In re Leeds
In re Leeds
Opinion of the Court
On June 27, 2018, the court heard argument regarding SFR Investment Pool 1, LLC'S Motion to Retroactively Annul the Automatic Stay ("Annulment Motion").
*190The appearances of counsel were noted on the record. After arguments were presented, the matter was taken under submission.
BACKGROUND
On June 17, 2011, a voluntary Chapter 7 bankruptcy petition was filed, in pro se , by Myong Leeds ("Leeds"). The case was assigned to David Rosenberg ("Rosenberg") as Chapter 7 trustee. (ECF No. 2).
On July 5, 2011, Leeds filed her schedules of assets and liabilities ("Schedules"), along with her statement of financial affairs ("SOFA"). (ECF No. 11). On her real property Schedule "A," Leeds disclosed her interest in a residence located at 8254 Bowman Woods Circle, Las Vegas, Nevada ("Leeds Residence"). Leeds stated under penalty of perjury that the value of her residence was $307,554. On her secured creditor Schedule "D," previously filed with her petition, Leeds listed BAC Home Loans as having a claim in the amount of $610,000 secured by the Leeds Residence.
On July 21, 2011, Rosenberg filed an application to employ the law firm of Howard Kim & Associates ("Kim Firm") as special counsel on behalf of the estate. (ECF No. 13).
On July 29, 2011, attorney Seth D. Ballstaedt ("Ballstaedt") filed a notice of appearance as bankruptcy counsel for Leeds. (ECF No. 18).
On August 15, 2011, an order was entered approving the employment of the Kim Firm as special counsel to the estate. (ECF No. 20).
On September 13, 2011, Ballstaedt filed the Debtor's amendments to her Schedules and SOFA, including a Disclosure of Compensation of Attorney for Debtor(s) - Amended, required under FRBP 2016(b) ("2016 Statement"). (ECF Nos. 25 and 26).
On September 20, 2011, the court entered an order granting Leeds her Chapter 7 discharge. (ECF No. 30). As a result of her discharge, the automatic stay terminated as to Leeds under Section 362(c)(2)(C), but remained in effect as to the Leeds Residence.
On February 29, 2012, an order was entered approving the settlement of a preference action that had been commenced by the Kim Firm on behalf of the bankruptcy estate. (ECF No. 40).
On July 10, 2012, Rosenberg filed a final report and proposed distribution ("TFR"). (ECF No. 54). The TFR stated that the Leeds Residence would be abandoned pursuant to Section 554(c).
On October 15, 2012, an order was entered approving the TFR. (ECF No. 62).
On May 8, 2013, the Leeds Residence was purchased for $42,000 by SFR Investments Pool 1, LLC ("SFR") at a foreclosure sale conducted on behalf of Butler Estates Homeowners Association ("Butler HOA" or "HOA") through its foreclosure *191trustee, Alessi & Koenig, LLC ("A & K"). See Exhibit "F" to Declaration of Jamie Combs in Support of Bank of America N.A.'s Opposition to SFR Investments Pool 1, LLC's Motion to Retroactively Annul the Automatic Stay ("Combs Declaration").
On September 10, 2013, A & K filed a complaint in State Court commencing the Interpleader Action. See Exhibit "1" to Notice of Removal, filed March 8, 2017, in Alessi & Koenig Bankruptcy ("Removal Notice"). A & K was in possession of excess funds from the foreclosure sale and sought a determination of claims to the funds.
On August 1, 2013, Rosenberg filed a final distribution report ("TDR"). (ECF No. 65). The TDR attested that the Leeds Residence was fully administered and that no funds were received by the bankruptcy estate.
On January 29, 2014, a final decree was entered closing the Chapter 7 proceeding and discharging Rosenberg from any further duties. (ECF No. 72). As a result of the case closure, the automatic stay terminated as to the Leeds Residence pursuant to Section 362(c)(2)(A), and any interest of the bankruptcy estate in the Leeds Residence was abandoned under Section 554(c).
