Wackerman v. Bank of America

Summarized by Thomas Phinney , Felderstein Fitzgerald Willoughby Pascuzzi & Rios LLP
11 years 8 months ago

Citation:

BAP E-13-1277-Ku (June 30, 2014) (Unpublished)

Tag(s):

Ruling:

The 9th Cir. BAP affirmed summary judgment, and denial of reconsideration, in favor of foreclosing Creditor. The Debtor contended that a foreclosure sale of his residence occurred just after, not just before, he filed his bankruptcy petition, and was void. The court found that although the Debtor provided evidence that put into question the exact timing of the sale, the court denied the motion under FRBP 9023 and held that the Debtor failed to satisfy the reasonable diligence element for presenting newly discovered evidence.

Procedural context:

The Debtor filed an action to void an alleged post-filing foreclosure sale and for damages. Creditor filed a Motion for Summary Judgment, which was granted. The Debtor filed a Motion for Reconsideration, which included new evidence that showed a material dispute regarding the timing of the sale. The court denied the motion under FRBP 9023 and held that the Debtor failed to satisfy the reasonable diligence element for presenting newly discovered evidence. The Debtor appealed and the 9th Cir. BAP affirmed.

Facts:

The Creditor provided a declaration of the foreclosure trustee stating that the foreclosure sale of the Debtor's residence occurred at 10:06 a.m., whereas the Debtor's chapter 13 petition was filed at 10:11 a.m. In support of his Motion for Reconsideration, the Debtor provided the declaration of a bidder indicating that the sale did not actually take place until after 10:11. If the Debtor had provided the evidence in opposition to summary judgment, the court would have denied the Creditor's motion, but held that the evidence was provided too late under the different test of FRBP 9023.

Judge(s):

KURTZ, JURY and TAYLOR, Bankruptcy Judges.

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