### 1996 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

7-29-1996 

# I n R e: C offin

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-1007

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1996

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1996 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" I n R e: C offin " (1996). 1996 D e cisio n s

. P a pe r 124. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1996/124UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 96-1007

____________

IN RE: TRISTAM COFFIN,

Appellant,

vs.

MALVERN FEDERAL SAVINGS BANK

____________
Appeal from the United States District C ourt for the Eastern District of Pennsylvan ia (D.C. 95-cv-03143)

____________
Argued: June 6, 1996

Before: BECKER and MANSMANN, Circuit Judge s, and SCHWARZER, District Judge

(Filed: July 29, 1996)

JEFFREY S. WILSON, E SQUIRE (ARGUED) BENSON ZION, ESQUIRE Benson Zion and Asso ciates 919 Conestoga Road Building Three, Suit e 214 Rosemont, PA 19010

Attorney for Tristam Coffin, Appellant

MARK D. PHILLIPS, ES QUIRE (ARGUED) Malvern Federal Savi ngs Bank 24 North New Street West Chester, PA 193 80 Attorney for Malvern Federal Savings Bank, Appellee_____________________________

OPINION OF THE COURT

______________________________

SCHWARZER, District Judge.

This is an appeal by Tristram Coffin, the debtor, from an order of the district court affirming an order of the bankruptcy court. The ban kruptcy court's order denied the debtor's motion styled as one "to reconsider lien avoidance. " Because we and the district court lack jurisdiction of this appeal, we remand with directi ons. Coffin was the owner of three parcels of r eal property on which
Malvern Federal Savings Bank held mortgages to secure loans it had made to Coffin. When Coffin fell in arrears, the Bank foreclosed on one of the mortgages. Coffi n then filed a voluntary petition in the bankruptcy court under Chapter 13 of the Bankruptcy Code. The Bank filed a proof of claim which set forth the arrearages on the three mortgag es. Coffin then filed an Amended Chapter 13 Plan which provided for some of the arrearages. Wi thout objection from the Bank, the bankruptcy court on October 19, 1993, confirmed the Plan. Nine months later, on June 23, 1994, the B ank moved "for an Order granting relief from the automatic stay provided by 11 U.S.C. Secti on 362 in order that said creditor may pursue its state foreclosure remedies to enforce its lien against real property
of the debtor . . . ." On September 1, 1994, following a hearing, the court ( 1) directed Coffin to make payments to the Bank in addition to those made under the Plan; (2) directed Coffin to file
an amended Plan to provide adequately for the Bank's secured claim; an d (3) ordered the automatic stay to remain in place pending further hearing on the motion. In op position to the Bank's motion, Coffin then filed his motion to dismiss as res judicata the Bank's mo tion for relief from the automatic stay. Following a hearing held on December 1, 1994, the b ankruptcy court issued an opinion and order, denying the Bank's motion for relief from automatic stay and granting Coffin's motion to dismiss
to that extent. The court found that [the Bank] is bound by the Debtor's Confir med Plan with respect
tothe distribution to it provided thereunder and therefore relief

from stay is not appropriate, there being no de fault under the Plan. (Op. 7.)

The court then added:

However, we further find that [the Bank's] lien on the Gay Street Property is not discharged by this Chapter 13 proceeding and that upon lifting of the stay at the conclusion of this case or sooner, [the Bank] will be free to exercise its state l aw remedies under its mortgage and applicable law. (Ibid.)

The Bank did not appeal from the order den ying relief from the automatic stay. Coffin, however, although the prevailing party on t he motion (the court having granted his dismissal motion and having entered no order advers e to him), filed a motion styled as one "to reconsider lien avoidance." The court, describing this motion as "framed in a somewhat cryptic manner since it suggests that a motion for lien avo idance was the subject of the motions that are at the heart of this request for reconsideration" inte rpreted the motion as "challeng[ing] this Court's legal conclusion that the Bank's liens . . . surviv e the bankruptcy discharge . . . ." (Op. 1. n.1) The motion was denied. Coffin then appealed to the dis trict court which, stating "the issue in this appeal . . . [to] concern[] whether certain liens s urvive a bankruptcy proceeding," (Op.1.) affirmed. It is not necessary for present purposes t o examine the bankruptcy court's reasoning that led to its "finding" that the Bank's mortgage lien had not been discharged by the confirmed Chapter 13 Plan. The threshold question is whether that "finding," and, in turn, the order denying reconsideration and the district court's order affi rming it, constitute appealable orders. 28 U.S.C.  158(a)(1), 1291, 1292(a). While the analysis takes us outside of con ventional appealable order jurisprudence, it is nonetheless firmly grounded on principles of justiciability and ripeness. The bankruptcy court's "finding"--that the Bank's lien was not dis charged and that at the end of the case it would be free to exercise its state law remedies under it s mortgage--was an advisory opinion. Its order denying Coffin's "cryptic" motion for reconsiderati on decided no actual controversy between the parties: Coffin had not moved for an order of lien avoidance (it is
doubtful that he could have doneso in any event, see 11 U.S.C.  522(f)); the issue of whether the lien

