Unaatuq, LLC v. Green (In re Catholic Bishop)
Unaatuq, LLC v. Green (In re Catholic Bishop)
Opinion of the Court
Plaintiff Unaatuq, LLC, has filed a Motion to Enforce Judgment and Related Orders (“Motion”). It seeks an order against the named defendants, Louis H. Green, Sr. and Nancy E. Green (“the Greens”), as well as the Greens’ two adult sons, Louis (Louie) Green, Jr. and Dewey (Stacey) Green, and Stacey’s wife, Mary Reader, compelling them to vacate real property it purchased within the main bankruptcy case.
Background
The debtor, Catholic Bishop of Northern Alaska (“CBNA”), filed a chapter 11 petition on March 1, 2008. At the time of filing, CBNA owned 320 acres of real property located on the Seward Peninsula, north of Nome, Alaska, known as Kruz-gamepa Hot Springs, Pilgrim Hot Springs, or the Pilgrim Springs Property (“the Property”). The Property was subject to a 99 year lease in favor of Pilgrim Springs, Ltd. (“PSL”). CBNA and PSL had entered the lease on November 1, 1969. Under the terms of the lease, CBNA granted PSL the exclusive right to possess and develop the Property. PSL was to pay a nominal amount of monthly rent to CBNA, but was to also pay CBNA a percentage of any gross revenues it received from certain development activities it planned to conduct on the Property.
During PSL’s tenancy, Louis Green, Sr. (“Louis Sr.”), and his family, lived on the Property for at least a portion of the time. Louis Sr. wrote to CBNA in September 1992, to “clarify the situation” regarding his family’s presence on the Property, and explain that PSL had asked him “and his family” to serve as caretakers of the Property from 1975 to the late 1980’s.
PSL responded to CBNA in November 1992, expressly recognizing its status as a leasehold tenant. Regarding the Green family, it wrote that “they were our first caretakers,” the family had since broken up, but one of PSL’s former directors had given Annie Green permission to stay in a small house on the Property.
In December 1992, CBNA responded to PSL, writing:
As to the Green family, if one of your directors invited Annie Green to live on and help watch over the property after the Greens were no longer employed as caretakers, it seems to me that she and any others who visit her are guests of [PSL]. If she was not invited to remain on the property, or if that invitation has been ended, then she is a squatter and appropriate action should be taken. I will consider her your guest until you inform me that another decision has been taken.9
Sometime after this exchange of correspondence, Louis Sr. again became PSL’s caretaker. He signed receipts from sharecropper farming operations for 1998 and 1999 which reference “Sharecropper/Caretaker Agreement — Louie Green, Sr., and Pilgrim Springs, Ltd.”
After filing its chapter 11 petition, CBNA moved to terminate the PSL lease and recover possession of the Property.
After the PSL lease was terminated, the Greens sent an email to CBNA’s business manager, Thomas Buzek, with a proposal that Louis Sr. be permitted to stay on as a caretaker for the Property.
Roughly five months later, on November 30, 2009, the Greens filed an Opposition to the Sale of Pilgrim Hot Springs on Auction Block,
Although the Greens did not assert title to the Property in the Opposition itself, they attached a copy of a Complaint to Quiet Title that they had filed just five days earlier in the Alaska Superior Court at Nome. In this complaint, the Greens alleged they had acquired title to the entirety of the Property by adverse possession, in that they had occupied the Property from 1975 to 1985, and from 1992 to
CBNA’s attorneys wrote to the Greens and asked that the quiet title action be dismissed because it was filed in violation of the automatic stay.
While the appeal was pending, the Third Amended and Restated Joint Plan of Reorganization was confirmed.
On February 2, 2010, CBNA and the unsecured creditors committee filed a Stipulated Motion to Approve Bid and Sale Procedures and Scheduling of an Auction Hearing Date for the Sale of Pilgrim Springs Property Free and Clear of Claims, Liens, Encumbrances and Interests Pursuant to the Plan and 11 U.S.C. § 363 (“Motion to Sell”), to sell the Property by auction on March 5, 2010, free and clear of liens, claims, encumbrances and other interests.
CBNA submitted the Declaration of Deacon George W. Bowder as part of its opposition to the Motion for Preliminary Injunction. Rev. Bowder began work with CBNA in 1978, and became the director of finance for CBNA in 1984. In his capacity as director of finance, he was responsible for the administration of CBNA’s business and the operation of its assets, including the Property. Rev. Bow-der testified that:
1. CBNA leased the Property to PSL.
2. PSL “employed or had some other contractual relationship with, Louis and Nancy Green as caretakers of Pilgrim Springs.”
