Evans v. The Bank of New York Trust Co., N.A. (In re Evans)

Summarized by Megan Adeyemo , Gordon Rees Scully Mansukhani, LLP
14 years 2 weeks ago

Citation:

No. 11-1096, 2012 U.S. App. LEXIS 3710

Tag(s):

Ruling:

The 10th Circuit held that it did not have jurisdiction to review the BAP's decision granting relief from stay because the decision was not designated in Ms. Evans' notice of appeal. In addition, "Ms. Evans did not file any other document referencing the January 4, 2011, order that could serve as the 'functional equivalent' of a timely notice of appeal." The 10th Circuit found that Ms. Evans' appeal of the BAP's order denying her motion for rehearing was moot because Ms. Evans' discharge had been granted. The 10th Circuit also decided that it did not have jurisdiction to consider the BAP's order imposing sanctions because the order was entered after Ms. Evans' notice of appeal was filed and Ms. Evans failed to file a second notice of appeal.

Procedural context:

Debtor appealed a ruling from the BAP affirming an order from the United States Bankruptcy Court for the District of Colorado (the "Bankruptcy Court") granting relief from stay along with a BAP order imposing sanctions against the Debtor for filing a frivolous appeal.

Facts:

Vicki Dillard-Crowe owned a house in Denver, Colorado. The house fell into foreclosure, The Bank of New York Trust Company, N.A. ("New York Trust") purchased the house at auction and initiated eviction proceedings after the expiration of all state statutory redemption periods. New York Trust obtained a judgment of possession and writ of restitution in the state court. However, before New York Trust could execute the writ, Ms. Dillard-Crowe's mother, Ms. Evans, filed a voluntary chapter 7 petition and listed the house as her residence. New York Trust halted all eviction efforts and sought relief from the automatic stay to continue its attempts to execute the writ. The Bankruptcy Court granted relief from stay and found that Ms. Dillard-Crowe's rights had been divested in foreclosure, New York Trust's ownership rights had already been established and arguably the stay did not prevent New York Trust from executing its writ. The BAP affirmed the Bankruptcy Court's order granting relief from stay and rejected New York Trust's argument that the appeal was moot. Ms. Evans filed a motion for reconsideration and argued that the Bankruptcy Court lacked jurisdiction to grant relief from stay. The BAP denied Ms. Evans' motion for reconsideration and later entered an order sanctioning Ms. Evans $4,737.50 for filing a frivolous appeal. Ms. Evans appealed to the 10th Circuit. On appeal, Ms. Evans argued (i) the Bankruptcy Court did not have jurisdiction to enter an order granting relief from stay because the automatic stay is a non-core proceeding and (ii) the BAP erroneously imposed sanctions against her. Ms. Evans also argued that the BAP's decision affirming relief from stay was in error.

Judge(s):

Circuit Judge Kelly, Senior Circuit Judge Porfilio and Circuit Judge Matheson

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