EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION In re ) Case No. 17-14112-B-13 ) ARMANDO NATERA, ) DCN: FW-3 ) ) Debtor. ) ) Armando Natera (“Debtor”) moves for partial summary judgment for an order: (1) granting this motion for summary judgment; (2) finding the bankruptcy petition was filed at 1:59:28 p.m. on October 25, 2017; (3) finding the automatic stay went into immediate effect; (4) finding the foreclosure sale of real property located at 2430 E. Orrland Avenue, Pixley, CA 93256 (“Property”) conducted by Parker Foreclosure Services, LLC (“Parker Foreclosure”), was in violation of the stay; (5) finding the recording of the Trustee’s Deed Upon Sale (“Trustee’s Deed”) in favor of Richard Barnes (“Barnes”) was a knowing and willful violation of the stay; (6) finding Barnes’ conveyance to the Michael Scott Lincicum and Mitzi Lincicum (collectively, the “Lincicums”) was a knowing and willful violation of the stay; (7) finding because the original foreclosure sale was void, all acts and conveyances subsequent to the foreclosure sale are void; and (8) denying the motion to retroactively annul the automatic stay (TAT-2). Doc. #115. Debtor submitted a statement of undisputed facts pursuant to /// Local Rule of Practice (“LBR”) 7056-1(a) in support of this motion. Roger S. and Sandra L. Ward (collectively, the “Wards”) timely opposed and submitted their responses to the statement of undisputed facts. Docs. ##121-22. However, in responding to Debtor’s statement of undisputed facts, the Wards included new facts numbered 9 through 19 that are purported to be the undisputed material facts submitted by Debtor, to which the Wards, in response, do not dispute. Doc. #122. These alleged undisputed facts were not submitted by Debtor as indicated and were erroneously attributed to Debtor by the Wards. Accordingly, the court will STRIKE the Wards’ “undisputed facts” numbered 9 through 19 as an insufficient defense, or redundant, immaterial, impertinent, or scandalous under Fed. R. Civ. P. (“Civ. Rule”) 12(f), as incorporated by Fed. R. Bankr. P. (“Rule”) 7012. Debtor replied. Doc. #144. This motion for summary judgment was originally set for hearing on October 27, 2021, on 42 days’ notice as required by LBR 7056-1 and in conformance with Rule 7056 and Civ. Rule 56. Doc. #116. Because the pleadings were not settled in the parties’ related adversary proceeding, this matter was continued to November 17, 2021, continued to February 9, 2022, then continued to March 30, 2022, continued again to May 25, 2022, continued a fifth time to July 27, 2022, and most recently was continued to September 28, 2022. Docs. ##126-27; ##147-48; #151; #165; #167; #193; #195; #205; #207; #213; #216. During the most recent continuance, the court ordered that Debtor may augment the record not later than August 31, 2022, any party file and serve written opposition not later than September 14, 2022, and any reply shall be filed and served not later than September 21, 2022. Doc. #216. On August 31, 2022, Debtor submitted on his previously filed motion, supporting documents, and reply brief, and indicated that he will not otherwise be augmenting the record. Doc. #225. At the September 28, 2022, hearing, the court took the matter under submission. Doc. #237. Debtor and the Wards both request the court take judicial notice of certain documents filed in this case and Debtor’s related adversary proceeding, Adv. Proc. No. 20-01035. Docs. #118; #121. The court may take judicial notice of all documents and other pleadings filed in this bankruptcy case, in the related adversary proceeding, filings in other court proceedings, and public records. Fed. R. Evid. 201; Bank