United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Nurul Afsar appeals the bankruptcy court's Order
that terminated an automatic stay against eviction
proceedings on property formerly owned by Afsar and that
imposed an equitable servitude on the property. The appeal is
fully briefed. Appellantss Br., ECF NO.9; Appelleess Br., ECF
No. 12; Appellantss Reply, ECF No. 13. No hearing is
necessary. See Fed. R. Bankr. P. 8019(b). Because
Afsar's bankruptcy case remains open; because the Order
that is the subject of this Appeal is unrelated to another
Order that Afsar previously appealed; and because the matter
is moot, I will affirm the bankruptcy court's decision.
March 23, 206,, Appellant-Debtor Nurul Afsar filed for
Chapter 13 bankruptcy in the U.S. Bankruptcy Court for the
District of Maryland without representation. Bankruptcy Court
Docket No. 1, ECF NO.4-50. The bankruptcy court declined to
confirm Afar's proposed Chapter 13 Plan after he failed
to appear at a scheduled Confirmation Hearing. Order Denying
Confirmation of Chapter 13 Plan Without Leave to Amend, ECF
No. 4-18. Shortly thereafter, attorney Kos N. Johns entered
an appearance on behalf of Afsar, Notice of Appearance, ECF
No. 4-20, and filed a Motion to Reconsider the court's
denial of confirmation. Mot. Reconsider, ECF No. 4-21. After
reviewing the filings, the court denied Afsar's Motion on
June 28, 207.. Order Denying Mot. Reconsider, ECF No. 4-6.
Afsar appealed the decision, ECF No. 4-30, which I affirm in
a separate Memorandum Opinion and Order issued today, see
Afsar v. Grigsby, No. PWG-16-2522(D.Md.).
21, 2016, Appellee RJRE Investments, LLC ("RJRE")
filed a Motion to Obtain Relief. RJRE Mot., ECF No. 4-34.
RJRE sought to evict Afsar from property to which it obtained
a deed in a 2014 foreclosure sale. Id. ¶¶
2-3. By filing for Chapter 13 bankruptcy, Afsar obtained an
automatic stay pursuant to 11 U.S.C. S 362 that prevented
RJRE from evicting Afsar and his spouse from the property.
Id. ~ 9. RJRE requested a termination of the
automatic stay and the imposition of an equitable servitude
to prevent any further bankruptcy filings by Afsar or his
spouse from resulting in further automatic stays.
Id. Prayer for Relief ¶¶ 1-2. The
bankruptcy court granted RJRE's Motion, Order Terminating
Automatic Stay and Imposing an Equitable Servitude, ECF No.
4-42, which Afsar appealed to this Court, Notice of Appeal,
ECF No. ..
district court reviews a bankruptcy court's findings of
fact for clear error and conclusions of law de novo. In
re Dornier Aviation (N. Am.), Inc., 453 F.3d 225, 231
(4th Cir. 2006). "With respect to the bankruptcy
court's application of the law to the facts, the district
court reviews for abuse of discretion." In re
Rood, No. DKC-12-1623, 2013 WL 55650, at *2 (D.Md.Jan.2,
argues that the bankruptcy court lacked jurisdiction to
terminate the automatic stay or to impose an equitable
servitude because it had already dismissed the bankruptcy
case and because the appeal of the court's Order denying
Afsar's Motion for Reconsideration vitiated the
court's jurisdiction. Appellant's Br. 2-3.
to Afsar, the court dismissed the case when it denied his
Motion to Reconsider.. Id. at 2. But the Motion to
Reconsider addressed the Court's Order denying
confirmation of Afsar's proposed Chapter 13 plan, which
did not dismiss the case. Order Denying Confirmation of
Chapter 13 Plan Without Leave to Amend; Mot. Reconsider,, ECF
No. 4-21. The underlying bankruptcy case remains open.
See Bankruptcy Court Docket. Of course, if Afsar
were correct, and the bankruptcy case had been dismissed,
then the automatic stay would have already been lifted,
because an automatic stay terminates upon the closure or
dismissal of the bankruptcy case. 11 U.S.C. S 362(c)(2);
see also Bullard v. Blue Hills Bank, 135 S.Ct. 1686,
1692-93 (noting that "when confirmation is denied
and the case is dismissed as a result . . .
[d]ismissal lifts the automatic stay" but that denial
without dismissal causes the automatic stay to
"persist".. In other words, if Afsar's
characterization of the bankruptcy court's rulings were
correct, there would have been no need for RJRE's Motion
for Relief and the resulting Order that he now challenges.
is also incorrect that his appeal of the bankruptcy
court's order denying his Motion for Reconsideration
prohibited the court from granting RJRE the relief at issue
here. "[T]he filing of a notice of appeal divests a
bankruptcy court, of its 'control over those aspects of
the case involved in the appeal." " In re
Howes, No. ELH-16-840, 2016 WL 7188444, at *10 (D. Md.
Dec. 12, 2016) (quoting Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982) (per curiam)). But
"when a notice of appeal has been filed in a bankruptcy
case, the bankruptcy court retains jurisdiction to address
elements of the bankruptcy proceeding that are not the
subject of the appeal." Id. (quoting
Transtexas Gas Corp., 303 F.3d 571, 580 n.2 (5th
Cir. 2002)). Afsar's appeal concerned whether the
bankruptcy court should have confirmed his Chapter 13 Plan.
See Order Denying Confirmation of Chapter 13 Plan
Without Leave to Amend; Mot. Reconsider; Order Denying Mot.
Reconsider.. RJRE's Motion for Relief dealt not with the
substance of Afsar's bankruptcy case, but only with an
automatic stay instated during the pendency of the bankruptcy
case that affected collateral legal proceedings. See
RJRE Mot. Afsar's appeal concerning the bankruptcy
court's denial of confirmation did not strip the court of
authority to grant RJRE relief from the automatic stay and
from further attempts by Afsar to forestall eviction
event, Afsar's appeal is now moot because RJRE is
apparently now in physical possession of the property
formerly owned by Afsar. Appelleess Br. 7. There would be
little utility in reinstating a ...