In Re Montelione

• Court: Court of Appeals for the Third Circuit
• Decided: May 15, 2006
• Docket: 05-3284
• Status: Unpublished

Opinion

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit

5-15-2006

In Re Montelione Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3284

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 05-3284 ________________

CLAUDIA A. MONTELIONE, Appellant vs.

FEDERAL NATIONAL MORTGAGE ASSOCIATION ____________________________________

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. No. 05-cv-0900) District Judge: Honorable John E. Jones, III _______________________________________

Submitted Under Third Circuit LAR 34.1(a) May 12, 2006

Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES

Filed May 15, 2006

_______________________

OPINION _______________________

PER CURIAM.

Appellant, Claudia Montelione, appeals pro se from an order entered by the

District Court dismissing her appeal from the Bankruptcy Court, following its order

granting Montelione’s motion to voluntarily dismiss her Chapter 13 petition. For the

reasons that follow, we will affirm. In October 2004, the Harford, Pennsylvania home occupied by Montelione

and her family was sold at sheriff’s sale to the Federal National Mortgage Association

(“Fannie Mae”) in satisfaction of a judgment entered by the Susquehanna County Court

of Common Pleas in a mortgage foreclosure action. The next month, Fannie Mae filed an

action in ejectment in the Court of Common Pleas seeking to remove Montelione and her

family from the property.

While that action was pending, Montelione filed a bankruptcy petition

under Chapter 13 in the United States Bankruptcy Court for the Middle District of

Pennsylvania. In those proceedings, Fannie Mae moved for and was granted relief from

the automatic stay of the ejectment proceedings. See 11 U.S.C. § 362(d). Montelione

appealed to the District Court. Shortly thereafter, however, Montelione moved to

voluntarily dismiss her Bankruptcy Court petition. The Bankruptcy Court granted the

motion on May 18, 2005. The same day, Fannie Mae requested that the dismissal order

be amended to include an order barring Montelione from commencing another

bankruptcy proceeding within 180 days of the voluntary dismissal. See 11 U.S.C.

§ 109(g)(2). The Bankruptcy Court granted the motion by order entered June 28, 2005.

Meanwhile, the District Court had dismissed Montelione’s appeal by order

entered May 24, 2005, noting that “[i]t is axiomatic that the voluntary dismissal of the

underlying action on which an appeal was taken necessarily results in the termination of

the appeal.” Montelione moved for reconsideration in the District Court, arguing that the

motion filed in the Bankruptcy Court by Fannie Mae to amend the dismissal order

2 rendered the bankruptcy case “very much alive.” By order entered June 2, 2005, the

District Court denied the motion for reconsideration. Montelione appealed.

Montelione alleges that the District Court improperly dismissed her appeal

because “there was still activity on [her] case in the Bankruptcy Court,” namely, the

adjudication of Fannie Mae’s motion to amend the dismissal order. We disagree. In

general, a bankruptcy appeal becomes moot if the appellate court is unable to grant

effective relief because of events that occurred during the appeal. See United Artists

Theatre Co. v. Walton, 315 F.3d 217, 226 (3d Cir. 2003). Here, once the Chapter 13

proceedings were voluntarily dismissed, the District Court could not have granted relief

with respect to the lifting of the automatic stay. See In re Barbieri, 199 F.3d 616, 621 (2d

Cir. 1999) (noting that “under 11 U.S.C. §§ 349(b) and 362(c), a voluntary dismissal

results in the debtor forfeiting the protections afforded by the automatic stay.”). Thus,

Montelione’s voluntary dismissal of her bankruptcy petition rendered moot her appeal of

the Bankruptcy Court’s order lifting the automatic stay. See Gardens of Cortez v. John

Hancock Mut. Life Ins. Co., 585 F.2d 975, 978 (10th Cir.1978) (holding that creditor’s

“request that the stay order be lifted became moot when the bankruptcy judge dismissed

the petition.”).

Furthermore, contrary to Montelione’s claim, Fannie Mae’s motion to

amend the Bankruptcy Court’s dismissal order did not reopen the underlying proceedings

so as to confer jurisdiction in the District Court. Indeed, the Bankruptcy Court’s

consideration of the motion to amend the dismissal order did not restore the District

3 Court’s ability to provide effective relief. The bankruptcy case remained dismissed; the

only issue being adjudicated before the Bankruptcy Court was whether that dismissal

should specifically include an order pursuant to § 109(g)(2) barring Montelione from

filing for bankruptcy within 180 days of her voluntary dismissal.

For the foregoing reasons, we will affirm the order of the District Court,

effectively dismissing as moot Montelione’s appeal from the Bankruptcy Court’s order

granting relief from the automatic stay of ejectment proceedings.