In re: Nicholas Sinclair Fields and Yhotzmine Elizabeth Fields

Filing 15

ORDER: The appeal is dismissed for lack of jurisdiction. The Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 5/9/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN RE:
NICHOLAS SINCLAIR FIELDS
And YHOTZMINE ELIZABETH
FIELDS
Debtors.
______________________________/
SPECIALIZED LOAN SERVICING
LLC,
Appellant,
Case No. 8:17-cv-41-T-33
Bankr. No. 8:14-bk-9347-MGW
Adv. Pro. No. 8:15-ap-446-MGW

v.
CHRISTINE L. HERENDEEN,

Appellee.
______________________________/
ORDER
In the context of a Chapter 7 bankruptcy proceeding,
Appellant Specialized Loan Servicing LLC (SLS) filed a motion
requesting reconsideration of the Bankruptcy Judge’s order
granting
Christine

summary
L.

judgment

Herendeen

in

in
an

favor

of

adversary

Appellee

Trustee

proceeding.

The

Bankruptcy Judge denied that motion. SLS appeals the denial
of the motion for reconsideration and the grant of summary
judgment in favor of the Trustee in the adversary proceeding.
The appeal is fully briefed and, as discussed below, the Court
dismisses the appeal for lack of jurisdiction.

1

I.

Background
A.
In

Sinclair

Bankruptcy Case and Adversary Proceeding
August
Fields

of
and

2014,

the

Yhotzmine

consumer
Elizabeth

debtors,
Fields,

Nicholas
filed

a

bankruptcy petition in the United States Bankruptcy Court for
the Middle District of Florida. (Doc. # 3-8 at 2). Thereafter,
on May 7, 2015, the Trustee filed an adversary proceeding on
behalf of the bankruptcy estate, alleging SLS, the debtors’
mortgage servicer, violated the Telephone Consumer Protection
Act (TCPA), 47 U.S.C. §§ 227, et seq., and the Florida
Consumer Collection Practices Act (FCCPA), Fla. Stat. §§
559.55, et seq. (Doc. # 3-8). SLS filed its answer and
affirmative defenses on June 10, 2015. (Doc. # 3-20).
On February 26, 2016, then-counsel for SLS filed a motion
to withdraw as counsel. (Doc. # 3-35). That motion was granted
on March 1, 2016, in an Order directing all service be sent
by mail to SLS’s address in Highlands Ranch, Colorado and
advising: “Defendant shall have 21 days from the date of this
order to retain substitute counsel; otherwise, Defendant
shall be deemed to be proceeding in a pro-se capacity.” (Doc.
# 3-36). The order also directed SLS to “attend the pre-trial
conference, . . . scheduled for April 26, 2016.” (Id.). SLS’s

2

then-counsel filed a proof of service, indicating SLS was
served with the withdrawal order. (Doc. # 3-37; Doc. # 3-38).
Yet no one appeared on behalf of SLS at the third
continued pretrial conference on April 26, 2016, so the
conference was postponed until June 21, 2016. (Doc. # 3-40;
Doc. # 3-41). Although the Trustee mailed a notice of the
rescheduled hearing to SLS’s registered agent, (Doc. # 3-42),
only counsel for the Trustee appeared at the fourth continued
pretrial conference held on June 21, 2016, (Doc. # 3-43). The
Bankruptcy Court directed the Trustee to file a motion for
summary judgment within fourteen days and set a hearing on
the motion for September 27, 2016. (Id.). On July 18, 2016,
the Trustee filed a notice of hearing, which included a
certificate of service stating that a copy of the notice was
sent by mail to SLS at the Highlands Ranch address. (Doc. #
3-50).
B.

Motion for Summary Judgment

On June 27, 2016, the Trustee moved for summary judgment
on the debtors’ TCPA and FCCPA claims against SLS. (Doc. # 344). In support of the motion, the Trustee presented the sworn
testimony of the debtors and requests for admission deemed
admitted because of SLS’s failure to respond. (Id. at 2-4).
The motion asserts the debtors are entitled to $76,000 in
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statutory damages based on the fifty calls SLS admitted
making, as well as the Trustee’s fees and costs. (Id. at 7).
The motion’s certificate of service states a copy of the
motion was provided “to counsel for Defendant via email.”
(Id. at 12).
On July 18, 2016, the Trustee sent a notice of hearing
for the September 27, 2016, hearing to SLS at its Highlands
Ranch address, but did not identify a specific person to whom
service was directed. (Doc. # 30-50). Then, on September 20,
2016, the Trustee served SLS with an additional proof of
service document for the motion for summary judgment, stating
that “on June 27, 2016, a true and correct copy of Plaintiff’s
Motion for Summary Judgment and all Exhibits (Doc. Nos. 37 &
37-1 through 37-5) were served on Defendant Specialized Loan
Servicing LLC, pro se, via mail” to SLS’s Highlands Ranch
address. (Doc. # 3-51). Although this additional proof of
service was filed approximately three months after the motion
for

