FILED
OCT 2 2013
1
SUSAN M. SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. NC-12-1322-JuPaD
)
6 MARITESS TAMONDONG MENDAROS, ) Bk. No. NC-11-73139-RLE
)
7 Debtor. )
______________________________)
8 MARITESS TAMONDONG MENDAROS, )
)
9 Appellant, )
)
10 v. ) M E M O R A N D U M*
)
11 JPMORGAN CHASE BANK, N.A., )
)
12 Appellee. )
______________________________)
13
Argued and Submitted on September 20, 2013
14 at San Francisco, California
15 Filed - October 2, 2013
16 Appeal from the United States Bankruptcy Court
for the Northern District of California
17
Honorable Roger L. Efremsky, Bankruptcy Judge, Presiding
18 _______________________
19 Appearances: Appellant Maritess Mendaros argued pro se; Kerry
Ann Moynihan, Esq., of Bryan Cave LLP, argued for
20 appellee JPMorgan Chase Bank, N.A.
_________________________
21
22 Before: JURY, PAPPAS, and DUNN, Bankruptcy Judges.
23
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
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1 Chapter 71 debtor, Maritess Tamondong Mendaros, appeals
2 from the bankruptcy court’s order granting the motion of
3 JPMorgan Chase Bank, N.A. (Chase), which sought annulment of the
4 automatic stay nunc pro tunc to validate a postpetition
5 foreclosure sale of debtor’s property (Motion). We AFFIRM.
6 I. FACTS
7 On December 2, 2005, debtor and Edwin Mendaros2
8 (collectively, Borrowers), executed and delivered a promissory
9 note made payable to Washington Mutual Bank, FA (WaMu) in the
10 original principal amount of $1,860,000 (the Note). The Note
11 was secured by an interest in Borrower’s real property located
12 on Deer Hollow Drive, Danville, California (the Property)
13 evidenced by a Deed of Trust dated December 2, 2005, and
14 recorded on December 13, 2005, in the official records of Contra
15 Costa County as Document Number 2005-0476726 (the Deed of
16 Trust).
17 On September 25, 2008, the Office of Thrift Supervision
18 closed WaMu and the Federal Deposit Insurance Corporation (FDIC)
19 was appointed as receiver. On the same date, Chase entered into
20 a Purchase and Assumption Agreement with the FDIC to purchase
21 certain assets, including all loans and loan commitments, of
22 WaMu.
23 By March 2009, Borrowers were in default under the terms of
24
1
Unless otherwise indicated, all chapter and section
25 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26 “Rule” references are to the Federal Rules of Bankruptcy
Procedure.
27
2
Edwin Mendaros is either debtor’s husband or her son. It
28 makes no difference for purposes of this appeal.
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1 the Note in the approximate amount of $91,621.35. On
2 March 9, 2009, Chase recorded a notice of default as Document
3 No. 09-48725.
4 On April 27, 2010, Edwin filed a chapter 7 petition,
5 Case No. 10-44753, listing the Property as his residence.
6 On May 19, 2010, the bankruptcy court dismissed the case
7 because Edwin failed to file required documents, including
8 schedules.
9 Seven days later, on May 26, 2010, Edwin filed a second
10 chapter 7 petition, Case No. 10-46045. Edwin listed the prior
11 bankruptcy case, listed the Property as his residence and listed
12 a joint tenancy interest in the Property.
13 On August 4, 2010, Chase obtained relief from stay to file
14 a notice of sale and proceed with its foreclosure of the
15 Property.3
16 On September 1, 2010, Chase recorded a notice of trustee
17 sale as Document No. 10-184801 setting the foreclosure sale for
18 September 22, 2010.
19 On September 21, 2010, one day prior to the scheduled
20 foreclosure sale, debtor filed a chapter 13 petition,
21 Case No. 10-70804.
22 On October 7, 2010, the bankruptcy court dismissed her case
23 because she failed to file the required documents.
24 On December 19, 2011, debtor filed her chapter 13 petition
25
26 3
On January 21, 2011, the case was initially closed without
27 a discharge because Edwin failed to file the financial management
course certificate. The case was reopened on March 17, 2011, and
28 Edwin obtained a discharge on April 13, 2011.
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1 at 9:21 a.m.