3. From the time he began working for CBNA in 1978 he was aware that the Greens occupied the Property with CBNA’s permission “in their capacity as employees of CBNA’s lessee.”
4. “CBNA dealt with the Greens in all respects as employees of its lessee who occupied Pilgrim Springs with CBNA’s consent and permission.”
5. The Greens never disputed that they “were employed, or otherwise obligated under some contractual relationship with, Pilgrim Springs Limited as CBNA’s lessee.”
6. Prior to the quiet title action, the Greens had never challenged CBNA’s title to the Property.34
CBNA also offered the declaration of its current business administrator, Thomas Buzek, in opposition to the Motion for Preliminary Injunction,
The court held a hearing on the Green’s Motion for Preliminary Injunction on February 26, 2010, at which Louis Green, Sr. testified. The court denied the motion. In its Memorandum on Greens’ Motion for Preliminary Injunction, the court re
The Greens proceeded to seek the same injunctive relief within their pending appeal to the United States District Court. On March 4, 2010, the day before the scheduled auction, the District Court entered its Amended Order denying their request to stay the sale of the Property.
It appears from the record in this case that it is undisputed that during most, if not all, the time that the Green’s claim they were in adverse possession, the Pilgrim Hot Springs property was subject to a leasehold in favor of Pilgrim Springs, Ltd. As the lessee, Pilgrim Springs, Ltd., not the Catholic Bishop of Northern Alaska (“CBNA”), held the possessory interest in the real property. CBNA held a reversionary or future possessory interest. To the extent that the Green’s possession was hostile, it was hostile to the possessory interest of Pilgrim Springs, Ltd., not the lessor, CBNA, who had no existing possessory interest. Under the principles of common law, the running of a limitation period that operates as vesting title by adverse possession is postponed or tolled until the interest becomes posses-sory. This rule logically followed the rule that the holder of a future possesso-ry interest could not bring an action in ejectment. Both versions of AS § 09.10.030 clearly codify the latter rule.40
The District Court concluded that “the Greens can not establish any realistic probability that they may prevail on the merits under either their lack of jurisdiction argument or their argument under Alaska law.”
On March 5, 2010, CBNA auctioned the Pilgrim Hot Springs Property. Unaatuq was the successful bidder. An Order Approving Sale of Pilgrim Springs Property (“the Sale Order”) was entered April 26, 2010.
In December 2010, after plan confirmation, completion of the sale of the Property to Unaatuq, and the conclusion of the appeal, the Greens filed a second quiet title
Unaatuq promptly initiated this adversary proceeding against the Greens. Its Complaint to Enforce Orders, Determine Validity of Interest, and for Injunctive and Declaratory Relief alleged that the Greens had violated the Sale Order, the confirmation order, and the terms of the confirmed plan by filing the quiet title action. It asked that the court enforce the Sale Order, determine that the Greens had no right, title or interest in the Property, and enjoin the Greens from asserting such claims. The Complaint asked that any cloud on Unaatuq’s title to the Property be removed, and that Unaatuq be awarded its fees and costs. It also requested sanctions to deter the Greens from making claims against the Property in the future.
The Greens moved to dismiss Unaatuq’s Complaint, with prejudice. Their motion was denied, and Unaatuq’s Motion for Summary Judgment was granted.
from asserting any right, title, claim or interest in Pilgrim Hot Springs based on, or arising from, facts existing prior to the date of this Judgment, and from taking any action in violation of the confirmed plan of reorganization, the order confirming the plan of reorganization, or the order approving sale of Pilgrim Hot Springs by the Debtor CBNA to Unaa-tuq, LLC.48
The Motion to Enforce Judgment
Unaatuq has filed its Motion to Enforce Judgment and Related Orders, which advises that it “has run into a problem” with its efforts to develop the Property because the Greens and their family members refuse to vacate cabins located on the Property.
In response to the Motion, the Greens filed a letter in which they complain of poor road conditions to the Property and that Unaatuq did not give them enough notice of the need to move their possessions.
The Greens’ adult sons, Louie Green, Jr. and Stacey Green, and Stacey’s wife, Mary Reader (collectively, “the claimants”), oppose the Motion.
Unaatuq responds by arguing that the claimants were not known to be creditors or parties holding affirmative claims against the Property. It contends that they received constructive notice of the proposed sale, by virtue of a notice that was published in the Nome Nugget and other Alaska publications in February 2010. Unaatuq contends publication notice was sufficient in light of their unknown interest in the Property at the time of plan confirmation and the subsequent sale of the Property. It characterizes the claimants as squatters who, having no record interest in the Property, lack property rights protected by the due process clause of the Fifth Amendment.
