*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-40412

Summary Calendar

_____________________

In The Matter Of: BLAS MARTINEZ; ROSINA U. MARTINEZ,

Debtors.

KEN MACKEY,

Appellant,

versus

M. C. INVESTMENTS,

Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(L-99-CV-90)

_________________________________________________________________

October 5, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Ken Mackey, pro se, appeals the district court’s dismissal, as

moot, of his appeal from an order of the bankruptcy court

dismissing his complaint for failure to state a claim upon which

relief can be granted. 
2

Mackey represented the Debtors in a Chapter 11 bankruptcy

case. The bankruptcy court approved, in July 1996, Mackey’s claim

for attorney’s fees and expenses; confirmed the Debtors’ plan of

reorganization the next March; and closed the Chapter 11 case that

December. 

In May 1999, Appellee M. C. Investments, a creditor in the

bankruptcy case and the holder of notes and deeds of trust securing

real property of the former Debtors, which had been executed

pursuant to the plan of reorganization, gave notice of a

foreclosure sale scheduled for 1 June. On 24 May, Mackey filed

suit against Appellee in Texas state court, claiming that Appellee

breached the notice provisions of the plan of reorganization, by

failing to give notice of default and acceleration of the

indebtedness owed Appellee by Debtors; and seeking damages or

specific performance, as well as injunctive relief. That same day,

the state court entered an ex parte temporary restraining order

against the scheduled foreclosure sale. 

Appellee removed the action to bankruptcy court on 3 June.

Less than two months later, the bankruptcy court denied Mackey’s

motions to remand or abstain, and granted Appellee’s motion to

dismiss for failure to state a claim upon which relief can be

granted, concluding that the plan did not require any notice to

Mackey of default or acceleration. Mackey appealed to the district

court, which dismissed the appeal as moot. 
3

Mackey contends the bankruptcy court lacked subject matter

jurisdiction; and the district court erred in dismissing his appeal

as moot and in failing to address the other issues he raised on

appeal.

Pursuant to 28 U.S.C. § 1334(b), federal courts “have original

but not exclusive jurisdiction of all civil proceedings arising

under title 11, or arising in or related to cases under title 11

[the Bankruptcy Code]”. 28 U.S.C. § 1334(b). The bankruptcy court

based jurisdiction on the “arising under title 11" prong of §

1334(b), because the rights asserted by Mackey, if any existed,

derived from the Bankruptcy Code, inasmuch as such rights allegedly

arose in a bankruptcy case, pursuant to a plan confirmed by the

bankruptcy court. 

Despite the bankruptcy court’s determination that jurisdiction

was proper under § 1334(b)’s “arising under” prong, Mackey devotes

most of his brief on the jurisdictional issue to contending that

the bankruptcy court lacked jurisdiction under the “related to”

prong of that subsection. To the extent that he challenges the

bankruptcy court’s conclusion that the proceeding is one “arising

under title 11", by contending that the bankruptcy court erred in

determining that the case was a “core” matter under 28 U.S.C. §

157(b)(3), we reject that contention.

Mackey’s action against Appellee claimed breach of the notice

provisions of the confirmed plan of reorganization. Whether the

plan required such notice requires interpretation of the plan,
4

which is a matter “arising under title 11". 28 U.S.C. § 1334(b);

see Insurance Co. of North America v. NGC Settlement Trust &

Asbestos Claims Management Corp. (Matter of National Gypsum Co.),

118 F.3d 1056, 1064 (5th Cir. 1997) (“a proceeding to enforce or

construe a bankruptcy court’s ... discharge injunction issued

pursuant to its confirmation order—and whether the confirmed

reorganization plan precludes certain post-confirmation collection

efforts—necessarily arises under title 11 and supports a finding

that federal jurisdiction exists under 28 U.S.C. § 1334 and that

such a proceeding is ‘core’ under 28 U.S.C. § 157(b)”).

The district court dismissed Mackey’s appeal as moot because,

after removal, Appellee rescheduled the foreclosure sale; Mackey

conceded that the alleged defects in notice had been cured; did not

object to any procedural defect in notice with respect to the

rescheduled sale; and, subsequent to the bankruptcy court’s

dismissal, the foreclosure sale had been concluded. Mackey

contends that, although his claims regarding notice may be moot,

his request for costs, expenses, and attorney’s fees associated

with the allegedly defective notice of the earlier-scheduled

foreclosure sale are not moot. Concomitantly, he contends that the

district court erred by failing to address the bankruptcy court’s

determination that Appellee did not breach the plan of

reorganization.

Even assuming Mackey’s claims for attorney’s fees, costs, and
5

expenses are not moot, there is no reversible error. Essentially

for the reasons stated in the bankruptcy court’s opinion, the

confirmed plan of reorganization did not require notice to Mackey.

Mackey v. M. C. Investments (In re Martinez), No. 94-20350-H2-11,

Adv. No. 99-5006 (Bankr. S.D. Tex. 29 July 1999). There being no

breach of the plan, Mackey is not entitled to recover attorney’s

fees, costs, and expenses incurred in bringing the action.

Mackey’s contention that the bankruptcy court erred by

entering judgment rather than submitting proposed findings of fact

and conclusions of law to the district court, and by not

abstaining, are without merit, inasmuch as they are based on his

irrelevant contention that the bankruptcy court lacked subject

matter jurisdiction under the “related to” prong of § 1334(b). We

also reject his contention that the dismissal should have been

“without prejudice” or that he should have been given an

opportunity to replead his claims.

AFFIRMED.