IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

In the Matter of : 

: CIVIL ACTION

VIVIAN RODRIGUEZ, : BANKRUPTCY COURT APPEAL

Debtor :

: No. 02-CV-04067

MOTION of EARTHSTAR BANK for RELIEF from DISMISSAL ORDER

PURSUANT TO F.R.C.P. 59

EARTHSTAR BANK, Appellant herein, moves for relief from the Court’s Order of

October 30, 2002 dismissing this Appeal, and respectfully requests that the Court vacate that Order

and consider the appeal on its merits, for the reasons hereinafter set forth :

1. On April 25, 2002, the Appellant filed its Motion for Relief from the Automatic

Stay of 11 U.S.C. §362(a) before the Bankruptcy Court (the “Motion”), on the bases (a) that the

Debtor was unable to “adequately protect” the value of the Appellant’s collateral within the

meaning of 11 U.S.C. §362(d)(1); (b) that “cause” existed generally, because the Debtor’s Chapter

13 schedules revealed insufficient income to fund a confirmable Chapter 13 Plan; and (c) that the

Debtor lacked equity in the Premises which, the Appellant averred, were unnecessary for an

effective reorganization of the Debtor, an alternative basis for relief from the automatic stay

pursuant to 11 U.S.C. §362(d)(2).

2. After a hearing, the Bankruptcy Court denied the Motion, by Order and Opinion

dated May 30, 2002.

3. The Appellant filed the instant appeal on May 31, 2002.

4. The Appellant filed its brief with the District Court on July 9, 2002.

5. The Debtor failed to file a brief at all, though it was initially due on July 24, 2002,

a deadline which the Court subsequently extended to September 6, 2002.

6. On September 9, 2002, the Chapter 13 Trustee filed a Motion to Dismiss the

Chapter 13 Plan, on the basis that the Debtor’s Plan contained insufficient funds to be confirmable.

Case 2:02-cv-04067-RBS Document 6 Filed 10/31/2002 Page 1 of 5
7. The Trustee’s Motion was scheduled for a hearing on October 15, 2002.

8. At the Appellant’s request, the Trustee requested that the Bankruptcy Court

postpone the hearing on his dismissal motion to allow time for the District Court to resolve the

pending appeal.

9. The Bankruptcy Court nonetheless dismissed the Debtor’s Chapter 13 case on

October 15, 2002.

10. Dismissal of the Chapter 13 case does not render this appeal moot, because it

presents an issue that is “capable of repetition, yet evading review.” Praxis Properties, Inc.,

et al v. Colonial Savings Bank, S.L.A., et als, 947 F. 2nd 49 (3rd Cir., 1991).

11. In order for a case to fit within the “capable of repetition, yet evading review”

exception to mootness, two elements must be present. First, the matter must have been “...in its

duration too short to be fully litigated prior to its expiration or cessation...” and second, there must

be “...a reasonable expectation that the same complaining party would be subjected to the same

action again.” Ibid., see also, Murphy v. Hunt, 455 U.S. 478, at 482; 102 S. Ct. 1181, at

1183 (1982).

12. Here, both prongs of the test have been satisfied. First, Chapter 13 confirmation

hearings are scheduled upon Chapter 13 case commencement, for a date that is about six months

thereafter. Thus, if an appeal is taken from denial of a Motion for Relief from the Automatic Stay

before the Plan confirmation hearing date, the Debtor’s inability to propose a confirmable Plan will

(as it did here) lead to dismissal of the Chapter 13 case before meaningful appellate review can be

had.

13. Second, without guidance from the appellate court, it is quite likely, once the

Appellant reschedules the Sheriff’s Sale of the Debtor’s property – which is the event that led to

the Debtor’s Chapter 13 filing in the first place – that the Debtor will simply file another Chapter

Case 2:02-cv-04067-RBS Document 6 Filed 10/31/2002 Page 2 of 5
13 Petition, and therein propose a Chapter 13 Plan substantially similar to that offered in the initial

Chapter 13 case. 

14. The Plan in any future Chapter 13 case that this Debtor may file will presumably

be unconfirmable for the same reasons that confirmation was denied in the first case.

15. If the Appellant files a Motion for Relief in such a renewed Chapter 13 filing, the

Bankruptcy Court will presumably deny it, the Appellant will appeal again, yet will again be

deprived of appellate review because the underlying Chapter 13 case will likely be dismissed

before that review can be had.

16. If the District Court vacates the dismissal order and issues a decision addressing the

merits of this appeal, the Appellant, the Debtor and the Bankruptcy Court will all have the benefit

of that decision if there is another Chapter 13 filing by this Debtor, and another Motion for Relief

filed by this Appellant.

17. In point of fact, a Debtor can cause the question presented by this appeal to “evade

review”. 

18. The Debtor was certainly entitled to submit an amended Chapter 13 Plan when the

Bankruptcy Court denied confirmation on October 15th. 

19. By not offering an amended Chapter 13 Plan, the Debtor ensured that the Chapter

13 case would be dismissed, and now benefits from her own inability to propose a proper Chapter

13 Plan.

20. The Debtor also escapes any responsibility for failing to file a brief on appeal;

presumably, the Debtor did not file a brief because she knew that her Chapter 13 case would be

dismissed at the confirmation hearing.

21. The Debtor thus presumably anticipated that the dismissal would occur before the

District Court considered the merits of this appeal.

Case 2:02-cv-04067-RBS Document 6 Filed 10/31/2002 Page 3 of 5
WHEREFORE, Earthstar Bank respectfully requests that this Court vacate its Order of

October 30, 2002 dismissing this appeal, and that the Court thereafter consider this matter on its

merits.

Respectfully submitted,

KAPLIN STEWART MELOFF REITER & STEIN, P.C.

 /S/ 

William J. Levant, Esquire

KAPLIN STEWART MELOFF REITER & STEIN, P.C.

350 Sentry Parkway, Bldg. 640

P. O. Box 3037

Blue Bell, PA 19422-0757

(610) 260-6000

Counsel for Earthstar Bank

Dated: 

Case 2:02-cv-04067-RBS Document 6 Filed 10/31/2002 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

In the Matter of : 

: CIVIL ACTION

VIVIAN RODRIGUEZ, : BANKRUPTCY COURT APPEAL

Debtor :

: No. 02-CV-04067

CERTIFICATE OF SERVICE

I, William J. Levant, Esquire, do hereby certify I caused a true and correct copy of the

foregoing Motion for Relief from Order to be served via first-class U.S. mail, postage prepaid

upon all persons named below on this, the 31st day of October, 2002 :

Office of the U.S. Trustee

Curtis Center Building, Suite 950-West

601 Walnut Street

Philadelphia, PA 19106

Edward Sparkman, Esquire

STANDING CHAPTER 13 TRUSTEE

Post Office Box 40119

Philadelphia, PA 19106

Vivian Rodriguez

218 East Eleanor Street

Philadelphia, PA 19120 

James J. O’Connell, Esquire

121 South Broad Street, Suite 1700

Philadelphia, PA 19107

Honorable Bruce I. Fox

U.S. BANKRUPTCY COURT for the

 EASTERN DISTRICT of PENNSYLVANIA

900 Market Street, 2nd Floor

Philadelphia, PA 19107

KAPLIN STEWART MELOFF REITER & STEIN, P.C.

 /S/ 

William J. Levant, Esquire

Counsel for Earthstar Bank

Case 2:02-cv-04067-RBS Document 6 Filed 10/31/2002 Page 5 of 5