2 On the same date, the foreclosure sale took place at
3 10:28 a.m. At the time of the foreclosure sale, Borrowers were
4 forty-two months in default and owed over $2 million on the
5 Loan.
6 The chapter 13 trustee moved to have debtor’s case
7 converted to one under chapter 7, which the bankruptcy court
8 granted by order entered on January 11, 2012.
9 On February 22, 2012, Chase filed its Motion to validate
10 the foreclosure sale, relying on the factors set forth in
11 Fjeldsted v. Lien (In re Fjeldsted), 293 B.R. 12, 24 (9th Cir.
12 BAP 2003) for annulment of the stay, and § 362(d)(4), alleging
13 debtor’s bankruptcy was filed in bad faith. In light of the
14 multiple bankruptcy filings affecting the Property, Chase’s
15 Motion requested that the order granting relief be binding in
16 any other bankruptcy case purporting to affect the Property and
17 as to debtor for a period of 180 days.
18 On March 6, 2012, debtor filed her opposition to the
19 Motion. Debtor requested that Chase’s Motion be heard together
20 with her motion for an order requiring Chase to show cause for
21 its violation of the stay. Debtor also stated that, in the
22 meantime, she would attempt to negotiate a settlement with Chase
23 by entering into a loan modification that would allow her to
24 retain her home.
25 On March 14, 2012, debtor appeared at the preliminary stay
26 relief hearing and asserted that she had evidence that notice of
27 the automatic stay had been given to the foreclosure trustee,
28 Quality Loan Service (QLS), prior to the foreclosure sale.
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1 Debtor also alleged that she had documents from Chase or its
2 agent indicating that the sale would be reversed. As a result,
3 the bankruptcy court continued the hearing so that the parties
4 could file supplemental declarations with supporting
5 documentation.
6 On March 16, 2012, debtor filed her declaration stating
7 that she authorized her daughter, Kathryn Mendaros, to contact
8 QLS about her bankruptcy filing. Debtor also alleged that she
9 was never contacted through telephone or in person by the lender
10 and/or its agents prior to thirty days before recording of the
11 notice of default or to assess her financial situation as
12 required by Cal. Civ. Code § 2923.5.4
13
14 4
Cal. Civ. Code § 2923.5 provides in relevant part:
15
(a)(1) A mortgage servicer, mortgagee, trustee,
16 beneficiary, or authorized agent may not record a
notice of default pursuant to Section 2924 until both
17 of the following:
18 (A) Either 30 days after initial contact is
19 made as required by paragraph (2) or 30 days
after satisfying the due diligence
20 requirements as described in subdivision (e).
21 (B) The mortgage servicer complies with
paragraph (1) of subdivision (a) of Section
22
2924.18, if the borrower has provided a
23 complete application as defined in
subdivision (d) of Section 2924.18.
24
(2) A mortgage servicer shall contact the borrower in
25 person or by telephone in order to assess the
26 borrower’s financial situation and explore options for
the borrower to avoid foreclosure. During the initial
27 contact, the mortgage servicer shall advise the
borrower that he or she has the right to request a
28 (continued...)
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1 On the same date, debtor filed Kathryn’s declaration.
2 Kathryn declared that she called QLS at 10:32 a.m. on
3 December 19, 2011, and faxed it a copy of the bankruptcy filing.
4 Kathryn also stated that she made follow-up calls to QLS and
5 that she was assured that the foreclosure sale would be reversed
6 due to the bankruptcy filing.
7 Chase submitted the supplemental declaration of Bounlet
8 Louvan, the Foreclosure Legal Liaison for QLS, who confirmed
9 that the foreclosure sale occurred at 10:28 a.m. Louvan also
10 declared that a telephone call was received from debtor at
11 10:58 a.m. on December 19, 2011, after the foreclosure sale had
12 taken place. Chase also filed a Relief from Stay Cover Sheet
13 which reflected that the pre-foreclosure principal balance
14 exceeded $2 million and that the Loan was due for the July 1,
15 2008 payment, with a total delinquency of approximately
16 $281,958.
