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United States District Court, Southern District of New York

February 3, 2003


The opinion of the court was delivered by: Sidney H. Stein, United States District Judge


Appellant pro se appeals a July 8, 2002 order issued by the United States Bankruptcy Court for the Southern District of New York (Blackshear, J.), which lifted the automatic stay of actions against Moss during her then ongoing Chapter 13 proceeding in Bankruptcy Court. Respondent 245 East 25th Realty Corporation ("the Corporation") is the owner and landlord of a cooperative apartment building in which Moss is a shareholder and resident. The Corporation has been attempting to obtain allegedly unpaid maintenance charges from appellant since 1997. The Corporation moved in Bankruptcy Court to dismiss appellant's bankruptcy proceeding or in the alternative for a lifting of the automatic stay. On July 8, 2002. the Bankruptcy Court granted respondent's motion to the extent of lifting the automatic stay.


This case arises out of a long running dispute between Moss and the Corporation over maintenance and other unpaid charges dating back several years. Appellant alleged that the charges, which are primarily late fees, legal fees and interest, were illegitimate and that she did not have an obligation to pay them. The Corporation pursued the matter in the New York state court system, and in July 1999 received a state court judgment against appellant for the disputed charges. Following that decision, Moss filed for Chapter 13 bankruptcy on July 28, 1999. The bankruptcy petition was dismissed without prejudice on August 25, 2000. On September 1, 2000, appellant filed a second Chapter 13 petition. Moss moved to disallow respondent's claims, on the grounds of the illegitimacy of the underlying charges. After holding an evidentiary hearing, the Bankruptcy Court found in favor of the Corporation in a July 12, 2001 order. Moss appealed the July 12 order to this Court, but this Court determined that the matter was rendered moot by the November 6, 2001 dismissal with prejudice of the bankruptcy case. Accordingly, on October 29, 2002, this Court dismissed Moss's appeal on the grounds of mootness. See Moss v. 245 East 25th Reality Corp., No. 01 Civ. 9318 (S.D.N.Y. Oct. 29, 2002).

Moss filed for bankruptcy a third time on February 26, 2002. On May 20, 2002, the Corporation moved to dismiss Moss' third bankruptcy petition or in the alternative, to lift the automatic stay. The Corporation argued that the stay should be lifted because 1) appellant had failed to pay two post-petition payments of maintenance and monthly charges, and 2) because it did not have adequate protection for its claim, which is secured by appellant's shares and proprietary lease. At the June 20, 2002 hearing, the bankruptcy court declined to grant respondent's motion for dismissal, and instead requested argument on whether the automatic stay should be lifted. Judge Blackshear indicated that he would lift the stay unless appellant could demonstrate that she could immediately make the missed post-petition payments. Moss' attorney — she was represented at that time — began to argue the validity of the Corporation's claim, but Judge Blackshear stated that the matter was res judicata. On July 8, 2002, the bankruptcy court formally lifted the automatic stay and this appeal followed. On December 26, 2002, this Court received a copy of a "Notice of Eviction" served upon appellant. On the next day, an interim stay was entered pending determination of the appeal.

Out of deference to appellant's pro se status, on December 30, 2002, this court directed that parties appear for oral argument of the appeal and at that argument "appellant should have certified checks in the sum of any missed post-petition payments due respondent." That oral argument was held on January 24, 2003, at which time appellant stated that she did not have any certified checks with her because she had not come prepared to argue the appeal. She also stated that on January 23, 2003, the underlying bankruptcy petition had been dismissed by Judge Blackshear. A review of the docket of the bankruptcy court indicates that on January 23, 2003, Judge Blackshear granted the Corporation's motion to dismiss Moss' Chapter 13 petition "in accordance with 11 U.S.C. § 1307(a)(1)&(4) and Section 109 of the Bankruptcy Code". The Chapter 13 case was "dismissed with prejudice pursuant to 11 U.S.C. § 109 for 180 days from the date of this Order". In Re Moss, No. 02-B-40535 (Bankr. S.D.N.Y. Jan. 23, 2003) (Blackshear, B.J.)


Because the underlying bankruptcy proceeding has been dismissed, this appeal is moot and must be dismissed. When a bankruptcy case has been dismissed, and that dismissal is not itself on appeal, an appeal of an interlocutory order of the bankruptcy court in that case is moot. See Olive Street Inv., Inc. v. Howard Sav. Bank, 972 F.2d 214, 215 (8th Cir. 1992); In re Ames, 973 F.2d 849, 852 (10th Cir. 1992).

In the present case, Moss is appealing an interlocutory appeal by the bankruptcy court. When appellant's bankrupt status was terminated by dismissal of the bankruptcy petition on January 23, this appeal became moot, and must be dismissed. The interim stay of December 27, 2002 is terminated by its terms.



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