In re: Eric Winbigler

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: April 11, 2014
• Docket: CC-13-1117-DPaKu
• Status: Unpublished

Opinion

FILED APR 11 2014 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-13-1117-DPaKu ) 6 ERIC WINBIGLER, ) Bk. No. 10-37564-SC ) 7 Debtor. ) ______________________________) 8 ) ERIC WINBIGLER, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) T.D. SERVICE COMPANY; KELLER ) 12 WILLIAMS REALTY; LAW OFFICES ) OF FONG & FONG; CITI PROPERTY ) 13 HOLDINGS, INC., ) ) 14 Appellees. ) ______________________________) 15 Submitted Without Oral Argument on March 21, 20142 16 Filed - April 11, 2014 17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Scott C. Clarkson, Bankruptcy Judge, Presiding 20 Appearances: Appellant Eric Winbigler submitted a brief and 21 excerpts of record. 22 Before: DUNN, PAPPAS and KURTZ, Bankruptcy Judges. 23 24 1 This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 26 See 9th Cir. BAP Rule 8013-1. 27 2 By orders entered on October 16, 2013 and March 7, 2014, 28 this appeal was deemed suitable for submission without oral argument. See Fed. R. Bankr. P. 8012 and Ninth Circuit BAP Rule 8012-1. 1 Debtor appellant Eric Winbigler (“Debtor”) appeals the 2 bankruptcy court’s order denying his motion to reopen his 3 chapter 73 bankruptcy case to file and prosecute a motion for 4 contempt against Citi Property Holdings, Inc. (“Citi”), T.D. 5 Service Company, the Law Offices of Fong & Fong, and Keller 6 Williams Realty (collectively, “Appellees”) for alleged 7 violations of the discharge injunction under § 524(a). None of 8 the Appellees has appeared in this appeal. We DISMISS this 9 appeal because without having a transcript of the critical 10 hearing, we do not have an adequate record for meaningful review. 11 FACTUAL BACKGROUND4 12 Debtor filed his chapter 7 bankruptcy petition on August 27, 13 2010. On September 16, 2010, Citi filed a motion for relief from 14 stay (“RFS Motion”) to foreclose on the Debtor’s residence 15 property (“Property”) located in Lucerne Valley, California. In 16 the RFS Motion, Citi alleged that the fair market value of the 17 Property was $40,000 and that the debt secured by the Property 18 totaled $373,729.31, including $106,348.20 of accrued and unpaid 19 interest. Debtor responded to the RFS Motion, arguing that at 20 least some of the loan documents filed by Citi in support of the 21 RFS Motion were invalid and thus, void and that Citi could not 22 establish real party in interest standing to seek relief from 23 24 3 Unless otherwise noted, all chapter and section references 25 are to the federal Bankruptcy Code, 11 U.S.C. §§ 101-1532. 26 4 The background facts have been gleaned from the excerpts 27 of record filed by Debtor, particularly his declaration (“Declaration”), dated and filed on January 17, 2013, and the 28 exhibits attached thereto.

-2- 1 stay. 2 A hearing on the RFS Motion originally was scheduled for 3 October 14, 2010, but was rescheduled to October 21, 2010. 4 According to Debtor, on October 14, 2010, the bankruptcy court 5 continued the hearing to October 21, 2010 and ordered Citi to 6 file a supplemental declaration in support of the RFS Motion on 7 or before the continued hearing date. Appellant’s Opening Brief, 8 at 5-6. Citi filed the supplemental declaration of Julie Johnson 9 in support of the RFS Motion on October 19, 2010. Thereafter, 10 the hearing on the RFS Motion was further continued to 11 November 4, 2010. 12 Following the hearing on November 4, 2010, the bankruptcy 13 court entered an order denying the RFS Motion without prejudice. 14 Debtor received his discharge by order entered on January 5, 15 2011. His chapter 7 case was closed by order entered on 16 February 2, 2011. 17 On March 18, 2011, Citi recorded, through its trustee, 18 T.D. Service Company, a nonjudicial foreclosure sale notice with 19 respect to the Property. The nonjudicial foreclosure sale took 20 place on April 19, 2011, Citi was the winning bidder by credit 21 bid, and a trustee’s deed was recorded on April 22, 2011. 22 On May 11, 2011, Keller Williams Realty wrote a letter to 23 Debtor, informing him that eviction proceedings were being 24 initiated with respect to the Property but advising him of an 25 offer of cash if he were willing to vacate the Property “within a 26 short period of time.” Apparently, Debtor did not respond to 27 this offer. On May 23, 2011, Citi caused Debtor to be served 28 with a “THREE (3) DAYS” notice to vacate the Property. On

