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Dekhtyar v. Chernyavsky (In re Dekhtyar)

Summarizing by Bradley Pearce


Case Type:
Case Status:
NC-17-1118-BTaF & NC-17-1123-BTaF (9th Circuit, Jun 05,2018) Not Published
BAP for 9th Cir. dismissed as moot and affirmed remaining ruling of bankruptcy court (ND Cal.) ruling that automatic stay expired after 30 days for repeat filer, and alternatively granting relief from stay for cause, and denied debtor's motion for sanctions. Dismissal of debtor's chapter 13 case while appeal was pending mooted appeal on 11 USC 362(d)(4) in rem ruling that stay did not apply. BAP affirmed order granting relief from stay alternatively under 11 USC 365(d)(1) for cause. Vexatious litigant/repeat filer failed to demonstrate any basis for sanctions.
Procedural context:
Bankruptcy court (ND Cal.) granted creditor's motion that stay was no longer in effect under 362(d)(4). Chapter 13 debtor appealed to BAP for 9th Circuit.
Debtor engaged in litigation with mortgage holder in multiple courts and was declared vexatious litigation in US District Court for ND of California. Debtor filed first chapter 13 case in 2015, failing to provide for secured debt in plan, but instead attempting to rescind debt. Plan was not confirmed and case was dismissed because mortgage debt exceeded chapter 13 debt limits. Debtor continued to engage in state court litigation attempting to rescind debt based on argument that current holder of note were improper assignees. After losing state court appeal, debtor filed his second chapter 13 in 2016, and sought to extend the automatic stay. Bankruptcy court denied motion, finding lack of good faith. Bankruptcy court dismissed chapter 13 case based on debtor's failure to file schedules or plan. Mortgage holder proceeded with foreclosure. Debtor filed third chapter 13 case the day before foreclosure sale. Because his second bankruptcy case was pending and dismissed within one year of the filing of his third case, the automatic stay was in effect for just 30 days. Mortgage holder requested order declaring stay was no longer in effect after 30 days expired. Bankruptcy court granted motion, and alternatively seeking relief from stay for cause.
Brand, Taylor, Faris

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