*1 (Bankr. Hannan, motion to dismiss and the trustee’s 24 B.R. set the re E.D.N.Y.1982). hearing by subsequent response for order. IT IS SO ORDERED. (In Bank re Bo v. Continental Bobroff Cir.1985). (3d broff), 766 F.2d 803-04 penalizing was to “avoid Congress’s intent chapter for their 13 efforts
debtors posi in the same economic
placing them occupied they if they
tion would have Fobber, chapter originally.”
filed (Bankr.E.D.Tenn. 2000). Gregory WILLIAMS, Debtor. G. pro- because the insurance Williams, Gregory Appellant, G. day after in- ceeds were received the 180 they elusionary period, property were 1306(a). only the estate result of Levi; Gordon, Esq.; Eli Peter Aaron allege, The trustee did not nor do the Bovshow, Esq.; Franklin Towers suggest, facts that the debtors stipulated Association, Inc., Appel Homeowners the case in bad faith. Because converted lees. proceeds that the the Court finds Brinkley a result of Norma received as BAP No. CC-04-1033-BKPA. Brinkley’s policy insurance were Richard Bankruptcy LANo. 03-35597-SB. upon the conver- property not the estate Panel Bankruptcy Appellate States United chapter Accordingly, 7. sion of this case of the Ninth Circuit. they to the insurance to the extent relate motion for sum- proceeds, the trustee’s Argued and Submitted Nov. mary motion for turnover judgment and Filed March objection denied and the trustee’s are exemptions claim of is overruled. To the summary the debtors’ motion for
extent
judgment pro- relates to the insurance
ceeds, granted. it is parties respective
Both included in their summary judgment
motions for informa- motion to dis- relating
tion to the debtors’ Brinkley
miss Richard from the debtors’ failed parties 7 case. Because the which the
to state sufficient facts from if cause exists to
Court can determine Brinkley,
dismiss Richard see U.S.C. 707(a), holding and because the with re- proceeds may signif-
gard to the insurance
icantly argument, the change parties’ each summary motion for
Court denies each extent it relates to the
judgment to the motion to dismiss. The Court will
debtors’ *3 Williams, CA, Gregory Angeles, questions Los G. address the whether the Appellant. Pro se appellant had been violated or should re- stay-violation damages. cover Gaumer, Christie Law Offices of Christ- CA,- Gaumer, Angeles, ie Los for Eli Levi. annulling We AFFIRM the order REMAND, suggesting but without BRANDT, KLEIN, Before: merits, any view as to so PAPPAS,1 Bankruptcy Judges. decide whether stay-violation damages may appropriate be OPINION notwithstanding the annulment of the BRANDT, Bankruptcy Judge. addition, we DISMISS AS MOOT the stay appeal This automatic involves the debtor’s *4 interplay between the second and third of court’s denial of his motion to chapter three 132 cases filed related state-court eviction action. appellant space debtor within the thirteen months. I. FACTS filed, the second case When was Debtor, Williams, Gregory G. who de- interest, appellant possessory debtor had a attorney,” scribes himself as a “retired an equitable ownership pursu- and interest fiancee, P. Toi Polpantu, lived with his at deed, ant to an unrecorded in a condomini- Avenue, 207, 7250 Franklin Unit Los An- um unit titled in the name of a third California, geles, a condominium unit. person. days Two after the second case purchased By Williams the condo 1995. filed, appellee was homeowners associ- 1999, April deed recorded 21 ation, Williams knowledge with of that Polpantu. By transferred title to another appellant’s regarding case and of claims deed, 1999, also 21 property, April dated but not foreclosed its lien on the 2003, condominium recorded until 4 obtaining April Polpantu quit- without first stay. from the automatic claimed title back to Williams. In the third case—which followed dis- $11,000 approximately When dues missal of the assigned second case and was unpaid, appellee went Franklin Towers judge to the same sought debtor —the Inc.,3 Association, gave Homeowners no- premises stay-violation recover the non-judicial tice of its intent to conduct a damages putative stay on account of the foreclosure sale of the condo on 3 April violation that occurred the second case. 2003. court, reopening without case, April On 1 the second entered an Williams filed a chapter order retroactively annulling bankruptcy petition, third case his second re- in the