In Re: Thompson

Filing 11

MEMORANDUM AND OPINION. For the reasons set forth in the attached Memorandum and Order, appellee's motion to dismiss the appeal is granted. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/8/2012. (Chambers has mailed a copy of the Memorandum and Order to appellant by first class mail) (Maxwell, Rita)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-cv-2905(JFB)
_____________________

KAREN MARIE THOMPSON
Appellant,
VERSUS

JP MORGAN CHASE BANK, N.A.,
Appellee.
___________________
MEMORANDUM AND ORDER
March 8, 2012
___________________

JOSEPH F. BIANCO, District Judge:
The instant case is an appeal from the
voluntary bankruptcy proceeding of debtor
Karen Marie Thompson (“Thompson” or
“appellant”), under Chapter 7 of the
Bankruptcy Code, in the United States
Bankruptcy Court for the Eastern District of
New York (the “Bankruptcy Court”). In
particular, pro se appellant appeals from the
Order Granting Relief from the Automatic
Stay dated March 25, 2011 (the “March 25
Order”) of the Honorable Alan S. Trust
(“Judge Trust”). In the March 25 Order, the
Bankruptcy Court vacated the automatic
bankruptcy stay to permit JP Morgan Chase
Bank, N.A. (“JP Morgan” or “appellee”) to
foreclose upon appellant. On April 18,
2011, appellant filed a Notice of Appeal (the
“Notice of Appeal”) of the March 25 Order.1
1

Thompson filed her appeal of the March 25 Order
with the Clerk of the Bankruptcy Court on April 18,

Appellee now moves to dismiss the instant
appeal on the ground that it is untimely,
pursuant to Rule 8002(a) of the Federal
Rules of Bankruptcy Procedure. Appellee
also moves to dismiss the appeal on the
ground that the Bankruptcy Court did not
abuse its discretion because: (1) appellant
failed to take appropriate steps to adjourn
the hearing regarding the lift of the stay, and
(2) appellee made a prima facie showing of
cause to lift the stay, and appellant has not
attempted to rebut appellee’s prima facie
case. For the reasons set forth below, the
Court grants appellee’s motion to dismiss
the appeal. Specifically, the Notice of
Appeal is untimely and thus, the Court lacks
2011. The appeal was not docketed by the Clerk of
the District Court until June 16, 2011.
Accompanying appellant’s complaint is an
application to proceed in forma pauperis. The Court
grants Thompson’s request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a).

jurisdiction to consider it. In any event,
even assuming arguendo that the Notice of
Appeal had been timely filed, the Court
concludes that the appeal fails on the merits.

According to JP Morgan, Thompson
contacted JP Morgan’s attorney on March
21, 2011, to request an adjournment of the
March 24 Hearing. (JP Morgan’s Br. at 7,
Feb 14, 2012, ECF No. 10.) According to
JP Morgan, JP Morgan’s attorney advised
Thompson to contact the Bankruptcy Court,
obtain a new date for the hearing, and advise
JP Morgan’s attorney of the adjourned date.
(Id.) When JP Morgan’s attorney did not
hear back from Thompson, JP Morgan’s
attorney appeared in court on March 24,
2011, and the hearing was held. (Id.)

I. BACKGROUND
Appellant filed a Chapter 7 Voluntary
Petition on January 19, 2011. On February
11, 2011, JP Morgan moved for relief from
the automatic stay. (Motion to Vacate the
Automatic Stay, JP Morgan Record, Feb. 14,
2012, ECF No. 9-1.2) On March 4, 2011,
Thompson filed an opposition to JP
Morgan’s motion and moved to postpone the
return date of the motion, which was March
24, 2011. (Opposition to Motion to Vacate
the Automatic Stay and Motion to Postpone,
JP Morgan Record, Feb. 14, 2012, ECF No.
9-2.) Both Thompson and JP Morgan agree
that a hearing on JP Morgan’s motion was
scheduled for March 24, 2011 (the “March
24 Hearing”). (Thompson’s Br. at 1, Feb. 1,
2012, ECF No. 8; JP Morgan’s Br. at 6, Feb.
14, 2012, ECF No. 10.)

Both parties agree that the hearing was
held on March 24, 2011. (Thompson’s Br.
at 1, Feb. 1, 2012, ECF No. 8; JP Morgan’s
Br. at 7, Feb. 14, 2012, ECF No. 10.) On
March 25, 2011, Judge Trust entered the
March 25 Order (“Order Granting Relief
from the Automatic Stay”). (Order, JP
Morgan Record, Feb. 14, 2012, ECF No. 93.)
The Bankruptcy Court noted that
Thompson had filed an opposition to JP
Morgan’s motion, but she had failed to
appear at the hearing. (Id.)

