In Re. Rowe et al

Filing 12

Judge Richard G. Stearns: ORDER entered granting 11 Motion to Dismiss. The Clerk will enter judgment for Wilmington and close the case. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 18-30071-RGS
ELIZABETH L. ROWE
v.
WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS
CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE FOR BCAT 2014-4TT
MEMORANDUM AND ORDER ON
APPELLEE’S MOTION TO DISMISS
October 30, 2018
STEARNS, D.J.
Elizabeth Rowe is appealing a Bankruptcy Court order granting
Wilmington Savings Fund Society, FSB, 1 relief from the automatic stay of
creditor proceedings. Wilmington moves to dismiss the appeal. 2 For the
reason to be explained, Wilmington’s motion to dismiss will be allowed.
BACKGROUND
The facts, viewed in the light most favorable to Rowe as the nonmoving
party, are as follows. Wilmington was the holder of a first mortgage on

Wilmington is doing business as Christiana Trust, not in its individual
capacity, but solely as trustee for BCAT2014-4TT.
1

2

Rowe has not filed an opposition to Wilmington’s motion.

Rowe’s

property located at

22

Pasadena Street in Springfield,

Massachusetts. 3 On December 1, 2017, Rowe filed for bankruptcy protection
under Chapter 7 of the Bankruptcy Code, which triggered an automatic stay
of creditor proceedings against her property. 11 U.S.C. § 362(a). On March
27, 2018, Wilmington filed a motion for relief from the automatic stay under
11 U.S.C. §§ 362(d)(1)-(2). Wilmington alleged that a March 2009 payment
on the mortgage remained outstanding, and that, in any event, Rowe has no
equity in the property because it is under water. (The property is currently
appraised at $119,503, while the outstanding mortgage totals $270,232.)
Wilmington Br. (Dkt # 9) at 2. On April 26, 2018, the Bankruptcy Court
heard oral arguments and granted Wilmington’s motion, noting that “the
documents attached to [the] motion [were] sufficient to establish that the
movant [had] a colorable claim to the property.” Id. at 3. On May 10, 2018,
Rowe appealed the order to this court. Rowe, however, did not file a motion
to stay the order pending appeal. On September 27, 2018, Wilmington
conducted a foreclosure sale and purchased the property.

Rowe alleges, however, that Wilmington did not possess a valid
mortgage note because of, among other things, “breaks in the chain of title”
and Wilmington’s “unclean hands.” Rowe Reply Br. (Dkt # 10) at 2-3.
2
3

DISCUSSION
“Mootness is a jurisdictional defect, rooted in Article III case or
controversy considerations.” Horizon Bank & Tr. Co. v. Massachusetts, 391
F.3d 48, 53 (1st Cir. 2004). “The doctrine of mootness enforces the mandate
‘that an actual controversy must be extant at all stages of the review, not
merely at the time the complaint is filed.’” Mangual v. Rotger-Sabat, 317
F.3d 45, 60 (1st Cir. 2003), quoting Steffel v. Thompson, 415 U.S. 452, 459
n.10 (1974). A case is moot when a court cannot give “‘any effectual relief
whatever’” to the potentially prevailing party. Church of Scientology of
California v. United States, 506 U.S. 9, 12 (1992), quoting Mills v. Green,
159 U.S. 651, 653 (1895).
Rowe makes three main arguments. First, she argues that Wilmington
did not own an enforceable note against her property because there were
gaps in the chain of title. Rowe Reply Br. (Dkt # 10) at 5. Second, she argues
that the Bankruptcy Court erred by refusing to order a show cause hearing.
She alleges that Wilmington was ineligible for relief because it had dirtied its
hands by its involvement in “a table-funded loan.” Rowe Br. (Dkt # 8) at 16.
Third, she argues that the Bankruptcy Court erred by adjudicating a “noncore” issue over which it had no jurisdiction. Id. at 18.

3

Whatever the merits of these arguments, the appeal is now moot as
Rowe no longer owns the disputed property. See In re Soares, 187 F.3d 623,
623 (1st Cir. 1998) (unpublished table decision) (“[T]he property’s sale has
rendered the appeal moot. Generally, when the debtor fails to obtain a stay
pending appeal of the bankruptcy court’s . . . order setting aside an automatic
stay and allowing a creditor to foreclose on property, the subsequent
foreclosure and sale of the property renders moot any appeal.”) (internal
citations and quotation marks omitted). Rowe could have sought to stay the
Bankruptcy Court order pending appeal. See In re Lomagno, 429 F.3d 16,
17 (1st Cir. 2005) (“[W]hen the petition giving rise to the stay is dismissed,
the stay terminates immediately, and creditors may proceed with
foreclosure. . . . The Federal Rules of Bankruptcy Procedure provide that a
debtor may seek a stay pending appeal.”) (internal citations omitted). By
failing to do so, Rowe left Wilmington free to conduct the foreclosure sale
and render her appeal of the Bankruptcy Court’s order moot as a result.
Horizon Bank & Tr. Co., 391 F.3d at 53 (“[A] case not moot at the outset can
become moot because of a change in the fact situation underlying the
dispute . . . .”).

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ORDER
For the foregoing reason, Wilmington’s motion to dismiss the appeal
is ALLOWED. The Clerk will enter judgment for Wilmington and close the
case.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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