17 At the final hearing on March 28, 2012, debtor and Chase
18 appeared through counsel. After balancing the equities and
19 considering the factors in Nat’l Envtl. Waste Corp. v. City of
20 Riverside (In re Nat’l Envtl. Waste Corp.), 129 F.3d 1052, 1055
21
4
(...continued)
22
subsequent meeting and, if requested, the mortgage
23 servicer shall schedule the meeting to occur within
14 days. The assessment of the borrower's financial
24 situation and discussion of options may occur during
the first contact, or at the subsequent meeting
25 scheduled for that purpose. In either case, the
26 borrower shall be provided the toll-free telephone
number made available by the United States Department
27 of Housing and Urban Development (HUD) to find a
HUD-certified housing counseling agency. Any meeting
28 may occur telephonically.
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1 (9th Cir. 1997), and Fjeldsted, the bankruptcy court ruled in
2 favor of Chase and annulled the automatic stay retroactively to
3 the petition date.5
4 On May 29, 2012, the bankruptcy court entered the order
5 granting Chase’s Motion. Debtor timely appealed.
6 On November 28, 2012, the Clerk issued a Notice of Possible
7 Mootness. After considering the responses of both parties, the
8 Panel issued an order finding the Clerk’s Order re Mootness
9 satisfied.
10 II. JURISDICTION
11 The bankruptcy court had jurisdiction over this proceeding
12 under 28 U.S.C. §§ 1334 and 157(b)(2)(G). We have jurisdiction
13 under 28 U.S.C. § 158.
14 III. ISSUE
15 Whether the bankruptcy court abused its discretion in
16 annulling the automatic stay.
17 IV. STANDARD OF REVIEW
18 A bankruptcy court’s decision to grant retroactive relief
19 from the automatic stay is reviewed for an abuse of discretion.
20 In re Nat’l Envtl. Waste Corp., 129 F.3d at 1054. A bankruptcy
21 court abuses its discretion if it applied the wrong legal
22 standard or its findings were illogical, implausible or without
23
5
24 At the hearing, the bankruptcy court referenced
proceedings and documents with respect to Edwin’s bankruptcy
25 filings which have not been included in the Designation of Record
26 or Excerpts of Record. On October 24, 2012, Chase filed a motion
requesting the Panel to take judicial notice of the relevant
27 documents in Edwin’s bankruptcies, Case Nos. 10-44753 and
10-46045. Pursuant to Fed. R. Evid. 201, we take judicial notice
28 of the documents and grant the motion.
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1 support in the record. TrafficSchool.com, Inc. v. Edriver Inc.,
2 653 F.3d 820, 832 (9th Cir. 2011).
3 V. DISCUSSION
4 When debtor filed her bankruptcy petition the automatic
5 stay under § 362(a) went into effect. Here, the postpetition
6 foreclosure violated the stay. See § 362(a)(3). Actions taken
7 in violation of the automatic stay are void. Schwartz v. United
8 States (In re Schwartz), 954 F.2d 569, 571–72 (9th Cir. 1992).
9 However, an action taken in violation of the automatic stay may
10 be declared valid if cause exists for retroactive annulment of
11 the stay. Id. at 573.
12 Section 362(d), which empowers the bankruptcy court to
13 annul the stay, provides in relevant part:
14 On request of a party in interest and after notice and
a hearing, the court shall grant relief from the stay
15 provided under subsection (a) of this section, such as
by terminating, annulling, modifying, or conditioning
16 such stay—
17 (1) for cause, including the lack of adequate
protection of an interest in property of such party in
18 interest.
19 § 362(d); In re Schwartz, 954 F.2d at 572 (“[S]ection 362(d)
20 gives the bankruptcy court wide latitude in crafting relief from
21 the automatic stay, including the power to grant retroactive
22 relief from the stay.”).
23 In analyzing whether “cause” exists to annul the stay under
24 § 362(d)(1), the bankruptcy court is required to balance the
25 equities of the creditor’s position in comparison to that of the
26 debtor. In re Nat’l Envtl. Waste Corp., 129 F.3d at 1055.
