In Re: Sanchez

• Court: District Court, S.D. California
• Decided: September 11, 2024
• Docket: 3:24-cv-01187
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 24-cv-1187-DMS-MMP LILIANA SANCHEZ,

11 Appellant, ORDER DENYING MOTIONS TO 12 v. APPOINT COUNSEL FOR APPELLANT 13 BIRD ROCK HOME MORTGAGE, LLC; STEPHAN NIEDNAGEL, 14 Appellees. 15 16 17 Before this Court are Appellant Liliana Sanchez’s (“Appellant”) Motions for 18 Appointment of Counsel. Appellant’s Motions relate to her two appeals: (1) an appeal 19 from an order granting relief from the automatic stay in a Chapter 13 case; and (2) an appeal 20 from an order dismissing the same Chapter 13 case. (ECF No. 3). The Bankruptcy 21 Appellate Panel of the Ninth Circuit transferred Appellant’s motions to this Court for the 22 limited purpose of allowing this Court to decide whether counsel should be appointed with 23 respect to Appellant’s appeals. (Id.). For the reasons discussed below, this Court DENIES 24 Appellant’s Motions for Appointment of Counsel. 25 I. LEGAL STANDARD 26 Any court of the United States “may request an attorney to represent any person 27 unable to afford counsel.” 28 U.S.C. § 1915(e)(1). “Appointment of counsel in civil 28 matters in the Ninth Circuit is restricted to ‘exceptional circumstances.’” Burns v. County 1 of King, 883 F.2d 819, 824 (9th Cir. 1989) (quoting Franklin v. Murphy, 745 F.2d 1221, 2 1236 (9th Cir. 1984)). “A finding of exceptional circumstances requires an evaluation of 3 both ‘the likelihood of success on the merits [and] the ability of the petitioner to articulate 4 [her] claims pro se in light of the complexity of the legal issues involved.’” Wilborn v. 5 Escalderon, 789 F.3d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 6 952, 954 (9th Cir. 1983)). “Neither of these issues is dispositive and both must be viewed 7 together before reaching a decision.” Id. 8 II. DISCUSSION 9 A. Likelihood of Success. 10 1. Appeal of order granting relief from an automatic stay (SC-24-1082). 11 First, Appellant appeals the bankruptcy court’s grant of relief of the automatic stay 12 from her Chapter 13 bankruptcy filing. (ECF No. 3 at 3). A bankruptcy court may issue 13 relief from an automatic stay if it “finds that the filing of the [bankruptcy] petition was part 14 of a scheme to delay, hinder, or defraud creditors that involved . . . [a] transfer of all or part 15 ownership of, or other interest in, such real property without the consent of the secured 16 creditor or court approval.” 11 U.S.C. § 362(d)(4)(A). Appellant appears to appeal the 17 bankruptcy court’s termination of the automatic stay on the basis that Appellee’s request 18 for relief from the automatic stay was “[w]rongful” and “[u]nlawful.” (Id.). In particular, 19 Appellant alleges that Appellee acquired Appellant’s home as a result of some “scheme[]” 20 or fraud. (Id.). 21 Appellant’s argument is unlikely to carry the day. Because Appellee Bird Rock 22 Home Mortgage had an interest as a creditor in Appellant’s home, Appellee was allowed 23 to make its request since it is a “party in interest” that may request a bankruptcy court to 24 grant relief from the stay under 11 U.S.C. 362(d). See In re Tower Park Properties, LLC, 25 803 F.3d 450, 456–57 (9th Cir. 2015); 11 U.S.C. § 101(10), 1109. Appellant alleges 26 Appellee’s interest was the result of fraud. However, Appellant does not go beyond mere 27 allegations to substantiate her claims of fraud. Nor does Appellant explain how the alleged 28 fraud would extinguish Appellant’s party-in-interest status. Appellant otherwise does not 1 explain why Appellee Bird Rock Home Mortgage should not have been allowed to make 2 this request or how the bankruptcy court incorrectly granted relief from the stay. 3 Accordingly, the Court does not find that Appellant has demonstrated a sufficient 4 likelihood of success to warrant appointment of counsel for Appellant’s appeal of the order 5 granting relief from the automatic stay. 6 2. Appeal of order dismissing her Chapter 13 Case (SC-24-1109). 7 Second, Appellant appeals the bankruptcy court’s dismissal of her Chapter 13 case. 8 A bankruptcy court may dismiss a case due to an “unreasonable delay by the debtor that is 9 prejudicial to creditors.” 11 U.S.C. § 1307(c)(1). The bankruptcy court ordered appellant 10 to amend her plan for the adjustment of her debts to omit any reference to Wilmington 11 Trust as creditor by June 28, 2024. (ECF No. 1 at 5). Appellant failed to submit an 12 amended plan by this date that omitted any reference to Wilmington Trust as a creditor. 13 (Id.). Because of Appellant’s actions, Appellee filed a motion to dismiss due to prejudicial 14 delay. (Id.). The bankruptcy court granted Appellee’s motion on July 2, 2024. (Id.). 15 Appellant does not address why she did not follow the bankruptcy court’s instruction 16 to resubmit an amended plan that omitted the Wilmington Trust as a creditor by June 28, 17 2024. Instead, Appellant notes how her family has been “treated unfair[ly]” and how 18 Appellees have caused her family “financial hardship and irreparable harm.” (ECF No. 3 19 at 5). However, Appellant does not explain how these assertions would allow her to prevail 20 in her appeal. Accordingly, the Court does not find that Appellant has demonstrated a 21 sufficient likelihood of success to warrant appointment of counsel for her appeal of the 22 bankruptcy court’s dismissal of her Chapter 13 case. 23 B. Ability to articulate claims pro se in light of the complexity of the issues 24 involved. 25 “[A]ny difficulty [Appellant] experienced in attempting to litigate [her] case [must 26 be] derived from the complexity of the issues involved.” Wilborn, 789 F.2d 1328 at 1331. 27 “The facts [Appellant] alleges and the issues [she] raise[s] [should be] of substantial 28 complexity.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 1 While Appellant demonstrates some difficulty in articulating the basis of her two 2 ||appeals (ECF No. 3 at 3, 5), this difficulty does not appear to be due to the complexity of 3 ||the issues in her appeals. With respect to her appeal of the bankruptcy court’s order 4 || granting relief from an automatic stay, Appellant appears to argue that Appellee had no 5 to file for relief from that stay because the auctioning of the property at issue was the 6 ||result of fraud. U/d. at 3). As to her appeal of the bankruptcy court’s order dismissing the 7 Appellant appears to argue that the Bankruptcy Appellate Panel should take into 8 ||consideration her alleged unfair treatment by the bankruptcy court and violation of her 9 || rights to a stay during her Chapter 13 bankruptcy filing. (/d. at 5). Appellant’s arguments 10 ||appear to be “relatively straightforward” and she has demonstrated sufficient ability to 11 |/articulate them. Harrington vy. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). 12 || Accordingly, the Court finds that Appellant’s ability to articulate her claims and the lack 13 || of substantial complexity of the matter do not justify appointment of counsel. 14 III. CONCLUSION 15 Because Appellant has not demonstrated that her appeals present “exceptional 16 circumstances,” the Court hereby DENIES Appellant’s two Motions for Appointment of 17 || Counsel. 18 IT IS SO ORDERED. 19 || Dated: September 11, 2024 2» I f 20 Chih WW VIA Hon. Dana M. Sabraw, Chief Judge 21 United States District Court 22 23 24 25 26 27 28