Gloria Jean Sykes v. J.P. Morgan Chase Bank, N.A.
Filing
Filed AMENDED Nonprecedential Disposition PER CURIAM to correct wording in the 2nd full paragraphs on pages 2 & 3. Original Nonprecedential Disposition issued on 02/14/2014. [6552916] [13-3041]
Case: 13-3041 NONPRECEDENTIAL DISPOSITION
Document: 17
Filed: 02/14/2014
To be cited only in accordance with
Fed. R. App. P. 32.1
Pages: 3
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 13, 2014*
Decided February 14, 2014
Amended February 14, 2014
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐3041
IN RE:
GLORIA JEAN SYKES,
Debtor‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 12 C 10313
John W. Darrah,
Judge.
O R D E R
Gloria Jean Sykes appeals the decision to modify the automatic stay in her
Chapter 11 case, allowing JPMorgan Chase Bank to foreclose on her home loan. The
district court dismissed the appeal because, during the appeal, her challenge to the
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2)(C).
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No. 13‐3041
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order modifying the stay had become moot, and in any case the appeal was also
untimely. Because both reasons are correct, we affirm.
Sykes financed her home with a loan from JPMorgan Chase Bank in April 2007.
Four years later, Sykes filed for bankruptcy under Chapter 11 (though unusual, it is
possible for a person to obtain relief under Chapter 11, see Toibb v. Radloff, 501 U.S. 157,
166 (1991)) and applied to pay her filing fee under an installment plan as Federal Rule
of Bankruptcy Procedure 1006(b) allows. On October 16, 2012, over a year after she filed
for an installment plan, Sykes still had not paid her fees, so the bankruptcy court
warned her that if she didn’t do so before the next status hearing on November 15, it
would dismiss the case. On the same day that it issued this warning, the court modified
the automatic stay to allow Chase to foreclose on Sykes’s property. Four weeks later, on
November 13, Sykes appealed this lift‐stay order to the district court. But by November
15 Sykes had not paid the bankruptcy court’s filing fees, so as it had warned Sykes a
month earlier, the bankruptcy court dismissed her Chapter 11 case, a decision from
which Sykes does not appeal.
The district court dismissed Sykes’s appeal of the lift‐stay order for two reasons.
First, it concluded that the appeal became moot once the bankruptcy court dismissed
the bankruptcy petition. Second, the court ruled that, as Chase had argued, Sykes’s
appeal of the lift‐stay order was untimely because it was filed 28 days after the order
was entered, two weeks past the deadline in Federal Rule of Bankruptcy Procedure
8002(a).
On appeal Sykes contends that, because the bankruptcy court erred in lifting the
stay, the district court should not have dismissed her challenge to the bankruptcy
court’s order. She gives two reasons that the bankruptcy court erred. First, she
maintains that her appeal a year earlier of a different order allowing another creditor
relief from the automatic stay divested the bankruptcy court of jurisdiction to lift the
stay for Chase. Second, she argues that Chase, as the loan servicer, lacks standing to
foreclose on her loan. She has pending before us a motion to take judicial notice of
testimony that she believes proves this.
Sykes’s two arguments presume that the district court should have considered
the merits of her appeal of the bankruptcy court’s decision to lift the stay for Chase. But
if the district court correctly ruled that the appeal was moot or untimely— rulings that
we review de novo, see Hower v. Molding Sys. Eng’g Corp., 445 F.3d 935, 937–38 (7th Cir.
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2006) (mootness); In re Saunders, 31 F.3d 767, 767 (9th Cir. 1994) (untimeliness)—then the
court properly avoided the merits.
We agree with the district court that Sykes’s appeal of the lift‐stay order was
moot, which prevented the court from reaching her arguments. Two days after Sykes
appealed that order, the bankruptcy court dismissed her case for nonpayment of fees, a
decision that she does not challenge. An unchallenged dismissal of a bankruptcy case
moots a dispute about a stay because the stay, to be valid, requires a pending
bankruptcy case. See 11 U.S.C. § 362(c)(2)(B); In re Statistical Tabulating Corp., 60 F.3d
1286,1289–90 (7th Cir. 1995) (explaining that dismissal of bankruptcy case moots
controversy over lifting the automatic stay because dismissal disposes of the basis for
the stay); see also In re Pattullo, 271 F.3d 898, 901 (9th Cir. 2001); Olive Street Inv. Inc. v.
Howard Sav. Bank, 972 F.2d 214, 215 (8th Cir. 1992). Dismissal of the bankruptcy does not
necessarily moot adversary proceedings or disputes between creditors, see In re
Statistical Tabulating Corp., 60 F.3d at 1289–90, but this appeal does not involve such
disputes. Because Sykes’s appeal to the district court became moot after the bankruptcy
court entered its unchallenged order dismissing her case, the district court properly
dismissed the appeal.
Mootness aside, the district court properly dismissed Sykes’s appeal for the
additional jurisdictional reason that it was untimely. Sykes needed to file a notice of
appeal from the bankruptcy court’s decision within fourteen days from the entry of the
judgment. See FED. R. BANKR. P. 8002(a). Her notice of appeal was two weeks late, which
warranted dismissal of the appeal. See Matter of Maurice, 69 F.3d 830, 832 (7th Cir. 1995);
In re Williams, 216 F.3d 1295, 1296–98 (11th Cir. 2000); In re Saunders, 31 F.3d at 767.
Accordingly, the judgment of the district court is AFFIRMED. The pending
motion to take judicial notice is DENIED.
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