In Re. West et al

Filing 11

Judge Allison D. Burroughs: ORDER entered re 1 Bankruptcy Appeal. Accordingly, because the Appellants bankruptcy case has been dismissed, and this Court is unable to provide any relevant relief regarding her request to extend the automatic stay, the instant appeal is DISMISSED as moot. SO ORDERED.(McDonagh, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARYANNE WEST,
Appellant,
v.
WELLS FARGO,
Appellee,

JOHN FITZGERALD,
Trustee.

*
*
*
*
*
*
*
*
*
*
*
*
*
*

Civil Action No. 17-cv-11714-ADB

ORDER
BURROUGHS, D.J.
On August 24, 2017, the Bankruptcy Court denied the Appellant’s motion to extend the
automatic stay, which the Appellant timely appealed to this Court on September 7, 2017. [ECF
No. 1]. See In re West, No. 17-bk-12755, ECF Nos. 26, 36 (Bankr. D. Mass. Sept. 7, 2017).
The Federal Rules of Bankruptcy Procedure require the Appellant to file a designation of the
record and statement of the issues on appeal with the Bankruptcy Court within fourteen days of
filing the notice of appeal. Fed. R. Bankr. P. 8002 and 8009. After the Appellant failed to do so,
the Bankruptcy Court filed a Certificate of Default with this Court on October 19, 2017. [ECF
No. 4]. Following receipt of the Certificate of Default, the Appellant did not take any action
concerning her appeal until this Court ordered the Appellant to make the required filings by
April 17, 2018 and advised her that failure to comply with the Order may result in dismissal of
the appeal. [ECF No. 5]. Plaintiff was granted an extension of time to submit these materials
until May 2, 2018. [ECF Nos. 7, 8]. On May 2, 2018, the Appellant filed a handwritten letter and

certain exhibits with this Court, describing the issues on which she seeks appellate review. [ECF
Nos. 9, 10]. Plaintiff did not file a designation of the record in accordance with the Federal Rules
of Bankruptcy Procedure and this Court’s prior Orders.
Notwithstanding the Appellant’s noncompliance described above, upon further
consideration of the underlying action, the instant appeal has been rendered moot. “Mootness in
bankruptcy appellate proceedings, as elsewhere, is premised on jurisdictional and equitable
considerations stemming from the impracticability of fashioning fair and effective relief.” In re
Carey, 221 B.R. 571, 572 (1st Cir. BAP 1998) (quoting Rochman v. Northeast Utilities Serv.
Grp., 963 F.2d 469, 471 (1st Cir. 1992)). Here, the Appellant sought review of the denial of a
motion to extend the automatic stay. As the First Circuit has explained:
[T]he automatic stay provided in 11 U.S.C. § 362(a) [is] dependent upon the
operation of the bankruptcy law, and that law [is] pertinent only because of the
existence of the proceeding in bankruptcy . . . . Any power that [the appellate court]
[has] with respect to the stay is derived from [the court’s] appellate power in
bankruptcy matters. Once the bankruptcy [is] dismissed, a bankruptcy court no
longer [has] power to order the stay or to award damages allegedly attributable to
its vacation. A remand by [the appellate court] to the bankruptcy court would
therefore be useless.
Gorczakoski v. Eastern Airlines Fed. Fin. Credit Union, Inc., 39 F.3d 1166, 1994 WL 591607, at
*1 (1st Cir. Oct. 28, 1994) (quoting In re Income Prop. Builders, Inc., 699 F.2d 963, 964 (9th
Cir. 1982) (per curiam)) (finding that appeal from granting relief from automatic stay became
moot “once the dismissal of the underlying bankruptcy proceeding became final”). Here, on
December 12, 2017, the Bankruptcy Court issued an order stating, “As the debtor has failed to
comply with the court’s order on November 21, 2017, the case is dismissed,” followed by a
Notice of Dismissal on January 10, 2018. See In re West, No. 17-bk-12755, ECF Nos. 123, 131
(Bankr. D. Mass.). Plaintiff has not appealed the dismissal of the underlying action.

2

Because the automatic stay which the Appellant sought to extend is no longer effective
following the dismissal of the action, this Court is unable to afford the Appellant any relevant
relief. See In re Soto, No. PR 12 053, 2013 WL 1932118, at *1 (1st Cir. BAP May 8, 2013) (per
curiam) (“We are unable to fashion meaningful relief because we cannot reinstate the automatic
stay in a case that has been dismissed.”); cf. In re Melo, 496 B.R. 253, 256 (1st Cir. BAP 2013)
(“The dismissal of a bankruptcy case ‘normally results in dismissal of related proceedings
because federal jurisdiction is premised upon the nexus between the underlying bankruptcy case
and the related proceedings.’” (quoting Hamilton v. Appolon, 399 B.R. 717, 720 (1st Cir. BAP
2009))); In re Caribbean Tubular Corp., 813 F.2d 533, 534 (1st Cir. 1987) (“[B]ecause the
bankruptcy court’s dismissal of the entire proceeding rendered the interlocutory appeal moot, the
district court should have dismissed that appeal.”).
Accordingly, because the Appellant’s bankruptcy case has been dismissed, and this Court
is unable to provide any relevant relief regarding her request to extend the automatic stay, the
instant appeal is DISMISSED as moot.
SO ORDERED.
May 7, 2018

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

3