1 UNITED STATES BANKRUPTCY COURT
2 EASTERN DISTRICT OF CALIFORNIA
3 FRESNO DIVISION
5 In re ) Case No. 22-12056-B-13 ) 6 SHANNON HAGER, ) DCN PK-2 ) 7 Debtor. ) ) 8 ) ) 9
10 MEMORANDUM RULING ON MOTION TO ANNUL STAY
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12 Patrick Kavanagh, LAW OFFICES OF PATRICK KAVANAGH, Bakersfield, CA, for Ian McGilvray, Movant. 13
14 Andrew J. Christensen, LAW OFFICES OF ANDREW J. CHRISTENSEN, P.C., Oakland, CA, & Robert S. Williams, WILLIAMS & WILLIAMS, 15 INC., Bakersfield CA, for Shannon Hager, Debtor.
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17 RENÉ LASTRETO II, Bankruptcy Judge:
18 19 California’s nonjudicial foreclosure system is designed to 20 provide the lender-beneficiary with an inexpensive and efficient 21 remedy against a defaulting borrower, while protecting the 22 borrower from wrongful loss of the property and ensuring that a 23 properly conducted sale is final between the parties and 24 conclusive as to a bona fide purchaser. Moeller v. Lien, 25 Cal. 25 App. 4th 822, 830, 30 Cal. Rptr. 2d 777 (1994). 26 My, how things change. 27 Ian McGilvray (“McGilvray”) moved to annul the automatic 28 stay under 11 U.S.C. § 362(d)(1) to validate his purchase of 1 real property located at 2313 Sycamore Lane, Pine Mountain Club, 2 CA 93222 (“Property”) at a foreclosure sale, and to allow him to 3 proceed with his unlawful detainer action in Kern County 4 Superior Court, entitled Giuliana Vista GP v. Shannon Hager, et 5 al., case no. BCL-23-010025 (“Unlawful Detainer Action”).1 Dckt. 0F 6 44. McGilvray also requested waiver of the 14-day stay of Fed. 7 R. Bankr. P. (“Rule”) 4001(a)(3). Id. 8 Shannon Hager (“Debtor”) timely opposed and McGilvray 9 replied. Dckt. 58-59, 61-64. 10 At the hearing on May 17, 2023, the parties presented oral 11 argument and the court took the matter under submission. Dckt. 12 65. Under 11 U.S.C. § 362(e) and for good cause, the court 13 ordered continuation of the automatic stay through July 14, 14 2023, unless terminated by further order of the court. Id. 15 Applying the amended California foreclosure statutes and 16 weighing the factors at play when considering a request to annul 17 the stay, the court finds annulment inappropriate and DENIES the 18 motion. 19 20 I. FACTS 21 In early November 2022, Property was Debtor Shannon Hager’s 22 residence. She lived there for 24 years. Dckt. 62. Her sister 23 and her 75-year-old mother with declining health also reside 24 there. Id. Property, which is in one of the mountain communities 25 in Tejon Pass in southwestern Kern County, was encumbered by a 26 Deed of Trust in favor of Flagstar Bank (“Flagstar”). Due to the 27 1 McGilvray is one of the partners in Giuliana Vista (“Giuliana Vista”). 28 1 COVID-19 outbreak, Ms. Hager’s employment and that of her sister 2 and daughter, were interrupted. Id. Earlier, she had difficulty 3 making payments to Flagstar. Id. So, Flagstar agreed to forbear 4 collection of some payments. But due to Ms. Hager’s employment 5 situation, she could not qualify for a loan modification. Id. 6 Flagstar rejected Ms. Hager’s tender of $10,000 six months 7 earlier and was foreclosing. 8 McGilvray has been in the real estate business for years 9 and has purchased properties at foreclosure sales before. Dckt. 10 48. He is also familiar with the “multiple steps” foreclosing 11 parties have to take to foreclose on certain properties 12 including allowing for sales to “non-profits.” Id. 13 McGilvray purchased Property at the nonjudicial 14 foreclosure sale for $164,512.71 on November 7, 2022. Dckt 48. 15 Multiple parties submitted notices of intent to bid on the 16 Property from November 10 to 21, 2022, but it is undisputed that 17 no bids were received. Ex. A, Dckt. 63. The foreclosure trustee, 18 Prober & Rafael (“Prober”), executed the Trustee’s Deed Upon 19 Sale (“Trustee’s Deed”) on November 23, 2022 and sent it to 20 McGilvray. Ex. A, Dckt. 49. 21 On December 1, 2022, 21 days after the foreclosure sale, 22 Debtor filed chapter 13 bankruptcy. Dckt. 1. She says she did 23 not know of the foreclosure sale until someone claiming to be 24 the owner of Property called her the day after Thanksgiving, 25 2022. Dckt. 62. The day after Debtor filed her bankruptcy case, 26 McGilvray submitted the Trustee’s Deed to the Kern County 27 recorder’s office who recorded it that day. Ex. A, Dckt. 49. 28 McGilvray claims he had no knowledge of the bankruptcy at that 1 time. Dckt. 48. McGilvray initiated the Unlawful Detainer Action 2 about one month later. Ex. B, Dckt. 29. According to McGilvray’s 3 attorney, the Unlawful Detainer Action has been dismissed. 4 Debtor valued Property in her schedules at $426,600 and 5 listed Flagstar as the mortgagee with a secured claim of 6 $177,863.79. Dckt. 18. Flagstar’s treatment under the proposed 7 plan is to be paid as though the foreclosure sale did not occur. 8 Dckt. 17. Notably, neither McGilvray nor Giuliana Vista were 9 listed as creditors in the schedules or the master address list. 10 Dckt. 1, 3, 18. 11 On March 1, 2023, McGilvray filed a motion for relief from 12 the automatic stay under 11 U.S.C. § 362(d)(1) and (d)(2). Dckt. 13 27; PK-1. The court granted the motion without retroactive 14 relief because it was not requested. Dckt. 37. The court 15 directed McGilvray to prepare the order, which was to be 16 approved by Debtor’s counsel, but an order is not yet submitted. 17 McGilvray now seeks to annul the stay on two grounds. Dckt. 18 44. First, he contends California law allows the post-petition 19 recording of the Trustee’s Deed to relate back to the date of 20 the sale. Since notices of intent to bid were submitted, 21 McGilvray contends the Trustee’s Deed will be deemed perfected 22 as of the date of the sale under Cal. Civ. Code § 2924h(c) if it 23 is recorded within 60 days of the sale, as it was here. Dckt. 24 46. Second, McGilvray contends the Fjeldsted balancing test 25 supports annulling the automatic stay. Id.; see Fjeldsted v. 26 Lien (In re Fjeldsted), 293 B.R. 12, 32 (B.A.P. 9th Cir. 2003). 