                                                                FILED
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                          July 12, 2018
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
In re: OMAR A. DUWAIK,

     Debtor.
_________________________

OMAR A. DUWAIK,

      Appellant,
                                                            No. 17-1385
v.                                                (D.C. No. 1:17-CV-00142-MSK)
                                                             (D. Colo.)
JP MORGAN CHASE BANK, N.A.,
Successor in Interest by purchase from the
FDIC as Receiver of Washington Mutual
Bank, FKA Washington Mutual Bank FA,

      Appellee.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
      _________________________________

      JP Morgan Chase Bank, N.A. (Chase) alleges that it is the holder of a promissory

note executed by appellant Omar Duwaik and secured by several parcels of real estate,

including a house. Duwaik filed for bankruptcy under Chapter 11, which triggered an

*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
automatic stay of all litigation against him under 11 U.S.C. § 362(a). But when he failed

to make payments to Chase under the terms of the confirmed Chapter 11 plan, Chase

moved the bankruptcy court for relief from the automatic stay so that it could pursue

foreclosure on the real estate. The bankruptcy court granted the motion, and Duwaik

appealed to the United States District Court for the District of Colorado. While the

appeal was pending, Duwaik sought from the district court an injunction pending appeal

to prevent Chase from foreclosing on the real estate. The district court affirmed the

bankruptcy court’s grant of relief from the stay and denied the request for an injunction.

Duwaik appeals the rulings of the district court.

         We have jurisdiction under 28 U.S.C. § 1291 and affirm. Duwaik raises numerous

issues regarding the merits of the district court’s rulings. But we need not address those

issues because we resolve the appeal on procedural grounds. Duwaik’s Chapter 11

bankruptcy proceeding has been dismissed by the bankruptcy court,1 so his challenge to

the relief from stay is moot. And the district court properly refused to consider Duwaik’s

request for an injunction because he did not first pursue that relief in the bankruptcy

court.

         Under 11 U.S.C. § 362(c)(2)(B), a stay in a Chapter 11 bankruptcy proceeding

expires when the proceeding is dismissed. At this point, setting aside the order lifting the

stay would therefore accomplish nothing. Because the appeal of the district court’s order

can have no real-world consequences, the issue is moot and we lack jurisdiction to

1
  The order dismissing the Chapter 11 proceeding postdates the filing of the opening
brief and is not part of the record on appeal. But we grant Chase’s request to take judicial
notice of this federal-court document. See Fed. R. Evid. 201(d).

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address the matter. See In re Ames, 973 F.2d 849, 852 (10th Cir. 1992) (“[B]ecause the

bankruptcy court properly dismissed debtors’ bankruptcy action, that court’s order

granting the Bank relief from the automatic stay is moot.”); McClendon v. City of

Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (mootness is “a matter of jurisdiction”).

Because mootness has prevented us from reviewing the district court’s order lifting the

stay, that order should be vacated by the district court. See Wyoming v. U.S. Dept. Agric.,

414 F.3d 1207, 1213 (10th Cir. 2005) (“When a case becomes moot pending appeal, the

general practice is to vacate the judgment below and remand with directions to

dismiss.”).

       Plaintiff’s reply brief argues that despite the dismissal of his original Chapter 11

proceeding, the issue is not moot because he is back in bankruptcy. But he refers to a

new bankruptcy proceeding under Chapter 13, not the Chapter 11 proceeding underlying

the issues in this appeal. Whether to lift the stay in the Chapter 13 proceeding is a

distinct matter.

       We also reject Duwaik’s challenge to the district court’s denial of his request for

an injunction pending appeal. Under Fed. R. Bankr. P. 8007(a)(1)(C), a party in a

bankruptcy proceeding who is seeking “an order suspending, modifying, restoring or

granting an injunction while an appeal is pending” ordinarily must first move for relief in

the bankruptcy court. Doing so is excused only if the party can “show that moving first

in the bankruptcy court would be impracticable.” Fed. R. Bankr. P. 8007(b)(2)(A). The

district court did not abuse its discretion when it refused to consider Duwaik’s request for

injunctive relief because he had neither pursued relief in the bankruptcy court nor


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attempted to show that first filing a motion in the bankruptcy court would have been

impracticable. Cf. Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th

Cir. 2007) (denial of preliminary injunction is reviewed for abuse of discretion).

       Duwaik makes two arguments before this court as to why the district court’s

disposition was improper. But the record shows that Duwaik did not present these

arguments to the district court. Because he did not properly preserve those arguments,

they are forfeited in this court. See Ave. Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876,

885 (10th Cir. 2016) (“An appellant forfeits an argument by failing to preserve it in

district court.”)

       We REMAND to the district court to vacate the order granting relief from the stay

and in all other respects AFFIRM the judgment below.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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