- BAP No. CC-13-1086 (April 23, 2014) (Not for Publication)
- A party cannot assert improper service as a defense on appeal if it was never raised before the bankruptcy court. Further, a bankruptcy court is not required to hold a hearing if the notice period expires with no objection under 11 USC 102 and LBR 9013-1.
- Procedural context:
- On appeal to the Ninth Circuit Bankruptcy Appellate Panel. Bankruptcy Court ruling was affirmed by the BAP.
- Mortgagee successfully moved for stay relief and scheduled a foreclosure. Thereafter, the Debtor recorded a quitclaim deed of the property to himself and his cousin (“Lira”). Lira then filed a chapter 7 petition just three days later. The Mortgagee, whose efforts to foreclose were thwarted by the second bankruptcy filing by Lira, moved to lift the automatic stay. The motion included a waiver of the 14 day stay period, a request for in rem relief as to the property and notice of the motion. The notice required an objection to be filed within 14 days. Lira objected late. The bankruptcy court entered the relief from stay order without a hearing, finding that the motion was unopposed and that the movant met its burden. The BAP found that the bankruptcy court did not abuse its discretion in determining that the objection was untimely. Further, Lira's assertion that it was untimely because she was served the motion late was first raised on appeal, and therefore was not properly before the BAP. The BAP also held that the bankruptcy court properly applied local bankruptcy rule 9013-1 when it found that Lira did not timely request a hearing. The bankruptcy court was not required by the local rules or 11 USC § 102 to hold an evidentiary hearing in this case.
- Honorable Deborah J. Saltzman Presiding; Before Dunn, Pappas and Kirscher, Bankruptcy Judges
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