In re: Roberto Lara Ramirez

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 2, 2016
• Docket: EC-16-1015-KuMaJu
• Status: Unpublished

Opinion

FILED DEC 02 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK 2 U.S. BKCY.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. EC-16-1015-KuMaJu ) 6 ROBERTO LARA RAMIREZ, ) Bk. No. 15-26710 ) 7 Debtor. ) ______________________________) 8 ) ROBERTO LARA RAMIREZ, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) NATIONSTAR MORTGAGE LLC, ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on October 20, 2016 at Sacramento, California 15 Filed – December 2, 2016 16 Appeal from the United States Bankruptcy Court 17 for the Eastern District of California 18 Honorable Ronald H. Sargis, Chief Bankruptcy Judge, Presiding 19 Appearances: Appellant Roberto Lara Ramirez, pro se, on brief; Matthew Bryan Learned of McCarthy & Holthus, LLP 20 argued for appellee Nationstar Mortgage LLC. 21 22 Before: KURTZ, MARTIN** and JURY, Bankruptcy Judges. 23 24 * This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may 26 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8024-1. 27 ** Hon. Brenda K. Martin, United States Bankruptcy Judge for 28 the District of Arizona, sitting by designation. 1 INTRODUCTION 2 Chapter 131 debtor Roberto Lara Ramirez appeals from an 3 order granting relief from stay to Nationstar Mortgage LLC. The 4 bankruptcy court granted Nationstar retroactive relief from the 5 stay, which effectively validated Nationstar’s postpetition 6 foreclosure sale. The sale was held one day after the 7 commencement of Ramirez’s latest bankruptcy case. The bankruptcy 8 court also granted Nationstar prospective, in rem relief under 9 § 362(d)(4). 10 All of the relief granted was based, at least in part, on a 11 clearly erroneous finding of fact. Among other things, the 12 bankruptcy court found that Ramirez engaged in a series of 13 transfers in a deliberate attempt to interfere with Nationstar’s 14 foreclosure efforts. But there were no allegations or evidence 15 of any such transfers anywhere in the record. 16 As a result, we must VACATE the bankruptcy court's order 17 granting Nationstar relief from the automatic stay, and we must 18 REMAND for further proceedings. 19 FACTS2 20 Ramirez commenced the underlying chapter 13 bankruptcy case 21 1 22 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 23 all "Rule" references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. All “Local Rule” references are to 24 the Local Bankruptcy Rules for the Eastern District of California. 25 2 26 Many of the facts set forth herein are drawn from the bankruptcy court’s written rulings. Ramirez has not challenged 27 on appeal the accuracy of these facts, many of which are procedural in nature and are supported by the history of 28 Ramirez’s bankruptcy filings.

2 1 on August 25, 2015. This was not Ramirez’s first bankruptcy 2 case. In fact, he had filed four others in the past few years, 3 as follows: 4 (1) In December 2011, Ramirez filed a chapter 13 case. That 5 case was dismissed in July 2013 for failure to cure defaults 6 in plan payments and failure to file and seek confirmation 7 of a modified plan to address the plan defaults. 8 (2) In April 2014, Ramirez filed, pro se, a chapter 7 case. 9 That case was dismissed in May 2014 based on Ramirez’s 10 failure to file many of the documents required under 11 § 521(a). 12 (3) In June 2014, Ramirez filed, pro se, another chapter 7 case. 13 Ramirez received his discharge, and the case was closed in 14 October 2014. Additionally, Nationstar sought and received 15 relief from the automatic stay to proceed with a nonjudicial 16 foreclosure against Ramirez’s residence. 17 (4) In December 2014, Ramirez filed, pro se, another chapter 13 18 case. That case was dismissed in June 2015 for failure to 19 cure defaults in plan payments and failure to file and seek 20 confirmation of a modified plan after the bankruptcy court 21 denied confirmation of his initial chapter 13 plan. The 22 record from this chapter 13 case also reflects Ramirez's 23 failure to attend his § 341 meeting of creditors, his 24 failure to complete all of the required chapter 13 documents 25 – including his initial chapter 13 plan – and his failure to 26 disclose his multiple prior bankruptcy cases. 27 In light of Ramirez’s prior bankruptcy filings and pursuant 28 to § 362(c)(3)(A), the automatic stay in the underlying

