Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-2003

In Re Simone
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3274




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Recommended Citation
"In Re Simone " (2003). 2003 Decisions. Paper 245.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/245


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                                                  NOT PRECEDENTIAL
                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                     No: 02-3274
                                     ___________

                          IN RE: RICHARD A. SIMONE


                              RICHARD A. SIMONE,
                                            Appellant

                                          v.

                               APEX MORTGAGE


                              ____________________

                    Appeal from the United States District Court
                             for the District of New Jersey
                        (D.C. Civil Action No. 02-cv-01263 )
                    District Judge: Honorable Mary Little Cooper
                                   _______________

                              Argued on June 3, 2003

            Before: ALITO, ROTH and STAPLETON, CIRCUIT JUDGES

                        (Opinion filed: September 29, 2003 )


David A. Luthman, Esquire (Argued)
Toll, Sullivan and Luthman
800 North Kings Highway, Suite 400
Cherry Hill, New Jersey 08034

            Attorney for Appellee
Edward F. Christopher, Esquire (Argued)
Edward F. Christopher, P.A.
227 Maple Avenue
Red Bank, New Jersey 07701

              Attorney for Appellant

                                  ______________________

                                        OPINION
                                  _____________________

ROTH, Circuit Court;

       Debtor Richard Simone has appealed the August 9, 2002, judgment by the United

States District Court for the District of New Jersey, affirming the Bankruptcy Court’s

vacation of the automatic stay.

       Because the facts of this dispute are well known to the parties, we will not repeat

them except for a few key ones. On March 31, 1999, Simone and his wife, Patricia,

borrowed $276,000 from Apex Mortgage Corporation. The Note was secured by a first

mortgage on Simone’s apartment building in North Hanover, New Jersey. In November

1999, Simone defaulted on repayment of the loan. Ultimately, Simone filed a Chapter 11

bankruptcy petition, triggering the automatic stay. The automatic stay was conditionally

lifted but, when Simone failed to meet those conditions, his property was sold at auction.

Simone appealed the Bankruptcy Court’s order to vacate the automatic stay to the United

States District Court for the District of New Jersey. The District Court affirmed the

Bankruptcy Court. Simone then appealed to this Court.



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       Because the property has already been sold, the question whether the automatic stay

was properly granted is moot and no relief is available to Simone. This case must

therefore be dismissed for lack of jurisdiction. See, e.g., Lusardi v. Xerox Corp., 

, 974 (3d Cir. 1992).




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TO THE CLERK:

    Please file the foregoing Opinion.




                                         By the Court,




                                         /s/ Jane R. Roth
                                             Circuit Judge




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