Sfr Invs. Pool 1, LLC v. Ditech Fin. LLC

• Court: Nevada Supreme Court
• Decided: March 25, 2019
• Docket: 77469
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

SFR INVESTMENTS POOL 1, LLC, No. 77469 Appellant, vs. DITECH FINANCIAL LLC, Respondent. FILED MAR 2 5 2019 ELIZASETH A. BROM CLERK OF SUPREME COURT BY SLY.O,Lnatap. • DEPUTY CLERK

ORDER DISMISSING APPEAL

This is an appeal from a district court order entered in an action relating to real property. Eighth Judicial District Court, Clark County; Joanna Kishner, Judge. Counsel for respondent has filed a notice and an Amended Notice of Bankruptcy Filing and Imposition of Automatic Stay informing this court that respondent has filed for relief under Chapter 11 of the Bankruptcy Code. 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 Fin. Corp. v. Miller Mining Co., Inc., 817 F.2d 1424 (9th Cir. 1987). It appears that respondent was a defendant and a third-party plaintiff below. The portions of this appeal relating to the claims against respondent are stayed pursuant to the automatic stay provisions of federal bankruptcy law; those portions of this appeal may linger indefinitely on this court's docket pending final resolution of the bankruptcy proceedings. SUPREME COURT OF NEVADA

(ER 1947A ce 1-12g-77 Given the overlapping nature of the claims against respondent and respondent's third-party claims, as well as this court's policy of avoiding piecemeal review, see, e.g., Barbara Ann Holtier Trust v. Shack, 131 Nev. 582, 590, 356 P.3d 1085, 1090 (2015), this court concludes that judicial efficiency will be best served if this appeal is dismissed, in its entirety, 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—such dismissal will not violate the bankruptcy stay.' See Indep. Union of Flight Attendants v. Pan Am. 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 [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 a decision to dismiss requires the court to first consider other issues presented by or related to the underlying case"). Accordingly, this appeal is dismissed. 2 This dismissal is without prejudice to the parties' rights to move for reinstatement of this appeal within 90 days of either the lifting of the bankruptcy stay or final

IThe 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 remedies to drain the debtor's assets." Id. at 755-56.

2 No action will be taken on appellant's response to order to show cause. SUPREME COURT OF NEVADA

(0) 1947A resolution of the bankruptcy proceedings, if such a motion is deemed appropriate at that time. It is so ORDERED.

Stiglich Silver

cc: Hon. Joanna Kishner, District Judge Charles K. Hauser, Settlement Judge Kim Gilbert Ebron Wolfe & Wyman LLP Eighth District Court Clerk

SUPREME COURT OF NEVADA

(0) I047A