On December 13, 2016, A & K commenced the Alessi & Koenig Bankruptcy proceeding.
On March 8, 2018, Bank of America, N.A. ("BOA") filed the Removal Notice indicating that the Interpleader Action was removed from the State Court to the bankruptcy court pursuant to
On August 24, 2017, the bankruptcy court entered an order remanding the Interpleader Action to the State Court. (A & K v. Leeds AECF No. 22).
On April 16, 2018, the State Court in the Interpleader Action entered the default of the Debtor, as well as her non-debtor spouse, Marc Leeds.
On May 3, 2018, an order was entered granting the motion of SFR to reopen the Leeds proceeding ("Reopening Order"). (ECF No. 75). The purpose of the motion was for SFR to seek a further court order annulling the automatic stay that arose under Section 362(a) when Leeds filed her Chapter 7 bankruptcy petition.
On May 9, 2018, notice of entry of the Reopening Order was served by SFR ("Reopening Notice"). (ECF No. 76).
On May 10, 2018, SFR filed the instant Annulment Motion, accompanied by the supporting Declaration of Christopher J. Hardin ("Hardin Declaration"). (ECF Nos. 77 and 79). SFR also filed a notice of hearing that the Annulment Motion would be heard on June 13, 2018, accompanied by a Certificate of Service ("COS"). (ECF Nos. 80 and 81).
On June 6, 2018, an order was entered granting BOA's request to continue the hearing to June 27, 2018. (ECF No. 102).
On June 13, 2018, BOA filed an opposition to the Annulment Motion ("BOA Opposition"), accompanied by the Combs Declaration. (ECF Nos. 106 and 107).
On June 18, 2018, the State Court in the Interpleader Action entered an order granting summary judgment in favor of BOA ("BOA SJ Order"). See Exhibit "A"
*192to Declaration of Jamie K. Combs, Esq. Regarding Clark County District Court's Entry of Order Granting Bank of America, N.A.'s Motion for Summary Judgment ("Supplemental Combs Declaration"). (ECF No. 110). The State Court concluded that BOA had standing to challenge the validity of the Butler HOA foreclosure sale as a violation of the automatic stay, see BOA SJ Order at ¶ 12, that a foreclosure sale conducted in violation of the automatic stay is void ab initio, see
On June 20, 2018, SFR filed a reply in support of the Annulment Motion, accompanied by an additional Declaration of Christopher J. Hardin ("Supplemental Hardin Declaration"). (ECF Nos. 108 and 109).
On June 25, 2018, BOA filed the Supplemental Combs Declaration.
APPLICABLE LEGAL STANDARDS
The automatic stay arises only upon the filing of a bankruptcy petition and is applicable to "all entities."
Under Section 554(c), scheduled property that is not otherwise administered at the close of a Chapter 7 case is abandoned to the debtor and deemed administered. Under Section 362(c)(1), the stay of acts against property of the estate continues until the property is no longer property of the estate. Under Section 362(c)(2), the stay of all other acts continues until the case is closed, the case is dismissed, or the debtor is granted or denied a discharge. By operation of law, the automatic stay terminated and cannot be reinstated. See Canter v. Canter (In re Canter),
On request from a "party in interest," the court may grant relief from the automatic stay by terminating, annulling, modifying, or conditioning the automatic stay.