27 Under this approach, the bankruptcy court considers (1) whether
28 the creditor was aware of the bankruptcy petition and automatic
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1 stay, and (2) whether the debtor engaged in unreasonable or
2 inequitable conduct. Id.
3 Additional factors for consideration include the number of
4 bankruptcy filings by the debtor; the extent of any prejudice,
5 including to a bona fide purchaser; the debtor’s overall good
6 faith; the debtor’s compliance with the Code; the relative ease
7 of restoring parties to the status quo ante; the costs of
8 annulment to debtors and creditors; how quickly the creditor
9 moved for annulment; whether annulment will cause irreparable
10 injury to the debtor; and whether stay relief will promote
11 judicial economy or other efficiencies. In re Fjeldsted,
12 293 B.R. at 25. “In any given case, one factor may so outweigh
13 the others as to be dispositive.” Id.
14 On appeal, debtor does not take issue with the bankruptcy
15 court’s identification of the relevant factors for annulment of
16 the stay, or for that matter, the application of those factors
17 to the facts of this case. Based upon our review of the record,
18 and construing debtor’s pro se briefs liberally, we conclude the
19 bankruptcy court did not abuse its discretion in annulling the
20 automatic stay to validate the postpetition foreclosure sale.
21 In applying the first factor under In re Nat’l Envtl. Waste
22 Corp. to the evidence presented, the bankruptcy court found that
23 Chase was not aware of debtor’s bankruptcy case before the
24 foreclosure. This finding was supported by debtor’s failure to
25 produce any documentary evidence suggesting that Chase or QLS
26 had been notified of her bankruptcy filing prior to the
27 foreclosure. Instead, the record shows that debtor’s daughter,
28 Kathryn, notified QLS at 10:32 a.m. about the filing, which was
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1 after the foreclosure sale took place. Louvan’s declaration
2 confirmed that QLS did not receive a telephone call from debtor
3 or her daughter prior to the foreclosure sale. There is no
4 evidence in the record regarding any other forms of
5 communication such as a fax that were sent to QLS or Chase prior
6 to the sale.
7 In addition, the bankruptcy court found that debtor engaged
8 in unreasonable or inequitable conduct that showed she was
9 utilizing the bankruptcy process to delay or hinder Chase. The
10 record amply supports these findings: (1) the bankruptcy
11 filings by co-debtor Edwin; (2) debtor’s two bankruptcy filings
12 (including the instant case); (3) debtor’s failure to comply
13 with chapter 13 requirements, which resulted in the conversion
14 of this case; and (4) debtor’s loan being forty-two months in
15 default. These findings overlap with some of the Fjeldsted
16 factors: the number of bankruptcy filings by debtor, debtor’s
17 overall good faith and debtor’s compliance with the Code. The
18 bankruptcy court properly concluded that these factors and
19 debtor’s one-sided use of the bankruptcy process weighed in
20 favor of annulment.
21 Moreover, regarding the costs of annulment to debtor and
22 Chase, the bankruptcy court gave consideration to debtor’s right
23 to bring an action in the state court for any alleged wrongful
24 acts in violation of Cal. Civ. Code § 2923.5. Chase’s counsel
25 acknowledged that debtor’s right was preserved, and the
26 bankruptcy court repeatedly stated on the record that the
27 annulment of the stay did not mean that the foreclosure was
28 valid under California law.
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1 The bankruptcy court further found that Chase had not
2 delayed in bringing its motion to annul the stay nunc pro tunc.
3 There is nothing in the record that suggests otherwise, and the
4 motion to annul the stay was filed a little more than two months
5 after the sale took place.
6 Finally, the court observed that debtor had ample
7 opportunity to present her case, but did not meet her burden of
8 showing that she faxed or telephoned Chase or QLS regarding her
9 bankruptcy filing prior to the foreclosure sale.
10 In the end, the court concluded that the Nat’l Envtl. Waste
11 Corp. and Fjeldsted factors weighed in Chase’s favor. This
12 balancing was within the wide latitude accorded to the
13 bankruptcy court and was not an abuse of discretion.
14 In re Schwartz, 954 F.2d at 572; In re Fjeldsted, 293 B.R. at
15 21.
16 VI. CONCLUSION
17 For all these reasons, we AFFIRM.
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