According to Thompson, Thompson
contacted JP Morgan’s counsel on March 5,
2011, to request an adjournment of the
March 24 Hearing. (Thompson’s Br. at 1,
Feb. 1, 2012, ECF No. 8.) According to
Thompson, JP Morgan’s attorney agreed to
an adjournment of the hearing to April 1,
2011. (Id. at 1-2.) Thompson alleges that,
at that time, she was represented by an
attorney who had been in contact with JP
Morgan regarding a mortgage modification
and a forensic audit of the mortgage. (Id. at
2.)

On April 15, 2011, Thompson filed a
motion for reconsideration of the March 25
Order. (Motion for Reconsideration, JP
Morgan Record, Feb. 14, 2012, ECF No. 94.) On April 18, 2011, Thompson filed the
instant appeal of the March 25 Order.
(Notice of Appeal, June 16, 2011, ECF No.
1.) On May 5, 2011, JP Morgan filed an
opposition to Thompson’s motion for
reconsideration. (Affirmation in Opposition,
JP Morgan Record, Feb. 14, 2011, ECF No.
9-6.)
On May 9, 2011, the Bankruptcy Court
issued an “Order Scheduling Hearing on
Motion for Reconsideration.” (Order, In re
Thompson, No. 11-70183-ast, May 9, 2011,
ECF No. 21.) In that Order, Judge Trust
indicated that “[d]espite the Debtor’s
unexcused absence at the [March 24]

2

On February 14, 2012, JP Morgan submitted the
bankruptcy record on appeal, which includes the
filings and Orders relevant to this appeal. All
citations to the record submitted by JP Morgan will
include the docket entry of JP Morgan’s submission
in the instant action.

2

Bankr. P. 8002(b). This tolling provision
applies to a motion for reconsideration
pursuant to Rule 9024 of the Federal Rules
of Bankruptcy Procedure, “if the motion is
filed no later than 14 days after the entry of
judgment.” Fed. R. Bankr. P. 8002(b)(4);
see also Coe v. RJM, LLC, 372 F. App’x
188, 189 n.* (2d Cir. 2010) (summary order)
(“Rule 8002 was amended effective
December 1, 2009, to provide that a motion
for reconsideration filed pursuant to
Bankruptcy Rule 9024 within 14 days after
the entry of judgment . . . tolls the time to
appeal.”).

Hearing, the Court considered [Thompson’s]
Opposition. At the conclusion of the [March
24] Hearing the Court determined that the
stay relief was appropriate given the
ongoing payment default and the lack of
equity in the Premises.” (Id. at 1-2.)
The Bankruptcy Court held a hearing on
June 2, 2011 on the motion for
reconsideration of the March 25 Order.
(Order Denying Motion to Reconsider, JP
Morgan Record, Feb. 14, 2011, ECF No. 97.) On June 21, 2011, Judge Trust entered
an “Order Denying Motion to Reconsider
Order on Motion for Relief from Stay.”
(Id.)

Construing Rule 8002(a), the Second
Circuit has held:

Thompson’s only challenge on appeal is
that Thompson was denied the assistance of
counsel and the opportunity to properly
argue at the hearing held on March 24, 2011.
Thompson argues that JP Morgan was given
an unfair and strategic advantage over
Thompson when Thompson was not allowed
to argue at the hearing. (Thompson’s Br. at
2, Feb. 1, 2012, ECF No. 8.)

We . . . follow our sister circuits in
holding that the time limit contained
in Rule 8002(a) is jurisdictional, and
that, in the absence of a timely notice
of appeal in the district court, the
district court is without jurisdiction
to consider the appeal, regardless of
whether
the
appellant
can
demonstrate excusable neglect.