of Am., N.A. v. CD-04, Inc. (In re Owner Mgmt. Serv., LLC), 530 B.R. 711, 717 (Bankr. C.D. Cal. 2015). The court takes judicial notice of the requested documents, as well as the pleadings filed in this bankruptcy case, and Debtor’s adversary proceeding, but not the truth or falsity of such documents as related to findings of fact. In re Harmony Holdings, LLC, 393 B.R. 409, 412-15 (Bankr. D.S.C. 2008). Debtor filed chapter 13 bankruptcy on October 25, 2017. The time the petition was filed is in dispute. The petition contains two timestamps: 1:59:28 p.m. in red ink, and 2:00 p.m. in smaller black ink. Doc. #1. At 2:00 p.m. on that same day, Parker Foreclosure conducted a foreclosure sale of Property. Docs. #119, Exs. A, D; #122; #123, Ex. A. Barnes was the prevailing bidder. After the petition was filed, Debtor’s representative, Sylvia Gutierrez, spoke by telephone with Donald Parker, Parker Foreclosure’s owner, at 2:03 p.m. and informed him of the bankruptcy.1 Docs. #119, Ex. B; #122; #123, Ex. A. Since the sale was scheduled for 2:00 p.m., the sale had already occurred by the time Debtor’s counsel’s office contacted Parker Foreclosure. Id. The following day, Parker Foreclosure executed a Trustee’s Deed in favor of Barnes. Doc. #119, Ex. H to Ex. C. Parker Foreclosure recorded the Trustee’s Deed on October 30, 2017, in the Official Records for Tulare County as Document No. 2017- 0066663 after receiving an email from the Vice President of the title company stating that it was a legal sale and that the bankruptcy did not, as a matter of law, prevent the recording of the Trustee’s Deed.2 Doc. #119, Ex. H to Ex. C. Parker Foreclosure informed Barnes of the bankruptcy via facsimile on November 28, 2017 and advised him to obtain a bankruptcy attorney to seek relief from the automatic stay.
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EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION In re ) Case No. 17-14112-B-13 ) ARMANDO NATERA, ) DCN: FW-3 ) ) Debtor. ) ) Armando Natera (“Debtor”) moves for partial summary judgment for an order: (1) granting this motion for summary judgment; (2) finding the bankruptcy petition was filed at 1:59:28 p.m. on October 25, 2017; (3) finding the automatic stay went into immediate effect; (4) finding the foreclosure sale of real property located at 2430 E. Orrland Avenue, Pixley, CA 93256 (“Property”) conducted by Parker Foreclosure Services, LLC (“Parker Foreclosure”), was in violation of the stay; (5) finding the recording of the Trustee’s Deed Upon Sale (“Trustee’s Deed”) in favor of Richard Barnes (“Barnes”) was a knowing and willful violation of the stay; (6) finding Barnes’ conveyance to the Michael Scott Lincicum and Mitzi Lincicum (collectively, the “Lincicums”) was a knowing and willful violation of the stay; (7) finding because the original foreclosure sale was void, all acts and conveyances subsequent to the foreclosure sale are void; and (8) denying the motion to retroactively annul the automatic stay (TAT-2). Doc. #115. Debtor submitted a statement of undisputed facts pursuant to /// Local Rule of Practice (“LBR”) 7056-1(a) in support of this motion. Roger S. and Sandra L. Ward (collectively, the “Wards”) timely opposed and submitted their responses to the statement of undisputed facts. Docs. ##121-22. However, in responding to Debtor’s statement of undisputed facts, the Wards included new facts numbered 9 through 19 that are purported to be the undisputed material facts submitted by Debtor, to which the Wards, in response, do not dispute. Doc. #122. These alleged undisputed facts were not submitted by Debtor as indicated and were erroneously attributed to Debtor by