In Re: Jose Galvan v. Phh Mortgage Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 2024
• Docket: 23-60013
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: JOSE HUMBERTO AGUILA No. 23-60013 GALVAN, BAP No.22-1106 Debtor,

------------------------------ MEMORANDUM*

JOSE HUMBERTO AGUILAR GALVAN,

Appellant,

v.

PHH MORTGAGE CORPORATION,

Appellee.

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

Submitted February 6, 2024 **

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

Debtor Jose Humberto Aguilar Galvan appeals the Bankruptcy Appellate

* 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). Panel’s (BAP) decision affirming the bankruptcy court’s order granting in rem

relief from a stay under 11 U.S.C. § 362(d)(4) to creditor PHH Mortgage

Corporation.1 We have jurisdiction under 28 U.S.C. § 158(d)(1). We review the

BAP’s decision de novo and the underlying Bankruptcy Court order for abuse of

discretion. In re Hutchinson, 15 F.4th 1229, 1232 (9th Cir. 2021); In re First

Yorkshire Holdings, Inc., 470 B.R. 864, 868 (9th Cir. BAP 2012).

We agree with the BAP that the bankruptcy court did not abuse its discretion

by granting in rem relief from a stay under 11 U.S.C. § 362(d)(4). To obtain relief

under 11 U.S.C. § 362(d)(4), the creditor must establish that (1) the “debtor’s

bankruptcy filing [was] part of a scheme”; (2) “the object of the scheme [was] to

delay, hinder, or defraud creditors”; and (3) “the scheme . . . involve[d] either (a)

the transfer of some interest in the real property without the secured creditor’s

consent or court approval, or (b) multiple bankruptcy filings affecting the

property.” In re First Yorkshire Holdings, Inc., 470 B.R. at 870. As the BAP

correctly noted, the record demonstrates that Galvan’s family “attempted numerous

times to transfer interests in the Property to other parties without the consent of the

1 As shown by the documents submitted by PHH in support of its motion for relief

under § 362(d)(4), PHH had obtained a beneficial interest in the note and deed of trust on real property owned, at least in part, by Galvan’s parents. These documents were more than sufficient to establish PHH’s “colorable claim to the property,” which is all that is required to bring a motion under § 362(d)(4). See In re Griffin, 719 F.3d 1126, 1128 (9th Cir. 2013).

2 secured creditor and, along with Debtor, filed nine bankruptcy cases to avoid

foreclosure, all the while failing to make payments on the loan secured by the

Property.” Indeed, Galvan filed this bankruptcy proceeding even though he was

not a borrower on the loan and only obtained an interest in the property after filing

this action.

AFFIRMED.