Further, relying on the District Court’s ruling, Unaatuq argues that the children do not have facially valid claims. Common to all the adverse possession claims, whether asserted by the Greens or the claimants, is that fact that the purported hostile occupancy period occurred while the PSL lease was in effect. Because of this, Unaatuq urges this court to apply the District Court’s ruling — that the Greens’ adverse possession period was “postponed or tolled” as to CBNA until its interest in the Property became possessory, on termination of the PSL lease — to the claimants.
In a Surreply, Stacey and Mary argue that constructive notice is insufficient as to their interests because CBNA knew they had a cabin on the property, and that they occupied that cabin, before the Property was sold. They also contend the District Court’s ruling is incorrect and that their interest in the property automatically vested at the expiration of the statutory period, prior to the time CBNA filed for bankruptcy. They say their ownership interest in a portion of the Property entitled them to actual notice of the sale of the Property, and it would be a denial of due process if the Sale Order or Judgment were enforced against them.
Discussion
This is the second time Unaatuq has returned to this court to seek relief
I. Relief is Appropriate Against the Greens.
The Greens’ response to Unaatuq’s Motion does not seek to relitigate their claims for adverse possession. Rather, they point out that the roads were such that it was not possible to remove their possessions. I do not read the Greens’ response as objecting to the relief sought — that they must vacate the Property. Rather, their response goes only to the timing of when they must do so. As such, Unaatuq is entitled to the relief requested against the Greens, with reasonable accommodations for the practicalities of removing property from a remote area of Northwest Alaska. If the parties cannot agree as to the time by which the Greens shall remove their property, they may request a hearing on the limited issue of the timing by which removal must be accomplished.
II. Enforceability of the Sales Order Against the Claimants.
The true opposition to Unaatuq’s Motion comes from Louie Jr., Stacey, and Mary. They claim ownership of two separate, but undefined, portions of the Property as a result of their purported independent, open, hostile, and exclusive possession of those portions. In contrast to the Greens, they did not receive actual notice of the bankruptcy or CBNA’s proposed sale of the Property free and clear of interests. They argue that, because they were denied notice and an opportunity to be heard, the sale is void as to their interests. Unaatuq contends that the Judgment extends to the claimants as successors or assigns of the Greens.
A. The Claimants are Not Subject to the Terms of the Judgment as Successors or Assigns.
Unaatuq’s Motion to Enforce cannot be granted against Louie Jr., Stacey, and Mary based upon the language of the Judgment. Their adverse possession claims are not derived from the Greens’ claims. Rather, they raise independent claims of adverse possession, based upon their entry onto the property as adults. Thus, the Judgment cannot be enforced against them as the Greens’ successors and assigns. But, this does not end the court’s inquiry. It must again construe the Sales Order to determine whether CBNA sold the Property free and clear of the claimants’ purported independent ownership interests.
B. Have the Claimants Established an Interest in the Property that Required Notice of the Proposed Sale under § 363(f).
Undoubtedly, parties holding known liens or asserting known interests
Ordinarily, liens and interests in real property are recorded, and therefore, easily known for purposes of determining and evaluating adequate notice of sales free and clear under 11 U.S.C. § 363(f). In this instance, there is a question whether Louie Jr., Stacey, or Mary, hold any interest in the Property that entitled them to receive actual notice prior to the sale. In matters arising under § 363, including sales free and clear under § 363(f), “the entity asserting an interest in property has the burden of proof on the issue of the validity, priority, or extent of such interest.”
Louie Jr., and Stacey and Mary, contend that they owned portions of the Property at the time of the sale, acquired through adverse possession. Under Alaska law, they must prove “that for the statutory period ‘[their] use of the land was continuous, open and notorious, exclusive and hostile to the true owner.’ ”
Stacey and Mary support their Opposition with affidavits and photographs.
Although Stacey selected the site for his cabin in 1989 or 1990, it is unclear what exactly this means, or how it supports his claim for adverse possession. From the balance of the affidavit, he decided sometime later to “go ahead and build a cabin,” but he does not state when construction began or was finished. Stacey and Mary both say they never received notice about a court hearing for the sale of the Property, and if they had, they would have objected. Both Stacey and Mary also describe a conversation with CBNA representative Thomas Buzek in 2009 in which they “politely declined” his inquiry as to whether they would pay rent.
