United States District Court, D. Utah, Central Division
GARY E. JUBBER, Former Trustee Appellant,
BRENT DAVID CHRISTENSEN and JO-ANN HALL CHRISTENSEN, Debtors, Appellees.
MEMORANDUM DECISION AND ORDER GRANTING APPELLEES'
MOTION TO DISMISS
Honorable Jill N. Parrish United States District Court Judge.
the court is Appellees/Debtors Brent David Christensen and
Jo-Ann Hall Christensen's motion to dismiss
Appellant/Former Chapter 7 Trustee Gary E. Jubber's
appeal from the Bankruptcy Court. (Docket No. 19). As
explained below, the court concludes that the appeal is moot
and therefore grants Debtors' motion to dismiss and
vacates the lower c o u r t 's order.
motion comes before the court in the context of a bankruptcy
appeal. Brent David Christensen and Jo-Ann Hall Christensen
are Appellees in this appeal and Debtors in a bankruptcy
proceeding below. They filed bankruptcy under Chapter 7 of
the Bankruptcy Code on October 19, 2015. Appellant, now the
Former Trustee, acted as Chapter 7 trustee until the case was
converted to a filing under Chapter 13 and he was removed.
During the proceedings under Chapter 7, the Debtors filed a
Schedule C with the court listing their residence as an
exempt property and claiming a $51, 000 homestead exemption
under Utah Code § 78B-5-503(2). The Former Trustee
objected to the claimed exemption, arguing that the exemption
was not appropriate because the property was encumbered by
liens exceeding its value. After briefing and argument, the
Bankruptcy Court overruled the objection (the
“Exemption Order”). On March 15, 2016, the Former
Trustee appealed the ruling to this court under 28 U.S.C.
§ 158(a). The bankruptcy proceeding was not stayed
during the pendency of the appeal, and the case was
subsequently converted from a filing under Chapter 7 to
Chapter 13 of the Bankruptcy Code at the request of Debtors.
Additionally, Appellant was removed as trustee. On July 7,
2016, Debtors filed an amendment to their Schedule C,
expressly disclaiming any homestead exemption and stating
their intent to terminate any dispute over the exemption in
the proceedings before the Bankruptcy Court and the appeal
before this court. (Docket No. 19, at 7-8).
13, 2015, Debtors filed this motion, arguing that events
subsequent to the filing of this appeal have rendered it
moot. The Former Trustee filed a memorandum in
opposition on July 20, 2016. (Docket No. 20). Debtors filed a
reply on July 27, 2016. (Docket No. 22). Neither party
requested oral argument and, after reviewing the submitted
materials, the court concludes that oral argument would not
materially advance the resolution of this matter.
See DUCivR 7-1(f). The court has jurisdiction over
the Former Trustee's appeal under 28 U.S.C. §
motion to dismiss, Debtors argue that the Former
Trustee's appeal of the Exemption Order has been rendered
moot by the recent conversion of their case from a Chapter 7
filing to a Chapter 13 filing and the subsequent abandonment
of their homestead exemption claim. The court
agrees. “A suit becomes moot when the issues
presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Brown v.
Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016) (internal
quotations omitted) (quoting Chafin v. Chafin,
___U.S.___, 133 S.Ct. 1017, 1023 (2013)). Once a suit is
mooted by intervening circumstances, federal courts lack
subject matter jurisdiction. Id.; In re BCD
Corp., 119 F.3d 852, 856 (10th Cir. 1997) (explaining
that mootness is “a threshold question because in the
absence of a live case or controversy, [the court has] no
subject-matter jurisdiction over an appeal”). In other
words, “a federal court has no authority ‘to give
opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the
matter [at] issue in the case before it.'”
Church of Scientology v. United States, 506 U.S. 9,
12, 113 S.Ct. 447 (1992) (quoting Mills v. Green,
159 U.S. 651, 653, 16 S.Ct. 132 (1895)).
“Constitutional mootness doctrine is grounded in the
Article III requirement that federal courts only decide
‘actual, ongoing cases or controversies.'”
Bldg. & Constr. Dep't v. Rockwell Int'l
Corp., 7 F.3d 1487, 1491 (10th Cir. 1993) (quoting
Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477,
110 S.Ct. 1249 (1990)). Thus, “if an event occurs while
a case is pending on appeal that makes it impossible for the
court to grant ‘any effectual relief whatever' to a
prevailing party, the appeal must be dismissed.”
Church of Scientology, 506 U.S. at 12 (quoting
Mills, 159 U.S. at 653); see also Thournir v.
Buchanan, 710 F.2d 1461, 1463 (10th Cir. 1983)
(“Generally an appeal should be dismissed as moot when
events occur that prevent the appellate court from granting
any effective relief.”).
these principles to the instant appeal, the court can find no
live controversy requiring adjudication. The Tenth Circuit
has indicated that “a debtor's conversion of a
bankruptcy proceeding from one chapter of the Bankruptcy Code
to another generally obviates the need to further litigate
the issues in the original proceeding, thereby mooting an
appeal from Clark v. Brayshaw (In re Brayshaw), 912
F.2d 1255, 1256 (10th Cir. 1990) (quotations omitted)
(quoting Sumy v. Schlossberg (In re Sumy), 777 F.2d
921, 923 (4th Cir. 1985)). Nevertheless, because the appeal
is moot in any event, the court need not make a final
determination on this point. the original proceeding.”
Covington Capital Corp. v. Campbell (In re
Campbell), 36 F. App'x 388, 390 (10th Cir. 2002)
(unpublished); see also J.B. Lovell Corp. v. Carlisle
Corp. (In re J.B. Lovell Corp.), 876 F.2d 96, 98-99
(11th Cir. 1989); Roller v. Worthen Nat'l Bank of Nw.