27 Debtor opposes, first, because the foreclosure sale was 28 void as a matter of law for violating the automatic stay. Under 1 California law, Debtor argues the trustee’s sale was not final 2 before the bankruptcy was filed. Dckt. 61. Second, Debtor 3 contends the Fjeldsted factors do not support annulling the 4 stay. Id. Neither party requested discovery. Both parties 5 consented on the record to the court taking this matter under 6 submission and ruling based on the existing record. 7 8 II. JURISDICTION 9 The United States District Court for the Eastern District 10 of California has jurisdiction of this civil proceeding by 11 virtue of 28 U.S.C. § 1334(b) because it arises under title 11 12 and in a case under title 11 of the United States Code. The 13 District Court has referred this matter to this court under 28 14 U.S.C. § 157(a). This is a “core” proceeding under 28 U.S.C. 15 § 157(b)(2)(G). 16 17 III. ISSUES 18 1. Whether the post-petition finalizing of a pre-petition 19 foreclosure sale subject to overbid under Cal. Civ. Code (“CC”) 20 § 2924m(c) violated the automatic stay of 11 U.S.C. § 362(a). 21 2. If the automatic stay does apply, whether to annul the 22 automatic stay under applicable law. 23 24 IV. DISCUSSION 25 A. Important General Concepts 26 A bankruptcy petition operates as a stay applicable to all 27 parties and preventing, among other things, any act to obtain 28 possession of property of the estate. 11 U.S.C. § 362(a)(3). The 1 stay does not apply to any act to perfect an interest in 2 property to the extent that the trustee’s rights are subject to 3 perfection under 11 U.S.C. § 546(b). That section permits an 4 entity who acquires rights to property pre-petition to perfect 5 its interest in property post-petition. In re Stork, 212 B.R. 6 970, 971 (Bankr. N.D. Cal. 1997). 7 The Debtor bears the ultimate burden of proving that the 8 request for retroactive relief from the stay should be denied. 9 Nat’l Envtl. Waste Corp. v. City of Riverside (In re Nat’l 10 Envtl. Waste Corp.), 129 F.3d 1052, 1055 (9th Cir. 1997). 11 State law determines the property rights of the parties, 12 and whether those rights are obtained pre- or post-petition. 13 Butner v. United States, 440 U.S. 48 (1979). We must “look to 14 state law to determine property interests of the debtor.” Eden 15 Place LLC v. Perl (In re Perl), 811 F.3d 1120, 1127 (9th Cir. 16 2016). That said, filing bankruptcy cannot give a debtor a 17 greater interest in an asset than that which she owned pre- 18 bankruptcy. Gendreau v. Gendreau (In re Gendreau), 122 F.3d 815, 19 819 (9th Cir. 1997). 20 In interpreting California law, CC § 4 requires the Civil 21 Code “to be liberally construed with view to effect its objects 22 and to promote justice.” Blevins v. Palmer, 172 Cal. App. 2d 23 324, 327, 242 P.2d 356, 358 (1959) (“[P]rovisions of the Civil 24 Code dealing with transfers of real property are, as required by 25 section 4, to be ‘liberally construed with a view to effect its 26 objects.’”) (citations omitted). In the case of substantially 27 similar existing statutes, the Civil Code shall be construed as 28 a continuation, rather than as a new enactment. CC § 5. 1 Words and phrases are construed according to their context 2 and the approved usage, but technical words and phrases are to 3 be construed according to peculiar and appropriate meaning or 4 definition. CC § 13. Los Angeles Cnty. v. Frisbie, 19 Cal. 2d 5 634, 639, 122 P.2d 526, 529 (1942) (“While the intention of the 6 legislature must be ascertained from the words used to express 7 it, the manifest reason and the obvious design of the law should 8 not be sacrificed to a literal interpretation of such 9 language.”), citing In re Haines, 195 Cal. 605, 612, 234 P. 883, 10 885-86 (1925). 11 12 B. Prior California law 13 California substantially modified its foreclosure scheme in 14 2020, effective January 1, 2021 through January 1, 2026.2 Since 1F 15 then, it has been further amended and the sunset has been 16 extended to January 1, 2031.3 2F 17 Under former California law in effect through the end of 18 2020, the analysis here would have been relatively 19 straightforward. A foreclosure sale occurred before the 20 bankruptcy was filed. The sale was deemed final on the date of 21 the foreclosure sale. CC § 2924h(c) (2020).4 A timely recorded 3F 22 trustee’s deed post-petition would have related back to the date 23 of the sale. Id. Debtor would have possessed only bare legal 24
25 2 Senate Bill (“SB”) 1079, Cal. 2019-20 Reg. Sess. (eff. Jan. 1, 2021) 3 Assembly Bill (“AB”) 175, Cal. 2021-22 Reg. Sess. (eff. Jan. 1, 2022); AB 1837, Cal. 2022-23 Reg. Sess. (eff. Jan. 1, 2023). At the time this case 26 was filed and the salient facts here occurred, the relevant California Civil Code in effect from Jan. 1, 2022 through Dec. 31, 2022 was applicable (AB 27 175). Unless otherwise indicated, references to the Civil Code are to this 2022 version. 28 1 title to the Property on the petition date and Debtor’s 2 equitable title would have been extinguished whether or not a 3 trustee’s deed had been recorded before the bankruptcy. Stay 4 relief would not have been required to record the trustee’s deed 5 under § 362(b)(3) as a post-petition perfection of the pre- 6 petition interest in Property. The sale would not be avoidable 7 because the trustee’s rights to avoid the transfer under 11 8 U.S.C. §§ 544(a) or 549 are subordinate to perfection of pre- 9 petition interests under 11 U.S.C. § 546(b).5 4F 10 Prior to January 1, 2021, CC § 2924h(c) controlled finality 11 of the sale and perfection. That provision provided that a 12 trustee’s sale “shall be deemed final upon the acceptance of the 13 last and highest bid and shall be deemed perfected as of 8 a.m. 14 on the actual date of sale if the trustee’s deed is recorded 15 within 15 calendar days after the sale . . .” CC § 2924h(c) 16 (2020). 