In re: Gregory S. Tift

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 9, 2016
• Docket: WW-15-1002-KuJuTa
• Status: Unpublished

Opinion

FILED DEC 09 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. WW-15-1002-KuJuTa ) 6 GREGORY S. TIFT, ) Bk. No. 14-17966 ) 7 Debtor. ) Adv. No. 14-01432 ______________________________) 8 ) GREGORY S. TIFT, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) RESOURCE TRANSITION ) 12 CONSULTANTS, LLC; JACK CULLEN;) SUSAN ALTERMAN, ) 13 ) Appellees. ) 14 ______________________________) 15 Argued and Submitted on November 17, 2016 at Pasadena, California 16 Filed – December 9, 2016 17 Appeal from the United States Bankruptcy Court 18 for the Western District of Washington 19 Honorable Timothy W. Dore, Bankruptcy Judge, Presiding 20 Appearances: Appellant Gregory S. Tift argued pro se; Jack Cullen of Foster Pepper PLLC argued for appellees. 21 22 Before: KURTZ, JURY and TAYLOR, Bankruptcy Judges. 23 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8024-1. 1 INTRODUCTION 2 Former Chapter 131 debtor Gregory S. Tift appeals from a 3 summary judgment in favor of appellees Resource Transition 4 Consultants LLC, Jack Cullen and Susan Alterman. In the 5 underlying adversary proceeding, Tift requested damages and 6 injunctive relief for an alleged violation of the automatic stay 7 based on the appellees’ continued participation in state court 8 contempt proceedings against Tift, which proceedings partly took 9 place after the commencement of Tift’s chapter 13 bankruptcy 10 case. 11 The bankruptcy court held, as a matter of law, that the 12 automatic stay did not apply to the contempt proceedings against 13 Tift. We agree, so we AFFIRM. 14 FACTS 15 The dispute between the parties arose in state court, before 16 Tift commenced his bankruptcy case. As part of its efforts to 17 enforce its rights as a secured creditor of Remian LLC, in July 18 2014, Fannie Mae sought and obtained the appointment of a 19 custodial receiver. The state court appointed the receiver – 20 appellee Resource Transition Consultants – to exercise control 21 over Fannie Mae’s collateral: a 16-unit apartment building in 22 Tacoma, Washington.2 In aid of the receivership, the state court 23 1 24 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 25 all "Rule" references are to the current version of the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. All “Civil Rule” 26 references are to the Federal Rules of Civil Procedure. 27 2 As for the other two appellees, appellee Susan Alterman is 28 Fannie Mae’s legal counsel in the state court litigation, and (continued...)

2 1 in August 2014 granted Resource Transition Consultants an 2 injunction, which in relevant part enjoined Tift from interfering 3 with the receiver’s duties, including the collection of rents 4 from the apartment building’s tenants. The injunction also 5 required Tift to produce any and all documents in his possession 6 pertaining to the receivership property. 7 Tift claimed to be a secured creditor of Remian and, by 8 virtue of his alleged secured creditor status, opposed the 9 appointment of a receiver and later sought to have the receiver 10 removed. In contrast, the receiver asserted that Tift, in 11 essence, was engaged in the unlicensed practice of law. 12 According to the receiver, Tift holds himself and his company out 13 to the community as a professional legal services company and 14 frequently files court papers, negotiates loan workouts and 15 provides other services normally provided by attorneys. The 16 receiver contends that, by way of these services, Tift seeks to 17 delay and impede the creditors of his clients from enforcing 18 their legal rights. 19 After the issuance of the injunction against Tift and 20 others, the receiver filed against Tift, first, a contempt motion 21 and, later, a sanctions motion. The receiver maintained that 22 Tift had contravened the injunction by interfering with the 23 receiver’s duties and by not producing all of the documents that 24 Tift had been ordered to produce. In response, Tift claimed, 25 26 2 (...continued) 27 appellee Jack Cullen, also an attorney, has represented Resource Transition Consultants in both the state court and the bankruptcy 28 court.

