United States District Court, D. Massachusetts
In re LISAMARIE BOUDREAU, Debtor.
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Appellee. LISAMARIE BOUDREAU Appellant,
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
Boudreau (“Appellant”) appeals the United States
Bankruptcy Court's March 31, 2016 Order (“Order
Denying Reconsideration”) regarding her Emergency
Motion for Reconsideration (“Emergency Motion”).
See Notice of Appeal [#1]. Although her Emergency
Motion sought reconsideration of two prior orders, the Order
Granting Relief from Stay (“Order Lifting Stay”)
and the Order Confirming Amended Chapter 13 Plan
(“Order Confirming Plan”), the Order Denying
Reconsideration only addressed the former and provided no
disposition on the latter. As discussed below, the court
finds the appeal moot as to the denial of reconsideration of
the Order Lifting Stay. The court also finds that it lacks
jurisdiction to consider Appellant's arguments regarding
reconsideration of the Order Confirming Plan. Accordingly,
the appeal is DISMISSED and the case is REMANDED for further
proceedings consistent with this Memorandum and Order.
January 5, 2009, Appellant and her husband, Michael Boudreau
(“Co-Debtor”), executed a mortgage (the
“Boudreau Mortgage”), App'x Vol. I
97-105 [#22-1], which was assigned to CitiMortgage, Inc.
(“Citi”) on May 7, 2012, id. at 107-08,
110-13. Appellant and Co-Debtor filed for Chapter 7
bankruptcy protection on August 7, 2012, id. at
1-44, and on November 6, 2012, the Chapter 7 bankruptcy case
was converted to one under Chapter 13, Suppl.
App'x 29 [#27]. Appellant and Co-Debtor subsequently
filed two iterations of their Chapter 13 plan, to which the
Chapter 13 Trustee (“Trustee”) raised multiple
objections, id. at 21-28, including the objection
that “[t]he Debtors propose to pay the mortgage arrears
direct and not through the Plan.” App'x Vol.
I 87 (objecting to the plan filed on May 15, 2013).
6, 2014, Citi filed its Motion for Relief from Stay, seeking
to foreclose on the property subject to the Boudreau Mortgage
(the “subject property”). Id. at 89-148.
Citi asserted that Appellant and Co-Debtor were over $27, 000
in arrears, had not paid their mortgage in approximately 10
months, and likely had no equity in the property.
Id. at 89-92. After receiving no objections, the
Bankruptcy Court issued the Order Lifting Stay on May 21,
2014. Id. at 149.
and Co-Debtor filed their penultimate amended Chapter 13 plan
on July 7, 2014, id. at 150-57, to which the Trustee
objected on the basis that the plan proposed to continue
making mortgage payments to Citi, even though Citi had
already been granted relief from the stay, id. at
158, 162. On August 14, 2014, in response to that objection,
Appellant and Co-Debtor acknowledged that Citi had filed for
and been granted relief from stay, and stated “Debtors
are now exploring their options regarding foreclosure.”
Id. at 164, 168. That same day, Appellant and
Co-Debtor's final amended plan (the “Amended
Plan”) was filed “to remove the secured claim of
CitiMortgage, ” and thus bring any mortgage payments
outside the Amended Plan. Id. at 168. The Bankruptcy
Court received no objections to the Amended Plan. Suppl.
September 19, 2014, Citi assigned the Boudreau Mortgage to
the Secretary of Housing and Urban Development. App'x
Vol. I 223-26.
March 24, 2015, the Bankruptcy Court issued the Order
Confirming Plan. Id. at 176-78. That order confirmed
the Amended Plan for a term of 60 months beginning December
1, 2012, and required monthly payments of $262.00.
Id. at 176. It also stated that “Citimortgage
was granted relief from stay on May 22, 2014. The trustee
shall not make any payments with respect to this
claim.” Id. at 177.
months later, on June 30, 2015, the Boudreau Mortgage was
assigned to U.S. Bank (“Appellee”). Id.
at 227-30. Shortly thereafter, on or about September 18,
2015, Appellee began foreclosure proceedings, id. at
185, and on October 9, 2015, it scheduled a foreclosure of
the subject property for December 4, 2015, Br. of
Appellee U.S. Bank National Trust, N.A. as Trustee for LSF9
Master Participation Trust 9 [#26].
December 1, 2015, approximately eighteen months after the
Order Lifting Stay, and eight months after the Order
Confirming Plan, Appellant (but not Co-Debtor) retained new
counsel, id. at 179, and filed the Emergency Motion,
id. at 183-209. Appellee opposed the Emergency
Motion on December 2, 2015. Id. at 231-40. The
Bankruptcy Court held multiple hearings on the Emergency
Motion. In the interim, Appellant and Co-Debtor
continued to make payments under the Amended Plan, payments
which under the terms of the plan did not include mortgage
payments. App'x Vol. II 21, 32-33, 72-73.
Appellee postponed the foreclosure several times from
December 4, 2015 to April 4, 2016, on the basis of one
adequate protection payment Appellant made on December 3,
2015, and attempted to negotiate a loan modification with
Appellant and Co-Debtor in lieu of foreclosure. Id.
at 46-47, 55-56, 59, 71-72, 75, 80-81, 87 (agreeing at
February 16, 2016 hearing to postpone foreclosure for
approximately 45 days).
March 31, 2016, the Bankruptcy Court issued its Order Denying
Reconsideration, App'x Vol. I 269-70, which
Appellant reads as a denial of the Emergency Motion in its
entirety.Appellee foreclosed on the subject property
on April 4, 2016, Suppl. App'x at 79-82, and the
record does not indicate that Appellant or Co-Debtor
challenged that foreclosure ...