-3- 1 June 1, 2011, Citi filed an unlawful detainer complaint against 2 Debtor in the San Bernardino County, California Superior Court 3 (“Superior Court”). 4 After extended efforts to serve the unlawful detainer 5 complaint on Debtor, Citi’s counsel, Fong & Fong, served the 6 Debtor by mail and by posting on the Property. Debtor did not 7 respond. On August 22, 2011, counsel for Citi filed a request 8 for entry of default against Debtor in the unlawful detainer 9 action. 10 Thereafter, Debtor, through counsel, filed a motion to 11 reopen his bankruptcy case, which motion was granted by order 12 entered on September 1, 2011. In light of the reopening of 13 Debtor’s bankruptcy case, the Superior Court took no action on 14 Citi’s request for entry of default and continued proceedings in 15 the unlawful detainer action to allow Citi to seek relief from 16 stay in Debtor’s reopened bankruptcy case. 17 On September 29, 2011, Citi filed a motion for relief from 18 stay (“Second RFS Motion”) in Debtor’s reopened bankruptcy case. 19 Following a hearing on October 18, 2011, the bankruptcy court 20 denied the Second RFS Motion because “the automatic stay is not 21 in effect,” by order entered on November 23, 2011. Following the 22 hearing on the Second RFS Motion, Debtor’s bankruptcy case was 23 reclosed. 24 On October 27, 2011, following a further hearing, the 25 Superior Court entered judgment in favor of Citi and against 26 Debtor for possession of the Property, with a waiver by Citi of 27 any claim for damages against the Debtor personally. A writ of 28 possession was issued in favor of Citi on November 16, 2011. A

-4- 1 “Notice to Vacate” the Property was “given” to Debtor on or about 2 December 15, 2011. 3 On December 15, 2011, Debtor was evicted from and locked out 4 of the Property while Debtor was not at home. Appellant’s Brief, 5 at 12. Apparently, the property was listed for sale by Citi with 6 Keller Williams Realty. 7 Debtor filed a motion with the Superior Court to vacate the 8 unlawful detainer judgment in favor of Citi, but that motion was 9 denied at a hearing on December 27, 2011. The Superior Court 10 found that the unlawful detainer judgment was valid. 11 On April 16, 2012, title to the Property was transferred by 12 Grant Deed from Citibank, N.A. to “Tae Sung Roh, an unmarried 13 man.” Mr. Roh apparently further transferred the Property by 14 Grant Deed to “Ho Kyun Kim and Young Sook Kim, husband and wife 15 as joint tenants” on or about April 25, 2012. 16 In the meantime, Debtor had filed a motion to reopen 17 (“Motion to Reopen”) his bankruptcy case a second time, along 18 with a motion to hold the Appellees in contempt for violating the 19 discharge injunction. Following a hearing on February 20, 2013, 20 the bankruptcy court entered an order denying the Motion to 21 Reopen on March 5, 2013. No transcript of that hearing has been 22 provided for our review. Attached to the Debtor’s Notice of 23 Appeal is a copy of the bankruptcy court’s tentative ruling with 24 respect to the matters set for hearing on February 20, 2013. All 25 that the tentative ruling states with respect to the Motion to 26 Reopen is the following: “The January 17, 2013 motion to reopen 27 was filed by the Debtor, in pro per, without a declaration 28 establishing cause, as required by LBR 5010-1. The motion to

-5- 1 reopen was not granted and the case remains closed.” The 2 tentative ruling was not attached to or made a part of the 3 bankruptcy court’s order denying the Motion to Reopen. 4 Debtor filed a timely Notice of Appeal from the order 5 denying his Motion to Reopen. 6 JURISDICTION 7 The bankruptcy court had jurisdiction under 28 U.S.C. 8 §§ 1334 and 157(b)(2)(O). We have jurisdiction under 28 U.S.C. 9 § 158. 10 ISSUE 11 Did the bankruptcy court abuse its discretion when it denied 12 Debtor’s Motion to Reopen? 13 STANDARDS OF REVIEW 14 Denial of a motion to reopen a bankruptcy case is reviewed 15 for abuse of discretion. See Weiner v. Perry, Settles & Lawson, 16 Inc. (In re Weiner), 161 F.3d 1216, 1217 (9th Cir. 1998); Lopez 17 v. Specialty Restaurants, Inc. (In re Lopez), 283 B.R. 22, 26 18 (9th Cir. BAP 2002). We apply a two-part test to determine if 19 the bankruptcy court abused its discretion. First, we review 20 whether the bankruptcy court applied the correct legal standard. 21 See United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 22 2009) (en banc). Then, if the correct legal standard was 23 applied, we determine whether the bankruptcy court’s supporting 24 fact findings were illogical, implausible or without support in 25 the record. Id. at 1262. 26 DISCUSSION 27 In this appeal, Debtor argues that the bankruptcy court 28 abused its discretion in denying his Motion to Reopen so that he