III. DISCUSSION
Siemon v. Emigrant Savings Bank (In re
Siemon), 421 F.3d 167, 169 (2d Cir. 2005)
(quotation marks omitted) (agreeing with
district court’s dismissal of pro se
appellant’s bankruptcy appeal on grounds
that district court lacked jurisdiction to hear
appeal because Notice of Appeal was
untimely pursuant to Rule 8002(a)); see also
Delafield 246 Corp. v. City of New York,
No. 07-CV-6238(LAP), 2007 WL 4103830,
at *1 (S.D.N.Y. Nov. 13, 2007) (dismissing
bankruptcy appeal on jurisdictional grounds
where appellant filed untimely Notice of
Appeal); Schapiro v. Gazes (In re Schapiro),
No. 06 Civ. 2685 (DLC), 2006 U.S. Dist.
LEXIS 56474, at *4 (S.D.N.Y. Aug. 15,
2006) (holding that pro se “Appellant’s
Notice of Appeal was not timely filed.
Compliance with Rule 8002 is mandatory

A. Timeliness of Appeal
JP Morgan argues that Thompson’s
appeal of the March 25 Order is time-barred.
The Court agrees.
1. Legal Standard
Under Rule 8002 of the Federal Rules of
Bankruptcy Procedure, “[t]he notice of
appeal shall be filed with the clerk within 14
days of the date of the entry of the judgment,
order or decree appealed from.” Fed. R.
Bankr. P. 8002(a). If a party makes one of
the enumerated motions in Rule 8002(b)(1)(4), “the time for appeal for all parties runs
from the entry of the order disposing of the
last such motion outstanding.” Fed. R.
3

and jurisdictional.”); In re Premier
Operations, 290 B.R. 33, 37 (S.D.N.Y.
2003) (“failure to file a timely notice of
appeal deprives the district court of
jurisdiction to review the bankruptcy court’s
orders.”).

until April 18, 2011. As such, the Notice of
Appeal is untimely.
Thompson’s filing of a motion for
reconsideration on April 15, 2011 did not
toll Thompson’s time to file the Notice of
Appeal. Tolling only occurs if the motion
for reconsideration was filed fourteen days
after the entry of judgment. Thompson was
required to file her motion for
reconsideration by April 8, 2011 in order to
toll the deadline to file her Notice of Appeal
before this Court. As the motion for
reconsideration was filed on April 15, 2011,
the deadline to file a Notice of Appeal was
not tolled.

2. Analysis
The Bankruptcy Court entered the
March 25 Order on March 25, 2011.3
Thompson’s motion for reconsideration was
filed on April 15, 2011 and her appeal
before this Court was filed on April 18,
2011. In order for Thompson to have filed a
timely appeal, Thompson was required to
file her Notice of Appeal by April 8, 2011.4
Thompson did not file her Notice of Appeal

Thompson’s Notice of Appeal is
untimely and the Court lacks jurisdiction to
consider it.5

3

Under Rule 9022 of the Federal Rules of
Bankruptcy Procedure, immediately on the entry of
an order, the Clerk is required to serve a “notice of
entry in the manner provided in Rule 5(b) of the F. R.
Civ. P. on the contesting parties.” Fed. R. Bankr. P.
9022(a). In her brief on appeal, Thompson does not
allege that she never received the March 25 Order
from the Court. JP Morgan served a Notice of Entry
upon Thompson on April 8, 2011. Even if Thompson
alleged that she did not receive notice of the
Bankruptcy Court’s March 25 Order until after JP
Morgan’s April 8, 2011 mailing, “[l]ack of notice of
the entry does not affect the time to appeal or relieve
or authorize the court to relieve a party for failure to
appeal within the time allowed, except as permitted
in Rule 8002.” Id.; see also Warrick v. Birdsell (In re
Warrick), 278 B.R. 182, 187 (9th Cir. 2002) (“It is
well-settled that failure to receive notice of entry of
judgment or order is not an excuse for an untimely
appeal because it is the party’s affirmative duty to
monitor the dockets. Therefore, the failure of a court
clerk to give notice of entry of an order is not a
ground, by itself, to warrant finding an otherwise
untimely appeal timely.” (citing Key Bar Invs., Inc.
v. Cahn (In re Cahn), 188 B.R. 627, 632 (9th Cir.
1995))).
4
Rule 8002(a) provides that the Notice of Appeal
shall be filed with the clerk within 14 days of the date
of the entry of judgment, order, or decree appealed
from, and this time-period includes weekends and
holidays, pursuant to Rule 9006(a)(1)(B).
Thompson’s period of fourteen days to file a Notice
of Appeal ran from March 26, 2011 to April 8, 2011.