Louie Jr. has not provided an affidavit or declaration in support of his claim of adverse possession. His opposition states that at the time of the bankruptcy sale, he “placed a cabin on his property near the airport on the Pilgrim Springs property and was in actual possession of a portion of the property.”
Neither Louie Jr., nor Stacey and Mary, provide specific information regarding the dates when their adverse possession began. It is unclear from Stacey’s affidavit exactly what happened, or when construction began. Moreover, their polite declination to pay rent to CBNA after it had just terminated PSL’s lease, alone, is not a repudiation of CBNA’s ownership.
Louie Jr. has provided argument, but no facts, to support his adverse interest claim. Additionally, the claimants have failed to define which portions of the Property they adversely possessed. Their failure to detail the dates their adverse possession began, and the property adversely possessed, alone precludes a finding that any of them owned a portion of the Property through adverse possession at the time of the sale. Even if the court were to overlook these shortcomings, the evidence presented establishes that the Claimants cannot establish adverse possession under Alaska law.
1. The Claimants’ Adverse Possession Claims Were Tolled as to CBNA While PSL’s Lease was in Effect.
The District Court concluded that the Greens had no “realistic probability” of succeeding on their adverse possession claim, and denied their motion for injunctive relief, because “under the principles of common law, the running of a limitation period that operates as vesting title by adverse possession is postponed or tolled until the interest becomes possesso-ry.”
The claimants contend that the District Court erred in applying the common law to toll the running of any adverse possession claims for the duration of the lease. They argue that the statutory ad
Louie Jr., Stacey and Mary could not commence a period of adverse possession against CBNA while PSL’s lease was in effect. Their adverse claims as to CBNA’s interest in the Property did not start until CBNA rejected PSL’s lease in 2009.
2. The Claimants Cannot Establish the Element of Hostility.
The new claims for adverse possession also suffer the same factual shortcomings as the Greens’ claims. The claimants cannot establish that their possession was hostile for the same reasons that the Greens could not: until 2009 they were on the Property with the permission of CBNA’s lessee, PSL. Moreover, throughout the Green family’s use of the Property, the evidence shows that PSL was aware of, and permitted, its use.
The Alaska Supreme Court has instructed that “[h]ostility is ... determined by application of an objective test which simply asks whether the possessor ‘acted toward the land as if he owned it,’ without the permission of one with legal authority to give possession.”
Upon Billy Glover’s death, his daughter brought a quiet title action in anticipation of selling the property. Carl Snyder asserted ownership of the south lot through adverse possession. The trial court found that: (1) Ms. Johnson had granted Dan Snyder, Sr. permission to live on the property, and such permission precluded any
On appeal, the Alaska Supreme Court agreed that Dan Snyder’s permissive use of the property as a tenant could not constitute hostile possession for purposes of adverse possession.
Here, the evidence presented shows that the Green family possessed and used the Property with the permission and consent of PSL. This is the same evidence Judge MacDonald considered in addressing the Greens’ motion for injunctive relief to stay the sale of the Property. Judge MacDonald concluded,
The documentary evidence which CBNA has provided in its opposition and supplemental opposition strongly refutes their claim of adverse possession. The correspondence, e-mail exchanges, and receipts produced by CBNA establish that the Greens were caretakers of and sharecroppers on the Pilgrim Springs property. They were on the property at the request of CBNA’s lessee, Pilgrim Springs, Ltd., and CBNA took steps to receive assurance from its lessee that the Greens were on the property in these capacities rather than as squatters.
Representations made in this case by Pilgrim Springs, Ltd., indicate that CBNA’s lessee considered Mr. Green to be its agent and caretaker, as well. Arthur Neuman, Pilgrim Springs, Ltd.’s director and secretary treasurer, filed Proof of Claim No. 21 on December 2,*247 2008. In his narrative describing the nature of the claim, Neuman described Mr. Green as “Pilgrim Springs’ caretaker and sharecropper” and also indicated Green assisted in writing grants for Pilgrim Springs, Ltd. A copy of a letter from Neuman to CBNA dated August 3, 2008, describes Mr. Green as “our resident agent.”87
Having reviewed the same declarations and exhibits, I reach the same conclusion: PSL allowed the Green family, including Louie Jr., Stacey and Mary, to occupy and use the Property throughout its lease term. While Judge MacDonald focused upon the litigants before him, Louis Sr. and Nancy, the same letters between CBNA, PSL, and Mr. Green, show that PSL was aware of, and consented to, the family’s presence on the Property.
Further, whereas the Greens openly repudiated any permissive use by declaring their claims for adverse possession in a quiet title action, the claimants never undertook any similar acts. Rather, when CBNA asked Stacey and Mary if they would “consider the possibility of paying rent” for their cabin, they “politely declined.”