second case. The court did not cent It times.4 so-called “face Pappas, Bankruptcy Judge 1. appellees, only Hon. Jim D. theOf Eli Levi briefed or Idaho, sitting by designation. argued. the District of indication, contrary chapter 2. Absent all 4. Case No. LA 03-18775-SB. Our review of Bankruptcy section references are to the court's records shows Code, 101-1330; §§ U.S.C. prior bankruptcy all "Rule” ref- Williams had filed in the district, 02-31997-KM, Bankrupt- erences are to the Federal Rules of same No. LA on 5 Procedure, cy August and all "FRCP” references are It was dismissed and does not figure appeal. to the Federal Rules of Civil Procedure. in this until for about a week petition filing of or “skeleton” sheet” schedules, an order enabled state- court issued accompanying without affairs, proposed or a premises. financial to return to the ment of April 2003 indi- Nothing filed on plan. second bank- August Williams’ an interest in claimed cated that Williams case dismissed for his failure the condo. requirements, thus comply chapter non-judicial con- sale was The scheduled After this terminating Eli appellee April on 3 ducted dismissal, in state Levi filed an action purchaser the successful Levi5 was (Los County Court Angeles Superior bidding with his bid competitive BA-311463), cancel seeking No. $215,000. was not a credi- Although Levi deed, title, dam- quiet and obtain tor, not contest that Williams he does ages. filing given him notice of occurred. before the sale petition filed his On 1 October chap- again third Pol- year the four old recorded LA03-35597SB, which was as- 4 ter No. quitclaim deed on pantu to Williams judge presided who having petition, signed filed his to the same April after the foreclosure sale. case. Two and after over his second *5 later, the days asked Williams 2003, Levi filed and served April On 8 stay the eviction. court to quit. notice to Polpantu statutory on did not avail himself Although Williams for relief Levi moved On October law to file right his under California “to third case stay from the possession claim of the right notice of to of the residential or non- possession obtain that he premises, dispute Levi does not at 7250 Franklin Ave- premises residential A fore- living there. knew Williams nue, Angeles ....” Levi ar- No. Los deed in favor of Levi was closure trustee’s stay did not affect gued that the automatic 22 April 11 April recorded on 2003. On belong not premises him because the did action an unlawful detainer Levi filed not of the property and were Williams Levi v. Polpantu in state court. against or third bank- estate in either the second County Superior Polpantu, Angeles Los if argued even cases. He also ruptcy Court, Case 03U408. effect, stay it should in the state legal A series of maneuvers his Levi to continue permit annulled to be courts followed. There and court. unlawful detainer action state court unlawful detainer action was a state motion, arguing the opposed Williams attempted to remove to fed- that Williams that Levi violated the court, judgment which resulted eral but premises at the foreclosure purchasing the the state court reasoned for Levi after of his second receiving notice sale after was unsuccessful. attempt the to remove by commencing the bankruptcy filing and The state An eviction was scheduled. sought monetary action. eviction Williams rejected attempt by apparently court not ask the damages but did stay-violation enjoin ap- Levi the eviction. Williams either the to rule that bankruptcy court possession premises parently took broker, and a building, between Levi condo sion occurred owns other units in the 5. Levi Watkins, bankruptcy court but the allegedly board Roland not an Association but findings point, and we need authority. on this management made no no member and has wrongdoing it. implies or collu- not address some might ap- sale or the unlawful detainer action were case have mooted the peal. replied void. Levi with a motion to dis- mootness, appeal. miss the Our order re continuances, After a number of the July entered 13 limited review on bankruptcy court heard both motions annulling the order Although concluding 23 December. stay,7 that it noting was not moot because intended to hearing indicating he reas- sought damages for a violation sign judge, matter to another on 31 judge issued a written December 2003 annulling denying order eviction, stop motion to stat- II.ISSUES part: A. Whether the denial Williams’ mo-
