In re Julieta Jimenez

Case Type:
Consumer
Case Status:
Affirmed
Citation:
CC-20-1275-FSG, CC-21-1030-FSG (9th Circuit, Aug 02,2021) Not Published
Tag(s):
Ruling:
The 9th Circuit Bankruptcy Appellate Panel upheld the bankruptcy court's rulings granting relief from the automatic stay under section 362(d)(1) and (d)(4) and dismissing the chapter 13 case where the court had entered an in rem stay relief order under 362(d)(4) in a previous case and the secured lender had foreclosed upon the property.
Procedural context:
The debtor appealed the bankruptcy court's orders granting relief from the automatic stay and dismissing the chapter 13 case. After stay relief was granted, the debtor failed to seek a stay pending appeal and the secured lender sold the property at a trustee's sale.
Facts:
In 2008, the debtor and her husband, the Jimenezes, obtained a Home Equity Line of Credit (HELOC) and executed a second priority deed of trust. The Jimenezes had filed bankruptcies in 2009 and 2012 to prevent foreclosure by the first priority lienholder and obtained a loan modification on the first priority lien in 2013. The HELOC matured in 2018 but the Jimenezes failed to repay the loan. The debtor filed a chapter 13 bankruptcy the day after the notice of default was recorded in early 2019. The court had granted stay relief under sections 362(d)(1) and (d)(4) in that case. On appeal, that ruling was upheld as to relief under section 362(d)(1) but reversed as to (d)(4) because the debtor's previous bankruptcy cases in 2009 and 2012 were not found to be a scheme to hinder, delay or defraud. Subsequently, in September 2019, an acquaintance of the Jimenezes filed a chapter 7 bankruptcy in which claimed an interest in the property to prevent the foreclosure, and relief from the automatic stay was granted in that case on the grounds that the case was filed in bad faith as a scheme to hinder, delay, or defraud. Debtor filed another chapter 13 bankruptcy the day before the December 1, 2020 foreclosure. The bankruptcy court granted relief from the automatic stay under section 362(d)(1) and (d)(4) as a scheme to hinder, delay, or defraud based on the debtor's previous bankruptcy filing and the bankruptcy filing of the Jimenezes' acquaintance. This time, the BAP upheld the stay relief under section 362(d)(4). The bankruptcy court also dismissed the case for cause because the debtor admitted that the purpose of the bankruptcy filing was to save the property but the property had been sold at foreclosure. The BAP did, however, deny the secured lender's motion to dismiss the appeals as moot based on the sale of the property, because the appellate court could grant some relief from the order's section 362(d)(4) in rem relief since that lasts 2 years and as to the part of the dismissal order that barred the debtor from re-filing for 6 months.
Judge(s):
Faris, Spraker, Gan

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