Beverlyann Lee v. Nationstar Mortgage, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2021
• Docket: 20-60016
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 19 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: BEVERLYANN LEE, No. 20-60016

Debtor, BAP No. 19-1140

------------------------------ MEMORANDUM* BEVERLYANN LEE,

Appellant,

v.

NATIONSTAR MORTGAGE, LLC, DBA Champion Mortgage Company; WAYNE GODARE, Chapter 13 Trustee,

Appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Faris, Brand, and Spraker, Bankruptcy Judges, Presiding

Submitted March 17, 2021** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.

Chapter 131 debtor Beverlyann Lee appeals pro se from an order of the

Bankruptcy Appellate Panel (BAP) affirming the summary judgment order of the

bankruptcy court in her adversary proceeding against creditor Nationstar

Mortgage, LLC (Nationstar). We have jurisdiction pursuant to 28 U.S.C.

§ 158(d)(1), and we affirm.2

First, the BAP correctly decided that the bankruptcy court did not abuse its

discretion by considering the loan agreement. See In re Sisk, 962 F.3d 1133, 1141

(9th Cir. 2020). The document was signed by both Lee and a lender representative,

and there is no requirement that the signatures be legible. There was no abuse of

discretion. See United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009)

(en banc).

Second, the BAP correctly determined that partial summary judgment was

appropriate with regard to Nationstar’s payment of the 2010–2015 property taxes

that Lee had failed to pay. See Boyajian v. New Falls Corp. (In re Boyajian), 564

F.3d 1088, 1090 (9th Cir. 2009). Lee’s assertion that the loan documents did not

require her to pay taxes in a timely manner is an unreasonable interpretation of

1 11 U.S.C. Ch. 13. 2 We grant Lee’s motion (9th. Cir. Dkt. 27) to file an amended informal reply brief. 2 their plain language. See Flores v. Am. Seafoods Co., 335 F.3d 904, 910 (9th Cir.

2003); Staffordshire Invs., Inc. v. Cal-W. Reconveyance Corp., 149 P.3d 150, 154

(Or. Ct. App. 2006); see also Or. Rev. Stat. § 86.050. Neither the loan documents

nor the Department of Housing and Urban Development regulation proffered by

Lee precluded Nationstar from paying the property taxes in order to protect its

security interest when Lee failed to do so. Nationstar was entitled to protect its

security interest, and Lee’s implication that Nationstar’s payments essentially

amounted to a gift is entirely unreasonable.

Third, the BAP was correct that summary judgment was inappropriate as to

the accounting issues raised by Lee—namely, whether Nationstar accurately

charged interest and credited some of her payments. Lee was not entitled to

summary judgment because she failed to show an absence of disputed questions of

fact and law. See Fed. R. Bankr. P. 7056; Fed. R. Civ. P. 56(a); see also

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

Finally, Lee’s belated challenge to the validity of the debt to Nationstar for

the first time on appeal from the summary judgment order is improper; the issue is

waived. See Moldo v. Matsco, Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039,

1045 n.3 (9th Cir. 2001). Her references to constitutional standing are misplaced

3 because Nationstar is not a plaintiff. See U.S. Const. art. III, § 2; Spokeo, Inc. v.

Robins, __ U.S. __, __, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016).

AFFIRMED.