Notwithstanding that the foreclosure moot; tion to the eviction action is may under Ninth sale be void Circuit B. Whether law, action, has taken no debtor annulling stay; abused its discretion in prior in this case or in either set aside the sale. Levi now moves for proceed with eviction C. Whether entitled be 362(h). of the debtor from the condominium. § damages Because the debtor has not taken action, notwithstanding such III.JURISDICTION eight foreclosure occurred almost jurisdiction court had ago, months the court finds that 157(a), (b)(1), via 28 U.S.C. 1334 and delayed unduly debtor has and that re- (b)(2)(G). We do under 28 U.S.C. granted
lief from should be and the 158(c). *6 purchaser should not be further inhib- obtaining possession ited from of the IV.STANDARDS OF REVIEW property. review an to annul We order ACCORDINGLY, IT IS ORDERED In re stay for an of abuse discretion. that the from grant- motion is Corp., Nat’l Envtl. Waste 1052, 129 F.3d 1, retroactively April ed 2003 and the (9th Cir.1997). motion to eviction is denied.6 timely appealed, Williams and moved for may any We consider issue evident pending appeal, which we denied. record, on the any affirm on basis record, bankruptcy Williams’ third supported by case was even where the 11 February dismissed on 2004. issue expressly was not considered (twice) Inc., court. In Fegert, re E.R. responded our clerk’s order (9th Cir.1989). suggesting the dismissal of the bank- 887 F.2d issues, Although parties argued tered court after the one priority, court did not address the appeal attached to his notice of were also on validity, Polpantu or effect of the to Williams appeal. Although appeal Williams’ notice of deed, deed, or of the foreclosure trustee's supposedly listed three orders entered that under state law. Those issues are not before day, only one is disclosed in the us. docket, court’s and that is the order attached appeal. to the notice of order, responses In his to our clerk’s Williams also asserted that other orders en- arose, appeal not from which the order on for errors do not reverse We no our conclusion would be of rights parties, of the because affecting substantial noted, for reason moment. Levi’s freedom commence may affirm and as entirely 28 U.S.C. new unlawful detainer action by the record. supported 2111; by Rule after dismissal of the third incorporated evict Williams FRCP Inc., 9005; part case moots this of the Computers, re Maximus (9th 2002), BAP could afford no effective relief appeal. Cir. We 278 B.R. California, respect possession 191 F.3d to citing Dittman Cir.1999). condo; 1020, 1027 aspect n. 3
moot
must
therefore be dismissed.
V. DISCUSSION
noted,
But,
al-
panel
our motions
third
case
though Williams’
A.Jurisdiction
dismissed,
request for mone-
has been
his
pre
“The doctrine of mootness
tary damages
alleged
for Levi’s
willful vio-
questions
court decision of
cludes federal
lation of the automatic
is not moot.
rights
litigants
that cannot affect the
Davis,
Cir.
....
actual
[A]n
the case before them
1995).
BAP
stages
at all
controversy must be extant
....
an action loses its
review
Whenever
Appellee’s
B. The Record and
Mo-
controversy
live
present
character as
Supplement
tion to
litigation, federal
during the course of
fol-
parties
It is not clear whether the
the action
required
courts are
to dismiss
set
designation
process
lowed the
of record
re
Giorgio,
as moot.” In Di
origi-
forth in Rule 8006. Levi’s brief as
(9th Cir.1998) (citations
quotation
judicial
nally
request
included a
filed
omitted).
marks
notice, noting that
had omitted
court’s order de
essentially
excerpts of record
all
the state
nied
motion
Williams’
filed after Levi’s motion
pleadings
of his
indicates in
court eviction action. Williams
grant
did not
for relief
We
opening
his
brief
after the dismissal
brief, but
motion to strike Levi’s
proceed
third
Levi
of his
ordered Levi to file motion to
instead
action,
detainer
ob
ed with the unlawful
record,
and allowed
supplement
*7
property,
of
and
possession
tained
reply
additional time to file his
quiet
title action in state
commenced
supplement
Levi filed a motion
brief.
there was no automatic
court. Because
record,
grant.
we now
which
effect,
free to take
stay then in
Levi was
362(c) (providing
§
such actions. See
The
C.
