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In re Boudreau

United States District Court, D. Massachusetts

February 24, 2017




         I. Introduction

         LisaMarie 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.

         II. Factual Background

         On 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).

         On May 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.

         Appellant 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. App'x 16.

         On September 19, 2014, Citi assigned the Boudreau Mortgage to the Secretary of Housing and Urban Development. App'x Vol. I 223-26.

         On 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.”[1] Id. at 177.

         Three 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].

         On 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.[2] 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.

         Meanwhile, 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).

         On 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.[3]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 ...

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