summary

remembered

judgment
serving

“specifically

was

the

recall[ed]

filed,
motion

having

counsel
by

a

mail

discussion

for

Trustee

because
with

he

[his]

paralegal and assistant about the pleadings, service, and
extra physical address and recall[ed] observing her preparing
the pleadings and mailing.” (Id.).
4

At the hearing on September 27, 2016, no one appeared on
behalf of SLS and the Bankruptcy Judge granted the motion for
summary judgment. (Doc. # 3-52). The Order granting the
motion, which was subsequently entered on the docket on
October 28, 2016, reads in its entirety:
This cause came before the Court for hearing on
September 27, 2016 at 9:30 a.m. on Plaintiff’s
Motion for Summary Judgment (the “Motion”) (Doc.
37). The Court, having reviewed the Pleadings and
being otherwise fully advised in the premises,
finds that Plaintiff’s Motion should be granted.
Accordingly, it is hereby:
ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion is GRANTED.
(Doc. # 3-2). Judgment was never entered following the grant
of the summary judgment motion, and the amount of damages and
fees has not yet been specified by the Bankruptcy Court.
C.

Motion for Reconsideration

Two weeks later, on November 14, 2016, counsel for SLS
appeared and filed a motion for reconsideration. (Doc. # 353; Doc. # 3-54). As grounds for reconsideration under Rule
60(b)(1),

SLS

argued

relief

was

warranted

because

“its

failure to respond to the [motion for summary judgment] was
a product of mistake, inadvertence or excusable neglect.”
(Doc. # 3-54 at 13). SLS also argued the Order granting
summary

judgment

was

void

because

5

of

improper

service,

warranting reconsideration under Rule 60(b)(4). (Id. at 1213).

The

Trustee

opposed

the

motion,

and

presented

a

declaration of counsel, reemphasizing counsel’s recollection
of preparing the motion for summary judgment to be served via
mail to SLS’s address in Colorado. (Doc. # 3-58; Doc. # 363).
A hearing was held on December 6, 2016, at which the
Bankruptcy Judge denied the motion and held that the Order
granting summary judgment would stand. The Bankruptcy Judge
stated: “I guess the clearest problem from the defendant’s
point of view is they did get the withdrawal order and that
did require the retention of counsel within 21 days. And they
didn’t — they didn’t do it. If they had retained counsel,
then none of this would have happened.” (Doc. # 3-68 at 27:511). The Order denying the motion for reconsideration was
entered on December 16, 2016. (Doc. # 3-3).
D.

Appeal

On January 4, 2017, SLS appealed the Order denying the
motion for reconsideration and the Order granting summary
judgment in favor of the Trustee in the adversary proceeding.
(Doc. # 1). That appeal has been fully briefed. (Doc. ## 10,
11,

14).

The

jurisdiction

Trustee

over

the

asserts

that

this

appeal

and,

alternatively,

6

Court

lacks
if

jurisdiction exists, the Court should affirm the Bankruptcy
Court’s denial of the motion for reconsideration and grant of
the motion for summary judgment. (Doc. # 11). Because the
Court determines that it lacks jurisdiction, the appeal is
dismissed.
II.

Jurisdiction over “Final” Judgments, Orders, and Decrees
The Bankruptcy Code provides:
(a) The district courts of the United States shall
have jurisdiction to hear appeals
(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees
issued under section 1121(d) of title 11
increasing or reducing the time periods
referred to in section 1121 of such title;
(3) with leave of the court, from other
interlocutory orders and decrees . . . of
bankruptcy judges entered in cases and
proceedings referred to the bankruptcy judges
under section 157 of this title. An appeal
under this subsection shall be taken only to
the district court for the judicial district
in which the bankruptcy judge is serving.

28 U.S.C. § 158(a). As noted, 28 U.S.C. § 158(a)(1) grants
appellate jurisdiction over “final judgments, orders, and
decrees” of the bankruptcy court. Generally speaking, a final
order is one that “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.”
Catlin v. United States, 324 U.S. 229, 233 (1945).

