from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:14-cv-00423 --
James F. Holderman, Judge.
the Matter of: PATRICIA JEPSON, Debtor - Appellant: Kenneth
E. Kaiser, Attorney, Kenneth E. Kaiser, Palatine, IL.
Bank of New York Mellon, Defendant - Appellee: Matthew Reasor
Bowman, Attorney, Kluever & Platt, LLC, Chicago, IL; Justin
F. Carter, Attorney, Morris Laing Evans Brock & Kennedy,
Chtd., Chicago, IL.
ON MOTION FOR STAY OF MANDATE
Circuit Judge (in chambers).
Jepson has filed a motion requesting that I stay this
court's mandate pending final disposition of this
litigation in the Supreme Court of the United States. She
represents that she plans to file a petition for a writ of
certiorari within the next ninety days. Because I do not
believe that she has presented any issue upon which the Court
will grant certiorari and because I believe that, even if
certiorari were granted, a majority of the Court would not
re-verse our judgment, I deny the motion.
underlying facts of this litigation are set forth in plena-ry
fashion in our opinion. I will simply summarize them here.
Patricia Jepson took out a mortgage that was transferred by
the lender and ultimately assigned to CWABS Trust, a
residential mortgage-backed securities (" RMBS" )
trust that was formed and governed by a Pooling and Service
Agreement (" PSA" ). Bank of New York Mellon
(" BNYM" ) is the trustee for the CWABS Trust and
possesses the mortgage note. When Ms. Jepson defaulted on her
monthly payment obligations, the bank filed a complaint in
the Circuit Court of Cook County to foreclose on the
Jepson then filed for bankruptcy under Chapter 7. That filing
stayed the bank's foreclosure action, and the bank moved
to modify the automatic stay in the bankrupt-cy court. Ms.
Jepson opposed the motion and initiated an ad-versary
proceeding against the bank, claiming (1) that the bank had
no interest in the mortgage because the note could not be
assigned to the bank under the terms of the PSA, (2) that the
note was void and not a negotiable instrument because the
original lender is a fictitious entity, and (3) that the bank
did not have the authority to foreclose on the property
because the bank is not a collection agency under Illinois
bankruptcy court concluded that Ms. Jepson lacked standing to
challenge violations of the PSA. Accordingly, the court
dismissed the adversary complaint and lifted the auto-matic
stay to allow the bank to proceed with the foreclosure action
in Illinois state court. The bankruptcy court did not,
however, address Ms. Jepson's other claims. The district
court affirmed the bankruptcy court's judgment but
likewise did not consider the claims that were not related to
alleged violations of the PSA.
Jepson appealed from the district court's judgment, and,
after full consideration of the briefs and oral argument by
the parties, we concluded that " [t]he bankruptcy court
and the district court correctly held that Ms. Jepson lacks
standing to raise a challenge based on violations of the PSA
because she is not a third-party beneficiary under the
agreement." In re Jepson, No. 14-2459, 816 F.3d
942, at *7 (7th Cir. Mar. 22, 2016). We also con-cluded,
however, that remand was necessary because neither the
bankruptcy court nor the district court had addressed the
claims that were not based on alleged violations of the PSA.
Id. at *13. Accordingly, we
affirmed in part the judgment of the district court and
remanded the case for further proceedings with respect to the
claims that had not been considered by the bankruptcy court
or the district court. Id.
the rendition of our decision, Ms. Jepson filed this motion
for a stay of our mandate pending the disposition of a
petition for a writ of certiorari by the Supreme Court. The
standards that must govern my consideration of this motion
are well established. A party asking this court to stay its
man-date pending the filing of a petition for a writ of
certiorari " must show that the petition will present a
substantial ques-tion and that there is good cause for a
stay." Books v. City of Elkhart, 239 F.3d 826,
827 (7th Cir. 2001) (Ripple, J., in cham-bers). To show a
reasonable probability of success, the party must demonstrate
a reasonable probability that four Justices will vote to
grant certiorari as well as a reasonable possibility that