                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                           _____________________

                                  No. 00-40412
                                Summary Calendar
                             _____________________

         In The Matter Of:     BLAS MARTINEZ; ROSINA U. MARTINEZ,

                                                                     Debtors.

                                  KEN MACKEY,

                                                                   Appellant,

                                     versus

                              M. C. INVESTMENTS,

                                                        Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           (L-99-CV-90)
_________________________________________________________________

                                October 5, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Ken Mackey, pro se, appeals the district court’s dismissal, as

moot,    of   his   appeal    from   an   order   of   the   bankruptcy   court

dismissing his complaint for failure to state a claim upon which

relief can be granted.




     *
      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this opinion should not be published and is not precedent except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.
     Mackey represented the Debtors in a Chapter 11 bankruptcy

case.   The bankruptcy court approved, in July 1996, Mackey’s claim

for attorney’s fees and expenses; confirmed the Debtors’ plan of

reorganization the next March; and closed the Chapter 11 case that

December.

     In May 1999, Appellee M. C. Investments, a creditor in the

bankruptcy case and the holder of notes and deeds of trust securing

real property of the former Debtors, which had been executed

pursuant    to    the   plan     of    reorganization,    gave   notice    of    a

foreclosure sale scheduled for 1 June.              On 24 May, Mackey filed

suit against Appellee in Texas state court, claiming that Appellee

breached the notice provisions of the plan of reorganization, by

failing    to    give   notice    of    default   and    acceleration     of   the

indebtedness owed Appellee by Debtors; and seeking damages or

specific performance, as well as injunctive relief. That same day,

the state court entered an ex parte temporary restraining order

against the scheduled foreclosure sale.

     Appellee removed the action to bankruptcy court on 3 June.

Less than two months later, the bankruptcy court denied Mackey’s

motions to remand or abstain, and granted Appellee’s motion to

dismiss for failure to state a claim upon which relief can be

granted, concluding that the plan did not require any notice to

Mackey of default or acceleration. Mackey appealed to the district

court, which dismissed the appeal as moot.


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     Mackey contends the bankruptcy court lacked subject matter

jurisdiction; and the district court erred in dismissing his appeal

as moot and in failing to address the other issues he raised on

appeal.

     Pursuant to 28 U.S.C. § 1334(b), federal courts “have original

but not exclusive jurisdiction of all civil proceedings arising

under title 11, or arising in or related to cases under title 11

[the Bankruptcy Code]”. 28 U.S.C. § 1334(b). The bankruptcy court

based jurisdiction on the “arising under title 11" prong of §

1334(b), because the rights asserted by Mackey, if any existed,

derived from the Bankruptcy Code, inasmuch as such rights allegedly

arose in a bankruptcy case, pursuant to a plan confirmed by the

bankruptcy court.

     Despite the bankruptcy court’s determination that jurisdiction

was proper under § 1334(b)’s “arising under” prong, Mackey devotes

most of his brief on the jurisdictional issue to contending that

the bankruptcy court lacked jurisdiction under the “related to”

prong of that subsection.   To the extent that he challenges the

bankruptcy court’s conclusion that the proceeding is one “arising

under title 11", by contending that the bankruptcy court erred in

determining that the case was a “core” matter under 28 U.S.C. §

157(b)(3), we reject that contention.

     Mackey’s action against Appellee claimed breach of the notice

provisions of the confirmed plan of reorganization.    Whether the

plan required such notice requires interpretation of the plan,

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which is a matter “arising under title 11".                    28 U.S.C. § 1334(b);

see Insurance Co. of North America v. NGC Settlement Trust &

Asbestos Claims Management Corp. (Matter of National Gypsum Co.),

118 F.3d 1056, 1064 (5th Cir. 1997) (“a proceeding to enforce or

construe a bankruptcy court’s ... discharge injunction issued

pursuant     to    its     confirmation     order—and        whether   the   confirmed

reorganization plan precludes certain post-confirmation collection

efforts—necessarily arises under title 11 and supports a finding

that federal jurisdiction exists under 28 U.S.C. § 1334 and that

such a proceeding is ‘core’ under 28 U.S.C. § 157(b)”).

       The district court dismissed Mackey’s appeal as moot because,

after removal, Appellee rescheduled the foreclosure sale; Mackey

conceded that the alleged defects in notice had been cured; did not

object to any procedural defect in notice with respect to the

rescheduled        sale;       and,   subsequent   to    the    bankruptcy     court’s

dismissal,        the    foreclosure     sale   had     been   concluded.       Mackey

contends that, although his claims regarding notice may be moot,

his request for costs, expenses, and attorney’s fees associated

with   the   allegedly          defective   notice      of   the   earlier-scheduled

foreclosure sale are not moot. Concomitantly, he contends that the

district court erred by failing to address the bankruptcy court’s

determination           that     Appellee   did    not       breach    the   plan   of

reorganization.

       Even assuming Mackey’s claims for attorney’s fees, costs, and


                                            4
expenses are not moot, there is no reversible error.              Essentially

for the reasons stated in the bankruptcy court’s opinion, the

confirmed plan of reorganization did not require notice to Mackey.

Mackey v. M. C. Investments (In re Martinez), No. 94-20350-H2-11,

Adv. No. 99-5006 (Bankr. S.D. Tex. 29 July 1999).              There being no

breach of the plan, Mackey is not entitled to recover attorney’s

fees, costs, and expenses incurred in bringing the action.

      Mackey’s   contention    that     the    bankruptcy     court   erred   by

entering judgment rather than submitting proposed findings of fact

and   conclusions   of   law   to     the   district    court,    and   by    not

abstaining, are without merit, inasmuch as they are based on his

irrelevant contention that the bankruptcy court lacked subject

matter jurisdiction under the “related to” prong of § 1334(b).                 We

also reject his contention that the dismissal should have been

“without   prejudice”    or    that    he     should   have   been    given    an

opportunity to replead his claims.

                                                                 AFFIRMED.




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