Clifford Brace, Jr. v. Steven Speier

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2020
• Docket: 19-60004
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 20 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: CLIFFORD ALLEN BRACE, Jr., No. 19-60004

Debtor, BAP No. 18-1172

------------------------------ MEMORANDUM* CLIFFORD ALLEN BRACE, Jr.,

Appellant,

v.

STEVEN M. SPEIER, Chapter 7 Trustee,

Appellee.

In re: CLIFFORD ALLEN BRACE, Jr., No. 19-60008

------------------------------

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. CLIFFORD ALLEN BRACE, Jr.,

Appellee

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Lafferty III, Spraker, and Taylor, Bankruptcy Judges, Presiding

Submitted April 14, 2020** Pasadena, California

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges.

Chapter 7 debtor Clifford Allen Brace, Jr. appeals pro se from the

Bankruptcy Appellate Panel’s (“BAP’s”) decision vacating and remanding in part

the bankruptcy court’s June 19, 2018, order finding Brace in contempt,

determining violations of the automatic stay, and ordering sanctions. Chapter 7

trustee Steven M. Speier cross-appeals from the BAP’s denial of his motion to

dismiss Brace’s appeal.

We must consider jurisdiction sua sponte. Greene v. United States (In re

Souza), 795 F.2d 855, 857 n.1 (9th Cir. 1986). We dismiss the appeal and cross-

appeal for lack of jurisdiction.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 1. In this case, the BAP remanded to the bankruptcy court to make

additional findings and explain its conclusions regarding the basis for and amount

of the $5,000 sanction award and to set forth the exact steps Brace must take to

purge his contempt and avoid incarceration. “[A]n order from the BAP is not final

if it ‘remands for factual determinations on a central issue.’” Ocwen Loan

Servicing v. Marino (In re Marino), 949 F.3d 483, 487 (9th Cir. 2020) (quoting

Gugliuzza v. FTC (In re Gugliuzza), 852 F.3d 884, 895 (9th Cir. 2017)); see also

Ritzen Grp., Inc. v. Jackson Masonry, LLC, __ U.S. __, 140 S. Ct. 582, 586, 594

(2020) (“Orders in bankruptcy cases qualify as ‘final’ when they definitively

dispose of discrete disputes within the overarching bankruptcy case” and “leave

nothing more for the Bankruptcy Court to do in that proceeding”). “We have

departed from this rule only when the BAP remands for ‘purely mechanical or

computational task[s] such that the proceedings on remand are highly unlikely to

generate a new appeal.’” In re Marino, 949 F.3d at 487 (alteration in original)

(quoting Sahagun v. Landmark Fence Co., In. (In re Landmark Fence Co., Inc.),

801 F.3d 1099, 1103 (9th Cir. 2015)). Because those factors are not present here,

we lack appellate jurisdiction over the appeal and must dismiss it.

2. Speier’s cross-appeal similarly must be dismissed for lack of

jurisdiction. The denial of a motion to dismiss is not a final order. Farber v. 405

3 N. Bedford Dr. Corp. (In re 405 N. Bedford Dr. Corp.), 778 F.2d 1374, 1379 (9th

Cir. 1985) (concluding that appellate court lacked jurisdiction over an appeal from

a bankruptcy court’s denial of a motion to dismiss debtor’s petition for bad faith

filing). We have permitted an appeal from a BAP order when it “1) resolves and

seriously affects substantive rights and 2) finally determines the discrete issue to

which it is addressed.” In re Gugliuzza, 852 F.3d at 894 (quoting Eden Place, LLC

v. Perl (In re Perl), 811 F.3d 1120, 1126 (9th Cir. 2016)). Neither factor is present

here. Thus, we lack appellate jurisdiction and must dismiss the cross-appeal.

3. We need not, and do not, reach any other issue on appeal. Each party

shall bear its own costs.

DISMISSED.