3 1 among other things, that many of his prior emails pertaining to 2 Remian had been deleted and that he could not produce what he 3 previously deleted. 4 The state court entered its order finding Tift in contempt 5 on October 3, 2014. The contempt order gave Tift an additional 6 two weeks to comply with the production aspects of the court’s 7 injunction. The contempt order further specified that Tift was 8 required to turn over to Resource Transition Consultants all of 9 his computers, along with all password and login information 10 necessary to give Resource Transition Consultants complete access 11 to any and all records relating to Remian. The contempt order 12 also specified that Tift’s failure to comply with the injunction 13 would result in the imposition of monetary sanctions, as well as 14 incarceration. 15 In response to the receiver’s sanctions motion, Tift filed a 16 petition with the state court of appeals seeking an emergency 17 stay. That petition was denied on October 30, 2014 – the eve of 18 the hearing on the receiver’s sanctions motion. Immediately 19 after the denial of his emergency stay motion, on October 30, 20 2014, Tift commenced his chapter 13 bankruptcy case.3 21 3 That bankruptcy case was dismissed on December 2, 2014, 22 based on Tift’s failure to submit most of the required case 23 commencement documents. Subsequently, the bankruptcy court denied Tift’s motion to vacate the case dismissal. Among other 24 things, the court pointed out that Tift had admitted in his schedules that he had over $900,000 in noncontingent, liquidated 25 unsecured debt. This amount of unsecured debt exceeded the 26 chapter 13 debt limits specified in § 109(e), which governs eligibility to be a chapter 13 debtor. Shortly after the 27 bankruptcy court denied Tift’s motion to vacate the dismissal of his chapter 13 case, Tift commenced a chapter 7 bankruptcy case 28 (continued...)

4 1 The day after Tift commenced his chapter 13 bankruptcy case, 2 the state court proceeded with the hearing on the receiver’s 3 sanctions motion. Tift did not appear. The state court and 4 counsel for the receiver – appellee Jack Cullen – discussed the 5 potential applicability of the automatic stay, but Cullen 6 persuaded the state court that the commencement of Tift’s 7 bankruptcy case did not stay the contempt proceedings. Based on 8 the inapplicability of the stay and Tift’s continuing contempt of 9 court, the state court awarded contempt sanctions of $2,000 per 10 day and also issued a warrant for Tift’s arrest. 11 Meanwhile, in the bankruptcy court, Tift filed his adversary 12 complaint seeking injunctive relief and damages based on the 13 appellees’ alleged violation of the automatic stay. According to 14 Tift, the continued prosecution of the state court contempt 15 proceedings, including the October 31, 2014 sanctions hearing, 16 violated the stay and justified the relief requested. 17 Almost immediately, the appellees responded to the complaint 18 by moving for summary judgment. The appellees argued that the 19 automatic stay did not apply to the contempt proceedings. Tift 20 filed a declaration in response to the summary judgment motion in 21 which he contended that he needed more time to conduct discovery 22 and that there were issues of fact that needed to be decided by 23 the bankruptcy court. But Tift’s declaration did not identify 24 these alleged issues of fact. 25 26 3 (...continued) 27 (Case No. 14-18931), which was pending at the time the bankruptcy court disposed of Tift’s adversary proceeding by granting the 28 appellees’ summary judgment motion.

5 1 At the hearing on the summary judgment motion, the 2 bankruptcy court ruled in favor of the appellees and against 3 Tift.4 The bankruptcy court held that the automatic stay did not 4 apply to the state court contempt proceedings. The court also 5 held that Tift did not need additional time to conduct discovery 6 because there were no facts Tift could uncover that would render 7 the contempt proceedings subject to the stay. Because no factual 8 dispute existed and because Ninth Circuit law clearly supported 9 the appellees’ position (that the stay did not apply), the 10 bankruptcy court concluded that the appellees were entitled to 11 summary judgment against Tift. 12 The bankruptcy court entered summary judgment on 13 December 18, 2014, and Tift timely appealed. 14 JURISDICTION 15 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 16 §§ 1334 and 157(b)(2)(O), and we have jurisdiction under 17 28 U.S.C. § 158. 18 The bankruptcy court’s summary judgment ruling raised the 19 issue of whether Tift continued to have standing to pursue his 20 stay violation action in light of the chapter 7 case he filed 21 immediately after his chapter 13 case was dismissed. The court 22 queried whether those claims could be pursued only by Tift’s 23 chapter 7 trustee. In any event, Tift’s 2014 chapter 7 case was 24 dismissed in early 2015 based on his failure to pay the filing 25 4 26 At a prior hearing, the bankruptcy court had denied Tift’s request for injunctive relief. The court held that the request 27 for injunctive relief was rendered moot by the dismissal of Tift’s chapter 13 case and that Tift had not established a 28 likelihood of success on the merits.

