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Ozenne v. Chase Manhattan Bank, et al. (In re Ozenne)

No. 11-60039 (9th Cir. March 25, 2016) (Published)
The 9th Circuit vacated the BAP's denial of a petition for a writ of mandamus, holding the BAP did not have jurisdiction to consider the writ petition, reversing In re Salter, 279 B.R. 278 (B.A.P. 9th Cir. 2002). The 9th Circuit held that the BAP lacked jurisdiction under the All Writs Act because the BAP is established by the circuit judicial council pursuant to 28 U.S.C. § 158(b)(1), and thus is not one of the “courts established by Act of Congress.” The BAP held that it had jurisdiction pursuant to 28 U.S.C. § 1651 to consider the petition, and then denied the petition, relying on its previous decision In re Salter. Concurring in the judgment only, and dissenting otherwise, Judge Bybee wrote that the All Writs Act does not require that a court be established "directly" by Congress. He wrote that the majority’s opinion raises constitutional problems because he doubts that Congress can delegate its powers to create courts to the judicial branch. Judge Bybee wrote that the 9th Circuit should have affirmed the BAPs ruling, either because of res judicata, or the failure to satisfy the requirements of the All Writs Act.
Procedural context:
Former chapter 7 debtor filed a motion for sanctions for willful stay violations several years after his bankruptcy case closed. The bankruptcy court denied the motion, and debtor failed to timely appeal. Debtor petitioned BAP for writ of mandamus. BAP denied petition. Debtor appealed to 9th Circuit.
During the course of Ozenne's bankruptcy, a creditor proceeded with a foreclosure sale of his house. Several years after his bankruptcy case had been closed out, he sought to reopen it to seek damages for alleged violations of the automatic stay. In 2007, Ozenne filed a motion in the bankruptcy court seeking to “set aside” the bankruptcy court’s earlier ruling, which held that under Fed.R. Civ. P. 60, Ozenne could not reopen his case. Ozenne sought damages under 11 U.S.C. § 362 for violation of a bankruptcy stay. The bankruptcy court denied the motion for lack of jurisdiction, on account of Ozenne’s bankruptcy case having been closed for several years at that point. Ozenne appealed that decision to the federal district court, which affirmed, because Ozenne's motion was untimely under Rule 60. Ozenne then filed a direct appeal to the 9th Circuit, which affirmed. At that point Ozenne filed a “”Motion for Sanctions [for] Violations of 11 USC 362(a)” in the bankruptcy court, arguing the same issues: to reopen his case to determine whether his home was sold in violation of the automatic stay and to collect damages for it. The bankruptcy court held it had no jurisdiction to grant relief. Ozenne never filed a notice of appeal, and the judgment became final. Ozenne then filed a petition for a writ of mandamus with the BAP. That petition sought an order from the BAP, requiring the bankruptcy court to exercise jurisdiction and hold “a trial or hearing for the violations of law under 11 USC 362.” The "appellees" did not respond, and the BAP denied the petition and closed the case. In its decision, the BAP noted its authority to entertain writs under the All Writs Act, recited the standard for receiving such relief, but summarily held that Ozenne “has not met the burden to establish that a writ of mandamus should be issued.” Ozenne appealed to the 9th Circuit. Several years after his bankruptcy case was closed, Ozenne filed a motion for sanctions in the bankruptcy court. The bankruptcy court ruled that it lacked jurisdiction to grant relief. Ozenne failed to file a timely notice of appeal pursuant to Rule 8003(a) of the FRBP. Ozenne filed a petition for writ of mandamus before the BAP. B. How the Majority Should Have Handled This First, although not entirely free from doubt given Ozenne’s pro se briefing, this case is likely res judicata. Ozenne has been doing the same thing for years. He admits it. His own briefing notes that the bankruptcy court “consistently ruled”, in “2003, 2007, [and] 2011,” that it lacked jurisdiction to reopen Ozenne’s case and grant him relief. I see no substantive difference between what Ozenne asked the bankruptcy court to do in his 2007 motion and what he asked it again in his 2011 motion. His 2007 motion ended with a final judgment from this court affirming the district court’s determination that Ozenne could not seek the relief he sought—which happens to be the exact relief he sought in his 2011 motion in the bankruptcy court and his subsequent IN RE OZENNE 21 mandamus petition before the BAP. Assuming that Ozenne’s description is correct, he missed the time to file a notice of appeal on the bankruptcy court’s denial of his motion. So that determination became final. Indeed, the number of final judgments telling Ozenne “no” is hard to count.2 His claims strike me as being barred by res judicata.
Wallace, Leavy, Bybee

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