3. The Claimants Cannot Establish Notorious or Exclusive Possession Necessary for Adverse Possession.
The Alaska Supreme Court has described the requirements of continuity, notoriety, and exclusivity as the physical requirements of the adverse possession doctrine.
Unlike the claimants, the Greens openly declared their ownership in bankruptcy court, and filed two state court actions— albeit the first was in violation of the automatic stay, and the second in disregard of the Sales Order. Yet, at no time did the Greens ever mention that their sons’ families held, or claimed, an ownership interest in portions of the Property.
Claims of ownership acquired through adverse possession should, by definition, be known, or easily discovered, as the possession giving rise to the ownership must be open, notorious, and exclusive. While the claimants may have built cabins on the Property, as well as trails and bridges, and used their areas, this use and occupancy was consistent with the family’s use and occupancy of the Property. There is no evidence that the claimants’ use was distinguishable from or inconsistent with the Greens’ use of the entire Property. Both CBNA and PSL were aware that the Green family, including the claimants, was using the Property. But, there is no evidence that the claimants used any part of the Property in an open, notorious, and exclusive manner that would contradict or defeat the Greens’ purported use of the entire Property. In sum, the Greens’ use and occupancy, and their separate claims of adverse possession as to the entirety of the Property, precludes a finding that the claimants occupied separate portions of the same Property, for the same use, over the same period of time.
Further, when PSL filed its claim in the Main Case in December of 2008, it described the Property as uninhabited. Its Facts in Support of Pilgrim Springs, Ltd. Proof of Claim states that, throughout the duration of the lease, there were “no inhabitants or permanent residents” within 60 miles of the Property.
C. Constructive Notice to the Claimants Was Sufficient.
The same reasons that preclude the claimants from establishing open, notorious, exclusive, and hostile possession also compel the finding that at the time of the sale, their interests were unknown to CBNA. Accordingly, I find that notice by publication was sufficient to apprize them of the Motion to Sell. Notice by publication may satisfy due process concerns “where it is not reasonably possible or practicable to give more adequate warning,” such as in
A creditor, or party in interest, is entitled to actual notice if his or her identity is either known or “reasonably ascertainable by the debtor.”
The claimants have the burden “of proving a prima facie error in service.”
Conclusion
CBNA is entitled to an order compelling the Green family to vacate the Property. Louie Sr. and Nancy have not challenged the Sale Order or the Judgment. While the Judgment does not apply to Louie Jr., Stacey, or Mary, the Property was sold to Unaatuq, free and clear of their interests, under the Sale Order. They have not carried their burden to establish an ownership interest in any part of the Property through adverse possession. To the extent that they did hold some claim for adverse possession, their claims did not start to accrue as to CBNA until after termination of PSL’s lease. More significantly, their claims were unknown to CBNA, as well as the Greens and PSL. For these reasons, publication notice of the proposed free and clear sale of the Property in the Nome Nugget and other Alaska publications was sufficient as to their interests. Accordingly, the Sale Order has extinguished whatever interests they may have had, and they must vacate the Property as well.
The court will, therefore, enter a separate order granting the Motion to Enforce Judgment and Related Orders and denying the Request for Rule 60(b) Relief.
. Those opposing the Motion generally break down into two groups. Defendants Louis Sr. and Nancy E. Green are referred to herein as "the Greens.” Louie Jr., Stacey, and Mary are collectively identified as "the claimants.” "The Green family,” as used herein, is a collective reference to all of these individuals.
. This factual recitation is culled from the numerous orders, memoranda, and pleadings that have previously been entered in both the Main Case and this adversary proceeding. The most pertinent of these are appended as exhibits to Unaatuq’s pending Motion to Enforce Judgment (Docket No. 39).
. See Decl. of Rev. Bowder, filed Feb. 24, 2010 (Main Case Docket No. 710), Ex. A. A copy of Bowder’s Declaration, with its exhibits, is appended to Unaatuq’s Mot. to Enforce Judgment (Docket No. 39). as Ex. 12. A Statement of Gross Receipts dated Dec. 31, 1987, reflects that Louis Sr. and Annie Green “provided caretaker services in exchange for gardening privileges.” Bowder Decl., Ex. G.
. Bowder Decl., Ex. B.
. Id.
. Id., Ex. Cat 3.
. Id.
. Id.
. Bowder DecL, Ex. D at 1.
. Id., Ex. H.
. Id., Ex. Fat 2.
