Avram Perry v. Key Auto Recovery

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2018
• Docket: 17-55518
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: AVRAM MOSHE PERRY. No. 17-55518 ______________________________ D.C. No. 2:15-cv-09899-FMO AVRAM MOSHE PERRY,

Appellant, MEMORANDUM*

v.

KEY AUTO RECOVERY,

Appellee.

In re: AVRAM MOSHE PERRY. Nos. 17-55519, 17-55520 ______________________________ D.C. Nos. 2:15-cv-07155-FMO AVRAM MOSHE PERRY, 2:15-cv-09440-FMO

Appellant,

JP MORGAN CHASE BANK N.A.; KEY AUTO RECOVERY,

Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeals from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

In these consolidated appeals, Chapter 7 debtor Avram Moshe Perry appeals

pro se from the district court’s judgment affirming the bankruptcy court’s summary

judgments, and affirming in part and reversing in part the bankruptcy court’s

judgment dismissing Perry’s adversary proceeding complaint. We have

jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court’s

decision in an appeal from the bankruptcy court, and apply the same standard of

review the district court applied to the bankruptcy court’s decision. Northbay

Wellness Grp., Inc. v. Beyries, 789 F.3d 956, 959 (9th Cir. 2015). We may affirm

on any ground supported by the record. Trimble v. City of Santa Rosa, 49 F.3d

583, 584 (9th Cir. 1995). We affirm.

In appeal no. 17-55518, the bankruptcy court properly granted summary

judgment to Key Auto Recovery, because Perry failed to raise a genuine dispute of

material fact as to whether Key had possession of the vehicle after Perry filed his

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 17-55518 bankruptcy petition. See Gruntz v. City of Los Angeles (In re Gruntz), 202 F.3d

1074, 1081 (9th Cir. 2000) (en banc) (“The automatic stay is self-executing,

effective upon the filing of the bankruptcy petition.”).

In appeal no. 17-55519, dismissal of Perry’s adversary proceeding complaint

(No. 15-ap-1129) was not an abuse of discretion because Perry already had a

pending action against Key Auto and JPMorgan Chase alleging injury in

connection with the 2009 repossession of Perry’s vehicle. See Adams v. Cal. Dep’t

of Health Servs., 487 F.3d 684, 688-89 (9th Cir. 2007) (plaintiffs generally have no

right to maintain two separate actions involving the same subject matter at the

same time in the same court and against the same defendant), overruled on other

grounds by Taylor v. Sturell, 553 U.S. 880, 904 (2008).

In appeal no. 17-55520, the bankruptcy court properly granted summary

judgment to JPMorgan Chase, because Perry did not have standing to pursue his

claims. See Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 764 F.3d 1168,

1177 (9th Cir. 2014) (debtor failed to allege plausible injury under 11 U.S.C.

§ 362(k) where debtor lacked authority to possess or control asset).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or matters raised for the first time on appeal. See Padgett v.

Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

3 17-55518 Perry’s requests that this court review prior orders of the bankruptcy court,

order disqualification of the bankruptcy judge, sanction appellees’ attorneys,

reinstate federal claims, enter judgment in Perry’s favor, and take judicial notice,

set forth in his opening and reply briefs, are denied.

Appellee JPMorgan Chase’s request to declare Perry a vexatious litigant, set

forth in its answering brief, is denied.

Perry’s motions for oral argument (Docket Entry No. 7 in Appeal No. 17-

55518; Docket Entry No. 5 in Appeal No. 17-55519; Docket Entry No. 8 in Appeal

No. 17-55520) are denied.

AFFIRMED.

4 17-55518