Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit

9-29-2003

In Re Simone Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3274

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation "In Re Simone " (2003). 2003 Decisions. Paper 245. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/245

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No: 02-3274 ___________

IN RE: RICHARD A. SIMONE

RICHARD A. SIMONE, Appellant

v.

APEX MORTGAGE

____________________

Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 02-cv-01263 ) District Judge: Honorable Mary Little Cooper _______________

Argued on June 3, 2003

Before: ALITO, ROTH and STAPLETON, CIRCUIT JUDGES

(Opinion filed: September 29, 2003 )

David A. Luthman, Esquire (Argued) Toll, Sullivan and Luthman 800 North Kings Highway, Suite 400 Cherry Hill, New Jersey 08034

Attorney for Appellee Edward F. Christopher, Esquire (Argued) Edward F. Christopher, P.A. 227 Maple Avenue Red Bank, New Jersey 07701

Attorney for Appellant

______________________

OPINION _____________________

ROTH, Circuit Court;

Debtor Richard Simone has appealed the August 9, 2002, judgment by the United

States District Court for the District of New Jersey, affirming the Bankruptcy Court’s

vacation of the automatic stay.

Because the facts of this dispute are well known to the parties, we will not repeat

them except for a few key ones. On March 31, 1999, Simone and his wife, Patricia,

borrowed $276,000 from Apex Mortgage Corporation. The Note was secured by a first

mortgage on Simone’s apartment building in North Hanover, New Jersey. In November

1999, Simone defaulted on repayment of the loan. Ultimately, Simone filed a Chapter 11

bankruptcy petition, triggering the automatic stay. The automatic stay was conditionally

lifted but, when Simone failed to meet those conditions, his property was sold at auction.

Simone appealed the Bankruptcy Court’s order to vacate the automatic stay to the United

States District Court for the District of New Jersey. The District Court affirmed the

Bankruptcy Court. Simone then appealed to this Court.

2 Because the property has already been sold, the question whether the automatic stay

was properly granted is moot and no relief is available to Simone. This case must

therefore be dismissed for lack of jurisdiction. See, e.g., Lusardi v. Xerox Corp.,

(3d Cir. 1992).

3 TO THE CLERK:

Please file the foregoing Opinion.

By the Court,

/s/ Jane R. Roth Circuit Judge

4