488 B.R. 120
D. Haw.2013Background
- Moore, pro se debtor, appeals a bankruptcy judgment affirming dismissal of her adversary proceeding for violation of the automatic stay by the Windsor AOA0; the district court reviews the bankruptcy court’s findings under de novo law and clear error standards.
- The Windsor AOAO managed Moore’s unit in Waikiki; Moore seeks a half-interest in the property as claimed in a probate proceeding.
- AOAO disconnected Moore’s garage door opener and cable TV (and thus phone/internet) for nonpayment of common area fees, while Moore had a pending mortgage-lender suit.
- Moore filed for bankruptcy March 18, 2010; AOAO mailed a notice of bankruptcy and separately issued a non-judicial foreclosure notice that was later retracted; parking notices and restricted access followed.
- Moore commenced the adversary proceeding Dec. 27, 2010, naming AOAO, PNC, and attorneys; Judge Faris dismissed the complaint with leave to amend, Moore amended to name only AOAO and PNC, and non-parties sought dismissal from the appeal for lack of proper notice under Rule 8001; the appeal is adjudicated without oral argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moore’s appeal properly included all defendants. | Moore named only AOAO in the notice of appeal. | Non-parties were not proper appellees on the appeal; Rule 8001 requires naming all appellees. | Moore’s appeal fails as to non-parties; only AOAO is properly named. |
| Whether the bankruptcy court abused its discretion in disqualifying Kozak and the Case Firm. | Disqualification was warranted due to witness-advocate issues. | No abuse; lack of necessary witness and discretion to deny disqualification. | No abuse; denial of disqualification affirmed. |
| Whether Moore proved actual damages for stay violations. | Damages were caused by stay violations (including time-based losses). | Damages were unproven or speculative; no concrete damages shown. | Moore failed to prove actual damages; judgment affirmed. |
| Whether the post-trial motion to recuse Judge Faris was properly denied. | Judge Faris displayed bias; recusal warranted. | Rulings were not biased; motion untimely and lacking extrajudicial grounds. | No abuse of discretion; recusal denied. |
Key Cases Cited
- In re JTS Corp., 617 F.3d 1102 (9th Cir. 2010) (bankruptcy findings reviewed for clear error; conclusions of law de novo)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (impartiality standards; rulings alone usually not bias; extrajudicial sources required)
- Pesnell v. Arsenault, 543 F.3d 1038 (9th Cir. 2008) (reasonable-behavior standard for recusal under §455)
- E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 (9th Cir. 1992) (recusal and bias standards; judge’s remarks alone not bias)
- Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (amended pleadings; waiver and supersession of prior pleading)