3 1 bankruptcy case was due to automatically expire with respect to 2 the debtor as of September 24, 2015 – 30 days after the filing of 3 Ramirez’s latest bankruptcy petition. Ramirez filed three 4 motions requesting that the court extend the automatic stay. The 5 bankruptcy court denied the first motion to extend based on its 6 finding that Ramirez had not rebutted the presumption of bad 7 faith arising pursuant to § 362(c)(3)(C). Based on Ramirez’s own 8 admissions, the bankruptcy court in essence found that Ramirez 9 had filed his latest bankruptcy case not for any legitimate 10 bankruptcy purpose but rather to delay Nationstar’s scheduled 11 foreclosure sale in the hopes that he could persuade Nationstar 12 to agree to a new loan modification.3 13 The bankruptcy court denied the second two motions to extend 14 because they were untimely and because Ramirez still had not 15 rebutted the bad faith presumption. 16 In December 2015, Nationstar filed its motion for relief 17 from stay. In the motion, Nationstar requested both retroactive 18 and prospective relief. More specifically, Nationstar explained 19 that, to enforce its rights as a secured creditor, a foreclosure 20 sale of Ramirez’s residence had occurred on August 26, 2015, the 21 day after Ramirez had filed his latest bankruptcy petition. 22 Nationstar sought retroactive relief from the stay – also known 23 as annulment of the stay – to validate its postpetition 24 foreclosure sale. Nationstar also sought prospective relief from 25 the automatic stay pursuant to § 362(d)(4), claiming that 26 27 3 Nationstar and Ramirez already had entered into a prior 28 loan modification agreement in 2010.

4 1 Ramirez’s history of serial bankruptcy filings reflected a scheme 2 by Ramirez to delay Nationstar from exercising its rights as a 3 secured creditor. 4 In support of its request for retroactive relief, Nationstar 5 submitted evidence indicating that it was unaware of Ramirez’s 6 August 25, 2015 bankruptcy filing at the time it conducted the 7 August 26, 2015 foreclosure sale. Nationstar further asserted 8 that it had been attempting to foreclose on Ramirez’s residence 9 since 2011, citing a 2011 notice of default and a 2011 notice of 10 sale, which referenced a sale date of December 14, 2011. 11 Nationstar pointed out that Ramirez’s first chapter 13 filing, 12 commenced on December 2, 2011, prevented the foreclosure sale 13 from occurring as scheduled. Nationstar also pointed out that it 14 caused to be published another notice of sale in 2014 referencing 15 a sale date of December 3, 2014, and that Ramirez’s December 2, 16 2014 bankruptcy filing prevented that 2014 foreclosure sale from 17 occurring. 18 In his opposition, Ramirez claimed that he immediately gave 19 Nationstar and its counsel notice of his latest bankruptcy filing 20 but that Nationstar ignored the notices and proceeded with the 21 foreclosure sale despite its knowledge of the automatic stay. 22 According to Ramirez, these facts by themselves were sufficient 23 to justify denial of retroactive relief. 24 As for prospective relief under § 362(d)(4), Ramirez argued 25 that Nationstar attempted to justify the granting of this relief 26 based solely on his serial bankruptcy filings. According to 27 Ramirez, multiple bankruptcy filings, alone, cannot support a 28 finding of a scheme to hinder, delay or defraud for purposes of

5 1 § 362(d)(4). Appellant also asked for an evidentiary hearing so 2 he could present evidence of the notice he gave to Nationstar on 3 August 25, 2015. 4 At the hearing on the relief from stay motion, the 5 bankruptcy court ruled that Nationstar was entitled to the 6 retroactive and prospective relief requested in its motion. On 7 the issue of stay annulment, the bankruptcy court stated that it 8 had considered the totality of the circumstances and had weighed 9 the factors identified in Nat'l Envtl. Waste Corp. v. City of 10 Riverside (In re Nat'l Envtl. Waste Corp.), 129 F.3d 1052, 1055 11 (9th Cir. 1997); and in Fjeldsted v. Lien (In re Fjeldsted), 12 293 B.R. 12, 25 (9th Cir. BAP 2003). The bankruptcy court 13 concluded that the factors militated in favor of annulment. 14 At the time the bankruptcy court announced its ruling at the 15 hearing, Ramirez renewed his request for an evidentiary hearing 16 on the notice issue, but the bankruptcy court denied that 17 request, stating that the notice issue was beyond the scope of 18 the motion and beyond the scope of the court’s reasoning for 19 granting the motion, including retroactive relief. 20 The bankruptcy court’s denial of an evidentiary hearing was 21 made during the course of the following colloquy between the 22 bankruptcy court and Ramirez: 23 MR. RAMIREZ: Then can I show you something, that I gave notice to the bank that I file the bankruptcy? 24 THE COURT: I am going to say no, because that really 25 goes beyond the issue of this motion and the reason I am granting the relief, which includes making it 26 retroactive. 27 MR. RAMIREZ: I have a document here that I sent to them on the 25th. 28

