- Case Type:
- Case Status:
- NC-17-1217-FBTa (9th Circuit, Jun 05,2018) Not Published
- BAP for 9th Cir. affirmed ruling of bankruptcy court (ND Cal.) dismissing adversary proceeding with prejudice. After 9 year campaign opposing foreclosure, Debtor/plaintiff in his 10th bankruptcy case failed to allege claim on which relief could be granted against foreclosing lender. Debtor's victory in defense of creditor's state court unlawful detainer action based on procedural defect did not invalidate creditor's lien, or foreclosure, of property. Plaintiff/debtor's claim for declaration that creditor had no claim in property failed to state claim upon which relief could be granted.
- Procedural context:
- Bankruptcy court (ND Cal.) granted defendant's motion to dismiss adversary under FRCP 12(b)(6). Debtor-plaintiff appealed to BAP for 9th Cir.
- Debtor engaged in nine-year quest to stave off foreclosure of his home through at least 10 bankruptcy cases and 4 lawsuits. Debtor defaulted under original $500k loan in 2009. In span of 5 years, debtor initiated 10 bankruptcy cases, most of which were quickly dismissed for failure to file documents. Debtor filed 3 suits in state court against creditor, subsequently removed by creditor to federal court, alleging invalidity of creditor's rights, among other claims. In between bankruptcies, and second and third suits, creditor proceeded with foreclosure and acquired trustee's deed following foreclosure sale. Following foreclosure sale, creditor filed unlawful detainer action to evict debtor. Jury determined that because of timing of debtor's 8th bankruptcy, creditor did not purchase property at a "properly conducted trustee sale." Jury returned verdict for debtor, denying unlawful detainer relief to creditor. After debtor voluntarily dismissed a subsequent (third) lawsuit against lender, debtor filed bankruptcy for 10th time and sued lender again (fourth), alleging that creditor had no rights in property based on ruling in unlawful detainer action. Creditor moved to dismiss for failure to state claim.
- Faris, Brand, Taylor
Dekhtyar v. Chernyavsky (In re Dekhtyar)
Summarizing by Bradley Pearce
2867 in the system
1 Being Processed