In the Ninth Circuit, if an act is taken by a creditor in violation of the automatic stay, any such act, including a sale of estate property, is void ab initio . See Schwartz v. U.S. (In re Schwartz),
Annulment of the automatic stay "has the effect of retroactively validating acts that otherwise violate the stay." Lonestar Sec. & Video, Inc. v. Gurrola (In re Gurrola),
Whether "cause" exists under Section 362(d)(1) to annul the stay is determined under a "balancing of the equities" test. See In re Fjeldsted,
1. Number of filings;
2. Whether, in a repeat filing case, the circumstances indicate an intention to delay and hinder creditors;
3. A weighing of the extent of prejudice to creditors or third parties if the stay relief is not made retroactive, including whether harm exists to a bona fide purchaser;
4. The Debtor's overall good faith (totality of circumstances test): cf. Fid. & Cas. Co. of N.Y. v. Warren (In re Warren),89 B.R. 87 , 93 (9th Cir. BAP 1988) (chapter 13 good faith);
5. Whether creditors knew of stay but nonetheless took action, thus compounding the problem;
6. Whether the debtor has complied, and is otherwise complying, with the Bankruptcy Code and Rules;
7. The relative ease of restoring parties to the status quo ante;
8. The costs of annulment to debtors and creditors;
9. How quickly creditors moved for annulment, or how quickly debtors moved to set aside the sale or violative conduct;
10. Whether, after learning of the bankruptcy, creditors proceeded to take steps in continued violation of the stay, or whether they moved expeditiously to gain relief;
11. Whether annulment of the stay will cause irreparable injury to the debtor;
12. Whether stay relief will promote judicial economy or other efficiencies.
Id. at 25.
DISCUSSION
During the Chapter 7 proceeding, the automatic stay prevented creditors from enforcing claims against the Leeds Residence without first obtaining relief from stay from the bankruptcy court. On May 8, 2013, however, SFR purchased the Leeds Residence at a foreclosure sale conducted on behalf of the Butler HOA. Under Nevada law, certain portions of HOA assessment liens have priority over residential mortgages. See NRS 116.3116(2)(b). When the homeowner does not satisfy the priority lien, the HOA can foreclose on the residence. The Nevada Supreme Court has concluded that a valid HOA foreclosure sale of residential property extinguishes the lower priority mortgage held by the residential lender. See SFR Inv. Pool 1, LLC v. U.S. Bank,
In a bankruptcy context, the consequence to the residential lender is extreme: the individual debtor's personal liability for the loan is discharged by the bankruptcy, see
The foreclosure sale for the Leeds Residence occurred on May 8, 2013, but the Leeds bankruptcy case did not close until January 29, 2014. As there was no abandonment of the Leeds Residence under Section 554(a or b) prior to case closure, the Leeds Residence was still property of the bankruptcy estate being administered by Rosenberg at the time SFR purchased the Leeds Residence at the Butler HOA foreclosure sale.
In the instant case, the Reopening Order obtained under Section 350 did not reimpose the automatic stay nor did it revest the Leeds Residence or any other property in the prior Chapter 7 estate. Additionally, there was no injunction entered by this court precluding further action in the A & K v. Leeds Action. As a result, the State Court order granting summary judgment in favor of BOA did not violate the automatic stay nor any order issued by a federal court. Likewise, that summary judgment order did not violate the discharge injunction protecting Leeds because it was not a determination of the personal liability of Leeds with respect to an obligation that was discharged in her bankruptcy. In short, nothing about the State Court summary judgment order in favor of BOA violated the automatic stay, an order of this court, or the discharge injunction. Compare *195Gruntz v. Cty. of Los Angeles (In re Gruntz),
In the instant case, the automatic stay was violated both by the HOA in seeking to enforce its assessment lien against the Leeds Residence, and by SFR in seeking to obtain possession and control over the Leeds Residence. Both the HOA and SFR are "entities" that were subject to the automatic stay and the Leeds Residence was property of the estate. Under settled automatic stay jurisprudence, both the act of the HOA and the act of SFR are void ab initio . Only SFR, however, has sought to annul the automatic stay. But if the automatic stay is annulled to permit the foreclosure sale to proceed retroactively, separate relief in favor of Butler HOA should not be necessary. SFR argues that annulment of the automatic stay is appropriate under the "Fjeldsted Factors." See Annulment Motion at 5:12 to 6:4; SFR Reply at 12:11 to 15:13. BOA opposes retroactive relief for SFR for a variety of reasons. See BOA Opposition at 9:3 to 14:16. SFR asserts that BOA lacks standing to oppose its request for annulment because a creditor lacks standing to enforce the automatic stay. See SFR Reply at 6:11 to 12:9.