B. Merits of Appeal
JP Morgan also argues that the
Bankruptcy Court did not abuse its
discretion in granting JP Morgan’s motion to
lift the automatic stay because: (1) appellant
failed to take appropriate steps to adjourn
the hearing regarding the lift of the stay, and
(2) appellee made a prima facie showing of
cause to lift the stay, and appellant has not
5

The Court is aware that Rule 8002 permits the
bankruptcy judge to extend the time for filing a
notice of appeal under certain circumstances –
namely, “[a] request to extend the time for filing a
notice of appeal must be made by written motion
filed before the time for filing a notice of appeal has
expired, except that such a motion filed not later than
21 days after the expiration of the time for filing a
notice of appeal may be granted upon a showing of
excusable neglect. An extension of time for filing a
notice of appeal may not exceed 21 days from the
expiration of the time for filing a notice of appeal
otherwise prescribed by this rule or 14 days from the
date of entry of the order granting the motion,
whichever is later.” Fed. R. Bankr. P. 8002(c)(2).
Here, Thompson failed to file any request for an
extension to submit her Notice of Appeal, timely or
otherwise.

4

n.16 (W.D.N.Y. Dec. 18, 2003) (“[A]
finding is only clearly erroneous when
although there is evidence to support it, the
reviewing court on the entire evidence is left
with the definite and firm conviction that a
mistake has been committed. This standard
precludes this Court from reversing the
Bankruptcy Court’s decision if its account of
the evidence is plausible, even if this Court
is convinced that it would have weighed the
evidence differently.” (quoting In re B.
Cohen & Sons Caterers, Inc., 108 B.R. 482,
484 (E.D. Pa. 1989)).

attempted to rebut appellee’s prima facie
case.
Because the Court finds that
Thompson’s Notice of Appeal was untimely
filed and this Court lacks jurisdiction over it,
the Court need not review the Bankruptcy
Court’s legal conclusions. However, in an
abundance of caution, the Court conducts a
review of the merits of Thompson’s appeal.
1. Legal Standard
Rule 8013 of the Federal Rules of
Bankruptcy Procedure provides that a
reviewing court may “affirm, modify, or
reverse a bankruptcy judge’s judgment,
order, or decree” or it may “remand with
instructions for further proceedings.” Fed.
R. Bankr. P. 8013.

The Court will review the Bankruptcy
Court’s decision to lift the automatic stay for
abuse of discretion. See In re Sonnax
Indus., 907 F.2d 1280, 1286 (2d Cir. 1990)
(“we may overturn a denial of a motion to
lift the automatic stay upon a showing of
abuse of discretion”); In re Case, 384 F.
App’x 43, 44 (2d Cir. 2010) (“We review a
decision to lift an automatic stay for abuse
of discretion.”); In re Great Atlantic &
Pacific Tea Co., Inc., No. 11-CV-3558 (CS),
2012 WL 264187, at *3 (S.D.N.Y. Jan. 30,
2012) (“A bankruptcy court’s equitable
discretion – such as its determination on a
motion to lift the automatic stay – is
reviewed for abuse of discretion.”).

The Court will review the Bankruptcy
Court’s legal conclusions de novo and its
factual findings for clear error. See Denton
v. Hyman (In re Hyman), 502 F.3d 61, 65
(2d Cir. 2007); see also Lubow Mach. Co. v.
Bayshore Wire Prods. Corp. (In re Bayshore
Wire Prods. Corp.), 209 F.3d 100, 103 (2d
Cir. 2007) (“Like the District Court, we
review the Bankruptcy Court’s findings of
fact for clear error, . . . its conclusions of law
de novo, . . . its decision to award costs,
attorney’s fees, and damages for abuse of
discretion.” (citations omitted)); accord
Shugrue v. Air Line Pilots Ass’n, Int’l (In re
Ionosphere Clubs Inc.), 922 F.2d 984, 98889 (2d Cir. 1990). “A finding is ‘clearly
erroneous’ when although there is evidence
to support it, the reviewing court on the
entire evidence is left with the definite and
firm conviction that a mistake has been
committed.” Dist. Lodge 26, Int’l Ass’n of
Machinists & Aerospace Workers, AFL-CIO
v. United Techs. Corp., 610 F.3d 44, 51 (2d
Cir. 2010) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)); see
also Collins v. Hi-Qual Roofing & Siding
Materials, Inc., Nos. 02-CV-0921E(F), 02CV-0922E(F), 2003 WL 23350125, at *4,

2. Analysis
Thompson appeals the Bankruptcy
Court’s decision to hold the March 24
Hearing without Thompson present and the
decision to lift the stay to allow JP Morgan
to foreclose on Thompson’s property. The
Court finds that the Bankruptcy Court did
not abuse its discretion when it held the
March 24 Hearing and when it issued the
March 25 Order lifting the automatic stay.
Even under de novo review, the Court finds
the Bankruptcy Court was correct to lift the
automatic stay.

