523 B.R. 673
9th Cir. BAP2014Background
- Ellis purchased aSan Francisco home in 2005 secured by a Long Beach Mortgage note and deed of trust.
- She defaulted in mid-2008 and subsequently filed multiple bankruptcies (chapter 7 and 13) with dismissals for noncompliance or nonpayment.
- Deutsche Bank National Trust Company purchased the Property at a foreclosure sale in June 2009 and later obtained an unlawful detainer judgment in 2012.
- Yu bought the Property from Deutsche Bank on August 23, 2013 and Deutsche Bank assigned its rights to Yu in October 2013.
- Ellis filed this Chapter 13 case on December 9, 2013; Yu moved January 3, 2014 for relief from stay and in rem relief under § 362(d)(2) and (4).
- Ellis later converted to Chapter 7 (April 2014) and was discharged in July 2014, which terminated the automatic stay by operation of § 362(c)(2)(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stay-relief appeal is moot | Ellis argues the appeal survives despite discharge | Yu contends the court’s stay-relief order remains reviewable | MOOT; discharge terminated stay, no effective relief available |
| Whether the grant of in rem relief under § 362(d)(4) was proper | Yu was not a secured creditor; cannot support in rem relief | Yu sought relief as owner, not as secured creditor | REVERSED; Yu not a creditor secured by the Property, so in rem relief improper |
Key Cases Cited
- In re Patullo, 271 F.3d 898 (9th Cir. 2011) (mootness when events resolve the dispute post-filing)
- GTE California, Inc. v. FCC, 39 F.3d 940 (9th Cir. 1994) (jurisdictional mootness and live issues)
- Pilate v. Burrell (In re Burrell), 415 F.3d 994 (9th Cir. 2005) (case or controversy requirement governs appellate mootness)
- Bigelow v. Comm’r, 65 F.3d 127 (9th Cir. 1995) (stay termination upon discharge under § 362(c)(2)(C))
- In re E.R. Fegert, 887 F.2d 955 (9th Cir. 1989) (court may review certain declarations for evidentiary purposes)