The court having considered the written and oral arguments of the parties concludes that the Annulment Motion must be denied for several reasons.
First, Rosenberg breached his fiduciary duty to the Leeds bankruptcy estate.
In its opposition to the Annulment Motion, BOA alleges, among other things, that Rosenberg established, managed, controlled, and/or advised SFR while he was still the duly appointed Chapter 7 trustee in the instant case. See BOA Opposition at 4:4 to 7:8. It alleges that Rosenberg hired the current manager of SFR (Christopher J. Hardin) and conducted business with SFR through an adjoining office space. See BOA Opposition at 5:19-26.
In response to BOA's serious allegations,
At the hearing on the Annulment Motion, however, counsel for SFR acknowledged on the record that Rosenberg did act as counsel for SFR when Rosenberg was still the Chapter 7 trustee in the Leeds case. He also confirmed that Rosenberg was counsel for SFR at the time the Leeds Residence was purchased by SFR at the HOA foreclosure sale. Counsel for SFR was unaware of whether Rosenberg received compensation for his services to SFR, but acknowledged that SFR receives rent for the former Leeds Residence as part of SFR's business operations. Apparently in support of one of the Fjelsted Factors, counsel for SFR argued that Rosenberg's knowledge of the Leeds bankruptcy proceeding should not be imputed to SFR.
*197A bankruptcy trustee has a fiduciary duty to all creditors of the bankruptcy estate. See generally 3 COLLIER ON BANKRUPTCY , ¶ 323.02[2] and 6 COLLIER ON BANKRUPTCY , ¶ 704.04[1] (Richard Levin and Henry J. Sommer, eds., 16th ed. 2018).
The record in this matter sufficiently demonstrates that Rosenberg breached his fiduciary duties in this case. While Rosenberg was serving as the Chapter 7 trustee, SFR acknowledges that Rosenberg also acted as counsel for SFR. While Rosenberg was acting as counsel for SFR, SFR acknowledges that it purchased the Leeds Residence while it was still property of the *198bankruptcy estate. SFR acknowledges that it was a client of Rosenberg when it purchased the Leeds Residence in violation of the automatic stay.
Second, service of the Annulment Motion was insufficient.
The Ninth Circuit has stated that retroactive relief from the automatic stay should be granted only in extreme circumstances. See Mataya v. Kissinger (In re Kissinger),
While maintaining that it has standing to seek annulment of the automatic stay, SFR also maintains that BOA lacks standing to assert the protections of the stay in opposition to an annulment request. Citing a circuit decision holding that a secured creditor lacks standing to appeal an adverse ruling on a separate creditor's automatic stay violation, SFR asserts that the only appropriate parties with standing to object to retroactive relief from stay in a Chapter 7 proceeding are the debtor and the bankruptcy trustee. See Annulment Motion at 2:17-18; SFR Reply at 2:2-14, citing Tilley v. Vucurevich (In re Pecan Groves of Ariz.),
*199In the instant case, Leeds received her discharge on September 20, 2011. The Butler HOA foreclosure was completed on May 8, 2013. The Interpleader Action was commenced on September 10, 2013. On April 17, 2014, an "Affidavit of Due Diligence re: Myong Leeds, an Individual," was filed in the Interpleader Action. See Exhibit 16 to Removal Notice. That affidavit attests that a licensed process server was unable to locate Leeds at various addresses in Las Vegas, Nevada, as well as in Illinois.
There is no evidence in the record that Leeds was ever served with the Annulment Motion by personal service, by mail, or any other method. There is evidence in the record that attorney Ballstaedt never agreed to represent Leeds in relief from stay proceedings. See 2016 Statement at ¶ 7.
