Ln Mgmt. LLC Ser. 100 El Castillo v. Ditech Fin. LLC

• Court: Nevada Supreme Court
• Decided: March 4, 2019
• Docket: 77891
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

LN MANAGEMENT LLC SERIES 100 No. 77891 EL CASTILLO, Appellant, vs. DITECH FINANCIAL LLC, F/K/A FILED GREEN TREE SERVICING LLC, MAR 0 4 2313 Re SD ondent. ELF ,SE." .01:11 COU CLE - OF '

ORDER DISMISSING APPEAL BY ci1:7.757,TATiaZ

Counsel for respondent has filed a notice informing this court that respondent has filed a bankruptcy petition. The filing of a bankruptcy petition operates to stay, automatically, the "continuation" of any "judicial . . action . . . against the debtor." 11 U.S.C. § 362(a)(1). An appeal, for purposes of the automatic stay, is considered a continuation of the action in the trial court. Consequently, an appeal is automatically stayed if the debtor was the defendant in the underlying trial court action. See Ingersoll- Rand Financial Corp. v. Miller Mining, Co. Inc., 817 F.2d 1424 (9th Cir. 1987). It appears that respondent was a defendant below. Therefore, this appeal is stayed pursuant to the automatic stay provisions of federal bankruptcy law. Given the applicability of the automatic stay, this appeal may linger indefinitely on this court's docket pending final resolution of the bankruptcy proceedings. Accordingly, we conclude that judicial efficiency will be best served if this appeal is dismissed without prejudice. Because a dismissal without prejudice will not require this court to reach the merits of this appeal and is not inconsistent with the primary purposes of the bankruptcy stay to provide protection for debtors and creditors—we

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(0) 1947A (Fir)4(4 further conclude that such dismissal will not violate the bankruptcy stay.' See Independent Union of Flight Attendants v. Pan American World Airways, Inc., 966 F.2d 457, 459 (9th Cir. 1992) (holding that the automatic stay does not preclude dismissal of an appeal so long as dismissal is "consistent with the purpose of the statute [11 U.S.C. §362(a)"]; Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755 (9th Cir. 1995) (holding that a post-bankruptcy petition dismissal will violate the automatic stay "where the decision to dismiss first requires the court to consider other issues presented by or related to the underlying case"). Accordingly, we dismiss this appeal. This dismissal is without prejudice to any party's right to move for reinstatement of this appeal within 90 days of either the lifting of the bankruptcy stay or final resolution of the bankruptcy proceedings, if that party deems such a motion appropriate at that time. It is so ORDERED.

J.

•

Cadish

'The automatic stay provides a debtor "with protection against hungry creditors" and gives it a "breathing spell from its creditors" by stopping all collection efforts. Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755 (9th Cir. 1995). Further, it assures creditors "that the debtor's other creditors are not racing to various courthouses to pursue independent SUPREME COURT remedies to drain the debtor's assets." Id. At 755-6. OF NEVADA 2 (0) 1947A ea cc: Hon. Mark B. Bailus, District Judge James A. Kohl, Settlement Judge Kerry P. Faughnan Wolfe & Wyman LLP Eighth District Court Clerk

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