6 1 fee. In yet another chapter 7 case, Case No. 16-10530, Tift has 2 claimed an exemption for his damages claims arising from the 3 appellees’ alleged violation of the automatic stay. As a result 4 of his exemption claim, Tift continues to have a direct stake in 5 the damage claims and in the outcome of this appeal. Thus, Tift 6 has standing. See Mwangi v. Wells Fargo Bank, N.A. 7 (In re Mwangi), 432 B.R. 812, 822-23 (9th Cir. BAP 2010). 8 ISSUE 9 Did the bankruptcy court commit reversible error when it 10 granted the appellees’ summary judgment motion and resolved all 11 of Tift’s claims in their favor? 12 STANDARDS OF REVIEW 13 We review de novo the bankruptcy court's grant of summary 14 judgment. Ulrich v. Schian Walker, P.L.C. (In re Boates), 15 551 B.R. 428, 433 (9th Cir. BAP 2016) (citing Ilko v. Cal. St. 16 Bd. of Equalization (In re Ilko), 651 F.3d 1049, 1052 (9th Cir. 17 2011)). 18 The summary judgment standards are the same for all federal 19 courts. Id. (citing Marciano v. Fahs (In re Marciano), 459 B.R. 20 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir. 21 2013)). Summary judgment may be granted when there are no 22 genuine issues of disputed material fact and when the movant is 23 entitled to prevail as a matter of law. Civil Rule 56 (made 24 applicable in adversary proceedings by Rule 7056); Celotex Corp. 25 v. Catrett, 477 U.S. 317, 322–23 (1986). 26 DISCUSSION 27 Under § 362, the automatic stay arises upon the filing of 28 the debtor’s bankruptcy petition. Among other things, the stay

7 1 prohibits creditors from continuing to prosecute prepetition 2 litigation against the debtor. § 362(a)(1); see also Benedor 3 Corp. v. Conejo Enters., Inc. (In re Conejo Enters., Inc.), 4 96 F.3d 346, 351 (9th Cir. 1996). The stay also prevents 5 creditors from attempting to collect on prepetition debts, 6 § 362(a)(6), and also halts almost any attempt “to obtain 7 possession of property of the estate or of property from the 8 estate or to exercise control over property of the estate.” 9 § 362(a)(3). When creditors violate the automatic stay, an 10 individual debtor harmed by the stay violation can seek contempt 11 sanctions under § 105(a) or can bring an action for damages under 12 § 362(k). See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 13 1189-90 (9th Cir. 2003); Rediger Inves. Servs. v. H Granados 14 Commc'ns, Inc. (In re H Granados Commc'ns, Inc.), 503 B.R. 726, 15 734-35 (9th Cir. BAP 2013). 16 Here, the bankruptcy court held that the appellees had not 17 violated the automatic stay by attending and participating at the 18 state court hearing on their motion for contempt sanctions 19 because, according to Ninth Circuit and Bankruptcy Appellate 20 Panel precedent, the automatic stay does not apply to contempt 21 proceedings based on the debtor’s failure to comply with 22 discovery orders and to pay related monetary sanctions. The 23 resolution of this appeal, therefore, hinges on the continued 24 validity of the line of Ninth Circuit and Panel decisions 25 recognizing this exception to the automatic stay. 26 The first case in this line was David v. Hooker, Ltd., 27 560 F.2d 412, 417–18 (9th Cir. 1977). In Hooker, which predates 28 the 1978 enactment of the Bankruptcy Code, the court of appeals

8 1 held that a contempt order requiring obedience with prior court 2 orders directing the debtor business entity and its managing 3 agent to answer interrogatories, and directing the managing agent 4 to pay $2,000 in compensatory sanctions for not previously 5 answering the interrogatories, did not contravene the automatic 6 stay then in effect.5 Id. at 418. The court of appeals in 7 relevant part explained that, so long as the contempt proceedings 8 did not involve the determination of or attempt to collect the 9 creditor’s underlying prepetition claim against the debtor and 10 did not involve a mere ploy by the creditor to harass the debtor, 11 the postpetition continuation of the contempt proceedings did not 12 violate the bankruptcy rule 401(a) stay. Id. 13 The next case in this line was In re Dumas, 19 B.R. at 676. 14 The alleged stay violation in Dumas arose from state court 15 judgment enforcement proceedings, in which the judgment debtor 16 Dumas stipulated that he was in contempt of court for failure to 17 comply with a subpoena. Id. at 676-77. Instead of complying 18 with the subpoena before the sentencing hearing on the contempt, 19 5 20 At the time, the automatic stay arose from federal rule of bankruptcy procedure 401(a), which provided: 21 The filing of a petition shall operate as a stay of the 22 commencement or continuation of any action against the 23 bankrupt, or the enforcement of any judgment against him, if the action or judgment is founded on an 24 unsecured provable debt other than one not dischargeable under clause (1), (5), (6), or (7) of 25 section 35(a) of this title. 26 Hooker, 560 F.2d at 415 n.4. The stay provision set forth in 27 bankruptcy rule 401(a) ultimately was subsumed within § 362(a). See Dumas v. Atwood (In re Dumas), 19 B.R. 676, 677 (9th Cir. BAP 28 1982).

