HOWISON v. BANK OF AMERICA NA

Filing 14

PROCEDURAL ORDER- written positions on issues raised in the Procedural Order due by 3/21/2014. Replies, if any shall be filed by 3/28/2014. By JUDGE D. BROCK HORNBY. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILLIAM HOWISON, in his
)
capacity as Chapter 7 Trustee of )
the Bankruptcy Estate of
)
John B. and Susan E. Everest,
)
)
APPELLANT
)
)
v.
)
)
BANK OF AMERICA, N.A., ET AL., )
)
APPELLEES
)

CIVIL NO. 2:14-CV-05-DBH

PROCEDURAL ORDER

I have reviewed the briefs on this appeal, as well as the motion for

certification and responses, and I have read the bankruptcy court’s decision
and the pertinent documents, including the stipulations and the state district
court judgments. I require two clarifications before I decide how to proceed.
First, although the parties say that the facts are stipulated, I see no basis
in the stipulation for the following statement by the bankruptcy court in its
decision: “The second foreclosure judgment was entered pursuant to a
complaint in which Bank of America was named as a party-in-interest but as to
which neither Peoples United Bank nor the debtors, and importantly the
debtors, sought affirmative relief from the effects of the first judgment.”

Appellant’s Br. at 7 citing to Bankruptcy Court Hearing (ECF No. 3).1

The

stipulation and exhibits do not contain the complaint or any pleadings from
state district court, and thus I do not know where the bankruptcy court
obtained this information about the state district court proceedings or whether
it is accurate.

I believe that I and the Law Court (if I decide to certify any

issues) should have a copy of the state court filings.
Second, the Trustee now agrees that he has no right to sell the property
in question. Appellant’s Reply Br. at 2 (ECF No. 11). He says that the relief he
seeks is a judicial order compelling Bank of America to sell the property under
the terms of the second state district court order, but I do not see that request
for relief in either the Motion for Sale or the Adversary Complaint in the
Bankruptcy Court. It is not clear how or whether the trustee will be able to
obtain such an order. (He suggests a motion in the Maine District Court or a
request for supplemental relief from the Bankruptcy Court. Appellant’s Reply
Br. at 4 n.5.

The statutory time limit for public notice of sale under 14

M.R.S.A. § 6323 has probably expired.) Bank of America seems to maintain
that it has discretion whether to sell the property: “Should BANA elect to take
either of its judgments to sale . . . .” Br. of Appellee at 9 (ECF No. 7) (emphasis
added). If the bank cannot be compelled to sell the property, then this appeal
seems to be seeking an advisory opinion, because a determination of the
parties’ priorities in distribution of sale proceeds has no significance if there is
The transcript of November 12, 2013 Bankruptcy Court Hearing will not be publicly available
until March 19, 2014. Appellant Designation at 3 (ECF No. 1-4). A PDF audio file is located on
the Bankruptcy Court docket in Adversary Proceeding 12-02034 (Me. Bankr. ECF No. 43).
1

2

to be no sale. United States District Courts customarily do not give advisory
opinions.
Accordingly, I DIRECT the parties to file within 14 days their written
positions on these two issues.

Replies, if any, shall be filed within 7 days

thereafter.
SO ORDERED.
DATED THIS 7TH DAY OF MARCH, 2014
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

3