17 Bankruptcy courts quickly established the “ground rules” 18 for invoking the previous version of CC § 2924h(c). A 19 foreclosure sale commenced after a bankruptcy filing was void 20 notwithstanding former CC § 2924h(c). Blatnick v. Sanders (In re 21 Sanders), 198 B.R. 326, 327-28 (Bankr. S.D. Cal. 1996) (“[CC] 22 § 2924h(c) properly may only be invoked, if at all, where there 23 is a valid foreclosure sale which occurs pre-petition.”).6 If 5F 24 “the gavel falls” at the foreclosure sale against the debtors 25 pre-petition, the sale is finalized and the debtors possess only 26
5 This is a chapter 13 case. The debtor’s lingering “rights” post- 27 petition would be defined by §§ 1302, 1303, and 1306(b). 6 The Sanders court annulled the automatic stay because of the debtor’s 28 Sanders 1 bare legal title, which “is of no value to the estate.” Davisson 2 v. Engles (In re Engles), 193 B.R. 23, 25, 27-28 (Bankr. S.D. 3 Cal. 1996) (citations omitted). If the trustee’s deed resulting 4 from a pre-petition foreclosure sale was recorded within the 5 then-applicable 15-days after the sale, the recordation of the 6 trustee’s deed did not violate the automatic stay under 11 7 U.S.C. § 362 (b)(3). In re Garner, 208 B.R. 698, 701 (Bankr. 8 N.D. Cal. 1997);7 Bebensee-Wong v. Fannie Mae, 248 B.R. 820, 823 6F 9 (B.A.P. 9th Cir. 2000) (holding the automatic stay is not 10 violated with a timely post-petition recording of a trustee’s 11 deed upon a pre-petition sale); cf. In re Stork, 212 B.R. at 972 12 (although the post-petition recording of pre-petition trustee’s 13 deed outside of then-15-day relation-back window violated the 14 stay, annulment was appropriate because purchaser qualified for 15 protection under 11 U.S.C. § 549(c)). 16 This approach has been applied on numerous occasions. 17 Turturici v. Nat’l Mortg. Servicing, LP, No. CIV-S-10-2853 KJM, 18 2011 U.S. Dist. LEXIS 109242, 2011 WL 4480169 (E.D. Cal. Sep. 19 24, 2011); Edwards v. Wells Fargo Bank, N.A. (In re Edwards), 20 454 B.R. 100 (B.A.P. 9th Cir. 2011); In re Lucore, No. SC-12- 21 1604-JuBaPa, 2013 Bankr. LEXIS 2498, 2013 WL 2367800 (B.A.P. 9th 22 Cir. May 30, 2013); In re Shirazi, 2013 U.S. Dist. LEXIS 85654, 23 2013 WL 3070996 (Bankr. C.D. Cal. June 18, 2013); In re Richter, 24 525 B.R. 735 (Bankr. C.D. Cal. 2015); In re Scavina, 618 B.R. 25 852 (Bankr. C.D. Cal. 2020). 26 This relative stasis was significantly upset in 2020.
27 7 The Garner court noted if the recording of the trustee’s deed occurred more than 15 days after the foreclosure sale, the automatic stay would be 28 Garner 1 C. Current California law 2 When California amended its foreclosure scheme in 2020, 3 effective January 1, 2021, certain contingent overbid rights 4 were given to any “prospective owner-occupant,” “eligible tenant 5 buyer,” and “eligible bidder.”8 The statutory scheme for 7F 6 determining sale finality and overbid procedure, if applicable, 7 was expanded by enacting CC § 2924m(c). CC § 2924h(c) was also 8 amended to extend the relation-back period, first to 18 days, 9 and then to 21 days beginning in 2022.9 This relation-back period 8F 10 can be further extended under certain circumstances. 11 Under CC § 2924m(c), if a foreclosure sale of a real 12 property containing 1-4 residential units is completed and the 13 prevailing bidder is a prospective owner-occupant as defined in 14 CC § 2924m(a)(1), then the sale is final, and that person will 15 immediately take title to the property. CC § 2924m(c)(1). If the 16 prospective owner-occupant records their trustee’s deed within 17 21 days of the sale, then the sale will be deemed final on the 18 foreclosure sale date, and the trustee’s deed perfected as of 8 19 a.m. on the actual date of the sale. CC § 2924h(c). 20 If the prevailing bidder is not a prospective owner- 21 occupant, then a 15-day window opens after the sale. While the 22 window is open, eligible third parties may submit bids or 23 notices of intent to bid, and the sale will not be deemed final 24 until the earliest of one of the conditions specified in CC 25 § 2924m(c)(1) through (c)(4) are satisfied. 26 /// 27 8 SB 1079 (2020). 28 1 Within 48 hours of the sale, the foreclosing trustee is 2 required to post facts on the internet website set forth in the 3 notice of sale: (1) the date on which the foreclosure sale took 4 place; (2) the amount of the last and highest bid at the sale; 5 and (3) an address at which the trustee can receive documents 6 sent via U.S. mail and overnight delivery. CC § 2924m(e)(1). The 7 purpose of this posting is to inform prospective eligible 8 bidders of the sale and to provide them with an opportunity to 9 bid or submit a notice of intent to bid.10 9F 10 If no bids or notices of intent to bid are received by the 11 foreclosing trustee by the 15th day, then the window closes. The 12 sale is final on the 15th day after the foreclosure sale. CC 13 § 2924m(c)(2). If the trustee’s deed is recorded by the 21st day 14 after the sale, then the sale will be deemed final and perfected 15 as of 8:00 a.m. on the date of the sale. CC § 2924h(c). 