MSCI 2007-HQ12 Phillips Lane, LLC v. Austin

Filing 8

ORDER granting 4 Appellee's Motion to Dismiss. This appeal is DISMISSED as moot. Signed by District Judge Max O. Cogburn, Jr on 9/5/2017. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5-17-cv-00026-RLV
MSCI 2007-HQ12 PHILLIPS LANE, LLC,
Appellant,
Vs.
LARRY DEAN AUSTIN, ET AL.,
Appellee.

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ORDER

THIS MATTER is before the court on Appellee’s Motion to Dismiss Appeal. Having
considered Appellee’s motion and reviewed the pleadings, the court will grant the motion.
DISCUSSION
The issue is whether the appeal is moot. The Fourth Circuit has established a four factor
test for determining whether a bankruptcy appeal is moot: (1) whether appellant sought and
obtained a stay; (2) whether the ordered relief has been substantially consummated; (3) the extent
to which the relief requested on appeal would affect success of the equitable relief; (4) and the
extent to which relief would affect third party interests. See Mac Panel v. Va. Panel Corp., 283
F.3d 622, 625 (4th Cir. 2002); accord, In re U.S. Airways Grp, Inc. 369 F.3d 806, 809 (4th Cir.
2004). No one factor is dispositive; failure to seek a stay alone, for example, is insufficient to
find mootness. See In re Calvert Vill. Ltd. P’ship, Case No. 99-1383, 2000 WL 123965, at *2 (4th
Cir. Feb. 2, 2000); In re Winslow, 473 B.R. 94, 100 (E.D.N.C. 2012).
Here, the four factors tilt toward Appellee. First, Appellant failed to seek and obtain a
stay. Second, the ordered relief has been substantially consummated; funds have been

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distributed, orders of abandonment entered, and a general release executed and delivered. Third,
the requested relief would affect success of the granted relief, as it would require reversing
multiple abandonment orders and unwinding the aforementioned substantially consummated
relief. Fourth, the requested relief would affect third party interests, as it would create
uncertainty for the estate’s creditors as they are forced to await further litigation and court action.
All four factors thus support Appellee, and as a result, the court shall grant Appellee’s motion to
dismiss this appeal as moot.
ORDER
IT IS, THEREFORE, ORDERED that Appellee’s Motion to Dismiss Appeal (#4) is
GRANTED and this appeal is DISMISSED as moot.

Signed: September 5, 2017

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