FILED
NOT FOR PUBLICATION OCT 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD ALAN MARSHACK, Chapter No. 11-57017
7 Trustee for the bankruptcy estate of
Gayle Mullen, Bankr. No. 8:10-bk-26215-RK
Plaintiff - Appellant,
MEMORANDUM*
v.
HELVETICA CAPITAL FUNDING LLC,
Defendant - Appellee.
Appeal from the Bankruptcy Court
for the Central District of California, Santa Ana
Robert N. Kwan, Bankruptcy Judge, Presiding
Argued and Submitted October 10, 2012
Pasadena, California
Before: FERNANDEZ and BERZON, Circuit Judges, and HERNANDEZ, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marco A. Hernandez, District Judge for the U.S.
District Court for Oregon, sitting by designation.
Plaintiff-Appellant Richard Alan Marshack, Chapter 7 trustee for the
bankruptcy estate of Gayle Mullen, appeals from the bankruptcy court’s order
April 4, 2011, granting Defendant-Appellee Helvetica Capital Funding LLC’s
motion for confirmation of termination of the stay with respect to debtor under 11
U.S.C. § 362(c)(3).
He raises two issues: whether the bankruptcy court correctly interpreted 11
U.S.C. § 362(c)(3)(A), and whether published Bankruptcy Appellate Panel
(“BAP”) decisions are binding on bankruptcy courts in future cases.
We have been advised that during the pendency of this appeal, the Mullen
bankruptcy estate has satisfied its obligations to Helvetica Capital and, although
the underlying bankruptcy proceedings remain ongoing as to other creditors, there
is no longer a live controversy between the parties to this appeal. We therefore lack
jurisdiction, as the case is moot. See Village of Gambell v. Babbitt, 999 F.2d 403,
406 (9th Cir. 1993).
If it determines that a case is moot, an appellate court “must ‘direct the entry
of such appropriate judgment, decree, or order, or require such further proceedings
to be had as may be just under the circumstances.’” Log Cabin Republicans v.
United States, 658 F.3d 1162, 1167 (9th Cir. 2011) (quoting 28 U.S.C. § 2106)).
Normally, when a case is mooted during the pendency of an appeal, “vacatur of the
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lower court decision is appropriate.” ACLU of Nev. v. Masto, 670 F.3d 1046, 1065
(9th Cir. 2012) (citing Camreta v. Greene, — U.S. —, 131 S. Ct. 2020, 2035
(2011)). This rule providing for equitable vacatur, known as “the Munsingwear
rule,” “‘prevent[s] a judgment, unreviewable because of mootness, from spawning
any legal consequences.’” Id. (quoting United States v. Munsingwear, Inc., 340
U.S. 36, 41 (1950)).
The Munsingwear rule may not apply when the “party seeking relief from
the judgment below caused the mootness by voluntary action,” for instance by
entering into a settlement agreement. U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 24 (1994). In determining whether the U.S. Bancorp
exception to the Munsingwear rule applies, the key question is whether “the live
case was resolved by the strategic decision of the appealing party rather than mere
happenstance.” Masto, 670 F.3d at 1066. Here, Marshack did initiate the sale of the
Huntington Beach property that ultimately mooted the appeal. However, he did so
in the ordinary course of his duties as bankruptcy trustee, not with the intention of
mooting the case, as evidenced by the fact that he pursued this appeal diligently,
sought a ruling on the merits, and did not argue mootness.
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Accordingly, we dismiss the appeal as moot and vacate the bankruptcy
court’s order of April 4, 2011. See In re Burrell, 415 F.3d 994, 1000 (9th Cir.
2005); Munsingwear, 340 U.S. at 39.
Appeal DISMISSED.
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