16 If, however, a representative of all eligible tenant buyers 17 submits a bid that (i) matches the foreclosure sale price, (ii) 18 is sent to the trustee by certified mail, overnight delivery, or 19 another method allowing confirmation of the delivery date, and 20 (iii) such bid is received by the trustee before 5:00 p.m. on 21 the 15th day after the foreclosure sale (while the window is 22 open), then the sale is immediately deemed final and the 23 eligible tenant buyers will take title to the property. CC 24 10 An “eligible bidder” is broadly defined to include eligible tenant 25 buyers, prospective owner-occupants, and certain types of nonprofit associations, nonprofit corporations, cooperative corporations, limited 26 partnerships, limited liability companies, community land trusts, and limited-equity housing cooperatives, as well as the state, the Regents of the 27 University of California, a county, city, district, public authority, or public agency, and any other political subdivision or public corporation in 28 1 § 2924m(c)(3). This provision essentially operates as a right of 2 first refusal for tenants. Under this scenario, if the eligible 3 tenant buyers’ trustee’s deed is recorded within 60 days, then 4 both the sale and recordation will be deemed final and deemed 5 perfected as of 8:00 a.m. on the date of the foreclosure sale. 6 CC § 2924h(c). 7 Alternatively, during the same 15-day window, any current 8 tenant in the property and all other eligible bidders can submit 9 a higher offer than the foreclosure sale price or a non-binding 10 notice of intent to bid. CC § 2924m(c)(2). Should either of 11 these occur, an additional window of time opens lasting until 12 the 45th day after the foreclosure sale. Id. 13 While this 45-day window is open, a representative of all 14 current tenants can match the sale price to have it immediately 15 deemed final. CC § 2924m(c)(3)(A). The tenant will immediately 16 take title to the property. If the deed is recorded within 60 17 days of the foreclosure sale, then the sale will be deemed final 18 and deemed perfected as of 8:00 a.m. on the date of the 19 foreclosure sale. CC §§ 2924m(c)(3)(B), 2924h(c). 20 On the other hand, if an eligible bidder who timely 21 provided a notice of intent to bid to the trustee in the first 22 15-day window submits a bid that exceeds the foreclosure sale 23 price within the 45-day window, the sale is deemed final at the 24 conclusion of the 45-day window. CC § 2924m(c)(4)(B). The 25 eligible bidder with the highest offer will take title to the 26 property. Relation back under CC § 2924h(c) is not in the 27 statute and is not applicable. More on this later. 28 /// 1 Lastly, if, by the 45th day at 5:00 p.m., no eligible 2 bidders or eligible tenant buyers have submitted bids pursuant 3 to their timely notices of intent to bid, then the sale will be 4 final at the end of the 45th day, and the last, highest bidder 5 at the initial foreclosure sale auction will take title to the 6 property. CC § 2924m(c)(4)(A). 7 8 D. The Sale Finalized Post-Petition and Violated the Stay 9 The last scenario describes this dispute. The foreclosure 10 sale occurred on November 7, 2022. Ex. A, Dckt. 49. Since 11 McGilvray is an investor and not a prospective owner-occupant, a 12 15-day period to overbid opened from the date of the sale. 13 Several eligible bidders submitted notices of intent to bid 14 during the 15-day window. Ex. A, Dckt. 63. These notices of 15 intent to bid opened a 45-day window running from the date of 16 the sale in which these eligible bidders could submit a bid 17 exceeding the foreclosure sale price and comply with other 18 requirements. No bids were received.11 Thus, the sale became 10F 19 final on the 45th day at 5 p.m.: December 22, 2022. By then, 20 Debtor had already filed bankruptcy. The automatic stay was in 21 effect. Finalizing the sale on or after that date violates the 22 stay. Any violation of the stay is void and without effect. 23 Sanders, 198 B.R. at 328 (citing In re Stringer, 847 F.2d 549 24 (9th Cir. 1988); In re Schwartz, 954 F.2d 569 (9th Cir. 1992); 25 /// 26
11 Debtor’s counsel argues that bids may have been received if McGilvray 27 had not prematurely recorded the Trustee’s Deed 25 days after the sale, and instead allowed the full 45-day period to run its course. That is speculative 28 1 In re Krueger, 88 B.R. 238, 241 (B.A.P. 9th Cir. 1988)). 2 Therefore, the sale is void for violating the automatic stay. 3 McGilvray recorded the Trustee’s Deed on December 2, 2022, 4 which is 20 days before the expiration of the 45-day window.12 At 11F 5 that time, such perfection could not be accomplished because the 6 sale had not yet been “deemed final.” CC § 2924m(c), (c)(4). 7 Notwithstanding CC § 2924m(c)(4), McGilvray argues he 8 qualifies under CC § 2924h(c) to have the sale deemed final upon 9 the foreclosing trustee’s acceptance of McGilvray’s last and 10 highest bid, and to have his interest deemed perfected as of 8 11 a.m. on the actual date of the sale because the Trustee’s Deed 12 was recorded within 60 days. Dckt. 46. 13 In response, Debtor emphasizes the distinction between a 14 sale being “deemed final” and “deemed perfected.” Dckt. 61. 15 Debtor contends that CC § 2924m(c) prevails over § 2924h(c) as 16 to when the sale is deemed final. Debtor also asserts that the 17 60-day relation-back period for perfection applies only if there 18 is a notice of intent to bid submitted by an eligible tenant 19 buyer. Since the 60-day relation-back period did not apply, 20 Debtor maintains that McGilvray only had a 21-day period under 21 CC § 2924h(c) to have the perfection relate back to the date of 22 the sale. 23 McGilvray replies that Debtor’s interpretation is a radical 24 departure from the pre-existing law and a departure from the 25 cases that have interpreted the law. Dckt. 59. Although the 26 court agrees that CC § 2924m is a radical departure from the 27 12 It is also 25 days after the foreclosure sale, which is outside the 28 1 prior precedent, the legislature has changed when a foreclosure 2 sale is deemed final for affected properties. 