Stephen Opperwall v. Bank of America

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2018
• Docket: 16-17144
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS STEPHEN G. OPPERWALL, No. 16-17144

Plaintiff-Appellant, D.C. No. 3:16-cv-00106-JST

v. MEMORANDUM* BANK OF AMERICA, N.A.,

Defendant-Appellee.

STEPHEN G. OPPERWALL, No. 16-17178

Plaintiff-Appellant, D.C. No. 3:16-cv-00134-JST

v.

BANK OF AMERICA, N.A.,

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted June 11, 2018** San Francisco, California

Before: SILER,*** PAEZ, and IKUTA, Circuit Judges.

Plaintiff-appellant Stephen Opperwall appeals the district court’s order

affirming the bankruptcy court and denying Opperwall’s motion to compel

discovery as moot.

There is a close nexus between Opperwall’s Chapter 13 plan, which

“assumes” that Opperwall and Bank of America will enter into a loan modification

agreement prior to confirmation, and Opperwall’s first amended complaint, which

alleges that the parties have entered into such a loan modification. Because

Opperwall’s complaint is “related to” a case under title 11, see 28 U.S.C.

§ 1334(b); In re Wilshire Courtyard, 729 F.3d 1279, 1287 (9th Cir. 2013), the

district court had subject matter jurisdiction over his case at the time it entered final

judgment, see Estate of Bishop By & Through Bishop v. Bechtel Power Corp., 905

F.2d 1272, 1275 (9th Cir. 1990). We therefore reject Opperwall’s challenge to the

denial of his motion to remand.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 The bankruptcy court did not abuse its discretion in denying both

Opperwall’s motion for leave to amend his complaint and his motion to compel

discovery responses. See Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016);

Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Opperwall waived any

challenge to the bankruptcy court’s determination that the Chapter 13 plan has

preclusive effect on all issues that he could have raised before confirmation,

including the existence and scope of a loan modification agreement; see United

States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). Amending the first amended

complaint to allege that the parties entered into the loan modification agreement

post-petition rather than pre-petition would not change the res judicata effect of the

plan confirmation. See In re Pardee, 193 F.3d 1083, 1087 (9th Cir. 1999). For the

same reason, the bankruptcy court’s denial of Opperwall’s motion to compel

discovery responses did not prejudice him, as the motion was rendered moot by the

bankruptcy court’s decision to dismiss the case.1 See Hallett, 296 F.3d at 751.

AFFIRMED

1 We deny Opperwall’s motion for judicial notice. 3