Ark. (In re Roller), 999 F.2d 346, 347 (8th Cir. 1993);
Cook v. Fletcher (In re Cook), 730 F.2d 1324, 1326
(9th Cir. 1984). That general principle clearly applies here.
Debtors have converted their case from a Chapter 7 filing to
a Chapter 13 filing, leaving behind many of the issues that
characterized that proceeding, including their claim of a
homestead exemption. The elimination of the exemption claim
means the Former Trustee has nothing left to challenge and
Debtors have nothing left to defend. Put plainly, neither
party has “a legally cognizable interest in the
outcome” of this appeal. See Powell v.
McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944 (1969). Any
ruling from this court on whether a homestead exemption
could be viable “would constitute a textbook
example of advising what the law would be upon a hypothetical
state of facts rather than upon an actual case or controversy
as required by Article III of the Constitution.”
See Camfield v. City of Okla. City, 248 F.3d 1214,
1223 (10th Cir. 2001) (internal quotations omitted).
the Former Trustee insists that the “voluntary
cessation” exception to the mootness doctrine applies
because the Debtors may convert their filing back to Chapter
7 at some point in the future and then revive their
now-abandoned homestead exemption. The court “view[s]
this possibility as too conjectural and speculative to avoid
a finding of mootness.” Jones v. Temmer, 57
F.3d 921, 923 (10th Cir. 1995) (citing Anderson v.
Green, 513 U.S. 557, 559, 115 S.Ct. 1059 (1995) (per
curiam)); see also Halls v. Beals, 396 U.S. 45,
49-50, 90 S.Ct. 200 (1969) (refusing to address substantive
issues in a moot action where only “speculative
contingencies” might revive the controversy).
fundamentally, the concept of “voluntary
cessation” seems wholly inapplicable to the
Debtors' exercise of their statutory right to request
specific exemptions under the Bankruptcy Code. While it is
true that “voluntary cessation of challenged conduct
does not ordinarily render a case moot[, ]” Knox v.
Serv. Emps. Int'l Union, Local 1000, 132 S.Ct. 2277,
2287 (2012), that general rule “traces to the principle
that a party should not be able to evade judicial review, or
to defeat a judgment by temporarily altering questionable
behavior[, ]” City News & Novelty, Inc. v. City
of Waukesha, 531 U.S. 278, 284 n.1, 121 S.Ct. 743
(2001). Here, the Debtors cannot “evade judicial
review” or “defeat a judgment” because even
if they manage to revive their claim for a homestead
exemption, the Former Trustee will have a concomitant
opportunity to object. Having disclaimed their pursuit of a
homestead exemption by amendment of their Schedule C, the
Debtors would be required to newly amend their Schedule C in
order to pursue the exemption again. See Fed. R.
Bankr. P. 1009(a) (providing for amendment of lists and
schedules). Under Rule 4003(b)(1), the Former Trustee would
then have “30 days after [the] amendment to the list
[of property claimed as exempt] or supplemental schedules is
filed” to raise an objection to this new claim for a
homestead exemption. See Id. 4003(b)(1); In re
Kazi, 985 F.2d 318, 323 (7th Cir. 1993) (explaining that
Rule 4003(b) does not permit new objections to unamended
exemption claims, but does permit objections to exemption
claims that are actually amended in a new schedule). Thus,
should the Debtors attempt to reclaim their now-abandoned
homestead exemption, the Former Trustee would be permitted to
object and, should the bankruptcy court overrule the
objection, he may again appeal.
the appeal is moot and, as a result, the court lacks subject
matter jurisdiction. See Rio Grande Silvery Minnow v.
Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir.
2010) (“Under the constitutional-mootness doctrine, a
federal court has jurisdiction over only ‘cases'
and ‘controversies.'” (quoting U.S. Const.
art. III, § 2, cl. 1)). The appeal must therefore be
dismissed. Nevertheless, “it is frequently appropriate
for an appellate court to vacate the judgment below when
mootness results from happenstance or the actions of the
prevailing party.” Wyoming v. U.S. Dep't of
Agric., 414 F.3d 1207, 1213 (10th Cir. 2005) (citing
Arizonans for Official English v. Arizona, 520 U.S.
43, 71-72, 117 S.Ct. 1055 (1997)). “Vacatur is an
equitable remedy[, ]” id., and the court
believes the equities in this case weigh in favor of vacating
the Bankruptcy Court's ruling on the Former Trustee's
objection to the homestead exemption. Vacatur will not unduly
advantage the Former Trustee, nor harm Debtors, but will
“clear the path for future relitigation of the issues
between the parties” should the need arise. See
United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71
S.Ct. 104 (1950); id. (“[Vacatur] is commonly
utilized in precisely this situation to prevent a judgment,
unreviewable because of mootness, from spawning any legal
consequences.”). This court, exercising appellate
jurisdiction in the bankruptcy context, see 28
U.S.C. § 158(a); Lavenhar v. First Am. Title Ins.
Co. (In re Lavenhar), 808 F.3d 794, 798 (10th Cir. 2015)
(recognizing appellate role of district courts in bankruptcy
appeals), will therefore vacate the original order under 28
U.S.C. § 2106 (granting federal courts exercising
appellate jurisdiction authority to vacate lower court
on the foregoing, the court concludes that it lacks subject
matter jurisdiction over this appeal because it is moot. The
Debtors' motion to dismiss is therefore GRANTED.
Accordingly, the above-captioned appeal is DISMISSED without
prejudice and the order of the Bankruptcy Court overruling