3 The distinction between finality and perfection is 4 important. “Deemed final” means the point in time in which the 5 foreclosure sale is considered completed and equitable title 6 transfers from the mortgagor/homeowner to the buyer, and when a 7 sale is “deemed final” is controlled by CC §§ 2924m(c) and 8 2924h(c). Prior to the enactment of § 2924m(c), foreclosure 9 sales were “deemed final” at the time of the sale under CC 10 § 2924h(c). Engles, 193 B.R. at 29; Sanders, 198 B.R. at 327; 11 Garner, 208 B.R. at 700; Bebensee-Wong, 248 B.R. at 822. But 12 that is no longer the rule. Now, CC § 2924m(c) controls finality 13 except in certain circumstances where CC § 2924h(c) is 14 applicable. See, e.g., Students v. Clear Recon Corp., No. 15 56202200566272CUORVT, 2022 WL 17541903 (Cal.Super. Nov. 4, 2022) 16 (“[T]he general rule about when a trustee’s sale is deemed final 17 is not applicable in the present case, which instead is governed 18 by Civ. Code § 2924m due to Plaintiffs attempt to make an 19 overbid pursuant to § 2924m.”) 20 Meanwhile, the point in time in which a sale is “deemed 21 perfected” is controlled by CC § 2924h(c). The difference is 22 that the 60-day relation-back period for having a sale both 23 “deemed final” and “deemed perfected” is only applicable if 24 notices of intent to bid are received from eligible tenant 25 buyers for properties with 1-4 residential units. In all other 26 cases, the finality and perfection of a sale will occur under 27 § 2924h(c) if the deed is recorded within 21 days. Since CC 28 § 2924h(c) specifically references CC § 2924m(c)(3), and not 1 (c), (c)(2), or (c)(4), Debtor contends, and the court agrees, 2 that when a sale is subject to the 45-day overbid window, CC 3 § 2924h(c) only applies to eligible tenant buyers, rather than 4 eligible bidders and prospective owner occupants. It is 5 undisputed that McGilvray is not a tenant buyer. 6 CC § 2924h(c) states, in relevant part: 7 For the purposes of this subdivision, the trustee’s sale shall be deemed final upon the 8 acceptance of the last and highest bid and shall be deemed perfected as of 8 a.m. on the 9 actual date of sale if the trustee’s deed is recorded within 21 calendar days after the 10 sale, or the next business day following the 21st day if the county recorder in which the 11 property is located is closed on the 21st day. If an eligible bidder submits a written notice 12 of intent to bid pursuant to paragraph (3) of subdivision (c) of Section 2924m, the 13 trustee’s sale shall be deemed perfected as of 8 a.m. on the actual date of sale if the 14 trustee’s deed is recorded within 60 calendar days after the sale or the next business day 15 following the 60th day if the county recorder in which the property is located is closed on 16 the 60th day . . .
17 CC § 2924h(c) (emphasis added). 18 First, the relation-back period expired after the after 19 21st day. The 60-day window is only applicable for bids or 20 notices of intent to bid that were submitted pursuant to CC 21 § 2924h(c)(3), which is specific to eligible tenant buyers only. 22 CC § 2924h(c) appears to be ambiguous at first glance because it 23 refers to an “eligible bidder” while citing to CC § 2924m(c)(3), 24 rather than (c), (c)(2) or (c)(4). 25 If a general statute states that its provisions govern 26 except as otherwise expressly provided by statute, a specific 27 statute governing the same matter in a particular context will 28 be treated as an express exception to the general statute. 1 Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97, 104- 2 109, 347 P.3d 976 (2015). When a statute with reference to one 3 subject contains a given term or provision, the omission of that 4 term or provision from another part of the same statute, or from 5 a similar statute concerning the related subject, is significant 6 to show that a different legislative intent existed. Dep’t 7 Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015); Kabran v. 8 Sharp Mem’l Hosp., 2 Cal. 5th 330, 344, 386 P.3d 1159 (2017). If 9 the legislature intended to allow all eligible bidders to take 10 advantage of the 60-day relation-back period, then it could have 11 referenced the bidding procedure in (c), (c)(2), or (c)(4), 12 rather than specifically to (c)(3). 13 The Assembly Judiciary Committee Report13 on SB 1079 12F 14 indicates that the legislative purpose of SB 1079 was to “curb 15 further purchases of single-family homes at foreclosure auctions 16 by companies that then operate them as rental properties.” SB 17 1079 (Skinner), Cal. Assemb. Judiciary Comm. Report (Aug. 12, 18 2020).14 This report’s description of the bidding procedure under 13F 19 CC § 2924m(c)(3) and (c)(4) when notices of intent to bid or 20 bids are submitted and a 45-day window opens makes clear that 21 the relation-back provision was intended to only apply to 22 eligible tenant buyers: 23 ///
25 13 The court may consider statements in legislative committee reports concerning the statutory objects and purposes that are in accord with a reasonable interpretation of the statute as an aid in determining legislative 26 intent. S. Cal. Gas Co. v. Pub. Utils. Com., 24 Cal. 3d 653, 659, 156 Cal. Rptr. 733, 767, 596 P.2d 1149, 1152 (1979). 27 14 The legislative committee documents for SB 1079 are available at https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201 28 1 g) During the 45-day window, a representative of all of the current tenant[s] in the house 2 again has a right of first refusal to match the foreclosure sale price. If, at any time 3 during the 45 days, this representative matches the foreclosure sale price, the sale 4 is immediately deemed final and the tenant will take title to the property. 5 h) During the same 45-day window, any current 6 tenant in the property and all other eligible bidders can submit higher offers than the 7 foreclosure sale price.
