Gary Sroka v. Nationstar Mortgage LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2021
• Docket: 20-56303
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: GARY JAMES SROKA, No. 20-56303

Debtor, D.C. No. 8:19-cv-02496-PA ______________________________

GARY JAMES SROKA, MEMORANDUM*

Appellant,

v.

NATIONSTAR MORTGAGE LLC, DBA Mr. Cooper, c/o NBS Default Services, LLC; et al.,

Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Gary James Sroka appeals pro se from the district court’s order affirming the

* 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). bankruptcy court’s order dismissing Sroka’s adversary proceeding. We have

jurisdiction under 28 U.S.C. § 158(d)(1). We review de novo a district court’s

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

review the district court applied to the bankruptcy court’s decision. Christensen v.

Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1166 (9th Cir.

1990). We affirm.

The bankruptcy court properly dismissed Sroka’s adversary proceeding for

lack of standing because Sroka’s claims were property of the bankruptcy estate at

the time he filed his adversary proceeding, and therefore could only be brought by

the trustee. See 11 U.S.C. § 541(a)(1) (after commencement of a bankruptcy case,

any legal interests of the debtor, including property interests, belongs to the

bankruptcy estate); Cusano v. Klein, 264 F.3d 936, 945-46 (9th Cir. 2001)

(explaining that if a debtor fails to schedule a legal claim in a proper manner, that

claim belongs to the bankruptcy estate).

The bankruptcy court did not abuse its discretion by dismissing Sroka’s first

amended complaint without leave to amend because amendment would have been

futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th

Cir. 2011) (setting forth standard of review and explaining that dismissal without

leave to amend is proper when amendment would be futile).

AFFIRMED.

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