Panzer v. Wells Fargo Bank (In re Panzer)

220 F. App'x 658

Opinion

MEMORANDUM

*

The debtor in this case, George Panzer, appeals from the Bankruptcy Appellate Panel’s decision that affirmed the bankruptcy’s court order granting Appellees’ motion to annul the automatic stay. We affirm.

Appellees did not have to assert a counterclaim in Panzer’s pending adversary proceeding to secure relief from the stay. The Bankruptcy Rules expressly provide that a party seeking such relief will do so by motion, not an adversary proceeding: “[a] motion for relief from an automatic stay provided by the Code ... shall be made in accordance with Rule 9014.” Bankr.R. 4001. Rule 9014, in turn, provides that “[i]n a contested matter not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought.” ¹ Those Rules reflect the policy that favors “expedited relief’ when a creditor challenges the validity of a bankruptcy stay. Wade v. State Bar of Arizona, 115 B.R. 222, 230 (9th Cir. BAP 1990).

Moreover, even if we assume that a request for relief from the automatic stay could be construed as a “counterclaim,” Rule 7013 by its own terms does not apply when the party is sued by a debtor in possession. See Bankr.R. 7013 (“Rule 13 F.R. Civ. P. applies in adversary proceedings, except that a party sued by a trustee or debtor in possession need not state as a counterclaim any claim that the party has against the debtor ... unless the claim arose after the entry of an order for relief.”); see also Wade, 115 B.R. at 230 (“[T]he assertion of counterclaims in relief from the stay litigation is improper.”).

Nor were Panzer’s due process rights violated. In accordance with Rule 9014, Panzer was given a full opportunity to brief the issues, and a hearing was held, in which his counsel participated. Panzer does not allege that he needed something more to present his case. Thus, there is simply no basis on which to provide him a second chance to litigate the same issue in an adversary proceeding.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. According to the Advisory Committee Notes, Rule 4001 "transforms with respect to the automatic stay what was an adversary proceeding under the former rules to motion practice. The Code provides automatic stays in several sections, e.g., §§ 362(a), 1301(a), and [sic] § 362(d) provides some grounds for relief from the stay. This rule specifies that the pleading seeking relief is by means of a motion."