Merits
upon
terminates
dis
case).
Entry
the order
bankruptcy
missal of the
for relief from
case.
stay in the dismissed
tell from the
presume, but cannot
We
record,
contends
Levi
a new writ of
obtained
jurisdiction to enter an order
eviction,
had no
relying upon
than
the writ
court
rather
effect,
bankruptcy case
stayed in its 25 in the third
that the
court
not,
retroactively annulled the automatic
If
no
express
2003 order.
we
June
second bank
efficacy of that
that arose
the dismissed
about the continued
opinion
In consider
case. This is not so.
ruptcy
of both the
order after dismissal
stay,
to annul the
ing Levi’s motion
it was issued and the case
13 case which
(A)
properly interpret
equity
court
does not have
debtor
ing
effectuating
property;
in such
jurisdiction
ancillary
within its
(B)
property
necessary
such
is not
second
which survived dismissal. In
reorganization
to an effective
(9th
B.R.
Aheong,
re
Cir.
2002) (citing
Taylor,
BAP
F.2d
362(d)
seen, §
As can be
authorizes the
(9th Cir.1989)).
478, 481
See also In re
bankruptcy court to enter an order annul
Carraher,
Cir.1992);
ling
stay “provided
under subsection
(Bankr.
Giddens,
(a)”
(a)
turn,
§of
362. In
subsection
re
N.D.Ill.2003).
upon
filing
fers to the
that arises
Moreover,
provisions
of the Bank-
petition.”
of “a
Nothing
language
granted
Code authorize the relief
362(d)
restricts the reach of a
relief
Upon
filing
this case.
of a
particular
order to the
bankruptcy case
362(a)(1)
petition,
provides:
sought.
bankrupt
which that relief is
The
(a) ...
petition
filed under section 301
cy
may
properly grant
therefore
re
...
operates
applicable
as
to all
lief from a
that arose under subsec
entities, of—
(a)
prior,
tion
in a
different
(1) the
or
commencement
continua-
(We
case before the same court.
are not
tion, including
employ-
the issuance or
presented
here
cases be
process,
judicial,
ment
of a
adminis-
judges
fore different
or in different dis
trative, or other action
proceeding
or
Miller,
tricts, as in In re
against cases, property under ed over subsection both the convenient admin- (a) section, justice of this if— istration of was served pro- against and obligation, enforce an ing to Although Williams’ here. cedure followed if Levi was not. Even property, been but case could have second unambiguously of estate with that the sale were the order issued reopened and Schwartz, void, un- In re property, be corrected and any error could caption, (which 60(a) (b) Cir.1992), it would take allows relief or F.2d der FRCP action), via Rule applicable adversary proceeding to establish by independent an event, is, party purchaser. in harmless. a third Rule against and as 7001(2). Polpantu’s pre interest While stay. Applicability 2. of by the co-debtor sumably protected was Williams, not in equitable (assuming § interests legal and of dues), title, are obligation pay at the start of a case to she is of a debtor But according appeal, to state law. this and party determined not a Williams States, 48, 55, 99 standing 440 U.S. on her apparent ner v. United has no (1979). On the 59 L.Ed.2d S.Ct. behalf. date, had no recorded
petition Williams arguments are wide-ranging Property. in the But he lived interest that the foreclo- premise on the founded condo, interest was possessory and his void, was as sure sale bankruptcy estate under property of the But might be the case. court indicated 541(a) Butler, 271 § 1306. upon property foreclosed since —the (a (Bankr.C.D.Cal.2002) B.R. Polpantu prop- of not record interest —was physical possession mere debtor-tenant’s peti- or on his erty of the estate Williams pos premises after writ apartment self-evident, and, date, is not tion in favor of landlord session had issued above, require an adver- indicated would equitable