In Re: Maryna Koval v. Roel Enterprises, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2023
• Docket: 22-55720
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: MARYNA KOVAL, No. 22-55720

Debtor, D.C. No. 2:21-cv-09568-DOC ______________________________

MARYNA KOVAL, MEMORANDUM*

Appellant,

v.

ROEL ENTERPRISES, INC.,

Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted August 24, 2023** Pasadena, California

Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,*** District Judge.

* 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). *** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Maryna Koval appeals a district court order dismissing as moot her appeal of

a bankruptcy court order. We have jurisdiction under 28 U.S.C. § 158(d)(1). We

“review legal conclusions concerning mootness de novo and factual findings

concerning mootness for clear error.” Rocky Mountain Farmers Union v. Corey,

913 F.3d 940, 949 (9th Cir. 2019). We affirm.

The bankruptcy court issued an order confirming that no automatic stay had

been triggered by Koval’s bankruptcy petition because Koval had filed a joint

petition with her husband, Anatoliy Chizmar, who had had two earlier bankruptcy

petitions dismissed within the previous year. See 11 U.S.C. § 362(c)(4)(a)(i)

(providing that no automatic stay shall go into effect “if a single or joint case is filed

by or against a debtor who is an individual under this title, and if 2 or more single or

joint cases of the debtor were pending within the previous year but were dismissed”).

Such “comfort orders” are specifically authorized by statute. See 11 U.S.C.

§ 362(c)(4)(A)(ii).

Koval appealed the comfort order to the district court, which dismissed the

appeal as moot because the bankruptcy court had by then dismissed the underlying

bankruptcy case in which the order had been issued. Koval had not appealed from

the dismissal of her bankruptcy case, nor did she seek a stay of the comfort order

pending appeal. In the meantime, Roel, through a state court unlawful detainer

action, successfully obtained possession of the residential property to which Koval

2 claims an interest, a foreclosure Koval was trying to avoid through imposition of an

automatic stay.

A case is moot if “it is ‘impossible for a court to grant any effectual relief

whatever’ to [the party seeking relief] assuming it prevails.” Mission Prod.

Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019) (quoting Chafin v.

Chafin, 568 U.S. 165, 172 (2013)). Thus, “[i]n a bankruptcy appeal, when the

underlying bankruptcy case is dismissed and that dismissal is allowed to become

final, there is likely no longer any case or controversy with respect to issues directly

involving the reorganization of the estate.” In re Castaic Partners II, LLC (Castaic),

823 F.3d 966, 969 (9th Cir. 2016) (quotation omitted).

In Castaic, we held that an appeal from a bankruptcy court order providing

relief from 11 U.S.C. § 362(a)’s automatic stay is mooted by the dismissal of the

underlying bankruptcy case in which the order was issued. See id. at 968–69. That

is because, in light of the dismissal of the bankruptcy case, the “bankruptcy court no

longer ha[s] power to order [a] stay or to award damages allegedly attributable to its

vacation.” Id. at 969 (second alteration in original) (quoting Armel Laminates,

Inc. v. Lomas & Nettleton Co. (In re Income Prop. Builders, Inc.), 699 F.2d 963, 964

(9th Cir. 1982) (per curiam)). And, “[a]bsent an appeal from the dismissal order[],

we have no power to restore the bankruptcy proceeding.” Id.

Koval’s appeal of the bankruptcy court’s comfort order is thus clearly moot.

3 While Koval’s appeal was pending before the district court, the bankruptcy court

dismissed the underlying bankruptcy case in which the order had been issued, and

Koval allowed that order to become final without appealing it.

Contrary to Koval’s argument, Ninth Circuit Bankruptcy Appellate Panel

(BAP) precedent supports this conclusion. In In re Nelson, 391 B.R. 437 (Bankr.

9th Cir. 2008), the BAP confirmed that “[r]eview of orders entered in the

administration of a bankruptcy case, since dismissed, is usually a fruitless pursuit,”

and thus the BAP could “grant no effective relief to the [debtors]” in their appeals

of comfort orders issued in since-dismissed bankruptcy cases. Id. at 445. The BAP

indicated that in some cases, a separate adversary proceeding seeking relief for an

alleged violation of the automatic stay may not be mooted by the dismissal of the

main related bankruptcy case. See id. at 443–44. But before the district court

decided Koval’s appeal, Koval’s adversary complaint was “closed as moot,” and

Koval did not pursue any appeal of this closure. Nelson thus confirms that this

appeal—which concerns only the bankruptcy court’s comfort order—is moot. The

appellant shall bear the costs on appeal.

AFFIRMED.1

1 We deny as unnecessary to our decision Roel’s motion to take judicial notice of a grant deed.