In re: Jose Antonio Lopez Cancel and Carmen Nereida Medina Gonzalez v. BPPR as Servicer Agent of Freddie Mac; et al.

• Court: United States Bankruptcy Court, D. Puerto Rico
• Decided: May 15, 2018
• Docket: 16-00001
• Status: Unknown

Opinion

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF PUERTO RICO 2

4 IN RE: CASE NO. 15-07161 BKT 5 6 JOSE ANTONIO LOPEZ CANCEL and Chapter 7 CARMEN NEREIDA MEDINA 7 GONZALEZ 8 Adversary No. 16-00001 9

10 Debtor(s) 11 WILFREDO SEGARRA 12

13 Plaintiff 14 vs.

15 BPPR AS SERVICER AGENT OF 16 FREDDIE MAC; ET AL 17 Defendant(s) FILED & ENTERED ON 5/15/2018 18

20 OPINION & ORDER 21 22 Debtors/Defendants, Carmen Nereida Medina Gonzalez and Jose Antonio Lopez Cancel, 23 filed an Urgent Request for Relief From Order Pursuant to F.R.B.P. 60(b)(5) & Request for Order 24 Pursuant to F.R.B.P. 8008 [Dkt. No. 68]. Debtors’ request pertains to an Opinion and Order of the 25 court dated March 15, 2018 [Dkt. No. 108], which was timely appealed by them to the U.S. District 1 Court on March 28, 2018 [Dkt. No. 54]. On May 14, 2018, the chapter 7 Trustee filed an Oposition 2 to Motion for Relief from Judgment objecting Debtor’s urgent request [Dkt. No. 72]. In his 3 opposition, the Trustee restates his legal arguments from his Opposition to Motion for Summary 4 5 Judgment and Counter Motion for Summary Judgmeng [Dkt. No. 49], with one added wrinkle. 6 Trustee contends that: 7 Debtor attempts to influence the Court’s decision by pointing out that the Debtors are an 8 elderly couple living on limited means. But the fact of the matter is that denying the 9 request for avoidance and preservation of the lien would be inequitable: in essence, the Debtors would be allowed to keep a house that they did not pay for to the detriment of 10 all their creditors. Debtors would receive a windfall at the expense of the creditors of the 11 estate. (emphasis theirs).

12 The court rejects Trustee arguments at this juncture because they are misplaced and do not address the 13 procedural merits of the urgent request being adjudicated by this court. Trustee’s arguments on the 14 substantive legal issues are better served in the appeal presently underway in District Court. 15 16 “The filing of a notice of appeal is an event of jurisdictional significance—it confers 17 jurisdiction on the court of appeals and divests the district court of its control over those aspects of 18 the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 19 20 S.Ct 400, 402 (1982) (per curiam). “The rule is well established that the taking of an appeal transfers 21 jurisdiction from the Bankruptcy Court to the Appellate Court with regard to matters involved in the 22 appeal and divest the Bankruptcy Court of jurisdiction to proceed further with such matters.” In re 23 24 Bradshaw, 284 B.R. 520 (Bkrtcy.D.Mass., 2002) quoting In re Kendrick Equipment Corporation, 60 25 B.R. 356, 358 (Bankr.W.D.Va.1986). 1 This is so because a bankruptcy judge does not have concurrent jurisdiction with the district court [or BAP] over the subject matter of an appeal ....Once a notice of appeal 2 is filed ‘no lower court should be able to vacate or even modify an order under 3 appeal, not even a bankruptcy court attempting to eliminate the need for a particular appeal.’... The rationale for this rule is the avoidance of confusion and waste of time 4 that might result from putting the same issues before two courts at the same time. 5 In re Emergency Beacon Corporation, 58 B.R. 399, 402 (Bankr.S.D.N.Y. 1986). 6 7 In their urgent motion, the Debtors request relief under Fed. R. Civ. P. 60(b) and Fed. R. 8 Bankr. P. 8008. For the reasons stated above regarding this court’s loss of jurisdiction over the 9 matter, Fed. R. Civ. P. 60(b) is unavailable to Debtors. Nonetheless, Fed. R. Bankr. P. 8008 10 11 authorizes the court to make an indicative ruling. Fed. R. Bankr. P. 8008 states in relevant part: 12 (a) Relief Pending Appeal 13 If a party files a timely motion in the bankruptcy court for relief that the court lacks authority to grant because of an appeal that has been docketed and is 14 pending, the bankruptcy court may: 15 (1) defer considering the motion; 16 (2) deny the motion; or (3) state that the court would grant the motion if the court where 17 the appeal is pending remands for that purpose, or state that the 18 motion raises a substantial issue.

19 Rule 8008 "provides a procedure for the issuance of an indicative ruling when a bankruptcy 20 court determines that, because of a pending appeal, the court lacks jurisdiction to grant a request for 21 22 relief that the court concludes is meritorious or raises a substantial issue." Fed. R. Bankr. P. 8008 23 Advisory Committee Note to 2014 Amendment. It applies "when a post judgment motion — such as 24 a motion for relief from judgment under Civil Rule 60(b) made more than 14 day after entry of the 25 1 || judgment —which does not suspend the time for filing a notice of appeal— is made in th 2 bankruptcy court at a time when a pending appeal has deprived the bankruptcy court of jurisdictio 3 4 || to decide the motion.” 10 COLLIER ON BANKRUPTCY § 8008.01 (Alan N. Resnick & Henry J| > |! Sommer eds., 16" ed.). The court finds that it is just and equitable to apply the rule in this case. 6 doing so, the court will not defer from considering the Debtors’ motion. 7 8 As such, the court concludes that Debtors’ urgent motion seeking relief under Fed. R. Civ. P| || 60(b) would be granted, based on our Opinion & Order in the case of Segarra Miranda v. Banc 10 Popular de PR Un re Garcia), Bankr. Court, D. Puerto Rico, Adv. Proc. 17-00076 BKT, if the □□□□ 11 12 || District Court remands for such purpose. 13 SO ORDERED 14 San Juan, Puerto Rico, this 15th day of May, 2018. 15 16 eo Hie 18 Brian K. Tester 19 U.S. Bankruptcy Judge 20 21 22 23 24 25