. Mot. Pursuant to 11 U.S.C. §§ 541, 542 and 105 for an Order Approving (I) CBNA’s Rescission and Termination of Lease, and (II) Requiring Former Tenant to Turnover Possession of Property, filed Nov. 7, 2008 in the Main Case (Docket No. 278).
. Am. Notice of Mot. and Hearing Pursuant to 11 U.S.C. §§ 541, 542 and 105 for an Order Approving (I) CBNA's Rescission and Termination of Lease, and (II) Requiring Former Tenant to Turnover Possession of Property, filed Nov. 7, 2008 in the Main Case (Docket No. 280), at 5.
. Order Granting Mot. Pursuant to 11 U.S.C. §§ 541, 542 and 105 for an Order Approving (I) CBNA’s Rescission and Termination of Lease, and (II) Requiring Former Tenant to Turnover Possession of Property, entered Dec. 5, 2008, in Main Case No. F08-00110 (Docket No. 306).
. Proof of Claim No. 23-1, filed Dec. 2, 2008 in the Main Case, at 2.
. Id. PSL filed a separate claim that also referred to Louis Sr. as its caretaker, “resident agent,’’ and sharecropper. Proof of Claim No. 21 — 1, filed Dec. 2, 2008, in the Main Case, at 15, and Exs. 25, 28, 39, 43, and 47.
. Dec'l of Thomas Buzek in Supp. of Debtor’s Obj. to Certain Relief Requested in Notice of Appeal by Louis and Nancy Green (Buzek Dec’l), filed Feb. 5, 2010 in the Main Case (Docket No. 678), Ex. A. A copy of Buzek's Declaration, with its exhibit, is appended to Unaatuq’s Mot. to Enforce Judgment as Ex. 9.
. Buzek Dec’l (Docket No. 678), at 3.
. Dec'l of Thomas Buzek in Supp. of Debtor’s Obj. to Proof of Claim of Pilgrim Springs, Ltd., filed Aug. 10, 2009 in the Main Case (Docket No. 516), at 2.
. Main Case Docket No. 580.
. The disclosure statement hearing was noticed on November 3, 2009. Louis Sr. and Nancy were listed on the matrix at this point in time, and were served with notice of the hearing. See Main Case Docket Nos. 563, 564, 564-2 at 12.
. Second Am. and Restated Disclosure Statement in Support of Debtor’s Second Am. and Restated Plan of Reorganization, filed Oct. 30, 2009 (Main Case Docket No. 561), at 13, 50-53, 63.
. Debtor’s Emergency Mot. for Order to Show Cause Why Sanctions for Violation of Automatic Stay Should not be Issued, filed Jan. 8, 2010 (Main Case Docket No. 625), Exs. B-F.
. Id.
. Order Granting Debtor’s Emergency Motion for Order to Show Cause Why Sanctions for Violation of the Stay Should Not be Issued, entered Jan. 21, 2010 in the Main Case (Docket No. 646).
. Order Approving Third Am. and Restated Disci. Statement Submitted by CBNA and Confirming Third Am. and Restated Joint Plan of Reorganization, entered Feb. 17, 2010 in the Main Case (Docket No. 689).
. Certificate of Mailing, filed Dec. 23, 2009 (Docket No. 615).
. Stipulated Mot. to Approve Bid and Sale Procedure and Scheduling of an Auction Hearing Date for the Sale of Pilgrim Springs Property Free and Clear of Claims, Liens, Encumbrances and Interests Pursuant to the Plan and 11 U.S.C. § 363, filed Feb. 2, 2010 (Main Case Docket No. 671).
. Id.
. Main Case Docket No. 673.
. Certificate of Electronic Mailing and Publication of Notice of Auction of Pilgrim Hot Springs Property, filed Mar. 11, 2010 (Main Case Docket No. 734-1). Copies of the published notices are not included in the Main Case record. However, Stacey, Mary, and Louie Jr. do not dispute that notice of the sale was published in the publications identified at
. Mot. for Prelim. Injunction to Stay the Sale of Pilgrim Hot Springs, filed Feb. 22, 2010 (Main Case Docket No. 703).
. Memo, of Law in Supp. of Appellants' Mot. for Prelim. Injunction, filed Feb. 22, 2010 (Main Case Docket No. 704) at 1.
. Decl. of Rev. Mr. George W. Bowder in Sup. Of Debtor's Obj. to Certain Relief Requested in Notice of Appeal of Louis and Nancy Green filed Feb. 5, 2010 (Main Case Docket No. 709) at 3-4. A copy of Rev. Bowder’s Declaration is appended to Unaatuq’s Mot. to Enforce Judgment as Ex. 8.
