      Case: 14-10965             Document: 00513268696   Page: 1   Date Filed: 11/12/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                          No. 14-10965                   United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In the Matter of: STEWART PHILLIP MCCRAY,                               November 12, 2015
                                                                           Lyle W. Cayce
                 Debtor                                                         Clerk

------------------------------

STEWART PHILLIP MCCRAY,

                 Appellant

v.

ROBERT YAQUINTO, JR.; NIKKI MCCRAY; OCWEN LOAN SERVICES,
L.L.C.; WILLIAM NICHOLSON,

                 Appellees



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:14-CV-1034


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
        Yaquinto previously moved to dismiss this appeal as equitably moot.
Whether an appeal is equitably moot is determined by three factors: “(i)


        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 14-10965      Document: 00513268696        Page: 2     Date Filed: 11/12/2015



                                     No. 14-10965
whether a stay has been obtained, (ii) whether the plan has been ‘substantially
consummated,’ and (iii) whether the relief requested would affect either the
rights of parties not before the court or the success of the plan.” Manges v.
Seattle-First Nat’l Bank (In re Manges), 29 F.3d 1034, 1039 (5th Cir. 1994).
Here, all three Manges factors favor equitable mootness: Both parties agree
that no stay was obtained; the plan has been substantially consummated
because the plan administrator transferred property and fully funded the
claims reserve and McCray’s divorce has been finalized pursuant to the plan; 1
and the rights of third parties—Nikki McCray and the Nicholsons—would be
affected if the plan were overturned. Further, this case does not implicate any
of the concerns raised in Pacific Lumber because dismissing the appeal does
not impact secured creditors nor did the plan present the court with a “fait
accompli[:] a plan that was substantially consummated within weeks of
confirmation.” In re Pacific Lumber Co., 584 F.3d 229, 242 (5th Cir. 2009).
      For the above reasons, we order that the motion to dismiss the appeal as
equitably moot, previously ordered carried with the case, is now GRANTED
and the appeal is DISMISSED.




      1  Because “[t]he ultimate inquiry is whether the court can grant [appellate] relief
without undermining the plan,” we consider facts that occurred during the pending appeal,
not just those that had occurred when the district court entered judgement. In re Idearc,
Inc., 662 F.3d 315, 319 (5th Cir. 2011) (citation omitted). Accordingly, the Nikki McCray’s
motion to supplement the record is GRANTED, McCray’s motion to supplement the record is
GRANTED, McCray’s motion to file corrected briefs is GRANTED, and McCray’s motions to
strike record excerpts and references in appellate briefs are DENIED.
                                            2