6 1 THE COURT: Okay. That is the day the foreclosure sale occurred. And what I am saying by this order is, there 2 was no automatic stay in effect on the 25th when the foreclosure occurred. 3 4 Hr’g Tr. (Jan. 12, 2016) 8:8-18. 5 The bankruptcy court’s statements made in support of its 6 denial of the evidentiary hearing are at odds with its comments 7 indicating that it had reviewed and considered all of the 8 Fjeldsted factors. Furthermore, the bankruptcy court’s written 9 ruling suggests that it did consider the notice issue. The 10 bankruptcy court noted both Nationstar’s representation that it 11 was unaware of the latest bankruptcy filing and Ramirez’s failure 12 to present evidence to support his notice allegations. 13 As for prospective, in rem relief, the bankruptcy court 14 stated that it could grant relief under § 362(d)(4) if it found 15 “a scheme to delay, hinder, or defraud creditors” involving 16 either: (a) a transfer of an interest in the subject real 17 property without creditor consent or court approval; or 18 (b) “multiple bankruptcy filings affecting such real property.” 19 11 U.S.C. § 362(d)(4). 20 According to the bankruptcy court, the existence of such a 21 scheme by Ramirez was evidenced not only by the number of 22 Ramirez’s prior bankruptcy filings but also by his frequent 23 failure to prosecute his bankruptcy cases by filing required 24 documents. The bankruptcy court also emphasized that Ramirez had 25 attempted to “hide” his prior bankruptcy cases from the court. 26 Ramirez attempted this, the court explained, by filing an amended 27 statement of social security number in which he alleged that he 28 had “lost” his social security number – after he earlier had

7 1 filed in the same case an acknowledgment of his social security 2 number – a number which led the court to Ramirez’s prior 3 bankruptcy case filings. 4 There was one other factor the bankruptcy court pointed to 5 in its ruling granting § 362(d)(4) relief. The bankruptcy court 6 referenced certain transfers Ramirez allegedly made to 7 beneficiaries who then filed bankruptcy in order to stay the 8 foreclosure. As the bankruptcy court put it: 9 Movant has provided sufficient evidence concerning a series of bankruptcy cases being filed with respect to 10 the subject property. The unauthorized transfers of interests in the subject property to beneficiaries who 11 then filed several bankruptcies were a deliberate attempt as a stay to any foreclosure. The court finds 12 that the filing of the present petition works as part of a scheme to delay, hinder, or defraud Movant with 13 respect to the Property by both the transfer of an interest in the property and the filing of multiple 14 bankruptcy cases. 15 Civil Minutes (Jan 12, 2016) at p. 5 (emphasis added). 16 This portion of the bankruptcy court’s ruling is perplexing. 17 Nationstar neither alleged nor submitted evidence of any such 18 transfers, nor have we found any evidence of such transfers 19 elsewhere during our independent review of the bankruptcy court’s 20 docket. 21 On January 19, 2016, the bankruptcy court entered its order 22 granting Nationstar’s stay relief motion, and Ramirez timely 23 appealed. 24 On January 21, 2016, the underlying bankruptcy case was 25 dismissed on the chapter 13 trustee’s motion, based on a number 26 of deficiencies in the prosecution of Ramirez’s chapter 13 case, 27 which the bankruptcy court found constituted unreasonable delay 28