the Wards. Accordingly, the court will STRIKE the Wards’ “undisputed facts” numbered 9 through 19 as an insufficient defense, or redundant, immaterial, impertinent, or scandalous under Fed. R. Civ. P. (“Civ. Rule”) 12(f), as incorporated by Fed. R. Bankr. P. (“Rule”) 7012. Debtor replied. Doc. #144. This motion for summary judgment was originally set for hearing on October 27, 2021, on 42 days’ notice as required by LBR 7056-1 and in conformance with Rule 7056 and Civ. Rule 56. Doc. #116. Because the pleadings were not settled in the parties’ related adversary proceeding, this matter was continued to November 17, 2021, continued to February 9, 2022, then continued to March 30, 2022, continued again to May 25, 2022, continued a fifth time to July 27, 2022, and most recently was continued to September 28, 2022. Docs. ##126-27; ##147-48; #151; #165; #167; #193; #195; #205; #207; #213; #216. During the most recent continuance, the court ordered that Debtor may augment the record not later than August 31, 2022, any party file and serve written opposition not later than September 14, 2022, and any reply shall be filed and served not later than September 21, 2022. Doc. #216. On August 31, 2022, Debtor submitted on his previously filed motion, supporting documents, and reply brief, and indicated that he will not otherwise be augmenting the record. Doc. #225. At the September 28, 2022, hearing, the court took the matter under submission. Doc. #237. Debtor and the Wards both request the court take judicial notice of certain documents filed in this case and Debtor’s related adversary proceeding, Adv. Proc. No. 20-01035. Docs. #118; #121. The court may take judicial notice of all documents and other pleadings filed in this bankruptcy case, in the related adversary proceeding, filings in other court proceedings, and public records. Fed. R. Evid. 201; Bank of Am., N.A. v. CD-04, Inc. (In re Owner Mgmt. Serv., LLC), 530 B.R. 711, 717 (Bankr. C.D. Cal. 2015). The court takes judicial notice of the requested documents, as well as the pleadings filed in this bankruptcy case, and Debtor’s adversary proceeding, but not the truth or falsity of such documents as related to findings of fact. In re Harmony Holdings, LLC, 393 B.R. 409, 412-15 (Bankr. D.S.C. 2008). Debtor filed chapter 13 bankruptcy on October 25, 2017. The time the petition was filed is in dispute. The petition contains two timestamps: 1:59:28 p.m. in red ink, and 2:00 p.m. in smaller black ink. Doc. #1. At 2:00 p.m. on that same day, Parker Foreclosure conducted a foreclosure sale of Property. Docs. #119, Exs. A, D; #122; #123, Ex. A. Barnes was the prevailing bidder. After the petition was filed, Debtor’s representative, Sylvia Gutierrez, spoke by telephone with Donald Parker, Parker Foreclosure’s owner, at 2:03 p.m. and informed him of the bankruptcy.1 Docs. #119, Ex. B; #122; #123, Ex. A. Since the sale was scheduled for 2:00 p.m., the sale had already occurred by the time Debtor’s counsel’s office contacted Parker Foreclosure. Id. The following day, Parker Foreclosure executed a Trustee’s Deed in favor of Barnes. Doc. #119, Ex. H to Ex. C. Parker Foreclosure recorded the Trustee’s Deed on October 30, 2017, in the Official Records for Tulare County as Document No. 2017- 0066663 after receiving an email from the Vice President of the title company stating that it was a legal sale and that the bankruptcy did not, as a matter of law, prevent the recording of the Trustee’s Deed.2 Doc. #119, Ex. H to Ex. C. Parker Foreclosure informed Barnes of the bankruptcy via facsimile on November 28, 2017 and advised him to obtain a bankruptcy attorney to seek relief from the automatic stay.