There is evidence, of course, that SFR served Rosenberg with the Annulment Motion. Combined with SFR's acknowledgement that Rosenberg actually represented SFR at the time of the very sale in question, however, that evidence gives new and virtually literal meaning to the adjective "self-serving." Moreover, Rosenberg no longer serves on the Chapter 7 trustee panel in this judicial district. Thus, even if Rosenberg remotely could be considered disinterested in connection with the instant matter, he has no legal authority to respond to the Annulment Motion as a fiduciary on behalf of the bankruptcy estate.
Under these circumstances, there is no evidence of adequate notice to any of *200the parties, i.e., the debtor and the bankruptcy trustee, who apparently have standing to oppose the relief that SFR seeks.
Unclean hands is an equitable doctrine that bars a party from seeking equitable relief, reflecting the equitable maxim that "he who seeks equity must do equity." See Mfrs.' Fin. Co. v. McKey,
SFR engaged the legal services of Rosenberg while Rosenberg was the Chapter 7 trustee of the Leeds estate and while SFR acquired the Leeds Residence from the Leeds estate. SFR acquired the Leeds Residence for $42,000, compared to the $307,554 value attested by the former owner, Leeds. Rosenberg violated his fiduciary duties as the Chapter 7 trustee of the Leeds estate. As a licensed attorney, Rosenberg also likely violated his duties to SFR under Rules 1.1
*202Bankruptcy courts are courts of equity and this court has exercised its discretion in numerous cases where retroactive relief from the automatic stay has been sought. See, e.g., In re Victor H. Wheatley, Case No. 12-22310-MKN, Order on Motion for Relief from Stay re: 1304 Rawhide Street Las Vegas, Nevada, Docket No. 85, July 31, 2015 (granting homeowners association motion, joined by purchaser, to annul automatic stay to validate sale); In re Lynn C. Burke, Case No. 12-12508-MKN, Order on Ex Parte Motion to Reopen Bankruptcy Case for the Purpose of Retroactively Annulling the Automatic Stay, Docket No. 45,
Under the facts acknowledged by SFR, it acquired the Leeds Residence while engaging the assistance of Rosenberg, which violated his fiduciary duties to the bankruptcy estate. Additionally, Rosenberg likely violated his professional responsibility as an attorney to notify the UST and to obtain its written consent before providing legal services to SFR. By annulling the automatic stay in this instance, the court would become a participant in Rosenberg's and SFR's inequitable conduct. That this court will not do.
Finally, application of the Fjeldsted Factors separately warrants denial of the Annulment Motion.
Most of the previously categorized "debtor factors" do not favor retroactive relief from stay. Leeds has filed only one bankruptcy case and is not a repeat filer attempting to hinder and delay creditors. She has not sought a Chapter 13 *203super-discharge and has complied with applicable bankruptcy law. If the stay is not annulled, however, the prospect of injury to Leeds arises because legal title to the Leeds Residence has been restored to her. Moreover, Leeds would be on title to real property that she does not occupy, encumbered by a deed of trust securing a discharged loan that is hopelessly in default. A subsequent foreclosure or other resolution of the various claims could jeopardize the fresh start she commenced on September 20, 2011, when she received her Chapter 7 discharge.
None of the "non-debtor factors" favor retroactive relief from stay under the circumstances of this case. No one disputes that Butler HOA violated by the automatic stay when it foreclosed on the Leeds Residence. No one disputes that Butler HOA could have obtained relief from stay during the Leeds bankruptcy proceeding and then proceeded to complete a valid foreclosure sale. No one disputes that if BOA had filed a notice of default on its deed of trust during the Leeds bankruptcy proceeding without first obtaining relief from stay, any subsequent foreclosure sale would have been void. No one disputes that BOA could have obtained relief from stay during the Leeds bankruptcy proceeding and then proceeded to complete a valid foreclosure sale. No one disputes that BOA could have satisfied the priority portion of the Butler HOA lien to prevent the foreclosure sale from being completed. No one disputes that Rosenburg was legal counsel to SFR at the time SFR purchased the Leeds Residence. As between two creditors, i.e., BOA and Butler HOA, the extent of prejudice is extreme: annulment of the stay wipes out BOA's lien under Nevada law, the parties would seek relief from the summary judgment ruling in the Interpleader Action, and BOA is prevented from seeking recovery from Leeds.
