Nathaniel Sobayo v. Hien Nguyen

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2022
• Docket: 21-60033
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: NATHANIEL BASOLA SOBAYO, No. 21-60033

Debtor, BAP No. 20-1151

------------------------------ MEMORANDUM* NATHANIEL BASOLA SOBAYO,

Appellant,

v.

HIEN THI NGUYEN; ROBERT K. LANE; DANIEL BUTT; KHIEM NGUYEN; AVALON NGUYEN GARDNER LIVING TRUST; HONG JACQUELINE GARDNER,

Appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Brand, Spraker, and Gan, Bankruptcy Judges, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

* 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). Chapter 13 debtor Nathaniel Basola Sobayo appeals pro se from the

Bankruptcy Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s

order dismissing Sobayo’s adversary proceeding. 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 properly dismissed Sobayo’s adversary proceeding

because Sobayo failed to allege facts sufficient to show that the foreclosure against

Sobayo’s company, Kingsway Capital Partners, LLC, constituted a violation of the

automatic stay in Sobayo’s Chapter 13 proceeding. See Del. Code Ann. tit. 6,

§ 18-701 (“A member has no interest in specific limited liability company

property.”); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are liberally construed, a plaintiff must allege facts sufficient to state a

plausible claim).

The bankruptcy court did not abuse its discretion by setting aside the entry

of default because defendants demonstrated good cause. See Fed. R. Civ. P. 55(c)

(“A court may set aside an entry of default for good cause . . . .”); Fed. R. Bankr. P.

7055 (“[Fed. R. Civ. P. 55] applies in adversary proceedings.”); United States v.

Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir.

2010) (factors for determining good cause); Mendoza v. Wight Vineyard Mgmt.,

2 21-60033 783 F.2d 941, 945 (9th Cir. 1986) (standard of review).

The district court did not abuse its discretion by denying Sobayo’s motion

for a continuance because Sobayo failed to demonstrate that he lacked sufficient

opportunity to obtain counsel. See United States v. Flynt, 756 F.2d 1352, 1358-59

(9th Cir. 1985) (setting forth standard of review and factors to consider).

We reject as without merit Sobayo’s contention that the bankruptcy court

improperly exercised jurisdiction. See Carraher v. Morgan Elecs., Inc. (In re

Carraher), 971 F.2d 327, 328 (9th Cir. 1992) (factors to consider).

All pending motions and requests are denied.

AFFIRMED.

3 21-60033