Hewett v. Wells Fargo Bank, N.A.

• Decision Date: 01 June 2016
• Docket Number: No. 2D15–1074.,2D15–1074.
• Citation: 197 So.3d 1105
• Parties: Philip D. HEWETT, Appellant, v. WELLS FARGO BANK, N.A., as Trustee, Appellee.
• Court: Florida District Court of Appeals

197 So.3d 1105

Philip D. HEWETT, Appellant,

v.WELLS FARGO BANK, N.A., as Trustee, Appellee.

No. 2D15–1074.

District Court of Appeal of Florida, Second District.

June 1, 2016.

Rehearing Denied Aug. 5, 2016.

Philip D. Hewett, pro se.

Jason Joseph, Gladstone Law Group, P. A., Boca Raton, for Appellee Wells Fargo Bank as Trustee.

John R. Chiles and Nicholas S. Agnello, Burr & Forman, LLP, Fort Lauderdale, for Appellee Wells Fargo Bank as Trustee.

LUCAS

, Judge.

Wells Fargo has filed a motion to dismiss this appeal of a final judgment of foreclosure, arguing that the homeowner, Philip Hewett, failed to invoke our court's jurisdiction with a properly filed notice of appeal. Specifically, Wells Fargo contends that the only notice of appeal Mr. Hewett ever filed, although admittedly timely, was nevertheless void by virtue of his then-pending bankruptcy petition, which Mr. Hewett had filed seven days before filing his notice of appeal. Although deciding Wells Fargo's motion potentially implicates a number of problematic issues, it is our court's precedent that leads us to conclude that the motion is well taken.

We begin with the procedural context that brings this case before us, which we would note at the outset is a posture perhaps not uncommon in foreclosure litigation. The circuit court's final judgment of foreclosure of Mr. Hewett's home was rendered on February 27, 2015, when the order denying Mr. Hewett's motion for rehearing and new trial was filed with the clerk of the circuit court. See Fla. R.App. P. 9.020(i)(1)

. On March 2, 2015, Mr. Hewett filed a petition for bankruptcy in the United States Bankruptcy Court for the Middle District of Florida. Then on March 9 Mr. Hewett filed with the clerk of the Lee County circuit court a notice of appeal challenging the foreclosure judgment. Without argument, were it not for the filing of his bankruptcy petition, Mr. Hewett's notice would have been timely filed to invoke our jurisdiction. See Fla. R.App. P. 9.110(b).

However, the federal Bankruptcy Code provides that a filing of a petition in bankruptcy

operates as a stay, applicable to all entities, of—

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.

11 U.S.C. § 362(a)(1) (2012)

. In AmMed Surgical Equipment, LLC v. Professional Medical Billing Specialists, LLC, we concluded that “the filing of a notice of appeal in state court should be considered the ‘continuation ... of a judicial ... proceeding against’ the appellant” that would be prohibited by the automatic stay. 162 So.3d 209, 211 (Fla. 2d DCA 2015) (quoting 11 U.S.C. § 362(a)(1) ). We further observed that the filing of a bankruptcy petition by a debtor “prevented AmMed Surgical from filing a notice of appeal” within the thirty-day deadline of rule 9.110(b). Id. at 212.

These two principles we announced in AmMed —that a notice of appeal is a continuation of a judicial proceeding, and that the Bankruptcy Code prohibits the filing of such a notice during an automatic stay—comport with the broader (and broadly held) view that the filing of a notice of appeal during the pendency of a bankruptcy stay should be deemed void as a violation of the automatic stay. See Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir.1990)

(“It is well established that any action taken in violation of the stay is void and without effect.” (citing Kalb v. Feuerstein, 308 U.S. 433, 438, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (construing a stay provision found in a previous version of the Bankruptcy Code))); accord

Bronson v. U.S., 46 F.3d 1573, 1577 (Fed.Cir.1995) (“A majority of the circuits have held that actions taken in violation of the automatic stay are void.”); Onaka v. Onaka, 112 Hawai‘i 374, 146 P.3d 89, 95 (2006) (“Actions that are void have no legal effect. Applying that definition, the situation wherein two notices of appeal have been filed without legal effect is the functional equivalent of the situation wherein no notice of appeal has been filed.” (citation omitted)); In re Cty. Treasurer & Ex Officio Cty. Collector of Cook Cty., 308 Ill.App.3d 33, 241 Ill.Dec. 282, 719 N.E.2d 143, 150–51 (1999) (“Because Cambridge's motion to reconsider and its notice of appeal were filed in violation of the [automatic] stay, they were void.”); Burrhus v. M & S Mach. & Supply Co., 897 S.W.2d 871, 873 (Tex.App.1995) (“[W]e hold that all actions relating to judicial proceedings taken while the stay is in effect are void. The prosecution of an appeal is a judicial proceeding.”). Consistent with AmMed, we agree with these holdings.¹ Therefore, since the only notice of appeal Mr. Hewett ever filed was a ity, we are without jurisdiction to consider his appeal.