8 i) If, during the 45 days, one or more of the eligible bidders submits a bid that exceeds 9 the foreclosure sale price, the sale is deemed final at the conclusion of the 45 days, and 10 the eligible bidder that made the highest offer will take title to the property. 11 j) Otherwise, the sale is deemed final at the 12 conclusion of the 45 days, and the party that made the last and highest offer at the initial 13 foreclosure auction will take title to the property. 14 15 Id. at 3-4 (emphasis added). 16 Second, CC § 2924m(f) 14F15 states that “[t]his section shall 17 prevail over any conflicting provision of Section 2924h.” 18 Contemporaneously, CC § 2924h(f) 15F16 provides, “[e]xcept as 19 specifically provided in Section 2924m, in the event that this 20 section conflicts with any other statute, then this section 21 shall prevail.” In the absence of these sections, CC § 2924h(c) 22 could reasonably be construed as applying the 60-day relation- 23 back period to all eligible bidders. But in the context of CC 24 § 2924m(c), which is controlling, eligible bidders include 25 eligible tenant buyers and others, and the sale “shall not be
26 15 This provision has been re-lettered to CC § 2924m(h) as of Jan. 1, 2023. AB 1837 (2022). 27 16 Beginning Jan. 1, 2023, CC § 2924h(f) (eff. 2023) now provides, “[i]n the event that this section conflicts with any other statute, then this 28 Id. 1 deemed final until the earliest of the following: . . . [(c)(1)- 2 (c)(4)]” CC §§ 2924h(c) and 2924m(c), therefore, appear to 3 contain conflicting periods as to when the sale shall be deemed 4 final for non-eligible tenant buyers attempting to use CC 5 § 2924h(c) to invoke the relation-back procedure. CC §§ 2924m(f) 6 and 2924h(f) resolve this conflict in favor of CC § 2924m. 7 Therefore, the 60-day relation-back period is reserved for 8 eligible tenant buyers under CC § 2924m(c)(3). 9 McGilvray argues that the focus on December 22, 2022—the 10 45th day after the foreclosure sale—is misplaced because 11 McGilvray had equitable title subject to divestment by all three 12 classes of persons who qualified under § 2924m(c) at the time 13 the last bid was taken. Dckt. 59. 14 This overstates his interest. Under CC § 2924h(c) (even 15 before the amendments), the foreclosure sale is not deemed 16 perfected on the original sale date until the deed is recorded. 17 Before the deed is recorded, the sale is neither “perfected” nor 18 “deemed perfected” – it is just a sale. Dr. Leevil, LLC v. 19 Westlake Health Care Ctr., 6 Cal. 5th 474, 482, 431 P.3d 151, 20 155 (2018). Under the new statutes, McGilvray’s purchase of 21 Property at the foreclosure sale was not final until the 45th 22 day after the sale. 23 In Ford, a bankruptcy court in the Central District of 24 California dealt with the new version of CC §§ 2924h and 2924m 25 in a similar situation involving a pre-petition foreclosure sale 26 with a post-petition recording. In re Ford, No. 2:22-bk-13649- 27 WB, 2022 Bankr. LEXIS 3545, 2022 WL 17742285 (Bankr. C.D. Cal. 28 Dec. 15, 2022). There, two eligible bidders submitted notices of 1 intent to bid within 15 days of the foreclosure sale. Id. at *7. 2 As a result, the court found that CC § 2924h(c) extended the 3 time for relation back of the recordation to 60 days, and the 4 sale was deemed final and perfected as of 8:00 a.m. on the date 5 of the sale. Id. Notably, neither of these eligible bidders were 6 “eligible tenant buyers,” so the court, in effect, applied 7 § 2924h(c) to all eligible bidders. Id. at *6; see also, Exs. 1- 8 2, Dckt. 20-2, 20-3, Case No. 2:22-bk-13649-WB (Bankr. C.D. 9 Cal.). 10 But Ford differs from the facts here for at least two 11 reasons. There, the debtor did not raise the issue of when the 12 sale became final under the new amendments to the foreclosure 13 procedure. Also, the trustee’s deed was recorded forty-nine (49) 14 days after the foreclosure sale. Id. at *1. So, there was no 15 question concerning finality of the sale. 16 When the sale here became final on December 22, 2022, the 17 automatic stay was in full force and effect. § 362(a)(3). 18 Although the facts of this case mirror those in Garner, 19 Bebensee-Wong, and related progeny, the legislature changed the 20 date that the sale is deemed final by enacting CC § 2924m(c). 21 Thus, instead, this case mirrors Sanders in that the sale became 22 final post-petition: 23 On the facts of this case, the Court holds that the foreclosure sale conducted 24 postpetition is void, and recordation of the trustee’s deed . . . cannot resuscitate the 25 void sale by reliance on a state statute that would relate back the act to a time when it 26 would not have been prohibited. 27 Sanders, 198 B.R. at 329. 28 /// 1 Therefore, the sale became final under CC § 2924m(c)(4) 2 post-petition and is void. CC § 2924h(c) cannot be used to 3 finalize an incomplete sale to a time before the petition was 4 filed. McGilvray does not qualify for the relation back effects 5 of CC § 2924h(c) as the statute was written in 2022.17 16F 6 7 D. The Fjeldsted Factors Do Not Support Annulling the Stay 8 The court now turns to McGilvray’s request to annul the 9 automatic stay. 10 11 U.S.C. § 362(d)(1) allows the court to grant relief from 11 the stay for cause, including the lack of adequate protection. 12 “Because there is no clear definition of what constitutes 13 ‘cause,’ discretionary relief from the stay must be determined 14 on a case-by-case basis.” In re Mac Donald, 755 F.2d 715, 717 15 (9th Cir. 1985). 16 11 U.S.C. § 362(d)(2) allows the court to grant relief from 17 the stay if the debtor does not have an equity in such property 18 and such property is not necessary to an effective 19 reorganization. 20 The Ninth Circuit Court of Appeals has warned that 21 retroactive relief should only be “applied in extreme 22 circumstances.” Mataya v. Kissinger (In re Kissinger), 72 F.3d 23 107, 109 (9th Cir. 1995), quoting In re Shamblin, 890 F.2d 123, 24 126 (9th Cir. 1989); see also In re Aheong, 276 B.R. 233, 250 25 17 Debtor’s counsel has argued that two provisions of CC § 2924m establish Debtor’s title to Property during these “open window” periods. That 26 is incorrect. Both provisions, subdivisions (f) dealing with a trustor’s title until the sale is deemed final, and (l) dealing with continued hazard 27 insurance coverage until the sale is final became effective in 2023 and were not part of § 2924m in 2022 when the salient facts here occurred. See CC 28 1 (B.A.P. 9th Cir. 2002). When deciding a motion to annul the 2 automatic stay, the court may consider the “Fjeldsted” factors:
