- Case Type:
- Case Status:
- BAP No. EC-19-1079-BSF (9th Circuit, Feb 11,2020) Not Published
- 9th Cir. BAP affirmed ruling of bankruptcy court (ED Cal.) granting creditor's remand of unlawful detainer action to state court, after chapter 13 debtor removed it to bankruptcy court. Removal was untimely and remand was appropriate and within bankruptcy court's discretion. Date creditor commenced unlawful detainer suit by filing and serving complaint triggered calendar for removal. Debtor's notice of removal was nine months late. Debtor's argument failed that her motion to quash should have been the date for triggering the deadline.
- Procedural context:
- Creditor filed suit in state court to evict debtor following foreclosure. Debtor removed suit to bankruptcy court (ED Cal.). Bankruptcy court granted creditor's motion to remand. Debtor appealed to BAP for 9th Circuit.
- Prior to her two chapter 13 bankruptcy filings, Parker, a practicing attorney, and her late husband owned a home that was subject to a mortgage. Ultimately, Parkers defaulted on loan, and Mid Valley set a foreclosure sale for October 17, 2017. Parker filed a "skeletal" chapter 13 bankruptcy case on October 2, 2017. That case was dismissed on October 20, 2017, for failure to file the required documents. Mid Valley rescheduled the foreclosure sale for October 30, 2017. Parker then filed a second chapter 13 bankruptcy case on October 27, 2017, thereby triggering the 30-day stay consequences of § 362(c)(3)(A). As a result, the automatic stay expired as to Parker, her property and to property of the estate on November 26, 2017. Mid Valley proceeded with the foreclosure sale on December 20, 2017. Deol was the winning bidder. A Trustee's Deed was recorded on January 3, 2018. When Parker failed to vacate the home after being served with a 3-day Notice to Quit, Deol filed the UD Action against her in state court on January 5, 2018. Parker was served with a copy of the summons and complaint that same day by mail and by posting at the property. In response, Parker filed a Motion to Quash. After temporarily staying the matter and granting multiple continuances, the state court heard oral argument on the Motion to Quash on August 2, 2018. Parker did not appear. The state court entered an order denying the Motion to Quash on August 10, 2018. On November 8, 2018 — ten months after the UD Action had been filed and served and the day before the trial was to begin — Parker removed the UD Action to the bankruptcy court. She argued that the removal notice was timely under Rule 9027(a)(2), because it was filed within: (1) 90 days of the quash order; or (2) 180 days after the state court stayed the UD Action, which she argued tolled the limitations period for removal.
- Brand, Spraker, Faris
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