In re Harris
In re Harris
Opinion of the Court
This case was dismissed on November 28, 2018. That same day, but after the dismissal order had taken effect, Wells Fargo Bank, N.A. filed a motion for relief from the automatic stay including a request under Bankruptcy Code § 362(d)(4)
Code § 362(d)(4) provides in pertinent part:
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay- ...
(4) with respect to a stay of an act against real property under subsection (a), by a creditor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scheme to delay, hinder, or defraud creditors that involved either-
(A) transfer of all or part ownership of, or other interest in, such real *117property without the consent of the secured creditor or court approval; or
(B) multiple bankruptcy filings affecting such real property.
If recorded in compliance with applicable State laws governing notices of interests or liens in real property, an order entered under paragraph (4) shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of such order by the court , except that a debtor in a subsequent case under this title may move for relief from such order based upon changed circumstances or for good cause shown, after notice and a hearing. Any Federal, State, or local governmental unit that accepts notices of interests or liens in real property shall accept any certified copy of an order described in this subsection for indexing and recording.
Wells Fargo advises that it has been unable to identify any reported decision dealing with a court's power to grant in rem stay relief after a bankruptcy case has been dismissed. An independent survey of the cases confirms that this does indeed appear to be a matter of first impression.
The bank offers two recent decisions by the Ninth Circuit Bankruptcy Appellate Panel (BAP), Sepehry-Fard v. U.S. Bank, N.A. (In re Sepehry-Fard) , B.A.P. Nos. NC-17-1118-BTaf and NC-17-1118-BTaF,
The reasoning in Sepehry-Fard and Benzeen is not transferable to the circumstances here. Without a pending bankruptcy case, there is no automatic stay preventing a creditor like Wells Fargo from proceeding against a person or property in the first place. In other words, there simply is no stay to lift. See Armel Laminates, Inc. v. Lomas & Nettleton Co. (In re Income Prop. Builders, Inc.) ,
Wells Fargo attempts to create a distinction between stay relief generally and in rem relief under § 362(d)(4). The bank concedes that a motion for garden-variety stay relief would indeed be moot in the absence of a stay. It disagrees, however, that the same would hold true for a motion for in rem stay relief which, if allowed, could remain effective as to future cases (and stays) for a period of up to two years. This, Wells Fargo claims, is meaningful relief even if no stay exists at the time the order enters.
*118But to be meaningful, the relief has to be actual not theoretical as the Constitution limits the judicial power of federal courts to deciding cases or controversies. See U.S. Const. Art. III, § 2, cl. 1. The doctrine of standing gives meaning to constitutional limits by "identify[ing] those disputes which are appropriately resolved through the judicial process." Susan B. Anthony List v. Driehaus ,
Standing is a "threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin,422 U.S. 490 ,95 S.Ct. 2197 ,45 L.Ed.2d 343 (1975). Hence, "a defect in standing cannot be waived; it must be raised, either by the parties or by the court, whenever it becomes apparent." U.S. v. AVX Corp. ,962 F.2d 108 , 116 n.7 (1st Cir. 1992).
The inquiry into standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth ,422 U.S. at 498 ,95 S.Ct. 2197 ,... "In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III."Id.
In re Newcare Health Corp. ,
Wells Fargo offers a second analogous model in support of its argument that a bankruptcy court can rule on stay relief motions post case dismissal. It cites the decision of the Supreme Court of the United States in Cooter & Gell v. Hartmarx Corp .,
Like the imposition of costs, attorney's fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of *119a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.
Cooter & Gell,
The Sixth Circuit BAP in Cusano v. Klein (In re Cusano) ,
Wells Fargo seeks to employ the rulings in Cooter & Gell and Cusano as fulcrums with which to catapult its motion for reconsideration from the realm of the debatable to the indubitable. But I see a qualitative difference between ruling on a motion for stay relief and imposing sanctions or costs, or considering whether to alter or amend a prior order. The automatic stay embodies one of the foundational principles of bankruptcy law-the breathing spell afforded to beleaguered debtors. In reorganization cases, for example, it is often the keystone. Remove the stay and the edifice of reorganization collapses. By any measure, therefore, a motion for relief from stay cannot be classified as a collateral issue in a bankruptcy case which survives the dismissal of the case.
It is irrefutable that a court always retains the authority to correct its own errors. Cusano at 733. To argue that an order dismissing a case cannot be reconsidered for manifest error because the case has been dismissed is sophistry. But here Wells Fargo is asking not that I reconsider my order dismissing this case, but that I reconsider my order denying its motion for relief from stay. Without a pending bankruptcy case, however, I lack jurisdiction to grant Wells Fargo stay relief and so it would be futile for me to grant its motion for reconsideration. The motion is, therefore, DENIED.
All references to the Bankruptcy Code or the Code are to
Reference
- Full Case Name
- IN RE: George E. HARRIS, Jr., Debtor
- Status
- Published