9 1 Dumas filed a bankruptcy petition and notified the judgment 2 creditor Atwood. Id. at 677. 3 In spite of that notification, the state court sentencing 4 hearing went forward, at which Atwood advocated that a contempt 5 sentence be imposed against Dumas. (The state court initially 6 did impose a sentence of one week in jail, plus a $275 fine, but 7 later vacated that sentence on Dumas’s motion.) Id. 8 Dumas then filed in the bankruptcy court a contempt motion 9 against Atwood and his attorney for violation of the automatic 10 stay. The bankruptcy court “dismissed” the motion without 11 explaining the grounds for dismissal, and Dumas appealed. Id. 12 On appeal, this Panel held that Hooker was controlling and that 13 the state court’s contempt sentencing did not violate the 14 automatic stay. Id. at 677-78. In so holding, Dumas noted that 15 Hooker only had involved a monetary contempt sanction award 16 against the debtor’s principal and not against the debtor itself, 17 but Dumas opined that this distinction was immaterial, positing 18 that, notwithstanding the automatic stay, Hooker also would have 19 permitted monetary contempt sanctions against the debtor itself 20 if such sanctions had been awarded: “we perceive no reluctance by 21 the circuit court to have imposed the sanction on the corporation 22 solely because it was the bankrupt.” Id. at 678. 23 Dumas also acknowledged that Hooker was interpreting the 24 bankruptcy rule 401(a) automatic stay then in effect and not the 25 version of the automatic stay set forth in § 362(a). Even so, 26 Dumas did not perceive any material distinction between the 27 bankruptcy rule 401(a) automatic stay and the § 362(a) automatic 28 stay: “the present statute and the former rule are essentially

10 1 similar.” Id. at 677. 2 The third and final case in this line is Yellow Express, LLC 3 v. Dingley (In re Dingley), 514 B.R. 591 (9th Cir. BAP 2014). In 4 Dingley, the debtor Dingley was ordered by the state court to pay 5 roughly $4,000 in compensatory sanctions to the plaintiff Yellow 6 Express based on Dingley’s failure to appear for a post judgment 7 debtor's exam. Id. at 593. When Dingley did not pay the 8 sanctions award, Yellow Express requested and obtained an order 9 to show cause why Dingley should not be held in contempt. Id. 10 Before the show cause hearing was held, Dingley commenced his 11 chapter 7 bankruptcy case. Id. Even though Dingley notified 12 Yellow Express of the bankruptcy filing and the automatic stay, 13 Yellow Express advocated in the state court that the automatic 14 stay did not apply to the contempt proceedings, citing Dumas and 15 Hooker. Id. at 593-94. Dingley did not respond to the state 16 court’s order requiring briefing on the automatic stay issue. 17 Instead, Dingley filed a motion to enforce the automatic stay. 18 Id. 19 After considering the parties’ positions, the bankruptcy 20 court ruled that the automatic stay prevented the state court and 21 Yellow Express from continuing with contempt proceedings based on 22 Dingley’s failure to pay the $4,000 prepetition discovery 23 sanctions award. Id. at 594-95. The bankruptcy court 24 essentially conceded that the automatic stay did not shield 25 Dingley from his willful disobedience of the state court’s order. 26 But the bankruptcy court nonetheless concluded that Yellow 27 Express had violated the automatic stay by urging the state court 28 to follow through with the contempt proceedings based on

11 1 Dingley’s nonpayment of a prepetition dischargeable debt (the 2 $4,000 discovery sanctions award). Id. 3 On appeal, this Panel reversed and held that Hooker had 4 established a bright-line rule excepting contempt proceedings 5 from the automatic stay, so long as the contempt proceeding 6 “‘does not involve a determination [or collection] of the 7 ultimate obligation of the bankrupt nor does it represent a ploy 8 by a creditor to harass him.’” Id. at 597 (quoting Hooker, 9 560 F.2d at 418). The panel recognized that a number of courts 10 have criticized Hooker and Dumas and also noted the “strength of 11 the points” expressed in Judge Jury’s separate concurrence, which 12 questioned the continuing validity of Hooker and Dumas. Id. at 13 599-600. Notwithstanding these concerns, Dingley ultimately held 14 that it was bound by Hooker’s bright-line rule “as followed post- 15 Code by Dumas.” Id. at 600. 16 The case currently before us presents little in the way of 17 facts that would permit us to depart from Hooker, Dumas and 18 Dingley. Tift contends that this line of cases is 19 distinguishable because the postpetition state court contempt 20 proceedings against him sought to enforce, in part, a state court 21 order requiring him to turn over his computers to the state court 22 receiver, Resource Transition Consultants. According to Tift, 23 because the state court order interfered with his possession of 24 and control over property of his bankruptcy estate, its 25 enforcement by way of contempt proceedings fell outside the 26 exception to the automatic stay recognized in Hooker, Dumas and 27 Dingley. 28 At least superficially, Tift’s contention might seem to be

