Duwaik v. JP Morgan Chase Bank, N.A.
- Summarized by Steven Mulligan , Coan, Payton & Payne, LLC
- 4 years 10 months ago
- Case Type:
- Case Status:
- 17-1385 (10th Circuit, Jul 12,2018) Not Published
- The dismissal of a chapter 11 case pending appeal renders that appeal moot and the judgment below is generally vacated and the matter remanded so it can be dismissed. A subsequently filed chapter 13 bankruptcy does not change the fact that the appeal is moot because lifting the stay in a chapter 13 is a distinct matter. Seeking an injunction must be brought in the Bankruptcy Court unless the party can show doing so would be impracticable.
- Procedural context:
- The debtor appealed the Bankruptcy Court's granting relief from stay in favor of JP Morgan Chase and the District Court affirmed. The 10th Circuit affirmed and remanded with instructions to vacate the order granting relief from stay due to mootness and affirmed the judgment.
- JP Morgan Chase ("JP") held a promissory note secured by several parcels of debtor's real property. JP sought relief from stay in debtor's chapter 11 case because the debtor failed to make plan payments. The relief was granted. Debtor appealed to the District Court and sought an injunction so JP Morgan Chase wouldn't foreclose. The District Court affirmed and denied the request of the injunction because the debtor did not pursue that relief in the Bankruptcy Court. While the appeal was pending in the 10th Circuit, the debtor's chapter 11 case was dismissed rendering the appeal moot since the automatic stay no longer applied. The district court did not abuse its discretion when it refused to consider the request for injunctive relief because the debtor had neither pursued relief in the bankruptcy court nor attempted to show that pursuing such was impracticable. The debtor also failed to raise unidentified arguments to the district court and thus, could not raise them to the 10th Circuit as the arguments were forfeited.
- Lucero, Hartz, McHugh (Hartz)
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