3 1. Number of filings; 2. Whether, in a repeat filing case, the 4 circumstances indicate an intention to delay and hinder creditors; 5 3. A weighing of the extent of prejudice to creditors or third parties if the stay relief 6 is not made retroactive, including whether harm exists to a bona fide purchaser; 7 4. The Debtor’s overall good faith (totality of circumstances test; 8 5. Whether creditors knew of the stay but nonetheless took action, thus compounding the 9 problem; 6. Whether the debtor has complied, and is 10 otherwise complying, with the Bankruptcy Code and Rules; 11 7. The relative ease of restoring parties to the status quo ante; 12 8. The costs of annulment to debtors and creditors; 13 9. How quickly creditors moved for annulment, or how quickly debtors moved to set aside the 14 sale or violative contract; 10. Whether, after learning of the 15 bankruptcy, creditors proceeded to take steps in continued violation of the stay, or whether 16 they moved expeditiously to gain relief; 11. Whether annulment of the stay will cause 17 irreparable injury to the debtor; 12. Whether stay relief will promote judicial 18 economy or other efficiencies. 19 Fjeldsted, 293 B.R. at 24-25. One factor alone may be 20 dispositive. Id. The two main factors focused on by courts are 21 “(1) whether the creditor was aware of the bankruptcy petition; 22 and (2) whether the debtor engaged in unreasonable or 23 inequitable conduct, or prejudice would result to the creditor.” 24 In re Merriman, 616 B.R. 381, 387 (B.A.P. 9th Cir. 2020), 25 quoting Nat’l Envtl. Waste Corp., 129 F.3d at 1055. 26 Weighing the Fjeldsted factors follows: 27 1. Number of filings: This appears to be Debtor’s first 28 bankruptcy filing in this district. This factor is inapplicable. 1 2. Whether, in a repeat filing case, the circumstances 2 indicate an intention to delay and hinder creditors: This factor 3 is inapplicable since this is Debtor’s first bankruptcy filing. 4 3. Extent of prejudice to creditors or third parties if the 5 stay relief is not made retroactive, including whether harm 6 exists to a bona fide purchaser: McGilvray claims to be a bona 7 fide, pre-petition purchaser of Property. At the time the 8 Trustee’s Deed was recorded, McGilvray claims he did not have 9 actual or constructive notice of the bankruptcy. Dckt. 46, 47. 10 McGilvray contends he will be prejudiced if the stay is not 11 annulled. 12 Meanwhile, Debtor contends that McGilvray will not be 13 prejudiced if the stay is not annulled because he can get his 14 money back from the sale and not enough time has passed for 15 there to be any serious prejudice. Dckt. 58, 61. Additionally, 16 the automatic stay was violated, so Debtor argues the sale is 17 void as a matter of law. Since annulment is an extraordinary 18 remedy in repeat-filing cases with legitimate harm to innocent 19 third parties, this factor should support denying this motion. 20 Further, Debtor claims that if the stay is annulled, she will 21 suffer catastrophic financial ruin and lose over $250,000 in 22 equity. 23 There are no facts suggesting McGilvray has transferred 24 Property, or that any third party is affected if the stay is not 25 annulled. 26 The focus of this factor is on harm or prejudice to third 27 parties and creditors, including bona fide purchasers. It is 28 unclear whether McGilvray can recover the money already paid. 1 From McGilvray’s previous motion, it appeared that the mortgagee 2 has already been paid from the foreclosure sale proceeds. It 3 seems a claim for unjust enrichment in the proper forum may be 4 an option. McGilvray may have claims to recover his funds from 5 third parties on various tort or contract theories. 6 This factor weighs against annulment. 7 4. Debtor’s overall good faith (totality of the 8 circumstances): McGilvray does not contend that Debtor or 9 counsel misrepresented facts or engaged in egregious behavior. 10 Dckt. 46. Debtor filed bankruptcy more than 15 days post- 11 foreclosure, but less than 60 days after the sale. McGilvray 12 contends that timing alone makes this factor support annulment. 13 The court disagrees. Debtor’s largely uncontroverted 14 declaration states she was made aware of the sale weeks after 15 the foreclosure. Dckt. 62. No evidence was presented that she 16 was aware of the sale date. It seems likely she received notice 17 of the sale, but there is no proof of that on this motion. 18 Nevertheless, given the delay before many sales are final under 19 the new law, this factor does not support annulment. 20 5. Whether creditors knew of the stay but nonetheless 21 acted, thus compounding the problem: McGilvray contends that he 22 did not have knowledge of the bankruptcy at the time this case 23 was filed. Dckt. 47. McGilvray’s bankruptcy attorney declares 24 that there was no record notice or constructive notice in the 25 form of a recorded notice of bankruptcy. Dckt. 48. Movant was 26 not listed as a creditor in Debtor’s schedules. Although 27 McGilvray recorded the Trustee’s Deed and initiated the Unlawful 28 Detainer Action post-petition, after learning of the bankruptcy, 1 McGilvray filed a motion for relief from the automatic stay (PK- 2 1), and then subsequently filed this motion to annul the stay. 3 In contrast, Debtor contends that McGilvray knew of the 4 stay at the time the Trustee’s Deed was recorded and at the time 5 he filed the Unlawful Detainer Action. Dckt. 58, 61. Debtor 6 suggests that the evidence proves he knew of the bankruptcy on 7 the date it was filed and compounded the problem by recording 8 the Trustee’s Deed, giving a three-day notice to quit, 9 initiating the Unlawful Detainer Action, and then waiting three 10 months to file the first stay relief motion and four and one- 11 half months to file this motion. 12 The court disagrees with Debtor here. There is nothing 13 except speculation that McGilvray knew of the bankruptcy filing 14 before he brought the Trustee’s Deed to the Recorder’s Office. 15 He obviously subsequently learned of the bankruptcy, but he did 16 not affirmatively act to seek stay relief for some months 17 thereafter.18 17F 18 As noted above, McGilvray was not listed in the bankruptcy 19 schedules or master address list. The only evidence provided by 20 Debtor is a declaration “on information and belief” that 21 McGilvray knew about the bankruptcy before the Trustee’s Deed 22 was recorded and before the Unlawful Detainer Action was filed. 23 Dckt. 62. However, non-expert witness testimony must be based on 24 the personal knowledge of the witness. Fed. R. Evid. 602. 25 Debtor’s declaration fails to provide any credible evidence that 26 McGilvray had knowledge of the bankruptcy.