action is an unlawful detainer establish, either as sary. proceeding protected by automat property, interest or under matter of state law Giorgio, In re Di stay). ic See also in such an the issues to be decided Among (C.D.Cal.1996), vacat judgment B.R. 664 priority between action would be Cir.1998). Likewise, ed, Polpan- deed and the foreclosure trustee’s and his possessory interest both Williams’ presumably Levi will tu to Williams deed: Property interest in the equitable deed relates back argue that the trustee’s (as date in petition unrecorded of the under California Civil to the sale date case) Polpantu the second 2924(c), prior is and that date Code property of the estate. deed were deed. recording of Williams’ precision about what So some asked the bank- But has never in or might implicate the conduct declare the foreclosure sale ruptcy court to noted, was not title der. As void, we need not or eviction action petition, he filed his so the condo when Instead, possible those issues. decide not ownership Property record on the bank- appeal, we focus whether And, stay. under Califor protected retroactively to an- court’s decision law, only nonjudicial foreclosure affects nia an abuse of nul automatic title, any possessory right. not legal discretion. (Bankr. Torrez, 924, 939 E.D.Cal.1991). Annulment taken viola Postpetition actions at the foreclo- purchase
Nor was Levi’s
*9
those un
automatic
even
sale,
more,
viola-
tion of the
an obvious
sure
without
knowledge of
by
actor with
act-
stay. The Association was
dertaken
tion of the
Waste,
by
bankruptcy filing, may
approved
be validated
Envtl.
we
consideration
bankruptcy
In
of additional factors
stay.
Algeran,
annulment of the
Inc. v.
court,
including:
filings;
the number of
Corp.,
Ross
Advance
any prejudice, including
extent of
to a
(9th
Cir.1985), the Ninth Circuit held:
purchaser;
overall
bona fide
debtor’s
an automatic
Algeran’s position that
faith;
good
compliance
the debtor’s
to
a
stay cannot be lifted so as
validate
Code;
quickly
how
the creditor moved
[postpetition
sale made
foreclosure]
annulment;
quickly
for
and how
the debt-
force,
stay
while the
was in
is without
or
to
But
moved
set aside
sale.
be-
362(d)
merit. Section
of Title 11 em-
application
cause mechanistic
“factors”
grant
powers the court
relief
making
inappropriate
is
determina-
....
stay
judge
automatic
The district
to annul
tion of whether
stay
annulled the automatic
as to the
Fjeldsted, we observed that:
shares,
of AMI
he was
sale
entitled
[of
Mindful
such lists
are
factors]
do
the statute and the facts of this
under
capable
being
misconstrued as invit-
annulled,
case.
With the
ing
reasoning,
emphasize
arithmetic
we
cannot
the sale that occurred
be said
merely
these items are
a frame-
be invalid.
analysis
for
and not a scorecard.
work
specifically request
While Levi did not
any
given case,
In
one factor
so
annulment of the
Williams’ second
outweigh
disposi-
the others as to be
court as-
tive.
request
sumed the
to annul
added).
B.R. at
(emphasis
1 April,
as of
when the events that are at
It is difficult to review the deci
controversy
the heart of this
unfolded.
sion here because the
specify
court did not
findings
made no detailed
of fact and con
362(d)
which subsection of
authorized
incorporates
clusions of law. Rule 9014
annulment,
its reasoning
but
fits into the
provisions
of Rule 7052 and FRCP
category
broad
“cause”
under
requiring findings
and conclusions in
362(d)(1),
Algeran.
as in
matter,
contested
which are essential
grant
Whether
retroactive
Harris,
appellate review.
279 B.R.
2002)
(findings
Cir. BAP
362(d)
is a decision committed to the
required in contested
involving
matters
discretion of the
court. Nat’l
fact);
Platek,
disputed issues of
Halas v.
Waste,
Envtl.