Most of the "common factors" do not favor retroactive relief from stay. Annulling the stay to restore parties to the "status quo ante" actually would result in Leeds returning to legal title to the Leeds Residence, Butler HOA having an unpaid priority assessment lien, BOA having a deed of trust securing a loan that was discharged by Leeds, and SFR having no legal interest in the Leeds Residence.
The remaining "neutral factor" is itself neutral under the circumstances of this proceeding. The Annulment Motion is the only request being made in an otherwise completed Chapter 7 proceeding. The outcome of the request has no additional impact on the economies or efficiencies of the federal courts because an order on a motion for relief from stay under Section 362(d), whether granted or denied, is appealable. See In re Zapata,
Under these circumstances, when balancing the equities through application of the Fjelsted Factors, the court also concludes that retroactive relief from stay is inappropriate.
For all of the reasons set forth above,
IT IS HEREBY ORDERED that SFR Investment Pool 1, LLC'S Motion to Retroactively Annul the Automatic Stay, Docket No. 77, be, and the same hereby is, DENIED .
The instant motion arises because of certain issues raised in an interpleader action pending in the Eighth Judicial District Court, Clark County, Nevada ("State Court"), styled as Alessi & Koenig, LLC v. Leeds, et al., Case No. A-13-688246-C ("Interpleader Action"). The plaintiff in that action subsequently commenced a Chapter 7 liquidation proceeding denominated Case No. 16-16593-ABL ("Alessi & Koenig Bankruptcy"). Thereafter, the Interpleader Action was removed to this bankruptcy court and assigned Adversary Proceeding No. 17-01038-ABL. The court takes judicial notice under FRE 201 of the papers filed in Interpleader Action and the Alessi & Koenig Bankruptcy. See U. S. v. Wilson,
According to the docket in the instant case, Rosenberg's address was 5030 Paradise Road, Suite B-215, Las Vegas, Nevada 89119.
Exhibit "F" is a copy of a Trustee's Deed Upon Sale. In addition to other information, that document lists the address of SFR as 5030 Paradise Road, Suite B-214, Las Vegas, Nevada, 89119.
Factor 5 refers to the Warren decision by the Bankruptcy Appellate Panel for the Ninth Circuit ("BAP"). In that proceeding, the individual debtor sought to discharge a $40,970 embezzlement judgment through a Chapter 13 plan that paid only $1,000 to his creditors. The embezzlement judgment would have been nondischargeable in Chapter 7 under Section 523(a)(6), but was not excepted from the so-called "super-discharge" in Chapter 13 under then-Section 1328(c).
The "Rooker-Feldman" doctrine requires federal courts to give full faith and credit to the decisions of state courts. The doctrine applies in bankruptcy proceedings where the relevant dispute also is raised before a state court. See Reusser v. Wachovia Bank, N.A.,
As discussed in notes 3 and 4, supra, Rosenberg occupies Suite B-215 and SFR occupies Suite B-214 at the same Las Vegas street address.
BOA also alleges that during his employment as special counsel to the Leeds estate, attorney Kim also reviewed the Schedules that listed the Leeds Residence as an asset of the bankruptcy estate. See BOA Opposition at 5:4-7.
BOA also objects under FRE 602 (personal knowledge), 701 (opinion testimony), 801 and 802 (hearsay), and 1002 (best evidence) to Paragraphs 7, 8, 9 and 11 of the Hardin Declaration. See Evidentiary Objections to Declaration of Christopher J. Hardin in Support of SFR Investments Pool 1, LLC's Motion to Retroactively Annul the Automatic Stay ("Evidentiary Objection"). (ECF No. 105).
