In re Borsotti

Case Type:
Consumer
Case Status:
Affirmed
Citation:
19-1193 (9th Circuit, Mar 23,2021) Not Published
Tag(s):
Ruling:
The U.S. Bankruptcy Appellate Panel of the Ninth Circuit (BAP) affirmed the orders granting relief from the automatic stay and dismissing his case issued by the U.S. Bankruptcy Court for the Central District of California (BC), as he had notice of both motions and opportunities to file papers in opposition, but he did not do so.
Procedural context:
Proceeding pro se, Daniel Adam Borsotti (DR) filed the instant chapter 13 petition (Petition) in March 2019. Nationstar Mortgage, LLC (Nationstar) objected to confirmation of his plan and moved for relief from the automatic stay (Stay Relief Motion) on the basis of the DR's bad faith. The BC granted the Stay Relief Motion, noting that it was unopposed, under §§ 362(d)(1) and (d)(4), upon finding that the Petition was part of a scheme to hinder, delay, or defraud creditors because the relevant property was central to multiple bankruptcy cases and the DR was involved in this scheme. While the Stay Relief Motion remained pending, the chapter 13 trustee (TR) filed a motion to dismiss (MTD) the DR's case for bad faith due to the DR's failure to file a complete plan and propose any plan payment, lack of net monthly income, filing of two prior petitions in the past two years, and noncooperation during the § 341 meeting of the creditors (§ 341 Meeting). After holding a hearing on the MTD for which the DR did not appear, the BC granted the TR's request, ordered the DR to obtain approval before filing another chapter 13 case, and dismissed as moot his own motion to voluntary dismiss the case, filed after the court had entered its oral dismissal order. The DR then filed a timely notice of appeal from the orders granting the Stay Relief Motion and the Motion to Dismiss
Facts:
In March 2008, the DR borrowed $400,000 pursuant to an adjustable rate note and deed of trust concerning real property located in Santa Clarita, California (Property), on which he defaulted in April 2016. The DR responded by initiating a chapter 7 case and a chapter 13 case in 2017 and 2018, respectively; both cases were quickly dismissed. As the holder of the note, Nationstar scheduled a foreclosure sale in February 2019. To prevent this option, the DR docketed the Petition. Therein, the DR described himself as the sole owner of the Property and that there were no secured creditors (other than himself); he further represented that he was not employed and left blank all income information, but calculated his total monthly expenses as $1,235. As for hsi plan, the DR submitted a completely blank form, with two exceptions: his signature, followed by the words "DO NOT CONSENT." After Nationstar tendered its motion to dismiss, the DR filed a motion requesting that the BC allow him entry to the courthouse without proof of identification, claiming he lacked government-issued photo identification and the court security officers did not accept his birth certificate or business registration certificate. Though the BC denied this request, the DR still appeared at the § 341 Meeting without an acceptable form of photo identification and proof of his social security number. The TR continued this colloquy, but the DR again refused to provide proper identification and proof of his social security number and answer her questions or allow the TR to administer the oath when given this second chance. Only after this kerfuffle did the relevant motions materialize. First, Nationstar filed the Stay Relief Motion, which argued that the DR had filed his latest case in bad faith and sought in rem relief under § 362(d)(4). The DR sought an extension of time to file his response. The BC denied this request; the DR remained silent as to the Stay Relief Motion. When the TR filed the MTD, he again asked for an extension of time. Once more, the BC denied his plea, and the DR opted for silence. He did not even appear at the appointed hearing. Rather, he submitted his own motion to dismiss--after the BC had granted the MTD and Stay Relief Motion.
Judge(s):
Robert J. Faris; Gary A. Spraker; and Scott H. Gan

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