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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

In the Matter of: : CIVIL ACTION

:

:

VIVIAN RODRIGUEZ : NO. 02-04067

 : Appeal from

 : BANKRUPTCY NO. 02-13384

Surrick, J. February ____, 2004

MEMORANDUM & ORDER

Presently before the Court is Appellant’s Motion of Earthstar Bank for Relief from

Dismissal Order Pursuant to F.R.C.P. 59. (Doc. No. 6.) For the following reasons, Appellant’s

Motion will be denied.

I. BACKGROUND

When Appellant purchased the mortgage of Appellee, Vivian Rodriguez, Cornerstone

Savings Association, had already obtained a foreclosure judgement against the property, and a

sheriff’s sale was scheduled for March 5, 2002. (Brief of Appellant, Earthstar Bank at 3.) On

that same day, Appellee commenced Chapter 13 bankruptcy proceedings in the United States

Bankruptcy Court for the Eastern District of Pennsylvania. (Id.) On April 25, 2002, Appellant

filed a Motion for Relief from Automatic Stay of 11 U.S.C. § 362(a). After a hearing, the

bankruptcy court denied Appellant’s Motion on May 30, 2002. Appellant filed an appeal in this

Court and on July 9, 2002, Appellant filed its brief in support of the appeal. On August 29, 2002,

we granted Appellee’s request for an extension of time to file her response brief, moving the

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 The text of that Order stated, in part:

AND NOW, this 30th day of October, 2002, upon consideration of

Brief of Appellant, Earthstar Bank (Docket No. 3), and it appearing

that Appellee has not filed any opposition to said Brief, and it

further appearing that on October 15, 2002, the Bankruptcy Court

entered an Order dismissing Bankruptcy Case No. 02-13384, and it

further appearing that a timely notice of appeal has not been filed

in response to the Bankruptcy Court’s dismissal, it is hereby

ORDERED that the above-captioned appeal is DISMISSED as

moot.

(Doc. No. 5.)

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deadline to September 6, 2002. Appellee never filed her brief. In a September 20, 2002, letter to

this Court, Appellant stated that it would object to an attempt by Appellee to seek an additional

extension. On October 15, 2002, the bankruptcy court entered a Notice of Dismissal of Case,

terminating the underlying Chapter 13 proceedings, and stating that “total proofs of claim exceed

value of plan.” In light of the bankruptcy court’s dismissal, we entered an Order dismissing

Appellant’s appeal.1 Appellant subsequently filed the present Motion, requesting that we vacate

our Order of October 30, 2002. 

II. JURISDICTION

Pursuant to 28 U.S.C.A. §158(a), we have jurisdiction to hear appeals from the United

States Bankruptcy Court for the Eastern District of Pennsylvania. 

III. DISCUSSION

Appellant argues that “[d]ismissal of the Chapter 13 case does not render this appeal

moot, because it presents an issue that is ‘capable of repetition, yet evading review.’” (Mot. of

Earthstar Bank for Relief from Dismissal Order Pursuant to F.R.C.P. 59 at ¶ 10 (citing Praxis

Properties, Inc. v. Colonial Sav. Bank, S.I.A., 947 F. 2d 49 (3d Cir. 1991)). We disagree. In

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 The issue before the Praxis court was whether the appellant was entitled to a ninety-day,

as opposed to a forty-five-day stay pursuant to 12 U.S.C.A. § 1821(d)(12). Praxis, 947 F.2d at

61.

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order to demonstrate that an appeal is ‘capable of repetition, yet evading review’, appellant must

show that: “(1) the challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable expectation that the same complaining

party would be subjected to the same action again.” Praxis, 947 F. 2d at 61 (citing Murphy v.

Hunt, 455 U.S. 478, 482 (1982). 

Appellant contends that Chapter 13 confirmation hearings are generally scheduled for six

months after a case is commenced, and that a “Debtor’s inability to propose a confirmation Plan

will ... lead to a dismissal” prior to the resolution of related appeals. (Mot. of Earthstar Bank for

Relief from Dismissal Order Pursuant to F.R.C.P. 59 at ¶ 12.) We agree that confirmation

hearings that result in a dismissal of the bankruptcy proceedings could leave little time for

appellate review of an appeal related to an automatic stay. However, we cannot agree that

Appellant has demonstrated that there is a reasonable expectation that it would be subjected to

the same action. In finding there was a likelihood of repetition, the Third Circuit in Praxis

emphasized that the complaining party “ha[d] already been down this road several times in the

past.” Praxis, 947 F.2d at 62. Moreover, the court acknowledged that the facts of Praxis,

involving a savings and loan institution, called for a definitive ruling on the issue before it.2 Id.

(“Given the shocking frequency with which savings and loans have been failing and the steady

and unceasing flow of ... litigation, we must assume that without a definitive ruling on [the

appellant’s] right to a stay ... this controversy will continue to recur.”) The facts in the instant

case do not call for such a definitive ruling. In addition, in Murphy, the Supreme Court stated:

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“The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy

[the second prong of the mootness exception].” 455 U.S. at 482. The Court further explained

that in order to meet this requirement, the complaining party must show there is a “‘reasonable

expectation’ or a ‘demonstrated probability’ that the controversy will recur involving the same

complaining party.” Id. 

In the instant case, Appellant has provided no evidence that Appellee has a history of

repeatedly using bankruptcy proceedings to escape a sheriff’s sale of her property, and while it is

theoretically possible that Appellant could find itself in the same situation, we are not convinced

that there is a reasonable likelihood that this event will occur. Accordingly, we will deny

Appellant’s request for relief.

An appropriate Order follows.

Case 2:02-cv-04067-RBS Document 7 Filed 02/17/2004 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

In the Matter of: : CIVIL ACTION

:

:

VIVIAN RODRIQUEZ : NO. 02-04067

 : Appeal from

 : BANKRUPTCY NO. 02-13384

O R D E R

AND NOW, this ____ day of February, 2004, upon consideration of Appellant’s Motion

of Earthstar Bank for Relief from Dismissal Order Pursuant to F.R.C.P. 59, (Doc. No. 6), it is

ORDERED that Appellant’s Motion is DENIED.

IT IS SO ORDERED. 

BY THE COURT:

 

R. Barclay Surrick, Judge

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