In re: Yvonne Laconico Zivanic

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: October 30, 2015
• Docket: NC-14-1568-JuTaD
• Status: Unpublished

Opinion

FILED 1 NOT FOR PUBLICATION OCT 30 2015

2 SUSAN M. SPRAUL, CLERK 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. NC-14-1568-JuTaD ) 6 YVONNE LACONICO ZIVANIC, ) Bk. No. 14-51918 ) 7 Debtor. ) ______________________________) 8 ) YVONNE LACONICO ZIVANIC, ) 9 ) Appellant, ) 10 ) M E M O R A N D U M* v. ) 11 ) DEUTSCHE BANK NATIONAL TRUST ) 12 COMPANY, Trustee for WAMU ) 2005-AR6, its assignees and/or) 13 successors in interest; ) FRED S. HJELMESET, Chapter 7 ) 14 Trustee,** ) ) 15 Appellees. ) ______________________________) 16 Argued and Submitted on October 23, 2015 17 at San Francisco, California 18 Filed - October 30, 2015 19 Appeal from the United States Bankruptcy Court for the Northern District of California 20 Honorable M. Elaine Hammond, Bankruptcy Judge, Presiding 21 ___________________________ 22 Appearances: Motaz M. Gerges on brief for appellant Yvonne Zivanic; Jonathan S. Lieberman of Locke Lord LLP 23 argued for appellee Deutsche Bank National Trust 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 ** The chapter 7 trustee Fred S. Hjelmeset has not 28 participated in this appeal.

-1- 1 Company, Trustee for WAMU 2005-AR6. ____________________________ 2 Before: JURY, TAYLOR, and DUNN, Bankruptcy Judges. 3 4 Appellee Deutsche Bank National Trust Company as Trustee 5 for WAMU 2005-AR6 (Bank) filed a motion seeking relief from the 6 automatic stay to proceed with an unlawful detainer action 7 (UD Action) against chapter 131 debtor Yvonne Laconico Zivanic. 8 The bankruptcy court granted the motion by order entered on 9 December 1, 2014 (Stay Relief Order). Debtor filed a premature, 10 although timely, notice of appeal from the Stay Relief Order. 11 Bank then filed a motion to dismiss (MTD) the adversary 12 proceeding commenced by debtor, which the bankruptcy court 13 granted by order entered January 14, 2015 (Dismissal Order). 14 Although debtor contends otherwise, she did not file a timely 15 notice of appeal from the Dismissal Order. As a result, the 16 scope of this appeal is limited to the Stay Relief Order. 17 Debtor was granted her discharge in her bankruptcy case 18 and, therefore, the automatic stay has terminated by operation 19 of law under § 362(c)(2)(C). Accordingly, we DISMISS the appeal 20 from the Stay Relief Order as MOOT. 21 I. FACTS 22 Debtor owned real property located on Springer Avenue in 23 Saratoga, California. On August 6, 2009, the property was sold 24 pursuant to a nonjudicial foreclosure sale held in the County of 25 26 1 Unless otherwise indicated, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and “Rule” references are to the Federal Rules of Bankruptcy 28 Procedure.

-2- 1 Santa Clara. On August 12, 2009, the Trustee’s Deed Upon Sale 2 was recorded. 3 To avoid eviction, debtor filed a voluntary chapter 13 4 petition on November 10, 2009 (Bankr. Case No. 08-bk-59810). 5 Debtor did not file the required information, and her case was 6 dismissed on December 1, 2009. One day prior to the closure of 7 the first bankruptcy case, on December 17, 2009, debtor filed a 8 second chapter 13 petition (Bankr. Case No. 09-bk-61052). This 9 case was dismissed on February 16, 2010. Debtor filed her third 10 chapter 13 petition on September 7, 2011 (Bankr. Case No. 11-bk- 11 58408). This case was dismissed on December 8, 2011 as a result 12 of debtor’s failure to file information. 13 On March 1, 2011, Bank caused a Notice to Quit to be served 14 on debtor and her husband. Shortly thereafter, Bank filed the 15 UD Action against debtor and her husband in the Superior Court 16 of California, County of Santa Clara, Case No. 11-CV-196650. In 17 early May 2011, debtor and her husband filed an answer to the 18 UD Action. 19 On April 30, 2014, debtor filed the instant case under 20 chapter 7. On October 16, 2014, debtor commenced an adversary 21 proceeding in the bankruptcy court against Bank and others 22 (Adv. No. 14-05111). 23 On October 22, 2014, Bank filed its Motion for Relief in 24 connection with the property, seeking relief from the automatic 25 stay to proceed with the UD Action and obtain possession of the 26 property following the nonjudicial foreclosure sale. The motion 27 was accompanied by a notice that a hearing would be held on 28 November 14, 2014. In a late-filed opposition, debtor opposed