12 1 supported by Goichman v. Bloom (In re Bloom), 875 F.2d 224 (9th 2 Cir. 1989). Bloom involved a postpetition contempt motion in 3 federal district court arising from the debtor’s failure to 4 attend a postjudgment deposition. Bloom also involved the 5 district court’s postpetition denial of an exemption claim that 6 Bloom had asserted prepetition in response to the creditor 7 Goichman’s garnishment efforts. Id. at 225. At the contempt 8 hearing, the district court imposed a $500 monetary sanction 9 against Bloom and directed Bloom to transfer partnership assets 10 to Goichman to secure Goichman’s prepetition judgment. Id. 11 Bloom then filed a complaint against Goichman for violation 12 of the automatic stay. Id. In response, Goichman filed a motion 13 in the district court asking the district court to withdraw the 14 reference pursuant to 28 U.S.C. § 157(d). Id. Ultimately, Bloom 15 prevailed in his stay enforcement action, and Goichman appealed. 16 Id. 17 The Ninth Circuit Court of Appeals upheld the bankruptcy 18 court’s determination that Goichman’s postpetition actions 19 violated the automatic stay. Id. at 226. In so ruling, the 20 Ninth Circuit explained that Goichman’s postpetition actions went 21 well beyond the prosecution of a contempt motion against Bloom: 22 Goichman's motion, however, was not merely a motion to hold Bloom in contempt. Among other things, Goichman 23 moved to appoint a receiver for Bloom's estate, to order Bloom to comply with the prebankruptcy consent 24 decree, to strike Bloom's claim of exemption, and to order transfer of certain Florida properties to 25 himself. On its face, the motion patently violates the spirit and letter of section 362. 26 27 Id. As the Bloom court further noted, Goichman did not even 28 attempt to defend his postpetition efforts to compel compliance

13 1 with the consent decree, to strike Bloom's exemption claim and 2 to withdraw the reference. Id. Bloom thus concluded that 3 Goichman was not protected by Hooker because “Goichman filed the 4 contempt motion with the purpose of securing assets protected by 5 the stay.” Id. 6 In Dingley, this Panel interpreted Bloom as limiting the 7 scope of Hooker. 514 B.R. at 599. Among other things, we stated 8 in Dingley that Bloom prevented bankruptcy courts from extending 9 Hooker to cover contempt proceedings in which the creditor sought 10 either to enforce the underlying judgment or to obtain a transfer 11 of bankruptcy estate assets. Id. (citing Bloom, 875 F.2d at 12 226-27). 13 Nonetheless, the case currently before us is distinguishable 14 from Bloom. Here, the state court’s order directing the turnover 15 of Tift’s computers was for the patent and limited purpose of 16 allowing the state court receiver – Resource Transition 17 Consultants – to complete its discovery by enabling it to examine 18 the computers’ memory for any information or documents concerning 19 Remian LLC or the receivership property. It was not an attempt 20 to secure or otherwise utilize estate assets in the satisfaction 21 of an underlying debt. In short, the facts presented here are 22 far more similar to Dingley and Dumas than they are to Bloom.6 23 The other arguments Tift has attempted to raise on appeal 24 are devoid of merit. For instance, Tift argues on appeal that 25 6 26 In fact, the automatic stay likely was inapplicable for a separate and independent reason. Generally, the automatic stay 27 does not prohibit a litigant from seeking (or enforcing) third party discovery against a debtor. See Groner v. Miller 28 (In re Miller), 262 B.R. 499, 503-05 (9th Cir. BAP 2001).

14 1 the bankruptcy court ignored his emotional distress claim for 2 relief. However, Tift’s adversary complaint reflects that all of 3 Tift’s claims were based on the appellees’ alleged violation of 4 the automatic stay. In light of our ruling upholding the 5 bankruptcy court’s determination that, as a matter law, the 6 appellees did not violate the automatic stay, the bankruptcy 7 court correctly resolved all of Tift’s adversary claims in the 8 appellees’ favor. 9 CONCLUSION 10 For the reasons set forth above, we AFFIRM the bankruptcy 11 court’s summary judgment in favor of the appellees. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28