Pelosi v. Hoopai (In re Hoopai)

344 B.R. 134, 2005 WL 2864748, 2005 U.S. Dist. LEXIS 44450
CourtDistrict Court, D. Hawaii
DecidedOctober 14, 2005
DocketNo. 04-02511 (Ch. 13); Nos. 05-00186 DAE-KSC, 05-00187 HG-BMK
StatusPublished
Cited by1 cases

This text of 344 B.R. 134 (Pelosi v. Hoopai (In re Hoopai)) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pelosi v. Hoopai (In re Hoopai), 344 B.R. 134, 2005 WL 2864748, 2005 U.S. Dist. LEXIS 44450 (D. Haw. 2005).

Opinion

ORDER DENYING APPELLEE’S MOTION TO STRIKE

DAVID ALAN EZRA, Chief District Judge.

Pursuant to Federal Rule of Bankruptcy Procedure 8011(c), the Court finds this matter suitable for disposition without oral argument. After reviewing Appellee’s mo[135]*135tion and the supporting and opposing memoranda, the Court DENIES Appel-lee’s Motion to Strike.

BACKGROUND

On or about December 22, 1998, Appel-lee Lehua Hoopai (“Appellee”) obtained a loan from Island Community Lending Corporation in the principal amount of $97,137.00. The loan was evidenced by a note dated December 22, 1998. The note was secured by a mortgage dated December 22, 1998, which encumbered real property located at 66-1253 Ahuli Circle, Ka-muela, Hawaii. On December 22, 1998, Island Community Lending Corporation assigned the note and mortgage to Countrywide Home Loans, Inc. (“Countrywide”). Both the mortgage and the assignment were duly recorded.

Appellee failed to make timely payments under the terms of the note and Countrywide initiated non-judicial foreclosure proceedings pursuant to Hawaii Revised Statutes §§ 667-5 through 667-10. Appellee does not deny that the note and mortgage were valid and enforceable, nor does she deny that Countrywide complied with all applicable requirements to collect the debt and foreclose the mortgage.

The foreclosure auction was originally scheduled for April 23, 2004. However, on April 23, 2004, Appellee filed a Chapter 11 bankruptcy proceeding, which, pursuant to the automatic stay provision of 11 U.S.C. § 362, postponed the auction. On September 8, 2004, the Chapter 11 proceeding was dismissed. The dismissal terminated the automatic stay, allowing Countrywide to reschedule the auction for October 15, 2004.

Unbeknownst to Countrywide, Appellee was in the process of trying to sell the property to Anna Fern White, who was the mother of Appellee’s current tenant. Ap-pellee signed a Deposit Receipt Offer and Acceptance with White on September 21, 2004. Countrywide had posted a Notice of Intent to Foreclose on the Property. Neither Appellee nor White appeared at the auction.

The auction was held as scheduled on October 15, 2004. The highest bid, $159,000.00, was made by Appellants James Pelosi and Marcelle Loren as Co-Trustees of the Maluhia Trust (“Appellants”). Appellants paid the full purchase price immediately following the auction.

On October 18, 2004, Appellee commenced a Chapter 13 bankruptcy proceeding, thereby invoking the automatic stay pursuant to 11 U.S.C. § 362. Countrywide immediately filed a Motion for Order Terminating the Automatic Stay so that it could record the affidavit required by Hawaii Revised Statute § 667-5 to complete the foreclosure process. Appellants joined in the motion.

On November 10, 2004, the bankruptcy court entered a stipulated order, which modified the automatic stay for the limited purpose of allowing Countrywide to file the required affidavit. The stipulated order was filed without prejudice to Appellee and without conferring any rights upon any of the parties. The stipulated order was also subject to any finding or rulings made subsequently by the bankruptcy court concerning the effect, if any, of the auction.

By order dated January 19, 2005, the bankruptcy court denied Countrywide’s Motion for Order Terminating the Automatic Stay finding, inter alia, that the Property was property of Appellee’s bankruptcy estate. Appellants filed a Notice of Appeal on January 28, 2005.

On December 10, 2004, Appellee filed a Motion for Approval to Sell Real Property, which was granted on February 2, 2005. Appellants filed a Notice of Appeal on February 6, 2005.

[136]*136On May 6, 2005, Appellants filed an Opening Brief. On May 20, 2005, Appel-lees filed an Answering Brief. On May 31, 2005, Appellants filed a Reply Brief. On June 8, 2005, Appellee filed a Motion to Strike portions of Appellants’ Reply Brief. Appellants filed an Opposition on June 17, 2005. On June 23, 2005, Appellee filed a Reply.

STANDARD OF REVIEW

The standard of review of a motion to strike is provided for by Federal Rule of Bankruptcy Procedure 8011. Under Rule 8011(a), “[a] request for an order or other relief shall be made by filing with the clerk of the district court ... a motion for such order or relief with proof of service on all other parties to the appeal.” Fed. R. Bankr.P. 8011(a). Under Rule 8011(c), “[a]ll motions will be decided without oral argument unless the court orders otherwise.” Fed. R. Bankr.P. 8011(c).

DISCUSSION

Appellee filed a Motion to Strike portions of Appellants’ Reply Brief on the grounds that Appellants raised four arguments in their Reply Brief that they did not raise in their Opening Brief. The allegedly new arguments asserted that: (1) the bankruptcy court erred in granting Appellee’s Motion for Approval to Sell Real Property because Appellants are entitled to specific performance on its contract with Countrywide; (2) the bankruptcy court erred in denying Countrywide’s Motion for Order Terminating the Automatic Stay; (3) the statutory requirement for Countrywide to file a compliance affidavit pursuant to Hawaii Revised Statute § 667-5 was not a condition precedent to its contract with Countrywide; and (4) the statutory requirement for Countrywide to file a compliance affidavit pursuant to Hawaii Revised Statute § 667-5 was not a condition subsequent to its contract with Countrywide. (Appellee Mot. to Strike at 2-4.) Appellants claim that the arguments were in fact raised in their Opening Brief as well as in the case below.

The Court finds that the arguments were not raised for the first time in Appellants’ Reply Brief. A court “will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.” Laboa v. Calderon, 224 F.3d 972, 980 n. 6 (9th Cir.2000) (emphasis added) (quoting Int’l Union of Bricklayers Local Number 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985)). To ensure that cases are decided on the merits, however, the Ninth Circuit has recognized three main exceptions to this general rule. United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992). A court will review an issue not presented in the opening brief where: (1) failure to do so would result in manifest injustice, (2) failure to do so would not prejudice the defense of the opposing party, or (3) the issue was raised in the appellee’s answering brief. Id. The exceptions are irrelevant here, however, because the Court finds that Appellants raised all of the contended arguments in their Opening Brief.

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344 B.R. 134, 2005 WL 2864748, 2005 U.S. Dist. LEXIS 44450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelosi-v-hoopai-in-re-hoopai-hid-2005.