the stay. But, because there is no underlying
bankruptcy case in which to impose a stay, such relief would
Tucker argues that this appeal is excepted from the mootness
doctrine because the action being challenged is capable of
being repeated and evading review. But, "[t]he narrow
capable-of-repetition exception only applies in exceptional
situations, where (1) the challenged action is too short in
duration to be fully litigated prior to cessation or
termination, and (2) there is a reasonable expectation that
the same complaining party will be subject to the same action
again." Dow Jones & Co., Inc. v. Kaye, 256
F.3d 1251, 1256 (11th Cir. 2001) (internal citations and
quotations omitted). Neither situation exists here. Although
Tucker argues that she could reopen the underlying bankruptcy
case, when considering jurisdiction for mootness, courts look
at the events at the present time. See Id. at 1254.
Thus, the mere possibility of reopening the underlying
bankruptcy case does not overcome present mootness.
of the dismissal of the underlying bankruptcy case, there is
no longer a live case or controversy and this Court cannot
afford Tucker any meaningful relief on appeal.
this Court GRANTS Chase's motion to dismiss ...