Schwartz,
thority scope to determine the of the auto ly more concerned with Williams’ lack of matic stay”). diligence than disregard Levi’s
Although passed substantial time had And even were we to reach a different employed variety had equities conclusion about the on this rec- ord, litigation tactics in two in deciding engaged his that Williams had cases, apparent- delay court was in failing promptly unreasonable ly sale, frustrated the critical issue had to attack court result, never presented. correctly been As a on appropriate focused factors presumably decided the under the case law: whether en- equities conduct, favored pro- gaged inequitable Levi. While Williams Nat’l Envtl. Waste, tested Levi’s him efforts evict 129 F.3d at and whether he Property, monetary promptly and asked for sanc- moved to have the foreclosure’s conduct, determined, validity Fjeldsted, tions on account of Levi’s 293 B.R. at appropri- not commenced an 25. That the court did not adversary ate proceeding pursuant to Rule discuss its consideration other relevant 7001 to declare the foreclosure sale8 and factors its order is not fatal: as we subsequent actions taken in Fjeldsted, Levi void. indicated one factor in the failure, This together analysis may sufficiently outweigh viewed all oth- filings, serial repeated justify his re- ers and annulment. Association, Obviously, litigation prevent as the foreclos- sence from this would trustee, likely rendering any creditor and the foreclosure court from final necessary party judgment concerning validity would have been a to an of the sale action to void the foreclosure sale. Its ab- in the context of Levi's or Williams’ motions. *11 702 362(h) viola- § for the actor’s willful its court did not abuse that annulment stay before tion of stay. when it annulled
discretion
granted.
should be
Monetary
sanctions.
noted,
an action taken
As we have
362(h) provides:
Section
stay,
though
violation of
void,
vio-
injured by
may
by
willful
validated
An individual
be
retroactive relief
stay
through
grant
this section
of
provided
lation of a
759 F.2d at
including
Algeran,
damages,
actual
shall recover
definitively ad
yet
has not
fees,
But case law
appro-
attorneys’
costs and
in viola
an action taken
dressed whether
circumstances,
puni-
may recover
priate
validated
annulment
tion of the
damages.
tive
fact, may
serve as
after the
nonetheless
requires
context
“Willfulness”
money damages
for an award of
basis
stay
the existence of the
the actor know of
injury.
an
Com
if the debtor has suffered
of
actions taken
violation
and that the
954,
B.R.
Corp.,
In re Edisto Res.
158
pare
Adler,
Eskanos &
stay
be intentional.
(Bankr.D.Del.1993) (stating that
958-59
(9th
Leetien,
1210, 1215
309 F.3d
P.C. v.
legal
the debtor’s
paid
once the creditor
Fernandez,
174,
Cir.2002);
227 B.R.
In re
liti
defending against
fees associated
(9th
1998), aff'd,
BAP
180
Cir.
that violated the automatic
gation
Cir.2000)(table).
(9th
220
stay),
annul
cause would exist to
was re
argues
Levi
that Williams
140,
B.R.
Thompson,
In re
182
155
adversary proceed
an
quired to commence
(4th
(Bankr.E.D.Va.1995)
aff'd,
fact-intensive de- though equities favor retroactive AFFIRM the court’s even We stay in favor of cision to annul the automatic retroac- relief from the automatic actor, tively, REMAND for consideration request damages a debtor’s 362(h) damages, claim for Williams’ as moot
DISMISS denial of a court’s *12 action.
the eviction
KLEIN, Judge, concurring Bankruptcy dissenting. join majority respect
I to af- annulment of the automatic
firming the and the denial of the eviction
order. principle I that a accept
While 362(h) punished
violation can be notwith- appropriate circumstances
standing subsequent annulment of the judge’s I construe the trial decision
in this of facts to be an im- constellation rejection
plicit damages. violation though judge explic-
Even the trial did not
itly remedy imposing discuss such a not-
withstanding the annulment of the I in-
regard any error as harmless
stance and not remand. To that would
extent, I DISSENT. HOTEL, LINE STATE
INC., Debtor. Jorgenson, Appellant, F.
Suzanne Hotel, Inc.; Line
State Unsecured Committee,
Creditors’
Appellees.
BAP No. NV-04-1151-BSBu.
Bankruptcy No. BK-N-02-50085-GWZ. Bankruptcy Appellate
United States Panel
of the Ninth Circuit.
Argued by Video Conference and
Submitted on Oct. March
Filed