United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_____________________
No. 06-00022
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ELIAS SALAZAR; DIANA ROCHA SALAZAR
Petitioners,
v.
WILLIAM E. HEITKAMP, Trustee; U.S. TRUSTEE; DEUTSCHE BANK
NATIONAL TRUST COMPANY,
Respondents.
__________________
On Appeal from the United States District Court
For the Southern District of Texas
__________________
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:1
Petitioners Elias and Diana Rocha Salazar seek permission to
appeal the order of the bankruptcy court striking their
bankruptcy petition. Petitioners filed a notice of appeal after
the bankruptcy court certified its order for direct appeal to
this Court pursuant to 28 U.S.C. 158(d)(2). Treating
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Petitioners’ notice as a request for permission to appeal under
Fed. R. App. P. 5(a)(1), and for the reasons stated below, we
conclude that their appeal would be moot and deny permission.
Petitioners filed their first bankruptcy petition on
November 1, 2005 without obtaining credit counseling as required
by 11 U.S.C. § 109(h). On that same date, Petitioners’ home was
foreclosed under state law. On November 16, 2005, the bankruptcy
court struck Petitioners’ bankruptcy petition, and March 30,
2006, denied a motion to reconsider that order. In its March 30,
2006 Order, the bankruptcy court held that it was proper to
strike, rather than dismiss, Petitioners’ petition, that the
automatic stay had not arisen in debtors’ case, and thus, the
foreclosure of their home was not voidable.
Meanwhile, on December 30, 2005, after the bankruptcy court
struck Petitioners’ petition but before the court ruled on the
reconsideration motion, Petitioners filed a second bankruptcy
petition in the same court and before the same judge, accompanied
by a certificate of credit counseling. Respondent Deutsche Bank
National Trust Company filed a motion for relief from the
automatic stay based on the November 1 foreclosure on
Petitioners’ home. Petitioners argued in response that the
foreclosure sale was conducted in violation of a valid bankruptcy
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stay—essentially the issue presented to this Court by
Petitioners’ appeal.
On April 28, 2006, after the bankruptcy court certified its
Order for appeal and one day after Petitioners filed the notice
of appeal in this Court, Petitioners and Deutsche Bank reached an
agreement embodied in an Agreed Order Conditioning Automatic
Stay. The Agreed Order was signed by Petitioners’ counsel,
counsel for Deutsche Bank, and the bankruptcy court judge. The
agreement indicates that Deutsche Bank and Petitioners agree to a
payment schedule and provides that the automatic stay will remain
in effect under certain conditions. Deutsche Bank, therefore, is
no longer relying on the November 1 foreclosure, but instead on
the separate rights embodied in the Agreed Order.
Upon the suggestion of mootness by the U.S. Trustee based on
the Agreed Order, in which counsel for Deutsche bank concurred,
this Court requested a response from the remaining parties on the
issue of mootness. The Chapter 13 Trustee agreed that the appeal
was moot, and Petitioners failed to submit any response.
“In general, a matter is moot for Article III purposes if
the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Sierra Club v.
Glickman, 156 F.3d 606, 619 (5th Cir.1998). “Generally
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settlement of a dispute between two parties renders moot any case
between them growing out of that dispute.” John Doe #1 v.
Veneman, 380 F.3d 807, 814 (5th Cir. 2004) (citing ITT Rayonier
Inc. v. United States, 651 F.2d 343, 345 (5th Cir. 1981)).
Because Petitioners consented to an Agreed Order essentially
settling the dispute regarding the November 1 foreclosure,
Petitioners’ appeal would be moot, and we therefore DENY
Petitioners’ request for permission to appeal.
Request DENIED.
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