5

a. Bankruptcy Court’s Decision to Hold the
March 24, 2011 Hearing

Hearing when Thompson failed to appear
and failed to request an adjournment of the
March 24 Hearing from the Bankruptcy
Court. Thompson does not allege in her
appeal that the Bankruptcy Court issued an
order adjourning the March 24 Hearing or
agreed to adjourn the March 24 Hearing.
Thompson seems to allege that because JP
Morgan’s counsel agreed to an adjournment,
the March 24 Hearing should not have been
held. As Thompson had notice of the March
24 Hearing and the Bankruptcy Court took
no action to adjourn it, the Bankruptcy
Court’s decision to hold the March 24
Hearing did not violate due process.
Thompson had sufficient notice and
opportunity to be heard at the March 24
Hearing.

Thompson argues that the Bankruptcy
Court should not have held the March 24
hearing when she did not appear at the
hearing. The Court interprets Thompson’s
argument to be that the Bankruptcy Court
violated her due process rights by holding
the hearing without her.6
Under 11 U.S.C. § 362(d), a bankruptcy
court may grant relief from an automatic
stay “after notice and a hearing.” 11 U.S.C.
§ 362(d). The Bankruptcy Code states that
“after notice and a hearing” “means after
such notice as is appropriate in the particular
circumstances, and such opportunity as is
appropriate in the particular circumstances.”
11 U.S.C. § 102(1)(A); see also In re
George, 4 F. App’x 357, 360 (9th Cir. 2001)
(“Due process requires ‘notice reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency of
the action and afford them an opportunity to
present their objections.’” (citing Walthall v.
United States, 131 F.3d 1289, 1294 (9th Cir.
1997))).

In any event, Thompson suffered no
prejudice due to her failure to appear at the
March 24 Hearing, as the Bankruptcy Court
fully considered her arguments on the merits
set forth in her opposition to JP Morgan’s
motion to vacate the stay, and the
Bankruptcy Court held a hearing in
connection with Thompson’s motion for
reconsideration, and Thompson participated
in that hearing. (Order at 1-2, In re
Thompson, No. 11-70183-ast, May 9, 2011,
ECF No. 21; Order Denying Motion to
Reconsider, JP Morgan Record, Feb. 14,
2011, ECF No. 9-7.) The Bankruptcy Court
again adhered to its ruling that the stay
should be lifted. (Order Denying Motion to
Reconsider, JP Morgan Record, Feb. 14,
2012, ECF No. 9-7.)

The Court finds that the Bankruptcy
Court did not abuse its discretion when it
decided to proceed with the March 24
6

To the extent Thompson alleges that the Court’s
decision to proceed with the March 24 Hearing
denied her of “assistance of counsel” (Thompson’s
Br. at 2, Feb. 1, 2012, ECF No. 8.), the Court finds
that there is nothing in Thompson’s appeal that
suggests that (1) counsel ever appeared on
Thompson’s behalf in the Bankruptcy Court, (2) her
purported counsel requested an adjournment of the
March 24 Hearing, or (3) Thompson formally
requested an adjournment from the Bankruptcy Court
so that counsel could participate in the March 24
Hearing.
Had Thompson been represented by
counsel at this time, as she alleges in her appeal brief,
counsel could have entered an appearance and
participated in the bankruptcy proceedings. The
Bankruptcy Court undertook no action that denied
Thompson effective assistance of counsel.

b. Bankruptcy Court’s Decision to
Lift the Stay
Though Thompson’s appeal mainly
focuses on the events surrounding the March
24 Hearing, Thompson also implies that the
Bankruptcy Court’s decision to lift the stay
was an abuse of discretion. This Court finds
that the Bankruptcy Court’s March 25 Order
6

lifting the automatic stay was not an abuse
of discretion.

creditor has the burden of establishing that
the debtor has no equity in the property, the
burden [then] shifts to the debtor to prove
that the property is necessary to an effective
reorganization.” 2670 West Ridge Road,
LLC v. Real Estate Asset Purchase Corp.,
No. 10-CV-6095-CJS, 2010 WL 3516584,
at *2, (W.D.N.Y. Sept. 3, 2010) (internal
quotations and citation omitted).

