from the United States District Court for the Northern
District of Texas USDC No. 3:17-CV-533
BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
interlocutory appeal is from an order denying a motion for a
preliminary injunction to stop a foreclosure
sale. We DISMISS the appeal as MOOT.
FACTUAL AND PROCEDURAL HISTORY
2014, Plaintiff Audrey Dick ("Plaintiff") and her
husband borrowed $100, 000 from Colorado Housing Enterprises,
L.L.C. and Community Resources and Housing Development
Corporation ("Defendants"). The loan was secured
with a deed of trust that granted the Defendants a lien on
certain real property owned by Plaintiff. In 2015, Plaintiff
defaulted on the loan payments.
the course of the year in 2016, Plaintiff obtained the stay
of three, separately scheduled foreclosure sales by filing
for bankruptcy three different times (either for herself or
on behalf of her husband). All three bankruptcy proceedings
were dismissed, and the last bankruptcy proceeding was
dismissed with prejudice for two years.
January of 2017, Plaintiff was notified that a foreclosure
sale was scheduled for February 7. In response, Plaintiff
filed suit in Texas state court on February 2. Plaintiff
sought an ex parte temporary restraining order,
which the state court granted. Defendants removed the case to
federal district court on February 23. In a letter dated
March 1, Defendants gave notice that a foreclosure sale was
scheduled for April 4. On March 23, Plaintiff filed a motion
seeking a temporary restraining order and preliminary
injunction to stop the sale. On March 30, Defendants filed a
response to the motion. The next day, the district court
denied the motion. On April 2, Plaintiff filed a notice of
interlocutory appeal from the order denying the motion for a
April 3, Plaintiff-Appellant filed in this court an opposed
emergency motion for stay of foreclosure proceedings pending
appeal. On April 4, the trustee accepted a successful bid for
the property at the foreclosure sale. Approximately two hours
later, this court issued an order granting the motion to stay
foreclosure proceedings pending appeal.
their brief on appeal, the Defendants-Appellees argue that
this appeal from the denial of the preliminary injunction is
moot because the subject property was sold at the April 4
foreclosure sale. "Ordinarily, an appeal will be moot
when the property underlying the dispute has been sold at a
foreclosure sale because this court cannot fashion adequate
relief, i.e., cannot reverse the transaction."
Christopher Village, Ltd. P'ship v. Retsinas,
190 F.3d 310, 314 (5th Cir. 1999). See also NCNB Tex.
Nat'l Bank v. Southwold Assocs., 909 F.2d 128, 129
(5th Cir. 1990) (explaining that because the lien on the
property had been foreclosed, the propriety of the
preliminary injunction was rendered moot).
acknowledges the above precedent. Nonetheless,
Plaintiff-Appellant asserts that because the
Defendants-Appellees were the successful bidders at the
foreclosure sale, this court can order them to cancel or
rescind the foreclosure sale. Relying on Knoles v. Wells
Fargo Bank, N.A., Plaintiff-Appellant contends that this
appeal is not moot. 513 Fed.Appx. 414 (5th Cir. 2013). In
Knoles, the plaintiff's residence had been sold
at a foreclosure sale to Wells Fargo Bank. Id.
However, the plaintiff did not vacate the property, and Wells
Fargo brought a successful forcible detainer action.
Id. That judgment was not appealed. Id.
Thereafter, plaintiff brought suit against Wells Fargo in
state court, challenging the foreclosure. Id. Wells
Fargo removed the case to federal court, and the plaintiff
moved for a temporary restraining order to prevent his
eviction. Id. The district court denied the motion,
and the plaintiff took an interlocutory appeal to this court.
Id. Wells Fargo argued that the appeal was moot
because the plaintiff had already been evicted. Id.
at 415. We recognized the rule that "a request for
injunctive relief generally becomes moot upon the happening
of the event sought to be enjoined." Id.
(internal quotation marks and citation omitted).
Nevertheless, we rejected the mootness argument, opining that
"an order of this court that Knoles be restored to
possession would constitute relief even if belated."
Id. We further opined that the "parties have
not presented other arguments regarding mootness, such as the
possible effect of a sale of the premises to an alleged
bona fide purchaser." Id. Thus,
because the evicted tenant and the purchaser of the property
were before it on appeal, this court rejected the claim that
the appeal was moot.
decline to apply the reasoning in Knoles to the
instant appeal. Knoles is an unpublished opinion and
thus does not constitute controlling precedent. See
5th Cir. R. 47.5.4. Moreover, as explained below, we have
controlling precedent that would conflict with our extending
the reasoning in Knoles to the case at bar. "It
is a well-settled Fifth Circuit rule of orderliness that one
panel of our court may not overturn another panel's
decision, absent an intervening change in the law, such as by
a statutory amendment, or the Supreme Court, or our en
banc court." Jacobs v. Nat'l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
Matter of Sullivan Cent. Plaza, I, Ltd., the debtor
failed to make payments on a construction loan secured by a
high rise tower, and the bank scheduled the tower for
foreclosure. 914 F.2d 731, 732 (5th Cir. 1990), on
rehearing,935 F.2d 723 (5th Cir. 1991). The debtor then
filed for bankruptcy, which automatically stayed the
foreclosure sale. Id. Subsequently, the bankruptcy
court lifted the stay because, among other things, the plan
for reorganization could not be confirmed. Id. The
debtor filed a second amended plan for reorganization and
requested an emergency injunction. Id. at 733. The
court granted a temporary injunction but conditioned the
relief by requiring the debtor to meet certain requirements.
Id. After the debtor failed to meet the
requirements, the court withdrew ...