. Buzek Dec’l (Docket No. 678).
. Id., Ex. A.
. Main Case Docket No. 716, at 12.
. Id. at 13.
. Mem. Decision, entered Oct. 19, 2010, in USDC Appeal No. 4:10-cv-00004-RRB (Main Case Docket No. 815), at 7-8 (citations omitted).
. Am. Order, entered Mar. 4, 2010 in USDC Appeal No. 4:10-cv-00004-RRB (appended to Unaatuq’s Motion, Docket No. 39, as Ex. 4), at 4-5 (citations omitted).
. Mat 5.
. Main Case Docket No. 754.
. Id. ató.
. Docket No. 7.
. Order Granting Mot. for Summ. Judgment, entered Mar. 30, 2011 (Docket No. 21); Judgment, entered Mar. 30, 2011 (Docket No. 22).
. Judgment, entered Mar. 30, 2011 (Docket No. 22), at 1.
. Id. at 2.
.Id. at 3-4.
. PI. ’s Mot. to Enforce Judgment and Related Orders, filed Aug. 23, 2014 (Docket No. 39), at 2. This motion was initially filed in the Main Case (Main Case Docket No. 865). The court deferred ruling on that motion pending the correction of certain procedural deficiencies, and required Unaatuq to seek relief in the instant adversary proceeding to enforce the Judgment. See Order Deferring Ruling on Mot. to Enforce Sale and Related Orders, entered Aug. 22, 2013 in the Main Case (Docket No. 867).
. Letter from Louis H. Green and Nancy Green, filed Sept. 10, 2013 (Docket No. 41).
. See Opp’n to Mot. to Enforce Judgment and Related Orders and Request for Rule 60(b) Relief, filed Oct. 2, 2013 by Stacey and Mary (Docket No. 51); Opp'n to Mot. to Enforce Judgment, filed Oct. 2, 2013 by Louie Jr. (Docket No. 52). Stacey's and Mary’s opposition expressly incorporates a request for Rule 60(b) relief. Although not referenced in the caption, Louie Jr. includes a similar request within his opposition as well.
. Battle Ground Plaza, LLC v. Ray (In re Ray), 624 F.3d 1124, 1135 (9th Cir. 2010) (citing Beneficial Trust Deeds v. Franklin (In re Franklin), 802 F.2d 324, 326-27 (9th Cir. 1986)); Doolittle v. County of Santa Cruz (In re Metzger), 346 B.R. 806, 809 (Bankr.N.D.Cal. 2006) (court retained jurisdiction to interpret a sale order it had entered 14 years earlier).
. Metzger, 346 B.R. at 815 ("Holders of liens that may be adversely affected are entitled to unambiguous notice and an adequate opportunity to respond.’’) (emphasis in original).
. 11 U.S.C. § 363(b)(1) and (f).
. Fed. R. Bankr.P. 6004(c), 7004, and 9014.
. Citicorp Mortg., Inc. v. Brooks (In re Ex-Cel Concrete Co., Inc.), 178 B.R. 198, 203 (9th Cir. BAP 1995) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
. Metzger, 346 B.R. at 815 (citing Ex-Cel Concrete, 178 B.R. at 203).
. Ex-Cel Concrete, 178 B.R. at 203 (citing In re Center Wholesale, 759 F.2d 1440, 1448 (9th Cir. 1985)).
. Metzger, 346 B.R. at 819.
. 11 U.S.C. § 363(p)(2).
. Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (quoting Smith v. Krebs, 768 P.2d 124, 125 (Alaska 1989)).
. Id.; AS 09.10.030. In 2003, Alaska amended its adverse possession statutes, AS 09.10.030, and AS 09.45.052 to limit the applicability of adverse possession. See generally, Jennie Morawetz, No Room for Squatters: Alaska’s Adverse Possession Law, 28 Alaska L.Rev. 341, 361-64 (2011). Only Stacey has provided any evidence as to when his adverse possession claim began. Although equivocal, it arguably began around 1990, and would have concluded prior to the amendment of the Alaska statutes. For purposes of this analysis, I assume that it is governed by the statutes prior to the 2003 amendments.
. Nome 2000, 799 P.2d. at 309.
. Docket No. 51. Louie Jr.’s Opposition stated that an affidavit “outlining his period of ownership in greater detail” would be filed
. Aff. of Dewey “Stacey” Green (Docket No. 51-1), at 2; Aff. of Mary Reader (Docket No. 51-2), at 2.