1 There is a dispute as to whether Donald Parker “refused to take [the case] number, insisting that he should have been notified before 8:00 a.m. on the morning of the sale.” Doc. #122. Ms. Gutierrez claims that she offered to email Mr. Parker the case number, but that he refused to provide an email address. Doc. #119, Ex. B. Barnes claims that Ms. Gutierrez was supposed to send Parker Foreclosure a fax, but no fax was received. Doc. #123, Ex. A. 2 The Wards claim that Parker Foreclosure recorded the Trustee’s Deed w ri et ch eo iu vt i n“ gn o at ni c ee m ao if l t fh re o mb a tn hk er u tp it tc ly e” cb oe mc pa au ns ye si tt a tw ia ns g r te hc ao tr d ie td wo an sl y a a lf et ge ar l sale that could go forward. Docs. #122; #123, Ex. A. Doc. #119, Ex. I to Ex. D. Though Barnes “held off for quite some time” from proceeding with the eviction until the case had been dismissed, he did not seek relief from the automatic stay because he believed the sale was legal, allowing him to proceed with recording the Trustee’s Deed. Id., Ex. D; Ex. J to Ex. D; Docs. #122; #123, Ex. A. On January 3, 2018, Debtor’s bankruptcy case was dismissed for failure to timely pay filing fee installment payments. Doc. #36. Thereafter, Barnes conveyed the Property to the Lincicums by Grant Deed executed March 27, 2018 and recorded in Tulare County on April 11, 2018. Doc. #119, Ex. I to Ex. E. The Lincicums in turn conveyed the Property to the Wards by Grant Deed executed June 14, 2018 and recorded in Tulare County on June 21, 2018. Id., Ex. J to Ex. E. Barnes claims that neither the Lincicums nor the Wards knew of the bankruptcy prior to Debtor’s filing of the adversary proceeding. Docs. #122; #123, Ex. A. Debtor reopened this bankruptcy case on June 5, 2020. Doc. #50. In response to the Wards’ motion to annul the automatic stay, Debtor filed this motion for summary judgment. Doc. #115. I. Summary Judgment Standard Under Civ. Rule 56(a), summary judgment should be granted only if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. When considering a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Civ. Rule 56(c); Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509-10 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, that no reasonable jury could believe, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment. Scott, 550 U.S. at 380. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. “[W]hile the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Ibid. The movant may not argue that its evidence is the most persuasive or “explain away” evidence unfavorable to its defenses; rather, it must show that there are no material facts in dispute, or which can be reasonably resolved by a fact finder. Anderson, Id., at 250-51, 2511; Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (“Summary judgment is not appropriate” if a reasonable jury could find in the plaintiff’s favor.) (emphasis added). The Supreme Court has cautioned that summary judgment should be denied in a case where there is reason to believe the better course would be to proceed to a full trial. Anderson, 477 U.S. at 250. As the movant, the burden of proof is on Debtor. The court must draw all reasonable inferences in the light most favorable to the non-moving party, and therefore in favor of denying summary judgment. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513- 14. Further, the non-moving party’s evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Hutchins v. TNT/Reddaway Truck Line, Inc., 939 F. Supp. 721, 723 (N.D. Cal. 1996). If a summary judgment motion is properly submitted, the burden shifts to the opposing party to rebut with a showing that there is a genuine issue of material fact. Henderson v. City of Simi Valley, 305 F.3d 1052, 1055-56 (9th Cir. 2002). “The nonmoving party ‘may not rely on denials in the pleadings but must produce specific evidence . . . to show that the dispute exists.’” Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 707 (9th Cir. 2008), quoting Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Ultimately, the court must grant summary judgment if the movant shows that the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party as to any fact that might affect the outcome of the suit under the governing law, and the nonmovant does not meet their burden of proof to refute the movant’s claims. Under Civ. Rule 56(g), if the court does not grant all the relief requested, the court may enter an order stating any material fact not genuinely in dispute and treat that fact as established in the case. Debtor here asks the court to treat as established several facts. As will be seen, these facts are both material and genuinely in dispute. II. Material Facts are in Dispute Debtor filed bankruptcy on October 25, 2017, but the petition has two timestamps on it: the 1:59:28 p.m. in red ink and 2:00 p.m. in black ink. Wayne Blackwelder, the Clerk of the Bankruptcy Court, has declared that the red ink timestamp was affixed by the court upon filing. Doc. #119, Ex. A. The Wards dispute this contention, but it is inappropriate to weigh Mr. Blackwelder’s testimony at the summary judgment stage. Docs. #122; #123, Ex. A; #125. The Wards argue that until receiving Mr. Blackwelder’s declaration in connection with this motion, the parties had assumed that 2:00 p.m. was the actual filing time. That may be true, but on the face of the petition, there is a genuine factual dispute on a material issue: when was the petition filed? Since the record itself contains conflicting information, it cannot be said that “no reasonable jury” would find one time stamp more believable than the other. /// The remainder of this motion relies on the timing of the filing of the petition. Since the timing in which Debtor filed bankruptcy petition is in dispute, the court is unable to: grant this motion; (2) determine what time the bankruptcy }/petition was filed; (3) determine what time the automatic stay }went into effect; (4) determine whether the foreclosure sale of }Property conducted by Parker Foreclosure was in violation of the }automatic stay;? (5) determine whether Parker Foreclosure’s }recording of the Trustee’s Deed in favor of Barnes was a knowing willful violation of the stay; (6) determine whether Barnes’ /conveyance to the Lincicums was a knowing and willful violation jof the stay; (7) determine whether the original foreclosure sale void, as well as all acts and conveyances subsequent to the foreclosure sale are void; and (8) deny the Wards’ motion to retroactively annul the stay. Accordingly, Debtor’s motion for summary judgment will be DENIED on all counts because the timing of the filing of the /petition is in dispute, which is a material fact. Additionally, for the reasons stated above, the court will STRIKE the Wards’ alleged undisputed facts numbered 9 through 19 filed on October 6, 2021, as docket no. 122. Dated: Oct 04, 2022 By the Court a“
ené Lastreto II, Judge United States Bankruptcy Court > We also do not have evidence of the time that the foreclosure sale actually occurred.
Instructions to Clerk of Court Service List - Not Part of Order/Judgment
The Clerk of Court is instructed to send the Order/Judgment or other court generated document transmitted herewith to the parties below. The Clerk of Court will send the Order via the BNC or, if checked , via the U.S. mail.
Peter L. Fear Fear Waddell, P.C. 7650 North Palm Avenue, Suite 101 Fresno, CA 93711
Gabriel J. Waddell Fear Waddell, P.C. 7650 North Palm Avenue, Suite 101 Fresno, CA 93711
Peter A. Sauer Fear Waddell, P.C. 7650 North Palm Avenue, Suite 101 Fresno, CA 93711
Scott Lyons 1010 W. Main St. Visalia, CA 93291 Armando Natera 560 W Pleasant Ave #49 Tulare, CA 93274-1873
Armando Natera PO Box 590 Pixley, CA 93256 William E. Winfield Nelson Comis Kettle & Kinney LLP 300 E. Esplanade Drive, Suite 1170 Oxnard, CA 93036 William E. Winfield 5811 Olivas Park Dr., Suite 202 Ventura, CA 93003 Richard Barnes 334 Fresh Meadows Road Simi Valley, CA 93065-6817 Richard Barnes Trustee of the Richard Allen Barnes Trust Dated September 1, 2011 334 Fresh Meadows Road Simi Valley, CA 93065-6817
Donald D. Parker Parker Foreclosure Services, LLC 65 North Dos Caminos Avenue Ventura, CA 93003
Zi C. Lin Garrett & Tully, P.C. 225 S. Lake Avenue, Suite 1400 Pasadena, CA 91101
Mitzi Lincicum 2687 Korbel Court Tulare, CA 93274-1638 Michael Scott Lincicum 2687 Korbel Court Tulare, CA 93274-1638
Thomas A. Trapani 1550 Parkside Drive, Suite 300 Walnut Creek, CA 94596 Roger L. Ward 1461 East Court Avenue Pixley, CA 93256
Sandra S. Ward 1461 East Court Avenue Pixley, CA 93256 Office of the United States Trustee United States Courthouse 2500 Tulare Street, Room 1401 Fresno, CA 93721-1326 Michael H. Meyer PO Box 28950 Fresno, CA 93729-8950