Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-15-2006
In Re: David Johnson
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2110
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"In Re: David Johnson " (2006). 2006 Decisions. Paper 585.
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APS-282 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-2110
________________
IN RE:
DAVID TIMOTHY JOHNSON,
Appellant
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-04020)
District Judge: Honorable Mary L. Cooper
____________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
July 20, 2006
Before: SLOVITER, McKEE AND FISHER, CIRCUIT JUDGES.
(Filed August 15, 2006)
_______________________
OPINION
_______________________
PER CURIAM
David T. Johnson appeals from the order of the United States District Court for the
District of New Jersey dismissing his appeal from the United States Bankruptcy Court for
lack of subject matter jurisdiction. As explained herein, we will dismiss this appeal as
meritless.
Johnson initiated a Chapter 13 Bankruptcy proceeding in the United States
Bankruptcy Court for the District of New Jersey on March 1, 2002. On June 12, 2002,
Wells Fargo Home Mortgage, Inc. (“Wells Fargo”), which had previously filed a Proof of
Claim against Johnson, filed a motion for relief from the automatic stay so that it could
initiate foreclosure proceedings. In an order dated November 7, 2002, the Bankruptcy
Court denied the motion, instead ordering Johnson to resume payments, and stating that
upon Johnson’s failure to make any future payments within thirty days of the due date, the
Court would grant Wells Fargo relief from the automatic stay.
On May 6, 2005, Wells Fargo filed a renewed motion to have the stay lifted based
on Johnson’s failure to make scheduled mortgage payments from July 2004 through April
2005. On May 12, 2005, Johnson filed an objection, arguing that a variety of
circumstances had prevented him from making his mortgage payments, and that the Court
should therefore deny Wells Fargo’s request. Among these circumstances were that he
was involved in a contentious child custody battle in New Jersey state court, that his
disability income was wrongfully being paid to the mother of his child, and that he was
not being given credit for social security benefits being paid to one of his dependents.
Johnson also made various arguments about the unfairness and unconstitutionality of the
state court proceedings. On July 12, 2005, the Bankruptcy Court granted Wells Fargo’s
motion for relief from the automatic stay, and on July 20, 2005, denied Johnson’s oral
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request for a stay pending appeal of the Court’s order vacating the automatic stay. It is
from these orders that Johnson appealed to the District Court.
In response to a brief filed by Johnson in support of his appeal, the District Court
issued an order to show cause why the appeal should not be dismissed for lack of subject
matter jurisdiction. Despite Johnson’s indication that he was appealing the Bankruptcy
Court’s orders vacating the automatic stay and denying his request for a stay pending
appeal, the District Court concluded that the appeal should be dismissed based on
Johnson’s statements regarding state court child support and child custody proceedings
and his attempt to reopen a federal civil rights action which had previously been
dismissed by the District Court. Johnson now appeals the District Court’s dismissal of his
appeal for lack of subject matter jurisdiction.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because
Johnson has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we must
first review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An
appeal may be dismissed under § 1915(e)(2)(B) if it has no arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
To the extent Johnson was seeking to invoke the District Court’s appellate
jurisdiction over the Bankruptcy Court proceeding to obtain relief in connection with his
state court child custody and child support proceedings, the District Court correctly
dismissed his appeal under both the Rooker-Feldman and the Younger abstention
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doctrines. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 & n.16 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413, 414-16 (1923); Younger v. Harris, 401 U.S. 37,
43-54 (1971).
However, a plain reading of Johnson’s notice of appeal reveals that he also sought
appellate review of the Bankruptcy Court’s orders vacating the automatic stay and
denying his request for a stay pending appeal. To the extent the District Court failed to
review these decisions, we conclude that it erred. However, because we conclude that the
Bankruptcy Court correctly resolved these issues, we need not remand for further
proceedings.
The Bankruptcy Court is authorized to grant relief from the automatic stay upon
the request of an interested party under the following circumstances:
(1) for cause, including the lack of adequate protection of an
interest in property of such party in interest;
(2) with respect to a stay of an act against property under
subsection (a) of this section, if–
(A) the debtor does not have an equity in such property;
and
(B) such property is not necessary to an effective
reorganization . . . .
11 U.S.C.A. § 362(d).
The party opposing relief from the automatic stay has the burden of proof on all
issues except the debtor’s equity in the property. See 11 U.S.C.A. § 362(g). In granting
Wells Fargo’s request for relief from the stay, the Bankruptcy Court made the following
findings:
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Finally, we get to the real nub of Mr. Johnson’s request for relief, the
ability to catch up on his mortgage payments. He does not make a proposal,
a formal proposal as to how he intends to do that. Presumably, he wants to
make regular payments until the litigation in the State Court can be resolved
and he can be awarded what he believes he should have been awarded a
long time ago.
As much as I may have sympathy for Mr. Johnson’s predicament, the
problem with that proposal is that it requires Wells Fargo to assume all of
the risks associated with the outcome of the State Court litigation. The
proposal does not provide adequate protection of Wells Fargo’s interest in
the property.
Even if Mr. Johnson proposes to add a cure payment to his regular
payment, he has not shown that his circumstances have changed in a way
that future default is rendered unlikely. That is, he previously agreed to
cure an even smaller default but was unable to comply with the agreed-upon
terms. While the record demonstrates that Mr. Johnson’s inability to make
those payments has to do with the way the State Court litigation is
proceeding, there’s nothing in the record that indicates that things are
different now unless the Appellate Division of the New Jersey Supreme
Court reverses the lower Court’s decision.
While this Court has a great deal of sympathy for the ordeals that Mr.
Johnson has suffered in the court systems, both state and federal, it has no
choice but to grant the relief requested by Wells Fargo. The Motion will be
granted.
Transcript, July 6, 2005, page 7, line 22-page 8, line 25 (emphasis added). Because this
decision was not clearly erroneous, we conclude the Bankruptcy Court did not err in
lifting the automatic stay, and therefore did not err in denying Johnson’s request for a stay
pending appeal. See In re Swedeland Dev. Group, 16 F.3d 552, 559 (3d Cir. 1994). We
will therefore dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).1
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In doing so, we deny Johnson’s motions to supplement the record with transcripts
and appendices, for an emergency stay pending appeal, and to reopen his federal civil
rights complaint.
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