United States District Court, N.D. Mississippi, Greenville Division
MACKINLEY ROSS, JR. APPELLANT
WILMINGTON SAVINGS FUND SOCIETY, FSB, as Trustee of Stanwich Mortgage Loan Trust A APPELLEE
M. BROWN UNITED STATES DISTRICT JUDGE
the Court is Wilmington Savings Fund Society, FSB's
“Motion to Dismiss Appeal, ” Doc. #7; and
Mackinley Ross, Jr.'s “Motion to Extend Time,
” Doc. #9.
April 9, 2018, Mackinley Ross, Jr. filed a Chapter 13
voluntary petition in the United States Bankruptcy Court for
the Northern District of Mississippi. Doc. #6 at 6. On
September 28, 2018, Wilmington Savings Fund Society, FSB, as
Trustee of Stanwich Mortgage Loan Trust A, filed a
“Motion for Comfort Order Regarding Automatic Stay and
For Other Relief.” Doc. #4 at 6. The motion sought,
among other things, judicial confirmation that the automatic
stay provisions of 11 U.S.C. § 362 did not bar it from
pursuing foreclosure remedies against real property located
at 624 Pearl Street, in Cleveland, Mississippi
(“Property”) despite Ross residing on
Id. at 7.
February 6, 2019, United States Bankruptcy Judge Selene D.
Maddox granted the motion for confirmation, finding that
Ross' “total absence of any legal or equitable
property interest in the title to the Property means
that it is not part of the bankruptcy estate for purposes of
shielding it from foreclosure by way of the automatic
stay.” Doc. #2 at 8-9.
February 11, 2019, Ross filed a timely notice of appeal of
the February 6 order. Doc. #1. On April 24, 2019, Wilmington
Savings moved to dismiss the appeal, arguing that Ross failed
to file a brief as required by Federal Rule of Bankruptcy
Procedure 8018. Doc. #7 at 1. The next day, Ross filed his
brief, Doc. #8, then filed a motion to “extend time for
his filing an appellate brief, ” Doc. #9 at 1. On May
24, 2019, Wilmington Savings filed its appellee brief. Doc.
one month later, on June 28, 2019, Judge Maddox dismissed
Ross' bankruptcy petition for failure “to remit to
the Trustee … funds as required by [an] Agreed
Order.” In re Ross, No. 18-11356, at Doc. #66
(Bankr. N.D. Miss. June 28, 2019). Ross did not appeal the
dismissal of his case. The underlying case, however, remains
U.S.C. § 362(a) provides for an automatic stay of
certain actions against a bankruptcy debtor and his property.
The provision “is a potent judicially enforced weapon
designed to afford breathing space and a fresh start for the
honest but unfortunate debtor.” In re Krueger,
812 F.3d 365, 373 (5th Cir. 2016) (quotation marks omitted).
The stay is not, however, indefinite. Rather, the stay on
acts against property of the estate ends when “such
property is no longer property of the estate.” 11
U.S.C. § 362(c)(1). The stay otherwise ends when the
bankruptcy case is closed, the case is dismissed, or a
discharge is granted or denied. 11 U.S.C. § 362(c)(2).
Termination of the automatic stay necessarily moots an appeal
of an order regarding the stay's application.
See Olive St. Inv., Inc. v. Howard Sav.
Bank, 972 F.2d 214, 216 (8th Cir. 1992) (“Once the
bankruptcy proceeding is dismissed, … it no longer
serves any purpose to determine whether the bankruptcy court
properly lifted the automatic stay; the appeal has become
dismissal of a bankruptcy case ordinarily “revests the
property of the estate, ” 11 U.S.C. § 349(b)(3), a
dismissal “has the simultaneous effect of undoing the
bankruptcy estate and lifting the automatic stay, just as the
filing of the petition creates the bankruptcy estate and
imposes the automatic stay.” In re Steenstra,
307 B.R. 732, 738 (B.A.P. 1st Cir. 2004). These procedural
mechanisms occur “immediately upon dismissal of the
matter.” Friendly Fin. Discount Corp., No.
07-2196, 2008 WL 4330467, at *4 (W.D. La. Sep. 17, 2008)
the dismissal of Ross' petition immediately terminated
the automatic stay. Ross did not appeal the dismissal order
within the time allowed. See Fed. R. Bankr. P.
8002(a)(1) (“a notice of appeal must be filed with the
bankruptcy clerk within 14 days after entry of the …
order … being appealed.”). Under these
circumstances, the Court concludes that Ross' appeal of
Judge Maddox's February 6 order holding that the Property
is not shielded by the automatic stay is moot. See Income
Prop. Builders, Inc. v. Lomas & Nettleton Co., 699