Soares v. Brockton

USCA1 Opinion [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-9013 IN RE: NAPOLEON SOARES, Debtor. _______________ NAPOLEON G. SOARES, Appellant, v. BROCKTON CREDIT UNION, Appellee. APPEAL FROM THE BANKRUPTCY APPELLATE PANEL OF THE FIRST CIRCUIT Before Selya, Stahl and Lynch, Circuit Judges. Napoleon G. Soares on brief pro se. Gary W. Cruickshank on brief for appellee Brockton Credit Union. October 22, 1998 Per Curiam. Appellant Napolean Soares seeks appellate review of a bankruptcy court order granting relief from the automatic stay. See 11 U.S.C. 362(d). Such order was issued upon motion of appellee Brockton Credit Union (BCU) following remand from this court. See Soares v. Brockton Credit Union, 107 F.3d 969 (1997). Soares appealed from that order to the Bankruptcy Appellate Panel (BAP), but failed to secure a stay pending appeal. In due course, BCU obtained a second judgment of foreclosure in state court and thereafter conducted a second foreclosure sale. As a result of the sale, the BAP dismissed the pending appeal as moot. Soares has now appealed from that ruling. We agree that the property's sale has rendered the appeal moot. Generally, "when the debtor fails to obtain a stay pending appeal of the bankruptcy court's ... order setting aside an automatic stay and allowing a creditor to foreclose on property, the subsequent foreclosure and sale of the property renders moot any appeal." In re Matos, 790 F.2d 864, 865 (11th Cir. 1986); accord, e.g., In re 225 Park Plaza Assocs. Ltd. Partnership, 100 F.3d 1214, 1216-1218 (6th Cir. 1996); Greylock Glen Corp. v. Community Savings Bank, 656 F.2d 1, 4 (1st Cir. 1981) (applying former Bankr. Rule 805); cf. In re Stadium Manag. Corp., 895 F.2d 845, 847-49 (1st Cir. 1990) (applying 11 U.S.C. 363(m)). Whether any exceptions might exist to this rule, see, e.g., In re Mann, 907 F.2d 923, 926 (9th Cir. 1990), is a matter we need not address, inasmuch as Soares has made no reference thereto and (from all that appears) would derive no benefit therefrom. An affirmance is plainly warranted on the merits in any event. Soares has provided no grounds for questioning the finding that "cause" existed for lifting the automatic stay under 362(d). And the various challenges he has advanced prove unavailing. For example, the bankruptcy judge's action and the other proceedings below, rather than contravening this court's mandate from the earlier appeal, were in full conformance therewith. Absent a stay, BCU was free to seek a new foreclosure judgment while the BAP appeal was pending. Whether the first judgment of foreclosure was or should have been vacated as a matter of state law is of no pertinence here. And it is undisputed that the second foreclosure sale occurred only after the second judgment was obtained. The stay of eviction ordered by this court on September 4, 1998 is hereby lifted, and the Bankruptcy Appellate Panel's order of dismissal is affirmed.