If true, the allegations made by BOA implicate various bankruptcy provisions of Title 18, including
For example, a limited liability company ("LLC") can be member-managed or manager-managed. See NRS 86.161(d). An LLC can have a non-member manage its operations. See NRS 86.291(3). The non-member manager has no ownership interest in the LLC and need not have any involvement in the formation of the LLC.
Counsel argued that if Rosenberg was an "all-knowing" trustee aware, inter alia , that the HOA foreclosure sale was in violation of the automatic stay, his assumed knowledge still should not be imputed to SFR. A Chapter 7 trustee is not required, however, to be "all-knowing" or otherwise omniscient to understand when property of his or her assigned bankruptcy case remains property of the estate. Only three months after the HOA foreclosure sale, Rosenberg attested in his TDR that the Leeds Residence had been fully administered, even though it had been purchased by his own client in violation of the automatic stay. Had the case been closed before the HOA foreclosure sale, the Leeds Residence would have been administered by abandonment to Leeds pursuant to Section 554(c). As both a Chapter 7 trustee and a bankruptcy attorney, Rosenberg knew or should have known that the HOA sale and SFR's purchase are void.
Attorneys employed by the trustee on behalf of the estate also have a fiduciary duty to the bankruptcy estate. See In re Taxman Clothing Co.,
The AFI Holding decision is commonly cited as authority for denying compensation to estate professionals who fail to disclose activities and connections that create an appearance of impropriety. See, e.g., In re American West Development, Inc., Case No. 12-12349-MKN, "The Acting United States Trustee's Objection to (I) Field Law Ltd.'s Final Application for the Period Beginning on April 12, 2012 and Ending on March 15, 2013 Pursuant to
Bankruptcy Judge Bert Goldwater observed more pointedly: "Plutarch, in his writings, quoted Caesar: 'I wish my wife to be not so much suspected.' That is the benchmark for trustees in bankruptcy administering millions of dollar in property and money in this Court. The Court and the trustees in bankruptcy must be above suspicion...The trustee in this case and the integrity of the United States Bankruptcy Court must be protected from any prejudiced suggestion of impropriety. The unwarranted inference of improper motive against [the trustee]...requires the Court, on its motion, to relieve the trustee of her duties." In re Mason,
Remarkably, SFR asserts that had it known of the automatic stay violation, it likely would not have purchased the Leeds Residence. See Annulment Motion at 4:21-22.
Under these circumstances, it is unnecessary to resolve the Evidentiary Objections to the Hardin Declaration.
SFR also mis-cites the decision of the bankruptcy court for the Southern District of California as a decision of the Ninth Circuit. See SFR Reply at 2:6, citing In re Int'l Forex of Cal., Inc.,
The standing of a secured creditor to appeal an order annulling the automatic stay is presently before the Ninth Circuit in connection with U.S. Bank, N.A., et al v. SFR Investments Pool 1, LLC, Case No. 17-16938. That appeal arises out of this judicial district in a case entitled In re Dino J. Petrone and Connie L. Petrone, Case No. 09-32084-LED, cited by SFR in the current proceeding. See Annulment Motion at 8 n.3 and SFR Reply at 14 n.5; see also Exhibit "1" to Annulment Motion. In that case, an order annulling the automatic stay in favor of SFR was entered by the bankruptcy court. The secured credtors' appeal to the U.S. District Court was dismissed for lack of standing to appeal based on the holding in Pecan Groves. The district court's decision was appealed to the Ninth Circuit. SFR then sought to dismiss the circuit appeal for lack of standing. On May 24, 2018, the motion panel of the Ninth Circuit denied the motion to dismiss without prejudice to renewing the arguments in SFR's answering brief. SFR's answering brief is due on July 25, 2018. At the June 27, 2018 hearing on the instant Annulment Motion, SFR did not inform this bankruptcy court of the motion panel's order.
Whether Leeds could be located at this time to effectuate personal service of an annulment request is unknown.
"By agreement with the debtor(s), the above-disclosed fee does not included the following services:...Representation of the debtors in...relief from stay actions..." 2016 Statement at ¶ 7.
