Brown v. Bank of America N.A. - (In re Brown)

Citation:
In Re Brown, 9th Cir. B.A.P. WW-13-1170-TaKUD, (December 13, 2013) [NOT FOR PUBLICATION]
Tag(s):
Ruling:
In an unpublished opinion to a companion appeal (BAP No. 12-1534) by the debtor, the 9th Circuit Bankruptcy Appellate Panel, affirmed the ruling by the bankruptcy court, when it held that it lacked jurisdiction to consider the motion dismissing the Adversary Proceeding pursuant to Civil Rule 60(b)(6). The order on the motion declining jurisdiction is non-appealable because the bankruptcy court was divested of jurisdiction over the Adversary Proceeding when Appellants appealed from the Final Judgment. As a result, its order denying the Civil Rule 60(b)(6) motion is nonappealable. Since there was no appealable issue before the Bankruptcy Appellate Panel, the panel dismissed the appeal.
Procedural context:
Debtor filed a voluntary bankruptcy petition under chapter 7 and soon thereafter filed a complaint initiating adversary proceeding 11-01056 (“Adversary Proceeding”) against multiple defendants (“Defendants”) for wrongful foreclosure, violations of the FDCPA and the CPA. Defendants brought a motion to dismiss the first amended complaint pursuant to Civil Rule 12(b)(6) (“First Dismissal Motion”). The bankruptcy court granted the First Dismissal Motion by order entered on January 10, 2012 (“January 10, 2012 Order”). Appellants filed a second amended complaint, which the bankruptcy court ultimately resolved in favor of the Defendants which is the subject of the appeal before this court BAP No. 12-1534. Appellants filed their notice of appeal from the Final Judgment on October 18, 2012. On March 8, 2013 and without obtaining remand from the BAP, Appellants filed a motion with the bankruptcy court seeking relief under Civil Rule 60(b)(6) from the bankruptcy court’s January 10, 2012 Order (on the First Dismissal Motion).
Facts:
Debtor filed a voluntary bankruptcy petition under chapter 7 and soon thereafter filed a complaint initiating adversary proceeding 11-01056 (“Adversary Proceeding”) against multiple defendants (“Defendants”) seeking a temporary restraining order and permanent injunction, quiet title, and damages under various legal theories, including wrongful foreclosure, the Consumer Protection Act (“CPA”), the Fair Debt Collection Practices Act (“FDCPA”), and malicious prosecution. Debtor alleged that Defendants violated the CPA by promulgating, recording and relying on documents they should have known were false, including an assignment of deed of trust executed by Mortgage Electronic Registration Systems, Inc. (“MERS”), an appointment of successor trustee, and a notice of default. Defendants brought a motion to dismiss the first amended complaint pursuant to Civil Rule 12(b)(6) (“First Dismissal Motion”). The bankruptcy court granted the First Dismissal Motion by order entered on January 10, 2012 (“January 10, 2012 Order”). The bankruptcy court dismissed the wrongful foreclosure claim with prejudice to the extent that it sought monetary damages or a permanent injunction against the defendants. It dismissed all remaining claims without prejudice. Appellants filed a second amended complaint, which the bankruptcy court ultimately resolved in favor of the Defendants in its order entered October 2, 2012 (“Final Judgment”)
Judge(s):
Taylor, Kurtz, and Dunn

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