-6- 1 could pursue contempt remedies against the Appellees for their 2 alleged violations of the discharge injunction of § 524 in 3 proceeding with foreclosure and sale of the Property. 4 Unfortunately, the focus of Debtor’s arguments reflects a 5 fundamental misunderstanding of the bankruptcy court’s order 6 denying Citi’s first RFS Motion. 7 Motions for relief from the automatic stay are very limited 8 proceedings. Deciding a motion for relief from stay involves 9 consideration of standing issues with respect to the moving party 10 (if such issues are raised) and the specific grounds for granting 11 relief from stay set forth in § 362(d), i.e., generally whether 12 “cause” has been established; whether the debtor has any equity 13 in the subject property; and (in a reorganization case) whether 14 the subject property is necessary to an effective reorganization 15 of the debtor’s affairs. 16 Hearings on relief from the automatic stay are . . . handled in a summary fashion. [citation omitted] The 17 validity of the claim or contract underlying the claim is not litigated during the hearing. 18 19 Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740-41 (9th 20 Cir. 1985). 21 Given the limited grounds for obtaining . . . relief from stay, read in conjunction with the expedited 22 schedule for a hearing on the motion, most courts hold that motion for relief from stay hearings should not 23 involve an adjudication on the merits of claims, defenses, or counterclaims, but simply determine 24 whether the creditor has a colorable claim to the property of the estate. 25 26 Biggs v. Stovin (In re Luz Int’l, Ltd.), 219 B.R. 837, 842 (9th 27 Cir. BAP 1998). 28 Since we do not have a transcript of the hearing at which

-7- 1 the bankruptcy court heard argument and decided to deny the RFS 2 Motion, we don’t know what rationale the bankruptcy court used 3 for denying the motion. However, we do know that in the order 4 denying the RFS Motion, the bankruptcy court denied it “without 5 prejudice.” 6 The primary meaning of “dismissal without prejudice,” we think, is dismissal without barring the plaintiff 7 from returning later, to the same court, with the same underlying claim. That will also ordinarily (though 8 not always) have the consequence of not barring the claim from other courts, . . . Thus, Black’s Law 9 Dictionary (7th ed. 1999) defines “dismissed without prejudice” as “removed from the court’s docket in such 10 a way that the plaintiff may refile the same suit on the same claim,” . . . and defines “dismissal without 11 prejudice” as “[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the 12 applicable limitations period,” . . . . 13 Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06 14 (2001). In other words, while denying the RFS Motion, the 15 bankruptcy court did not preclude Citi from filing and 16 prosecuting a later motion for relief in the Debtor’s bankruptcy 17 case with different or better support. The bankruptcy court’s 18 order denying the RFS Motion had no substantive effect on the 19 lien claimed by Citi with respect to the Property. It certainly 20 did not avoid that lien as asserted by Debtor in his brief. See 21 Appellant’s Opening Brief, at 15-16. 22 As it turned out, Citi did not need to file such a motion. 23 When Debtor received his discharge and his chapter 7 case was 24 closed, the automatic stay terminated both as to him and as to 25 his bankruptcy estate as a matter of law. See § 362(c)(1) and 26 27 28

-8- 1 (2)(A) and (C).5 2 When the automatic stay terminated, if Debtor had defenses 3 to Citi proceeding to foreclose on the Property, he needed to 4 raise them in state court. He did not appear at the Superior 5 Court until after the foreclosure sale had occurred, the 6 trustee’s deed had been recorded and Citi was seeking a default 7 judgment in its unlawful detainer action. At that point, Debtor 8 filed a motion to reopen his chapter 7 case that was granted, and 9 Citi filed the Second RFS Motion. The bankruptcy court 10 appropriately denied the Second RFS Motion because “the automatic 11 stay [was] not in effect.” Thereafter, Citi obtained an unlawful 12 detainer judgment over the Debtor’s objection (waiving any claim 13 for damages, consistent with the Debtor’s discharge), evicted 14 Debtor from the Property and sold the Property to an unrelated 15 third party. 16 So far, the Discussion has focused on the Debtor’s 17 arguments, as set forth in his Opening Brief, but the disposition 18 of this appeal needs to address some additional, different 19 points. In prior decisions, this Panel has held “that the 20 21 5 Section 362(c)(1) and (2)(A) and (C) provide in relevant 22 part: (1) the stay of an act against property of the estate 23 . . . continues until such property is no longer property of the estate: 24 (2) the stay of any other act . . . continues until the 25 earliest of – (A) the time the case is closed; 26 . . . 27 (C) if the case is a case under chapter 7 of this title concerning an individual . . . , the time a discharge 28 is granted or denied; . . . .