8 1 under § 1307(c)(1).4 2 JURISDICTION 3 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 4 §§ 1334 and 157(b)(2)(G). An order granting or denying relief 5 from the automatic stay is a final and appealable order, so we 6 have jurisdiction under 28 U.S.C. § 158. See Benedor Corp. v. 7 Conejo Enters., Inc. (In re Conejo Enters., Inc.), 96 F.3d 346, 8 351 (9th Cir. 1996). 9 ISSUES 10 1. Did the bankruptcy court abuse its discretion when it 11 granted Nationstar relief under § 362(d)(4)? 12 2. Did the bankruptcy court abuse its discretion when it 13 annulled the stay in order to retroactively validate 14 Nationstar’s foreclosure sale? 15 STANDARDS OF REVIEW 16 We review the bankruptcy court’s relief from stay order for 17 an abuse of discretion. Id.; First Yorkshire Holdings, Inc. v. 18 Pacifica L 22, LLC (In re First Yorkshire Holdings, Inc.), 19 470 B.R. 864, 868 (9th Cir. BAP 2012); In re Fjeldsted, 293 B.R. 20 at 18. 21 A bankruptcy court abuses its discretion if it applies an 22 incorrect legal standard or if its factual findings are 23 4 24 Even though Ramirez did not appeal the dismissal order, this appeal is not moot. The order on appeal provided for 25 annulment of the stay and for in rem relief from the stay for a 26 period of two years from the date of entry of the bankruptcy court’s relief from stay order. If Ramirez were to prevail on 27 appeal, we could grant him meaningful relief from both the retroactive and prospective effects of the bankruptcy court’s 28 relief from stay order.

9 1 illogical, implausible or not supported by the record. United 2 States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) 3 (en banc). 4 DISCUSSION 5 On appeal, Ramirez, pro se, asserts the same arguments he 6 asserted in the bankruptcy court. First, he claims there was 7 insufficient evidence to support the bankruptcy court’s grant of 8 prospective, in rem relief under § 362(d)(4). And second, he 9 claims the bankruptcy court should not have annulled the stay 10 because he gave notice of his bankruptcy filing to Nationstar on 11 the day the foreclosure occurred. We will address each of these 12 claims in turn. 13 1. Section 362(d)(4) 14 Under § 362(d)(4), the bankruptcy court may grant a secured 15 creditor prospective, “in rem” relief from the automatic stay if 16 the debtor has engaged in a scheme to delay, hinder or defraud 17 creditors through multiple bankruptcy filings. In re First 18 Yorkshire Holdings, Inc., 470 B.R. at 870. A properly entered 19 and recorded § 362(d)(4) order prevents – for a period of two 20 years – any subsequent bankruptcy filing by anyone with an 21 interest in the subject property from operating as a stay of lien 22 enforcement against the property. § 362(b)(20); In re First 23 Yorkshire Holdings, Inc., 470 B.R. at 871. 24 The broad scope of this exception to the automatic stay 25 potentially can have grave consequences for debtors seeking 26 temporary relief from foreclosure activity. Alakozai v. Citizens 27 Equity First Credit Union (In re Alakozai), 499 B.R. 698, 703 28 (9th Cir. BAP 2013). Congress determined that this drastic form

10 1 of relief was necessary in order to deter schemes by the 2 occasional debtor who filed serial bankruptcies and/or made a 3 series of property transfers for the purpose of interfering with 4 legitimate foreclosure efforts. Id. at 702; In re First 5 Yorkshire Holdings, Inc., 470 B.R. at 870. 6 In order to grant § 362(d)(4) relief, a bankruptcy court 7 must find: “(1) the debtor engaged in a scheme, (2) to delay, 8 hinder or defraud the creditor, and (3) which involved either the 9 transfer of property without the creditor's consent or court 10 approval or multiple filings.” In re Alakozai, 499 B.R. at 703. 11 Here, the bankruptcy court articulated the correct legal 12 standard, made ample findings, and cited sufficient evidence to 13 support most of those findings. In essence, the bankruptcy court 14 determined from Ramirez’s multiple bankruptcy cases and from the 15 way Ramirez conducted himself in those bankruptcy cases that 16 Ramirez had improperly utilized those cases to interfere with 17 Nationstar’s foreclosure efforts. The bankruptcy court’s 18 findings in support of this determination were not clearly 19 erroneous – they were logical, plausible and supported by the 20 record. 21 On the other hand, we don’t know what to make of the 22 bankruptcy court’s additional findings that Ramirez engaged in a 23 series of unauthorized transfers of his residence and that these 24 transfers were part of his scheme to hinder, delay or defraud 25 Nationstar. There were no allegations or evidence in the record 26 reflecting such transfers, so the bankruptcy court’s transfer- 27 related findings were clearly erroneous. 28 Nor are we convinced that the transfer-related findings were