We are not without some reservations about this conclusion. That the Bankruptcy Code stays the continuation of a judicial proceeding in state court, including the filing of a notice of appeal, once a bankruptcy petition has been filed is relatively clear. That such a filing would be void necessarily flows from this interpretation of the Bankruptcy Code. However, the Bankruptcy Code may not, in itself, resolve the very pragmatic concern of how to then measure the jurisdictional deadlines set forth in our rules of appellate procedure once an automatic stay ceases.

To be sure, the Bankruptcy Code provides extended, substitute deadlines for “continuing a civil action” after an automatic stay has expired or been terminated. See 11 U.S.C. § 108(c)

.² Were we in a position to simply engraft that section of the federal Bankruptcy Code into our State's rules of appellate procedure, then the dismissal of Mr. Hewett's appeal, and what appellants in Mr. Hewett's circumstance ought to do to invoke our court's jurisdiction after their bankruptcy cases have concluded, could be easily resolved.³ But we do not have that power. See Fla. Const. art. V, § 2 (a) (“The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review....”); Jenne v. Maranto, 825 So.2d 409, 414 (Fla. 4th DCA 2002) (“But we are not the supreme court and lack the power to make jurisdictional changes in the Rules of Appellate Procedure.”). And it is not entirely clear whether Congress has that power either.

Although Congress may exercise plenary power under the Constitution to “establish ... uniform Laws on the subject of Bankruptcies throughout the United States,” art. I, § 8, cl. 4, U.S. Const

.; see also

Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (“The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit that jurisdiction which courts, State or Federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law.”), the reach of that power might not extend so far as to alter state judicial procedures within state court proceedings:

Without any doubt it rests with each state to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and the state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law.

John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 58 L.Ed. 381 (1913)

; see also

Sun Oil Co. v. Wortman, 486 U.S. 717, 728, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) (“[M]atters generally treated as procedural under conflicts law [are] ... generally regarded as within the forum State's legislative jurisdiction.”); Suesz v. Med–1 Sols., LLC, 757 F.3d 636, 651 (7th Cir.2014) (Sykes, J., concurring) (noting that “[i]t's an open question whether Congress has the power to prescribe procedural rules for state-law claims in state court”) (emphasis omitted), cert. denied, ––– U.S. ––––, 135 S.Ct. 756, 190 L.Ed.2d 628 (2014) ; Anthony J. Bellia Jr., Federal Regulation of State Court Procedures, 110 Yale L.J. 947, 980 (2001) (arguing under conflict-of-laws principles that states remain sovereign over their courts' procedures: “If a state court enforces federal law in the same manner as it would the law of another state or a foreign government, it follows that a state has exclusive control over court ‘procedure’ even as against the federal government.”). Thus, the kind of pragmatic question our dismissal of this appeal could raise—whether or to what extent 11 U.S.C. § 108(c) may, of its own force, affect the procedural filing deadline of rule 9.110(b) following the expiration or termination of an automatic stay—appears to be one that has never been squarely decided by any federal court. Suesz, 757 F.3d at 651 ; see also

Jinks v. Richland Cty., S.C., 538 U.S. 456, 464, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003) (holding that statute of limitations tolling period under 28 U.S.C. § 1367(d) was a proper exercise of congressional power within a state court proceeding, but observing that “if the substance-procedure dichotomy posited by respondent is valid—the tolling of limitations periods falls on the ‘substantive’ side of the line. To sustain § 1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts.”).

So we are left with an appellate rule that does not speak about bankruptcy and a bankruptcy statute that may not be able to speak to our appellate rules. While we recognize this potential conundrum, we cannot attempt to resolve it. See, e.g., State v. Turner, 224 So.2d 290, 291 (Fla.1969)

(reaffirming that “[c]...