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In re Marshall

United States Court of Appeals, Eighth Circuit

January 14, 2019

In re: Theresa Marshall Debtor
v.
Deutsche Bank National Trust Company Creditor - Appellee Theresa Marshall Debtor - Appellant

          Submitted: December 18, 2018

          Appeal from United States Bankruptcy Court for the Eastern District of Arkansas - Little Rock

          Before SALADINO, Chief Judge, NAIL and DOW, Bankruptcy Judges.

          SALADINO, Chief Judge.

         The Debtor, Theresa Marshall, appeals the bankruptcy court's[1] order which granted a motion for relief from the automatic bankruptcy stay filed by Deutsche Bank National Trust Company, as Trustee for Vendee Mortgage Trust 1993-1, United States Department of Veterans Affairs, Guaranteed REMIC Pass Through Certificates ("Bank"). For the following reasons, we dismiss the appeal for lack of jurisdiction.

         FACTUAL BACKGROUND

         On May 3, 2018, debtor filed a petition under Chapter 13 of the United States Bankruptcy Code. On June 28, 2018, Bank filed its Amended Motion for Relief from Stay asserting that it was the servicer of a promissory note and deed of trust encumbering certain real property owned by the debtor and located in Little Rock, Arkansas (the "Property"). The motion sought relief from the automatic stay for cause, including debtor's conduct in filing multiple bankruptcy cases on the eve of foreclosure, filing frivolous pleadings and failing to act in good faith.

         The motion was set for hearing on July 12, 2018. Debtor sought a continuance of that hearing, but that request was denied by the bankruptcy court on July 3 2018. The hearing took place as scheduled, debtor failed to appear and on July 16, 2018, the bankruptcy court entered its order granting relief from stay. Debtor timely filed a notice of appeal. The underlying bankruptcy case was subsequently dismissed on September 4, 2018.

         During the course of this appeal, debtor has filed numerous motions and emergency motions with this Panel. The most recent emergency motions filed by debtor represent that the Property was sold to Bank at a foreclosure sale on September 6, 2018, and that debtor was later evicted from the Property on October 31, 2018. Bank's supplemental brief concurs with those representations.

         In her appellate brief, debtor appears to argue that the bankruptcy court abused its discretion in denying her motion to continue the hearing set for July 12, 2018, and that Bank did not have legal standing to foreclose. Bank's initial appellee brief responded to those arguments. However, we ordered the parties to submit supplemental briefs on the issue of whether this appeal is moot due to the foreclosure sale of the property and the dismissal of the bankruptcy case. Those briefs have now been filed.

         DISCUSSION

         We previously addressed the effect of a foreclosure sale on an appeal of an order granting relief from the automatic stay:

Federal courts are courts of limited jurisdiction and can only hear actual cases or controversies as defined under Article III of the Constitution. Hickman v. State of Missouri, 144 F.3d 1141, 1143 (8th Cir. 1998). When a case no longer presents an actual, ongoing case or controversy, the case is moot and the federal court no longer has jurisdiction to hear it. Id. "When circumstances change while an appeal is pending that make it impossible for the court to grant 'any effectual relief whatsoever' to a prevailing party, the appeal must ...

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