survived was not before the court for adjudication; and the "finding" it made d id not determine
whether the Bank would succeed in a subsequent foreclosure action in state court. If the lien survived, it survived by reason of the prior proceedings, including the confirmed P lan, not because of the court's "finding." Were the Bank to go to state court to foreclose on its m ortgage, its right to
do so would have to be determined by that court in light of its interpreta tion of the terms of the Confirmed Plan, as well as the terms of the mortgage, applicable state law and , of course, that court's findings of fact. To put it differently, had the bankruptcy court made a "fi nding" that the Bank's lien did not survive, the state court in the foreclosure proceeding would cle arly not be precluded from ordering a foreclosure, if under applicable law the lien remai ned enforceable; such a finding, not being necessary to the decision, would be mere dictum and not give rise to res judicata or collateral estoppel. "The oldest and most consistent thread in the federal law of justiciability is that federal courts will not give advisory opinions." 13 Wright, Miller, Cooper, Federal Practice and Procedure,  3529.1, p. 293 (2d ed. 1984). We have addressed t he question when a justiciable controversy exists--although under the rubric of ri peness--in the context of suits for declaratory relief. Although the parties did not invoke the de claratory relief statute, 28 U.S.C.  2201, the case before us in its present posture is somewhat analog ous to one seeking a declaration of rights. In Step-Saver Data Systems, Inc. v. Wyse Technology, 9 12 F.2d 643 (3rd Cir. 1990), plaintiff sought a declaration that its suppliers are responsible fo r any liability that plaintiff may have to its customers as a result of the pending customers' sui ts. The district court dismissed the complaint and this court affirmed. It defined certain basic principles guiding the determination whether an actual controversy exists, "[t]he most important of . . . [which] are the adversity of the interest of the parties, the conclusiveness of the judicial jud gment and the practical help, or utility of that judgment." Id. at 647. Here, while there is no qu estion of the adversity of the interest of the parties, conclusiveness of judicial judgment and an y utility of that judgment are totally lacking. The determination of whether the Bank's lien is enf orceable will eventually have to be made byanother court in foreclosure proceedings and the ba nkruptcy court's advice

will have no legal effect. See Id. at 649 n.9. That the Bank may have asked the bankruptc y court to interpret the Plan with respect to the question of the survival of its lien , and that the parties advanced opposing positions, does not alter the conclusion that what the court s aid in this respect was an advisory opinion. That seems clear under Step-Saver, where plaintiff asked for a declaration of non-liability but the complaint was dismissed for lack of a ripe controve rsy. Nor does it matter that foreclosure may be imminent since the fact remains that the "finding" of the bankruptcy court is an advisory opinion that will not have a judicial effect on the outcome of the future foreclosure proceedings. Both parties urge us to take jurisdiction to resolve matters that would help them move on, but jurisdiction cannot be conferred by co nsent. While we are sympathetic to their plight, it is of their own making, resulting from t he parties' lack of care and attention given the Chapter 13 proceedings, including the formulation o f the Plan. The present problem could and should have been anticipated by appropriate provisi on in the Plan. The bankruptcy court retains jurisdiction of the case, however, and it is the pr oper forum to resolve post-confirmation problems in appropriate proceedings. See 11 U.S.C.  1328, 1329. Presumably the court will now grant a discharge, close the case, and thereby free the Ban k to test the continuing validity of its lien by bringing a foreclosure action. Accordingly, we remand the matter to the d istrict court and direct it to remand it to the bankruptcy court. That court should enter an o rder vacating so much of its opinions as purports to find that the Bank's lien survived.