27 18 The court acknowledges McGilvray’s counsel’s representations supported by bankruptcy counsel’s statements that there were ongoing 28 1 This factor favors annulment on this record. 2 6. Whether the debtor has complied, and is otherwise 3 complying, with the Bankruptcy Code and Rules: McGilvray 4 contends that it is impossible to confirm a plan because no 5 adversary proceeding has been filed. Dckt. 46. However, Debtor 6 claims to be complying with the plan and is current on payments. 7 Although the objection to plan confirmation was sustained 8 earlier, the plan can be reconsidered or modified if this motion 9 is denied. 10 Notwithstanding failure to list McGilvray as a creditor in 11 this bankruptcy case, Debtor appears to have complied with the 12 Bankruptcy Code and Rules. This factor weighs slightly against 13 annulment. 14 7. The relative ease of restoring the parties to the status 15 quo ante: McGilvray contends that that he cannot be compelled to 16 give up his interest in Property without a repayment. Dckt. 46. 17 The original lender has been paid, so an adversary proceeding 18 would be necessary. In response, Debtor claims that it is easy 19 to restore the parties to the status quo ante because McGilvray 20 can be repaid because the sale is void. Dckt. 61. 21 The status quo ante appears to be the period after the 22 foreclosure sale but before the Trustee’s Deed was recorded and 23 the Unlawful Detainer Action initiated. The Unlawful Detainer 24 Action is dismissed. However, under CC § 2924m(c)(4), restoring 25 Debtor to the status quo ante would result in Debtor possessing 26 legal and equitable title in Property because the foreclosure 27 sale was not final at the time of the bankruptcy. 28 /// 1 True enough, it is likely some litigation between McGilvray 2 and other parties may ensue. But when weighed here against 3 Debtor’s losses if annulment is granted, the court sees this 4 factor slightly favoring denial of annulment. 5 8. The costs of annulment to the debtor and creditors: 6 McGilvray claims the cost of annulment is the cost of an 7 adversary proceeding. Dckt. 46. McGilvray contends this factor 8 supports annulment but insists that it should be limited due to 9 the extensive facts of this case. 10 In contrast, Debtor’s asserted cost of annulment is 11 $250,000 plus attorney’s fees, which is the equity lost as 12 result of the foreclosure sale. Dckt. 61-62. Debtor also says 13 that there is no cost for McGilvray. Instead, she asserts, 14 McGilvray would receive a $250,000 windfall from Debtor’s equity 15 in Property if the sale were to be finalized and perfected. 16 Debtor has other creditors in this case. The successful 17 confirmation of a plan and repayment of creditors is enhanced if 18 annulment is denied. Otherwise, Debtor, her mother, and sister 19 will no longer have a residence and the possible payment to 20 creditors will be diminished. 21 Even if she prevails on this motion, Debtor must pay off 22 Flagstar to keep her residence. Any right Debtor had to 23 reinstate the loan with Flagstar vanished five days before the 24 sale. CC § 2924c(a)(1), (e). She has no windfall. 25 This factor weighs against annulment. 26 9. How quickly creditors moved for annulment, or how 27 quickly the debtor moved to set aside the sale or contract: In 28 the beginning of this case, there were some settlement 1 negotiations and neither party took any action. McGilvray 2 initially moved for relief from stay on March 1, 2023, which is 3 four months post-petition. PK-1. 4 Debtor claims that this delay is inexcusable; however, 5 Debtor also acknowledges that the unfamiliarity with the new 6 statutory scheme likely delayed the filing of the stay relief 7 motion. Debtor claims she did not know about the foreclosure 8 sale until late November 2022. She filed this case on December 9 1, 2022. Debtor moved expeditiously. 10 This factor weighs slightly against annulment. 11 10. Whether, after learning of the bankruptcy, creditors 12 proceeded to take steps in continued violation of the stay, or 13 whether they moved to expeditiously gain relief: McGilvray 14 claims he did not have notice of the bankruptcy. Dckt. 46-47. 15 True enough, he was not listed in the schedules or the master 16 address list. Although McGilvray did initiate the Unlawful 17 Detainer Action, he has not prosecuted that case and it has been 18 dismissed. Id. 19 In response, Debtor speculates McGilvray was likely 20 informed of the bankruptcy by the foreclosure trustee on the 21 petition date, thus prompting him to record the Trustee’s Deed 22 the next day. That recording also occurred before the 45-day 23 period alleged to be applicable under CC § 2924h(c). Also, 24 McGilvray’s declaration was silent as to when he learned of the 25 bankruptcy. The declaration says McGilvray had no knowledge of 26 the bankruptcy at the time of recording but makes no mention of 27 whether he knew about it at the time he filed the Unlawful 28 Detainer Action. Given the 4-month delay in filing the first 1 stay relief motion, this factor weighs against annulling the 2 stay. 3 11. Whether annulment of the stay will cause irreparable 4 injury to the debtor: McGilvray says this factor supports 5 annulment because Debtor’s right to reorganize was greatly 6 diminished at 8:01 a.m. on November 7, 2022 because the 7 foreclosure sale took place later that day. Dckt. 46. 8 McGilvray’s position implies that Debtor could not have filed 9 bankruptcy before the sale but after 8:01 a.m. on that same day, 10 causing it to occur post-petition, and then use CC § 2924h(c) to 11 relate the sale back to before the petition date. However, this 12 approach is expressly rejected in Sanders. 198 B.R. at 329 13 Debtor will undoubtedly suffer irreparable injury if the 14 stay is annulled as discussed above. This factor weighs against 15 annulment. 16 12. Whether stay relief will promote judicial economy: 17 Annulling the stay would promote judicial economy by avoiding 18 litigation in the bankruptcy case. But, as mentioned, McGilvray 19 has rights to prosecute if he so chooses. This factor supports 20 annulling the stay. 21 The court concludes that the Fjeldsted factors do not 22 support annulling the automatic stay. The result may be 23 different if the sale had finalized before the petition date. 24 25 V. CONCLUSION 26 The foreclosure sale was finalized post-petition and is 27 thus void as a violation of the automatic stay. CC § 2924h(c) 28 cannot be invoked to finalize the sale to the pre-petition date 1 of the sale because the Trustee’s Deed was recorded before the 2 expiration of the 45-day bid period. The automatic stay was 3 therefore applicable. McGilvray violated the stay when he 4 recorded the Trustee’s Deed. The Fjeldsted factors when properly 5 | weighed and considered do not justify annulment of the stay. 6 | Accordingly, the motion to annul the automatic stay is DENIED. 7 A separate order shall issue. 8 9 | Dated: May 25, 2023 By the Court 10 a“ ené Lastreto II, Judge 12 United States Bankruptcy Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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