Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-15-2006
In Re Montelione
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3284
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Recommended Citation
"In Re Montelione " (2006). 2006 Decisions. Paper 1106.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1106
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3284
________________
CLAUDIA A. MONTELIONE,
Appellant
vs.
FEDERAL NATIONAL MORTGAGE ASSOCIATION
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-0900)
District Judge: Honorable John E. Jones, III
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 12, 2006
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
Filed May 15, 2006
_______________________
OPINION
_______________________
PER CURIAM.
Appellant, Claudia Montelione, appeals pro se from an order entered by the
District Court dismissing her appeal from the Bankruptcy Court, following its order
granting Montelione’s motion to voluntarily dismiss her Chapter 13 petition. For the
reasons that follow, we will affirm.
In October 2004, the Harford, Pennsylvania home occupied by Montelione
and her family was sold at sheriff’s sale to the Federal National Mortgage Association
(“Fannie Mae”) in satisfaction of a judgment entered by the Susquehanna County Court
of Common Pleas in a mortgage foreclosure action. The next month, Fannie Mae filed an
action in ejectment in the Court of Common Pleas seeking to remove Montelione and her
family from the property.
While that action was pending, Montelione filed a bankruptcy petition
under Chapter 13 in the United States Bankruptcy Court for the Middle District of
Pennsylvania. In those proceedings, Fannie Mae moved for and was granted relief from
the automatic stay of the ejectment proceedings. See 11 U.S.C. § 362(d). Montelione
appealed to the District Court. Shortly thereafter, however, Montelione moved to
voluntarily dismiss her Bankruptcy Court petition. The Bankruptcy Court granted the
motion on May 18, 2005. The same day, Fannie Mae requested that the dismissal order
be amended to include an order barring Montelione from commencing another
bankruptcy proceeding within 180 days of the voluntary dismissal. See 11 U.S.C.
§ 109(g)(2). The Bankruptcy Court granted the motion by order entered June 28, 2005.
Meanwhile, the District Court had dismissed Montelione’s appeal by order
entered May 24, 2005, noting that “[i]t is axiomatic that the voluntary dismissal of the
underlying action on which an appeal was taken necessarily results in the termination of
the appeal.” Montelione moved for reconsideration in the District Court, arguing that the
motion filed in the Bankruptcy Court by Fannie Mae to amend the dismissal order
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rendered the bankruptcy case “very much alive.” By order entered June 2, 2005, the
District Court denied the motion for reconsideration. Montelione appealed.
Montelione alleges that the District Court improperly dismissed her appeal
because “there was still activity on [her] case in the Bankruptcy Court,” namely, the
adjudication of Fannie Mae’s motion to amend the dismissal order. We disagree. In
general, a bankruptcy appeal becomes moot if the appellate court is unable to grant
effective relief because of events that occurred during the appeal. See United Artists
Theatre Co. v. Walton, 315 F.3d 217, 226 (3d Cir. 2003). Here, once the Chapter 13
proceedings were voluntarily dismissed, the District Court could not have granted relief
with respect to the lifting of the automatic stay. See In re Barbieri, 199 F.3d 616, 621 (2d
Cir. 1999) (noting that “under 11 U.S.C. §§ 349(b) and 362(c), a voluntary dismissal
results in the debtor forfeiting the protections afforded by the automatic stay.”). Thus,
Montelione’s voluntary dismissal of her bankruptcy petition rendered moot her appeal of
the Bankruptcy Court’s order lifting the automatic stay. See Gardens of Cortez v. John
Hancock Mut. Life Ins. Co., 585 F.2d 975, 978 (10th Cir.1978) (holding that creditor’s
“request that the stay order be lifted became moot when the bankruptcy judge dismissed
the petition.”).
Furthermore, contrary to Montelione’s claim, Fannie Mae’s motion to
amend the Bankruptcy Court’s dismissal order did not reopen the underlying proceedings
so as to confer jurisdiction in the District Court. Indeed, the Bankruptcy Court’s
consideration of the motion to amend the dismissal order did not restore the District
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Court’s ability to provide effective relief. The bankruptcy case remained dismissed; the
only issue being adjudicated before the Bankruptcy Court was whether that dismissal
should specifically include an order pursuant to § 109(g)(2) barring Montelione from
filing for bankruptcy within 180 days of her voluntary dismissal.
For the foregoing reasons, we will affirm the order of the District Court,
effectively dismissing as moot Montelione’s appeal from the Bankruptcy Court’s order
granting relief from the automatic stay of ejectment proceedings.
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