-3- 1 the relief on the ground that Bank did not have standing. 2 On November 12, 2014, debtor received her § 727 discharge. 3 At the November 14, 2014 hearing, the bankruptcy court 4 granted Bank’s motion for relief from the automatic stay so that 5 it could proceed with the UD Action. Although there was some 6 discussion about the pending adversary proceeding at that 7 hearing, the bankruptcy court made clear that the only issue 8 before it was a relief from stay motion to proceed with an 9 unlawful detainer action post-foreclosure and that the court was 10 not addressing its jurisdiction over the adversary proceeding at 11 that hearing. 12 On November 21, 2014, debtor filed a premature notice of 13 appeal. Debtor’s statement of issues on appeal identified the 14 following: 15 1. Did the bankruptcy court err as a matter of law and a matter of fact in granting the Creditor[’s] 16 Motion for Relief from Automatic Stay while an adversary complaint remained unresolved that effected 17 [sic] the same creditor? 18 2. Did the bankruptcy court abuse its authority denying debtor[’s] oral motion to extend [the] 19 automatic stay? 20 The bankruptcy court entered the Stay Relief Order on 21 December 1, 2014. 22 On November 21, 2014, Bank filed the MTD the adversary 23 proceeding with a hearing scheduled for January 12, 2015. 24 Debtor failed to file an opposition to the MTD. On January 14, 25 2015, the bankruptcy court entered an order dismissing the 26 adversary proceeding for lack of subject matter jurisdiction. 27 Debtor did not file a notice of appeal from the Dismissal Order. 28 On April 8, 2015, the Panel issued a single judge Order re

-4- 1 Jurisdictional Issue requiring a response from debtor as to why 2 this appeal should not be dismissed for lack of jurisdiction 3 since debtor did not file a timely notice of appeal from the 4 Dismissal Order. In response, debtor asserted that the 5 bankruptcy court sua sponte dismissed her adversary proceeding 6 at the November 14, 2014 hearing on Bank’s motion for relief 7 from the automatic stay. Debtor argued that her notice of 8 appeal, although premature, included the Dismissal Order entered 9 on January 14, 2015, and no new notice of appeal was required. 10 For these reasons, debtor concluded that the Panel had 11 jurisdiction to hear the merits of her appeal in connection with 12 the dismissal of the adversary proceeding. At that time, the 13 transcript of the November 14, 2014 hearing was neither included 14 in the appellate record nor available to the Panel. 15 On May 18, 2015, the Panel issued an order deeming its 16 April 8, 2015 Order re Jurisdictional Issue satisfied due to 17 debtor’s representations and argument. The Panel further 18 ordered debtor to file a copy of the November 14, 2014 hearing 19 transcript by June 1, 2015. The transcript was included in 20 Bank’s supplemental excerpts of record. 21 On August 31, 2015, the Panel issued a Clerk’s Notice Re 22 Mootness. In response, Bank maintained that the appeal was not 23 moot at that time since it had not yet completed the unlawful 24 detainer action against debtor. The Panel then took the issue 25 of mootness under advisement. 26 II. JURISDICTION 27 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 28 §§ 1334 and 157(b)(2)(G). Our jurisdiction is based upon

