* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20596

Summary Calendar

CHARLOTTE CARROLL

Plaintiff-Appellant

v.

HOMECOMINGS FINANCIAL NETWORK; OPTION ONE MORTGAGE

CORPORATION

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

4:07-MC-82

Before DAVIS, GARZA, and PRADO, Circuit Judges. 

PER CURIAM:*

Charlotte Carroll filed an application for anticipatory relief under the

Servicemembers Civil Relief Act (“SCRA”). The district court denied Carroll’s

application, and Carroll now appeals. For the following reasons, we AFFIRM

the district court’s order. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-20596

2

The SCRA gives courts discretion to grant servicemembers relief from

certain contracts entered into prior to their military service. 50 App. U.S.C. §

591. Carroll, an Army reservist, filed an application for relief from her

obligations under mortgage contracts with Option One Mortgage Corporation

(“Option One”) and Homecomings Financial Network (“Homecomings”). The

district court docketed the filing as an application for “Other Miscellaneous

Relief” on the miscellaneous docket. 

The district court held an initial hearing with Carroll, during which the

court instructed Carroll to contact her creditors regarding the application. The

district court subsequently held four additional conferences and heard

arguments from Carroll and representatives of Option One and Homecomings.

During the third conference, the district court instructed Carroll to provide

previously-requested financial information by the fourth conference on June 29,

2006, or the court was “going to have to consider a sanction.” Carroll sent the

financial information on the morning of June 29, 2006. During the fourth

conference, the court heard arguments on both the timing of the requested

information and the merits of Carroll’s application, and then advised Carroll

that the court was “going to have to deny the relief [she was] requesting.” The

court subsequently entered a “Memorandum and Order” denying Carroll’s

application for discretionary relief under the SCRA. 

The current dispute centers on the characterization of this final action.

Carroll contends that the district court dismissed her case via sanctions. As

such, Carroll contends thatthe court abused its discretion by notimposing lesser

sanctions prior to dismissal. See, e.g., Gonzalez v. Trinity Marine Group, Inc.,

117 F.3d 894, 898 (5th Cir. 1997) (explaining that “dismissal with prejudice is

an extreme sanction that deprives the litigant of the opportunity to pursue his

claim”). 
No. 07-20596

3

However, Carroll incorrectly characterizes the district court’s action. The

court’s order did not in fact dismiss Carroll’s case—no case was ever filed.

Rather, Carroll filed an application for discretionary relief that was set on the

miscellaneous docket. Matters filed on the miscellaneous docket are “ancillary

and supplementary proceedings not defined as civil actions.” Matter of Search

of 4330 North 35th Street, Milwaukee, Wisconsin, 142 F.R.D. 161, 163–64 (E.D.

Wis. 1992) (citations omitted). Moreover, no sanctions were ever imposed. After

the court mentioned the possibility of sanctions during the third conference,

sanctions were never discussed again. The Order did identify Carroll’s “prior

unwillingness to provide financial information” as one factor in the court’s

decision to deny Carroll’s application, but this was never referred to as a

sanction. 

Thus, it is incorrect to characterize this matter as a dismissal based on

sanctions. Although the district court may have contributed to the confusion by

periodically referring to “dismissal” and unnecessarily entering a subsequent

“Final Judgment,” the overall posture of the case is clear: Carroll filed a solitary

application for Other Miscellaneous Relief, which the district court denied

following several hearings on the merits. Accordingly, Carroll’s present

arguments and supporting authorities—which address the extreme sanction of

dismissal in the context of a civil case—are inapposite. Carroll is in fact

appealing the denial of her application for discretionary relief. 

Under the anticipatory-relief provision of the SCRA, an applicant is

entitled to one noticed hearing to show that her ability to meet her obligations

“has been materially affected by reason of military service.” 50 App. U.S.C. §

591. The court then has discretion to grant relief. Id. Here, Carroll received at

least five hearings on the merits, after which the court exercised its discretion

and denied Carroll’s application. Because Carroll makes no arguments as to
No. 07-20596

4

how the denial of her application was an abuse of discretion, the district court’s

Memorandum and Order is AFFIRMED.