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“In the Eleventh Circuit, a more flexible approach is
applied in the context of bankruptcy appeals.” In re Gonzalez,
No. 8:12-bk-19213-KRM, 2016 WL 1253274, at *4 (M.D. Fla. Mar.
30, 2016). As explained in Barben v. Donovan, 532 F.3d 1134,
1136 (11th Cir. 2008), “[f]inality is given a more flexible
interpretation

in

the

bankruptcy

context

.

.

.

because

bankruptcy is an aggregation of controversies and suits.”
Nevertheless, the “‘[i]ncreased flexibility’ in applying the
finality doctrine in bankruptcy does not render appealable an
order which does not finally dispose of a claim or adversary
proceeding.” Id. Rather, a final order in bankruptcy is one
that “completely resolve[s] all of the issues pertaining to
a discrete claim, including issues as to the proper relief.”
In re Atlas, 210 F.3d 1305, 1308 (11th Cir. 2000)(citation
and internal quotation marks omitted).
Thus,

an

order

granting

judgment

on

the

issue

of

liability but requiring an assessment of damages is not an
appealable final order. See Id. at 1307-08 (“[A] bankruptcy
court’s

order

is

not

final

for

purposes

of

appellate

jurisdiction where the bankruptcy court finds liability for
violation of the automatic stay, but defers assessment of
damages.”); In re Fox, 762 F.2d 54, 55 (7th Cir. 1985)(“[A]n
order upholding liability but leaving damages for subsequent
8

determination is not a final order.”). The Fifth Circuit
reasoned

that

the

finality

concept’s

flexibility

in

the

bankruptcy context did not render orders merely adjudicating
liability final:
The Supreme Court has stated that “where assessment
of damages or awarding of other relief remains to
be resolved [judgments] have never been considered
to be ‘final’ within the meaning of 28 U.S.C. §
1291.” The concept of finality employed to
determine appealability under the Bankruptcy Code
is “open to a more liberal interpretation” than
that applicable to civil litigation governed by 28
U.S.C. § 1291, but this liberality stems from
practicality, and is limited by it in turn.
Determinations of liability without an assessment
of damages are as likely to cause duplicative
litigation in bankruptcy as they are in civil
litigation, and because bankruptcy litigants may
appeal to district as well as to appellate courts,
the waste of judicial resources is likely to be
greater. The rule for appeals from bankruptcy
decisions determining liability but not damages
under 28 U.S.C. § 158(d) must therefore be the same
as the rule under § 1291.
In re Morrell, 880 F.2d 855, 856–57 (5th Cir. 1989)(internal
citations omitted). The concern over piecemeal litigation
motivates

this

rule.

Indeed,

the

Eleventh

Circuit

has

similarly warned: “Allowing a litigant to appeal a bankruptcy
court’s determination of liability prior to an assessment of
damages poses a greater risk of duplicative litigation than
in a similar civil appeal because, in bankruptcy matters, the

9

litigant may appeal to a district and appellate court.” In re
Atlas, 210 F.3d at 1308.
The Trustee argues the Orders denying reconsideration
and granting the motion for summary judgment are not final
orders because a final judgment has not been entered and
“there are still things for the Bankruptcy Court to do (i.e.
decide what language to use in the Final Judgment, decide
amount of damages, assess costs, and rule as to entitlement
and amount of fees, etc.).” (Doc. # 11 at 8-9). Here, the
Court

entered

an

Order

granting

the

motion

for

summary

judgment without specifying the amount of damages to be
awarded. (Doc. # 3-2). As of this Order, Judgment has not
been entered in the adversary proceeding. Thus, the Order
resolved the matter of liability, but not the relief sought.
See In re Fugazy Exp., Inc., 982 F.2d 769, 775 (2d Cir.
1992)(“[A]

‘dispute’

for

appealability

purposes

in

the

bankruptcy context, means at least an entire claim on which
relief may be granted. Thus, with respect to a meritorious
claim for damages, the dispute is not completely resolved
until the bankruptcy court determines the amount of damages
to be awarded.”).
SLS points out the motion for summary judgment argued
the debtors are entitled to $76,000 in damages. (Doc. # 14 at
10

6). But it is unclear whether the Bankruptcy Court determined
that amount was the proper calculation, as the Order granting
the motion made no reference to damages and no Judgment has
been entered. Thus, the Order granting summary judgment is
not final, and the Court lacks jurisdiction to review it.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
The appeal is DISMISSED for lack of jurisdiction. The
Clerk is directed to CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 9th
day of May, 2017.

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