-5- 1 28 U.S.C. § 158, and we discuss two aspects of that jurisdiction 2 in more detail below. 3 III. ISSUES 4 What is the scope of this appeal? 5 Is the bankruptcy court’s order terminating the automatic 6 stay moot? 7 IV. STANDARD OF REVIEW 8 We review our own jurisdiction, including questions of 9 mootness, de novo. Silver Sage Partners, Ltd. v. City of Desert 10 Hot Springs (In re City of Desert Hot Springs), 339 F.3d 782, 11 787 (9th Cir. 2003). 12 V. DISCUSSION 13 A. Scope of Appeal 14 On appeal, Bank argues that debtor’s notice of appeal does 15 not include an appeal from the Dismissal Order. We agree that 16 the only ruling properly before this Panel is the bankruptcy 17 court’s Stay Relief Order. 18 Contrary to debtor’s prior assertions in response to the 19 Panel’s Order re Jurisdictional Issue, the bankruptcy court did 20 not dismiss her adversary proceeding at the November 14, 2014 21 hearing on Bank’s motion for relief from the automatic stay. 22 Rather, the transcript of that hearing shows that after the 23 bankruptcy court heard debtor’s arguments against stay relief — 24 all of which related to the merits of the adversary proceeding — 25 the court merely gave debtor a courtesy “heads up” as to what 26 might happen in the future with respect to the adversary 27 proceeding. The bankruptcy court expressed its concern that it 28 might not have jurisdiction over debtor’s adversary proceeding

-6- 1 and the claims she raised due to her discharge, but noted that 2 “the State Court certainly would [have jurisdiction].” After 3 this discussion, the court stated: “That’s not actually the 4 issue I’m addressing here today, but I wanted to let you know 5 about it in advance, so you don’t get it cold at the adversary 6 proceeding hearing.” Later, the bankruptcy court said: “[T]he 7 only thing to do here today is I am going to grant the relief 8 requested.” 9 Bank then filed its MTD in the adversary proceeding. The 10 bankruptcy court granted the motion by order entered on 11 January 14, 2015. That order became final because debtor did 12 not file a notice of appeal. United Student Aid Funds, Inc. v. 13 Espinosa, 130 S.Ct. 1367, 1380 (2010) (holding that bankruptcy 14 court’s erroneous order nonetheless was binding and enforceable 15 against appellant because appellant had notice of the 16 proceedings but did not appeal that order). Therefore, we lack 17 jurisdiction to address debtor’s contentions regarding the 18 dismissal of her adversary proceeding because she failed to file 19 a timely notice of appeal from the Dismissal Order. 20 B. The appeal of the Stay Relief Order is moot. 21 We cannot exercise jurisdiction over a moot appeal. United 22 States v. Pattullo (In re Pattullo), 271 F.3d 898, 900 (9th Cir. 23 2001). A moot case is one where the issues presented are no 24 longer live and no case or controversy exists. Pilate v. 25 Burrell (In re Burrell), 415 F.3d 994, 998 (9th Cir. 2005). 26 The test for mootness is whether an appellate court can still 27 grant effective relief to the prevailing party if it decides the 28 merits in his or her favor. Id.

-7- 1 As noted, debtor received her discharge under § 727(a) 2 prior to the bankruptcy court’s ruling on Bank’s motion for 3 relief from the automatic stay. Under § 362(c)(2)(C), the 4 provisions of the § 362(a) automatic stay that would shield 5 debtor from any legal actions by Bank to recover the property 6 from her continued in effect only “until the earliest of ... the 7 time a discharge is granted or denied.” Since the entry of the 8 discharge order in the bankruptcy case there has been no 9 automatic stay in effect. Consequently, even were we to 10 overturn the Stay Relief Order which allowed Bank to proceed in 11 the UD Action, the stay has now terminated as to 12 debtor/appellant as a matter of law. Bigelow v. Comm’r, 65 F.3d 13 127, 129 (9th Cir. 1995) (“a stay immediately dissolves upon 14 issuance of a discharge by the bankruptcy court. § 362(2)(C)”). 15 In sum, we lack the ability to grant debtor any effective relief 16 with respect to the Stay Relief Order which is the only order 17 before us on appeal. Accordingly, since we are unable to grant 18 effective relief, the appeal is dismissed. Cook v. Fletcher 19 (In re Cook), 730 F.2d 1324, 1326 (9th Cir. 1984) (dismissing 20 appeal of stay relief order as moot where the chapter 7 21 discharge was issued after the appeal was filed). 22 VI. CONCLUSION 23 For the reasons stated above, we DISMISS this appeal as 24 moot. 25 26 27 28

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