In re: Richard A. Simone Richard A. Simone v. APEX MORTGAGE Appeal from the United States District Court for the District of New…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 02-3274
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IN RE: RICHARD A. SIMONE
RICHARD A. SIMONE,
Appellant
v.
APEX MORTGAGE
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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
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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

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Edward F. Christopher, Esquire (Argued)
Edward F. Christopher, P.A.
227 Maple Avenue
Red Bank, New Jersey 07701
Attorney for Appellant
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OPINION
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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., 975 F.2d
964, 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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