Mark Watson v. Ditech Financial, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 17-60083
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: MARK RAIMUNDO WATSON, No. 17-60083

Debtor. BAP No. 17-1012

------------------------------ MEMORANDUM* MARK RAIMUNDO WATSON,

Appellant,

v.

DITECH FINANCIAL, LLC,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Taylor, Lafferty III, and Brand, Bankruptcy Judges, Presiding

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Mark Raimundo Watson appeals pro se from the Bankruptcy Appellate

* 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). Panel’s (“BAP”) judgment affirming the bankruptcy court’s order granting Ditech

Financial, LLC’s motion for relief from the automatic stay. We have jurisdiction

under 28 U.S.C. § 158(d). We review de novo BAP decisions, and apply the same

standard of review that the BAP applied to the bankruptcy court’s ruling. Boyajian

v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We

affirm.

The bankruptcy court did not abuse its discretion by granting relief from the

automatic stay because Ditech Financial, LLC presented evidence establishing that

it had a colorable claim to the property at issue. See Arkison v. Griffin (In re

Griffin), 719 F.3d 1126, 1128 (9th Cir. 2013) (“A proceeding to determine

eligibility for relief from a stay only determines whether a creditor should be

released from the stay in order to argue the merits in a separate proceeding. . . . [A]

party seeking stay relief need only establish that it has a colorable claim to the

property at issue.”); see also Spokane Law Enforcement Fed. Credit Union v.

Barker (In re Barker), 839 F.3d 1189, 1198 (9th Cir. 2016) (“[A] secured creditor,

who does not wish to participate in a Chapter 13 plan or who fails to file a timely

proof of claim, does not forfeit its lien.” (citation omitted)); Moldo v. Matsco, Inc.

(In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045 (9th Cir. 2001) (setting forth

2 17-60083 standard of review).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 17-60083