Nicholas Laurent v. Nancy H. Herkert , 358 F. App'x 724 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12407 NOV 29, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-21438-CV-JEM
BKCY No. 00-50881-BKC-RB
In Re: NICOLAS LAURENT,
Debtor.
__________________________________________________
NICOLAS LAURENT,
Plaintiff-Appellant,
versus
NANCY N. HERKERT, Trustee,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 29, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Nicolas Laurent, a Chapter 13 debtor proceeding pro se, appeals the district
court’s affirmance of the bankruptcy court’s April 19, 2005 order discharging the
Trustee and closing his case. On appeal, Laurent argues that the bankruptcy court
prematurely entered its order. According to Laurent, the order resulted in an
improper foreclosure on his home prior to expiration of the 10-day stay under Rule
62 of the Federal Rules of Civil Procedure and Rule 8017 of the Federal Rules of
Bankruptcy Procedure, which Laurent contends followed entry of the April 19th
order. He suggests that the foreclosure was a violation of the automatic stay and
should be vacated.1 When reviewing an appeal from a bankruptcy proceeding, we
review legal determinations de novo, whether from the bankruptcy court or district
court, and review the bankruptcy court’s factual findings for clear error. In re
Simmons, 200 F.3d 738, 741 (11th Cir. 2000). We affirm.2
Upon filing a petition for bankruptcy, an automatic stay is imposed and
continues until the earliest of the following: the case is (1) closed; (2) dismissed; or
1
At the outset, we observe that we are without power to award this type of relief, as the
foreclosure order was entered by a state court. Cf. Siegel v. LePore, 234 F.3d 1163, 1172 (11th Cir.
2000) (en banc) (holding that “federal courts, other than the United States Supreme Court, have no
authority to review the final judgments of state courts”).
2
We reject without further discussion Laurent’s challenge to the district court’s denial of
his motion to alter or amend the judgment. Because Laurent presented no new evidence, nor did he
show that the district court had made a manifest error of law or fact, he was not entitled to relief.
See In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (observing that “[t]he only grounds for
granting [debtor’s] motion [to alter or amend] are newly-discovered evidence or manifest errors of
law or fact”).
2
(3) discharged. See 11 U.S.C. § 362(c)(2). Pursuant to Rule 62(a), “no execution
shall issue upon a judgment nor shall proceedings be taken for its enforcement
until the expiration of 10 days after its entry.” Fed. R. Civ. P. 62(a). However, in
the bankruptcy context, Rule 62 applies only in “adversary proceedings.” Fed. R.
Bank. P. 7062. Rule 7001 of the Federal Rules of Bankruptcy Procedure lists the
types of adversary proceedings, none of which encompasses the proceedings
involved in this case. Accordingly, the 10-day stay provision of Rule 62(a) does
not apply to Laurent’s bankruptcy case and the district court did not err by entering
its order discharging the Trustee and closing the case.3
AFFIRMED.
3
Even if the provision did apply to a case such as this one, the crux of Laurent’s appeal is
a challenge to the foreclosure of his home as violative of the automatic stay. We have already
decided in a prior appeal that no automatic stay was in effect at the time of the foreclosure. See In
re Laurent, No. 06-10802 (11th Cir. Jul. 18, 2006) (unpublished). As for Laurent’s arguments
concerning the Trustee’s actions relating to the administration of his payment plan and his claim that
the bankruptcy judge was biased against him, we will not consider these issues because they are
raised for the first time on appeal. Walker v. Jones,10 F.3d 1569, 1572 (11th Cir. 1994).
3