This court agrees with the concerns expressed by the bankruptcy court in Inter'l Forex, i.e., that the holding in Pecan Groves has been misstated. See discussion at note 19, supra. In Inter'l Forex, Judge Adler concluded that a prepetition creditor of a Chapter 11 debtor may be an individual entitled to recover damages under Section 362(k), including costs and attorney's fees, for a violation of the automatic stay.
Fifteen years after Int'l Forex was decided, the BAP issued an unpublished decision in Lei v. Yan (In re Demas Wai Yan),
Rote application of the Pecan Groves holding leads to the anomalous situation where the same act in violation of the automatic stay is void for some parties but not void for others. This situation creates the risk that led the Ninth Circuit panel in Schwartz to conclude that acts in violation of the stay are void ab initio rather merely voidable: "Concluding that acts in violation of the automatic stay were merely voidable would have the effect of encouraging the possibility that violators of the automatic stay may profit from their disregard for the law, provided it goes undiscovered for a sufficient period of time. This may be an acceptable risk to some creditors when it is measured against a delayed pro rata distribution."
If the originally assigned Chapter 7 trustee is unavailable, nothing prevents the party seeking relief in a closed proceeding from requesting the UST to appoint a new trustee. Appointment of a new trustee may be particularly appropriate when the moving party is seeking relief from an automatic stay violation that resulted in the removal of property from the bankruptcy estate. Chapter 7 trustees in this judicial district, including Rosenberg, frequently sought and obtained court authorization to complete "short sales" of over-encumbered residential properties upon the priority lender's agreement to carve out a small portion of the sale proceeds for the bankruptcy estate. In a circumstance where a prior foreclosure sale is void ab initio , a new Chapter 7 trustee could exercise his or her business judgment as to whether to simply abandon the likely over-encumbered property again, or to attempt to negotiate a short sale with the residential lender prior to the foreclosure of a priority assessment lien by an HOA.
Rule 1.1 requires a lawyer to "provide competent representation to a client" that includes "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
SFR's assertion at the hearing that Rosenberg's knowledge of the Leeds bankruptcy should not be imputed to SFR is unpersuasive. Ordinarily, a lawyer is a client's agent and clients are considered to have notice of all facts known to their lawyer-agent. See Cmty. Dental Servs. v. Tani,
None of the cases denying standing to a creditor to challenge a violation of the automatic stay involve creditors whose consensual liens are permitted to be wiped out through a foreclosure sale by another creditor given statutory priority under state law. In such circumstances, a foreclosure by a reckless HOA has no natural enemies other than the wiped out lien creditor: the individual debtor who lacks the ability to pay the HOA assessments nor the mortgage has no incentive to oppose retroactive relief from stay, and the assigned bankruptcy trustee who has no interest in an over-encumbered asset also has no incentive to oppose retroactive relief.
The "status quo ante" is a term of art referring to the conditions that existed before the challenged action took place. See, e.g., Czyzewski v. Jevic Holding Corp.,--- U.S. ----,
The court is concerned about the impact to Leeds from the HOA foreclosure sale being void. See discussion at 202-03, supra. After Leeds received her Chapter 7 discharge on September 20, 2011, the HOA foreclosed on the Leeds Residence on May 8, 2013. In granting summary judgment in favor of BOA, the State Court determined that the HOA foreclosure sale is void and BOA's deed of trust against the Leeds Residence remains valid. See discussion at 192, supra. Unless Leeds voluntarily conveys title to the residence to BOA, a foreclosure sale by BOA is likely to ensue. Instead of a post-discharge foreclosure occurring as of May 8, 2013, Leeds faces the prospect of a much more recent foreclosure sale appearing in her credit history. If Leeds is injured by a new foreclosure, the cause arguably would be traceable to the HOA's violation of the automatic stay.
Reference
- Full Case Name
- IN RE: Myong LEEDS, Debtor.
- Cited By
- 4 cases
- Status
- Published