Lee Ann Love v. Johnny Wiseman

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2021
• Docket: 20-15641
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LEE ANN LOVE, No. 20-15641

Plaintiff-Appellant, D.C. No. 5:19-cv-01688-BLF

v. MEMORANDUM* JOHNNY OLIVER WISEMAN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted November 22, 2021** San Francisco, California

Before: OWENS, BADE, and LEE, Circuit Judges.

Lee Ann Love appeals pro se the district court’s judgment affirming the

bankruptcy court’s ruling that she held a non-dischargeable, unsecured claim against

the chapter 7 estate of the Wisemans. We have jurisdiction under 28 U.S.C.

§§ 158(d) and 1291. We independently review the bankruptcy court’s decision on

* 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). appeal from the district court. In re Gilman, 887 F.3d 956, 963 (9th Cir. 2018). We

review the bankruptcy court’s findings of fact for clear error and conclusions of law

de novo. In re Thorpe Insulation Co., 671 F.3d 1011, 1019 (9th Cir. 2012). We

affirm.

1. The bankruptcy court properly determined that Love’s claim was

unsecured because she failed to establish that she had perfected her alleged lien

under state law. See Cal. Code Civ. Proc. § 405.23 (“Any notice of pendency of

action shall be void and invalid as to any adverse party or owner of record unless . . .

a proof of service in the form and content specified in Section 1013a has been

recorded with the notice of pendency of action.”). Love now argues, for the first

time on appeal, that she holds an equitable ownership interest in the property, and

therefore her compliance with the lis pendens requirements is not material.

We reject her argument. The authority cited by Love refers to superseded

statutes. In re Destro, 675 F.2d 1037, 1039-40 (9th Cir. 1982) (analyzing the status

of trustee under superseded Bankruptcy Act). The relevant authority now in place

gives the chapter 7 trustee rights superior to any equitable lien held by Love. In re

Seaway Express Corp., 912 F.2d 1125, 1128-29 (9th Cir. 1990) (“When a creditor

claims an inchoate equitable interest in real property owned by the debtor at the

commencement of the case, which interest is not evidenced by a recorded instrument

and not yet granted by a state court, the trustee as bona fide purchaser prevails.”).

2 20-15641 2. Love also argues that the district court and bankruptcy court made a

host of other errors. We disagree. Love has not established sufficient factual or

legal bases to support her assertions. Finally, Love’s request for judicial notice is

denied as unnecessary. See Fed. R. App. P. 10.

AFFIRMED.

3 20-15641