11 1 harmless error. We simply don’t know for sure whether, in the 2 absence of the transfer-related findings, the bankruptcy court 3 still would have inferred Ramirez’s scheme to hinder, delay or 4 defraud Nationstar from the remaining findings. On the record 5 presented, such an inference would not have been unreasonable; 6 even so, such an inference was not inevitable. 7 Under these circumstances, we must vacate the bankruptcy 8 court’s grant of § 362(d)(4) relief and remand for a new 9 determination of this issue. 10 2. Stay Annulment 11 Actions taken in violation of the automatic stay are void. 12 In re Nat'l Envtl. Waste Corp., 129 F.3d at 1054. However, under 13 § 362(d)(1), the bankruptcy court may “annul” the stay in order 14 to retroactively validate actions that otherwise would be void as 15 stay violations. Id. (citing Schwartz v. United States 16 (In re Schwartz), 954 F.2d 569, 572 (9th Cir. 1992)). 17 In deciding whether "cause" exists to annul the stay, the 18 bankruptcy court must examine the circumstances of the particular 19 case and balance the equities. In re Nat'l Envtl. Waste Corp., 20 129 F.3d at 1055; In re Fjeldsted, 293 B.R. at 24. Two factors 21 that have been considered critical in many cases are: 22 (1) whether the creditor was aware of the bankruptcy petition and 23 automatic stay and (2) whether the debtor engaged in unreasonable 24 or inequitable conduct. In re Nat'l Envtl. Waste Corp., 129 F.3d 25 at 1055. But these factors are not always determinative. Id. 26 Each case presents its own unique circumstances that must be 27 evaluated on a case by case basis. Id. 28 We have identified several other factors that can be

12 1 relevant in deciding whether to annul the stay: 2 1. Number of filings; 3 2. Whether, in a repeat filing case, the circumstances indicate an intention to delay and hinder creditors; 4 3. A weighing of the extent of prejudice to creditors 5 or third parties if the stay relief is not made retroactive, including whether harm exists to a bona 6 fide purchaser; 7 4. The Debtor's overall good faith (totality of circumstances test); 8 5. Whether creditors knew of stay but nonetheless took 9 action, thus compounding the problem; 10 6. Whether the debtor has complied, and is otherwise complying, with the Bankruptcy Code and Rules; 11 7. The relative ease of restoring parties to the status 12 quo ante; 13 8. The costs of annulment to debtors and creditors; 14 9. How quickly creditors moved for annulment, or how quickly debtors moved to set aside the sale or 15 violative conduct; 16 10. Whether, after learning of the bankruptcy, creditors proceeded to take steps in continued 17 violation of the stay, or whether they moved expeditiously to gain relief; 18 11. Whether annulment of the stay will cause 19 irreparable injury to the debtor; 20 12. Whether stay relief will promote judicial economy or other efficiencies. 21 22 In re Fjeldsted, 293 B.R. at 25 (citations omitted). Here, the 23 bankruptcy court stated that it had reviewed all of these factors 24 and had considered the totality of the circumstances. At the 25 same time, the bankruptcy court’s ruling and its hearing comments 26 suggest that it relied heavily on Ramirez’s scheme to hinder, 27 delay or defraud Nationstar in finding cause to annul the stay. 28 This is why the bankruptcy court, in finding cause, referenced

