James McKinney v. Kondaur Capital Corporation

FILED
NOT FOR PUBLICATION JUN 24 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES McKINNEY, No. 11-60062

Appellant, BAP No. 10-1393

v.
MEMORANDUM*
KONDAUR CAPITAL CORPORATION;
et al.,

Appellees.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Markell, Mann, and Dunn, Bankruptcy Judges, Presiding

Submitted June 18, 2013**

Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

James McKinney, a Chapter 7 debtor, appeals pro se from the Bankruptcy

Appellate Panel’s (“BAP”) judgment dismissing as moot his appeal of the

bankruptcy court’s order granting relief from stay to allow appellee Kondaur

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Capital Corporation to initiate eviction proceedings. We have jurisdiction under

28 U.S.C. § 158(d). We review de novo BAP decisions, and apply the same

standard of review that the BAP applied to the bankruptcy court’s ruling. Boyajian

v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We

review de novo a determination that an appeal from a bankruptcy court decision is

moot. Nat’l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media

Telecomm. Sys., Inc.), 152 F.3d 1178, 1180 (9th Cir. 1998). We affirm.

The BAP properly dismissed the appeal as moot because the eviction

proceedings had been completed, McKinney had withdrawn his defense of the

eviction action, and the property at issue had been sold to third-party good faith

purchasers, rendering the court unable to fashion an effective remedy. See id. at

1180-81 (affirming dismissal on the basis of mootness where property at issue was

sold and court could not grant effective relief); see also Motor Vehicle Cas. Co. v.

Thorpe Insulation Co. (In re Thorpe Insulation Co.), 677 F.3d 869, 880-81 (9th

Cir. 2012) (discussing standard for determining equitable mootness).

McKinney’s contention that the BAP erred by failing to consider his

arguments concerning standing and alleged due process violations is unpersuasive.

AFFIRMED.

2 11-60062