. Stacey Aff., Docket No. 51-1, at 2.
. Id.
. Id.
. Opp’n to Mot. to Enforce Judgment (Docket No. 52), at 2.
. Id.
. Glover v. Glover, 92 P.3d 387, 393 (Alaska 2004).
. Am. Order, entered Mar. 4, 2010 in USDC Appeal No. 4:10-cv-0004-RRB (appended to Unaatuq’s Motion, Docket No. 39, as Ex. 4), at 4 (citing Restatement (First) of Property § 222 (1936)).
. Restatement (First) of Property § 222 (emphasis added); see also 16 Powell on Real Property § 91.12 (2006). See generally Diete-rich Int’l Truck Sales, Inc. v. J.S. & J. Serv., Inc., 3 Cal.App.4th 1601, 1608, 5 Cal.Rptr.2d 388, 392 (1992) ("A future interest, such as a landlord's reversion cannot be the subject of a prescriptive easement because the statutory period for acquiring the easement runs only against a possessory interest.”).
. Restatement (Second) of Property: Landlord & Tenant § 1.2 (1977)("A landlord-tenant relationship exists only if the landlord transfers the right to possession of the leased property.”); See Lewis v. Jaeger, 818 N.W.2d 165, 187 (Iowa 2012)("A tenant’s right to possession is generally exclusive, and the tenant, not the landlord, has legal control of the leased premises.”); In re American Legion Post No. 81, 45 Kan.App.2d 812, 255 P.3d 31, 33 (2011); Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 368 A.2d 6, 9 (1976).
.25 Am.Jur.2d Ejectment § 1 (2014)("eject-ment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.”); 75 Am.Jur.2d Trespass § 18 (2014)(The essence of a trespass to real property is the injury to the right of possession.”).
. See Dieterich Int’l Truck Sales, Inc., 3 Cal.App.4th at 1609-10, 5 Cal.Rptr.2d 388 (detailing differences between an owner’s ability to bring a suit to protect ownership interest and suits to protect possessory interests, where the affected property has been leased.)
. The lease was terminated upon its rejection. 11 U.S.C. § 365(h)(l)(A)(i).
. Nome 2000, 799 P.2d at 310 (emphasis in original)(quoting Hubbard v. Curtiss, 684 P.2d 842, 848 (Alaska 1984)).
. 92 P.3d 387 (Alaska 2004).
. Id. at 390.
. Mat 392.
. Id.
. Id.
. Glover, 92 P.3d at 394.
. Id.
. Id.
. In re Catholic Bishop of Northern Alaska, 9 ABR 346, 351-52, 2010 WL 7506092, at *3 (Bankr.D.Alaska Feb. 26, 2010). In reaching his conclusion that the PSL had allowed the Qreen family to occupy and use the Property, Judge MacDonald relied upon the same declarations and exhibits from Thomas Buzek and George Bowder that Unaatuq has attached to its Motion.
. The same letters on which Judge MacDonald relied are attached to Bowder Declaration, Exs. A-F, and form the basis for some of the factual discussion in the Background section of this Memorandum.
. Aff. of Dewey “Stacey” Green (Docket No. 51-1), at 2; Aff. of Mary Reader (Docket No. 51-2), at 2.
. Nome 2000, 799 P.2d at 309.
. Id. at 308.
. In re Catholic Bishop of Northern Alaska, 9 ABR at 351, 2010 WL 7506092, at *3.
. See PSL's Proof of Claim No. 21, at 9.
. Mullane, 339 U.S. at 317, 70 S.Ct. 652; see also Tulsa Professional Collection Serv., Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (“For creditors who are not ‘reasonably ascertainable,' publication notice can suffice.”). Fed. R. Bankr.P. 7004(c) permits service by publication in limited instances.
. Mullane, 339 U.S. at 317, 70 S.Ct. 652.
. Id.
. Tulsa Professional Collection Serv., 485 U.S. at 489-90, 108 S.Ct. 1340.
. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 804-05, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).
. DePippo v. Kmart Corp. (In the Matter of DePippo), 335 B.R. 290, 295 (S.D.N.Y. 2005)
. Tulsa Professional Collection Serv., 485 U.S. at 490, 108 S.Ct. 1340 (citing Mullane, 339 U.S. at 317, 70 S.Ct. 652).
. Metzger, 346 B.R. at 815.
Reference
- Full Case Name
- In re CATHOLIC BISHOP OF NORTHERN ALASKA, Debtor. Unaatuq, LLC v. Louis H. Green, and Nancy E. Green
- Cited By
- 1 case
- Status
- Published