Hossein Fatehmanesh v. David Seror

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 8, 2019
• Docket: 18-60009
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: REZA FATEH MANESH, No. 18-60009

Debtor. BAP No. 17-1031 ______________________________

HOSSEIN FATEHMANESH, MEMORANDUM*

Appellant,

v.

DAVID SEROR, Chapter 7 Trustee,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Lafferty, Kurtz, and Faris, Bankruptcy Judges, Presiding

Submitted August 6, 2019**

Before: FARRIS, D.W. NELSON, and TROTT, Circuit Judges.

Hossein Fatehmanesh appeals pro se from the judgment of the Bankruptcy

* 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). Appellate Panel (“BAP”) affirming the bankruptcy court’s judgment after a bench

trial in the chapter 7 trustee’s adversary proceeding seeking turnover of property

belonging to the bankruptcy estate. We have jurisdiction under 28 U.S.C.

§ 158(d). We independently review the bankruptcy court’s decision on appeal

from the BAP. Burnett v. Resurgent Capital Servs. (In re Burnett), 435 F.3d 971,

975 (9th Cir. 2006). We affirm.

The bankruptcy court did not abuse its discretion by applying California’s

principles of issue preclusion because the issues litigated in the state court action

resolved the issue in the adversary proceeding, and California law precludes

relitigation of issues decided in a prior proceeding. See Diamond v. Kolcum (In re

Diamond), 285 F.3d 822, 826 (9th Cir. 2002) (“In determining whether a party

should be estopped from relitigating an issue decided in a prior state court action,

the bankruptcy court must look to that state’s law of collateral estoppel.”); DKN

Holdings, LLC v. Faerber, 352 P.3d 378, 386 (Cal. 2015) (elements of issue

preclusion or collateral estoppel under California law); see also Dias v. Elique, 436

F.3d 1125, 1128 (9th Cir. 2006) (decision to apply issue preclusion reviewed for an

abuse of discretion).

The bankruptcy court did not abuse its discretion by finding Fatehmanesh in

contempt for violating the automatic stay because Fatehmanesh knew of the

automatic stay and refused to cure his violation. See Knupfer v. Lindblade (In re

2 18-60009 Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003) (setting forth standard of review and

stating that party seeking an order of contempt has the burden to show the

contemnor violated the automatic stay). To the extent that Fatehmanesh challenges

the bankruptcy court’s award of attorney’s fees, Fatehmanesh did not appeal from

the bankruptcy court’s order awarding fees, and we lack jurisdiction to address it.

See Fed. R. Bankr. P. 8002(a)(1) (notice of appeal must be filed within 14 days);

28 U.S.C. § 158(c)(2) (an appeal to the BAP must be taken within the time

provided in Rule 8002).

The BAP properly concluded that the bankruptcy court’s application of the

Rooker–Feldman doctrine amounted to harmless error because the chapter 7

trustee was otherwise entitled to judgment on the merits. See Fed. R. Bankr. P.

9005 (incorporating Fed. R. Civ. P. 61’s harmless error rule).

Fatehmanesh does not identify or contend that any exceptional

circumstances justify consideration of the several issues he raises on appeal here

but failed to raise before the BAP. We therefore decline to consider those newly

raised issues. See In re Burnett, 435 F.3d at 976-77 (“[A]n issue is waived if not

presented to the BAP, unless exceptional circumstances exist to justify

consideration of the issue.”).

3 18-60009 Appellant’s motion for appointment of counsel (Docket Entry No. 23) is

denied.

AFFIRMED.

4 18-60009