GREEN TREE SERVICING LLC v. CARGILLE et al

Filing 121

MEMORANDUM AND ORDER that Defendants' Motion to Reinstate 104 is DENIED. Signed by Judge Peter G. Sheridan on 11/19/2019. (jem)

V

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GREEN TREE SERVICING, LLC,
Civil Action No.:
3: 15-cv-00938-PGS-LHG

Plaintiff,
V.

MEMORANDUM AND ORDER

CARGILLE, et al.,
Defendants.

SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion to reinstate an appeal (ECF No. 104) filed
by Defendants David and Julie Cargille (the “Cargilles”).

For the reasons stated herein,

Defendants’ motion is denied.
I
The facts and procedural history of this matter have been set forth in considerable detail in
this Court’s prior decisions and will not be repeated here again. Only the procedural history
relevant to this motion will be discussed here.
In short, in 2013, Plaintiff/Counterclaim Defendant Green Tree Servicing, LLC, now
known as Ditech Financial LLC [hereinafter “Ditech”], filed a foreclosure action against the
Cargilles in New Jersey Superior Court, Chancery Division, Mercer County. (See Joint Notice of
Removal, Ex. A, Compl., ECF No. 1-1). The foreclosure action has spawned a flurry of motions
in this Court, as well as in federal bankruptcy court and in the U.S. Court of Appeals for the Third
Circuit.

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On January 24, 2019, this Court granted Ditech’s motion for reconsideration, which
requested that this Court reconsider its April 12, 2018 Order. See Green Tree Servicing, LLC v.
Cargille, No.: 15-cv-0938 (PGS)(LHG), 2019 U.S. Dist. LEXIS 11615, at *10il (D.N.J. Jan. 24,
2019); ECF No. 98. In this Court’s January 24, 2019 memorandum and opinion, it dismissed with
prejudice certain counterclaims and dismissed without prejudice other counterclaims. Cargille,
2019 U.S. Dist. LEXIS 11615, at *11. For the claims that were dismissed without prejudice, this
Court ordered that the Cargilles may amend those remaining claims within thirty days. Id. The
Cargilles did not amend their claims, and instead filed an interlocutory appeal with the U.S. Court
of Appeals for the Third Circuit on February 22, 2019. (See Notice of Interlocutory Appeal, ECF
No. 99).
On April 18, 2019, the Third Circuit dismissed the interlocutory appeal on procedural
grounds under Federal Rule of Appellate Procedure 10(b) and Third Circuit Local Appellate Rule
107.2(a). (Certified Order of U.S. Court of Appeals for the Third Circuit, ECF No. 101). On May
15, 2019, the Cargilles filed their “Motion for Reinstatement” requesting that this Court “stay
prosecution” of the Third Circuit’s appeal. (Cargilles’ Motion for Reinstatement, 8, ECF No. 104).
Specifically, because the Bankruptcy Court issued an Interim Order modifying the automatic stay
on a limited basis, the Cargilles state that they have “shown good cause

.

.

.

for reinstatement of

the appeal pending the Stay in Bankruptcy court, to enable prosecution of the appeal at such time
as the Stay is lifted.” (Id. at ¶91 18, 7). The Bankruptcy Court’s Interim Order stated:
[T]he automatic stay shall remain in full force and effect with respect to any and all
other pending or future claims, cross-claims, third-party claims, and counterclaims
by Interested Parties related to judicial and non-judicial foreclosure and eviction
proceedings, including with respect to (a) monetary relief of any kind or any nature
against the Debtors, (b) claims of recoupment or setoff, (c) relief that if granted
would affect the amount, validity, and/or priority of lien(s) on property owned or
serviced by the Debtors, and (d) actions asserted in the form of a class action or
collective action.
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(Id. at 91 7).
According to Ditech, the day after the Cargilles filed its reinstatement motion with this
Court, it also filed an application for reinstatement with the Third Circuit. (Ditech Opp’n, 3, ECF
No. 107). The Third Circuit, according to Ditech, entered a Noncompliance Order because of
deficiencies in the Cargilles’ motion for reinstatement. (Id.).
II
This Court lacks jurisdiction to hear this case because the Cargilles are requesting that this
Court rule on an order issued by the Third Circuit. Third Circuit Local Appellate Rule 107.2
describes the procedures for dismissal for an appellant’s failure to prosecute. The Rule states that
when an appellant fails to comply with the Federal Rules of Appellate Procedure or the Third
Circuit’s Local Appellate Rules, the appeal may be dismissed for want of prosecution unless the
appellant remedies the deficiency within the time period permitted under the Rule. LAR 107.2(a).
The Rule then states that “[tjhe appellant is not entitled to remedy the deficiency after the appeal
is dismissed except by order of the court,” which refers to the Court of Appeals of the Third
Circuit, not any District Court. Id. (emphasis added). Accordingly, this Court cannot rule on the
Third Circuit’s dismissal order of the Cargilles’ interlocutory appeal because this Court lacks
jurisdiction to do so.
Moreover, Sections 1330 to 1369 of Title 28, Chapter 85 of the U.S. Code delineate the
circumstances in which federal courts have jurisdiction, and dismissal orders of interlocutory
appeals are not included in the federal courts’ jurisdiction. See 28 U.S.C. § 1330

—

1369. The

Third Circuit’s Order also did not direct this Court to take any action or indicate in any way that
this Court has jurisdiction regarding the Cargilles’ interlocutory appeal.

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Any application to

reinstate the Third Circuit’s appeal must be brought before the Third Circuit. Therefore, the
Cargilles’ motion is denied for lack of jurisdiction.
ORDER
This matter having come before the Court on Defendants’ Motion to Reinstate (ECF No.
104), and the Court having carefully reviewed and taken into consideration the submissions of the
parties, as well as the arguments and exhibits therein presented, and for good cause shown, and for
all of the foregoing reasons,
IT IS on this

(1

day of November, 2019,

ORDERED that Defendants’ Motion to Reinstate (ECF No. 104) is DENIED.

kILA
PETER G. SHERIDAN, U.S.D.J.

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