13 1 its findings regarding Ramirez’s “transparently purposeful” 2 conduct in “prejudicing” Nationstar’s foreclosure efforts and 3 also stated that the underlying bankruptcy case was part of 4 Ramirez’s “scheme to prejudice” Nationstar. 5 As we explained above, the bankruptcy court’s clearly 6 erroneous transfer-related findings fatally infected the court’s 7 inference of a scheme to hinder, delay or defraud Nationstar. 8 Because the existence of this scheme was a critical factor in the 9 bankruptcy court’s determination of cause to annul the stay, we 10 must VACATE the bankruptcy court’s grant of retroactive stay 11 relief and must REMAND for a new determination of this issue. 12 3. Denial of Ramirez’s Request to Present Evidence on Notice 13 Issue 14 There is one other issue we need to address. It concerns 15 Ramirez’s request in his opposition for an opportunity to present 16 evidence on whether Nationstar had knowledge of the automatic 17 stay at the time it conducted its foreclosure sale. Ramirez 18 renewed this request at the relief from stay hearing, at which 19 point the bankruptcy court denied the request. 20 Ramirez did not even remotely comply with the requirements 21 for obtaining an evidentiary hearing set forth in Local Rules 22 9014-1(f)(1)(B)5 and 9014-1(g)(3).6 We already have upheld a 23 5 24 Local Rule 9014-1(f)(1)(B) provides in relevant part: 25 The opposition shall specify whether the responding 26 party consents to the Court’s resolution of disputed material factual issues pursuant to Fed. R. Civ. 27 P. 43(c) as made applicable by Fed. R. Bankr. P. 9017. If the responding party does not so consent, the 28 (continued...)

14 1 prior version of the Local Rules, which contained similar 2 requirements. See Tyner v. Nicholson (In re Nicholson), 435 B.R. 3 622, 635–36 (9th Cir. BAP 2010), partially abrogated on other 4 grounds by, Law v. Siegel, 134 S.Ct. 1188, 1196–98 (2014). In 5 addition, Ramirez failed to include with his opposition papers 6 any evidence that would have laid a foundation for a disputed 7 factual issue regarding Nationstar’s knowledge of the stay. This 8 absence of evidence in Ramirez’s opposition also violated Local 9 Rule 9014-1(f)(1)(B). 10 On the other hand, in denying Ramirez’s request to present 11 evidence at the relief from stay hearing, the bankruptcy court 12 did not invoke its Local Rules as the basis for the denial. 13 Instead, in denying the request, the bankruptcy court suggested 14 that the notice issue was largely irrelevant. This comment by 15 16 5 (...continued) 17 opposition shall include a separate statement identifying each disputed material factual issue. The 18 separate statement shall enumerate discretely each of 19 the disputed material factual issues and cite the particular portions of the record demonstrating that a 20 factual issue is both material and in dispute. Failure to file the separate statement shall be construed as 21 consent to resolution of the motion and all disputed 22 material factual issues pursuant to Fed. R. Civ. P. 43(c). 23 6 Local Rule 9014-1(g)(3) provides: 24 An opposition and/or reply to a motion shall state 25 whether a party consents to the use of affidavits in 26 accordance with Fed. R. Civ. P. 43(c). Any party that fails to file the separate statement of disputed 27 material facts as required by LBR 9014-1 will thereby consent to proceed on the basis of the written record 28 without live testimony.

15 1 the bankruptcy court is difficult to reconcile with the 2 bankruptcy court’s statement that, in determining whether to 3 annul the stay, it was considering the totality of the 4 circumstances as well as the Fjeldsted factors. The comment is 5 even harder to reconcile with the notion that the creditor’s 6 knowledge of the stay often is one of the most critical factors 7 in determining whether to annul the stay. See In re Nat'l Envtl. 8 Waste Corp., 129 F.3d at 1055. 9 In any event, because we are remanding on other grounds, we 10 need not resolve this conundrum. On remand, the bankruptcy court 11 should clarify the grounds it is relying upon to support its 12 denial of Ramirez’s request to present evidence on the notice 13 issue. Alternately, the bankruptcy court has the option on 14 remand to exercise its discretion to reopen the record and permit 15 the presentation of evidence.7 16 CONCLUSION 17 For the reasons set forth above, we VACATE the bankruptcy 18 court’s order granting Nationstar relief from the automatic stay, 19 and we REMAND for further proceedings. 20 21 22 23 24 7 Also on remand, the bankruptcy court should note that, if 25 it grants retroactive stay relief and validates Nationstar’s 26 foreclosure sale, it no longer would be necessary or correct to additionally grant Nationstar relief under § 362(d)(4), because 27 Nationstar no longer would be “a creditor whose claim is secured by an interest in the property in question.” See Ellis v. Yu 28 (In re Ellis), 523 B.R. 673, 679-80 (9th Cir. BAP 2014).