-9- 1 reopening of a closed bankruptcy case is a ministerial act that 2 functions primarily to enable the file to be managed by the clerk 3 as an active matter and that, by itself, lacks independent legal 4 significance and determines nothing with respect to the merits of 5 the case.” Menk v. Lapaglia (In re Menk), 241 B.R. 896, 913 (9th 6 Cir. BAP 1999) (citations omitted and emphasis added). A motion 7 to reopen really only implicates a narrow range of administrative 8 issues, such as, for example, whether further estate 9 administration is necessary, whether a trustee should be 10 appointed, and whether another filing fee is required. Id. at 11 916-17. Generally, it is not appropriate in proceedings on a 12 motion to reopen to make substantive determinations on claims for 13 relief. Id. 14 In this appeal, the Debtor does not argue that the 15 bankruptcy court erred in denying his Motion to Reopen on the 16 procedural ground that extraneous issues intruded in the court’s 17 decision to deny the motion. Generally, issues not “specifically 18 and distinctly argued” in a party’s opening brief are deemed 19 waived. See, e.g., Arpin v. Santa Clara Valley Transp. Agency, 20 261 F.3d 912, 919 (9th Cir. 2001). However, even if we consider 21 that question in this appeal, we are hampered by an inadequate 22 record. 23 Debtor has not provided us with a transcript of the hearing 24 at which the bankruptcy court denied his Motion to Reopen. 25 Accordingly, we do not know what the bankruptcy court stated as 26 the rationale for denying the Motion to Reopen. 27 As recognized by Debtor, the applicable standard of review 28 is abuse of discretion. Without a transcript of the hearing on

-10- 1 the Motion to Reopen, we do not, and cannot know what legal 2 standard the bankruptcy court applied in denying the motion. Nor 3 do we know what fact findings, if any, supported its decision. 4 In its tentative ruling, the bankruptcy court noted that the 5 Debtor filed the Motion to Reopen without a supporting 6 declaration establishing cause, as required by its local rules. 7 However, we do not know whether the bankruptcy court adopted its 8 tentative ruling at the hearing. The bankruptcy court’s order 9 denying the Motion to Reopen states only that the motion was 10 denied “[f]or the reasons set forth on the record.” If the 11 record presented to us is inadequate to allow us an opportunity 12 to review the appealed decision meaningfully, we may have no 13 alternative but to summarily affirm the bankruptcy court’s 14 decision or dismiss the appeal. See Community Commerce Bank v. 15 O’Brien (In re O’Brien), 312 F.3d 1135, 1137 (9th Cir. 2002). 16 We suspect, based on the record before us, that reopening 17 Debtor’s bankruptcy case for a second time would have been a 18 useless act: Debtor apparently wanted to reopen his bankruptcy 19 case to prosecute a motion for contempt remedies against the 20 Appellees, that was based on the faulty premise that Appellees 21 violated the discharge injunction of § 524 by pursuing 22 foreclosure of a lien on the Property that had not been avoided 23 during Debtor’s bankruptcy. 24 Section 524(a) operates as an injunction against the 25 commencement or continuation of any action or the employment of 26 any process to collect or recover a debt as a personal liability 27 of a chapter 7 debtor. 4 Collier on Bankruptcy ¶ 524.02 (Alan N. 28 Resnick & Henry J. Sommer eds., 16th ed. 2013). However, the

-11- 1 discharge injunction provisions of § 524 apply only to the 2 personal liability of the debtor, so they have no effect on an 3 otherwise valid, unavoided prepetition lien under applicable 4 state law. Id. “[W]e are not convinced that Congress intended 5 to depart from the pre-[Bankruptcy] Code rule that liens pass 6 through bankruptcy unaffected.” Dewsnup v. Timm, 502 U.S. 410, 7 417 (1992). 8 Ultimately, those points are not dispositive here. To 9 conclude that the bankruptcy court abused its discretion, we 10 would have to determine that the bankruptcy court applied an 11 incorrect legal standard; applied the correct legal standard 12 erroneously based on the facts before it; or clearly erred in its 13 fact findings. Without a transcript of the relevant hearing, we 14 simply are in no position to make those determinations. 15 Accordingly, in the circumstances of this appeal, we cannot 16 find that the bankruptcy court abused its discretion in denying 17 the Motion to Reopen. 18 CONCLUSION 19 For the foregoing reasons, we DISMISS Debtor’s appeal. 20 21 22 23 24 25 26 27 28

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