Under 11 U.S.C. § 362,
On request of a party in interest and
after notice and a hearing, the court
shall grant relief from the stay
provided under the subsection (a) of
this section, such as by terminating,
annulling,
modifying,
or
conditioning such stay - -

The Court finds that the Bankruptcy
Court did not abuse its discretion when it
lifted the automatic stay. Even under de
novo review of the Bankruptcy Court’s
decision, the Court finds that (1) cause
existed to lift the stay, and (2) Thompson
did not have equity in the property and had
not established that the property was
necessary to an effective reorganization.

(1) for cause, including the lack of
adequate protection of an interest in
property of such party in interest;
(2) with respect to a stay of an act
against property under subsection (a)
of this section if - -

Considering all of the Sonnax factors,
the Court finds that cause existed to lift the
stay pursuant to 11 U.S.C. § 362(d)(1). In
its motion to vacate the automatic stay, JP
Morgan established that Thompson had not
made mortgage payments since December
1, 2008, JP Morgan had begun foreclosure
proceedings against Thompson in state
court, and JP Morgan continued to expend
money for taxes and insurance related to
the property.
(Motion to Vacate the
Automatic Stay, JP Morgan Record, Feb.
14, 2012, ECF No. 9-1.)

(A) the debtor does not have an
equity in such property; and
(B) such property is not
necessary to an effective
reorganization
11 U.S.C. § 362(d)(1)-(2). With respect to
subsection (1), the Court must consider the
test articulated by the Second Circuit in In
re Sonnax Industries Inc., 907 F.2d 1280
(2d Cir. 1990). There, “the Second Circuit
provided a non-exclusive list of factors that
may be relevant in determining whether an
automatic stay should be lifted for ‘cause’
under § 362(d)(1).” In re Watkins, Nos. 06CV-1341(DGT), 06-CV-597(DGT), 2008
WL 708413, at *3 (E.D.N.Y. Mar. 14,
2008).7 With respect to subsection (2), “[a]

responsibility for defending it; (6) whether the action
primarily involves third parties; (7) whether litigation
in another forum would prejudice the interests of
other creditors; (8) whether the judgment claim
arising from the other action is subject to equitable
subordination; (9) whether movant’s success in the
other proceeding would result in a judicial lien
avoidable by the debtor; (10) the interests of judicial
economy and the expeditious and economical
resolution of litigation; (11) whether the parties are
ready for trial in the other proceeding; and (12)
impact of the stay on the parties and the balance of
harms.” In re Sonnax Indus., Inc., 907 F.2d at 1286.

7

These factors include: “(1) whether relief would
result in a partial or complete resolution of the issues;
(2) lack of any connection with or interference with
the bankruptcy case; (3) whether the other proceeding
involves the debtor as a fiduciary; (4) whether a
specialized tribunal with the necessary expertise has
been established to hear the cause of action; (5)
whether the debtor’s insurer has assumed full

7

The Court also finds that the stay was
properly lifted under 11 U.S.C. § 362(2).
JP Morgan established that Thompson had
no equity in the property. (Id.) In her
opposition to JP Morgan’s motion,
Thompson did not dispute the facts alleged,
but rather stated that she was engaged in
talks with JP Morgan regarding a mortgage
modification and was requesting a forensic
evaluation of the mortgage to determine if
it was predatory.8 (Opposition to Motion to
Vacate the Automatic Stay and Motion to
Postpone, JP Morgan Record, Feb. 14,
2012, ECF No. 9-2.)

IV. CONCLUSION
For the foregoing reasons, appellee’s
motion to dismiss the appeal is granted. The
Clerk of the Court shall enter judgment
accordingly and close the case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 8, 2012
Central Islip, NY

It is evident from the record that the
stay was properly lifted pursuant to 11
U.S.C. 362(d)(1)-(2). Thompson, in her
appeal, offers no evidence to suggest that
the stay should not have been lifted. As
such, the Court affirms the lift of the stay in
this action.

***
Appellant is proceeding pro se: 4 Naomi
Court, Melville, NY 11747. Appellee JP
Morgan Chase Bank, N.A. is represented by
Shari Seltzer Barak, Shapiro & DiCaro, 777
Larkfield Road, Commack, NY 11725.

8

Thompson stated that JP Morgan told her that
insurance and taxes would be held in abeyance and
incorporated into the modified mortgage payment if a
modified payment was approved. (Opposition to
Motion to Vacate the Automatic Stay and Motion to
Postpone, JP Morgan Record, Feb. 14, 2012, ECF
No. 9-2.)
Even if JP Morgan made this
representation to Thompson, it does not negate the
fact that taxes and insurance costs were accruing on
the property.

8