JTF Rose, Inc. v. Esquerra

August 16, 2018

Case Type:

Consumer

Case Status:

Reversed and Remanded

Citation:

BAP No. CC-17-1356-TaLLs (9th Circuit, Aug 07,2018) Not Published

Tag(s):

Ruling:

BAP for 9th Cir. vacated and remanded bankruptcy court (CD Cal.) order denying creditor's motion to dismiss chapter 13 case. Bankruptcy court incorrectly applied issue preclusion. Lack of sufficient findings to support denial prevented BAP from determining if error was harmless. Bankruptcy court's prior denial of motions to dismiss on procedural grounds did not warrant application of issue preclusion to third motion. Bankruptcy court failed to make sufficient findings that denial of prior motions was on the merits. Debtor failed to raise issue preclusion based on confirmed chapter 13 plan.

Procedural context:

Bankruptcy court (CD Cal.) denied creditor's motion to dismiss chapter 13 bankruptcy case; creditor appealed to BAP for 9th Circuit.

Facts:

Repeat filer filed third bankruptcy that debtor converted to chapter 13 from chapter 7 after trustee issued no distribution report. Bankruptcy court confirmed debtor's plan that included avoidance of junior secured creditor's lien and treatment as general unsecured claim. Two months later, debtor and creditor stipulated that creditor's lien would be avoided and treated as unsecured claim contingent on debtor's completion of his chapter 13 plan and receipt of a discharge. Creditor then changed its mind, asserted debtor's bad faith, and filed motion to dismiss. Bankruptcy court denied motion for lack of property service. Creditor took R. 2004 exam of debtor and re-filed motion to dismiss, asserting debtor failed to disclose assets, improperly attaching R. 2004 transcript with motion, in violation of local rule. Court denied motion for improper service and improper attachment of R. 2004 transcript. Creditor re-filed motion and debtor objected.

Judge(s):

Taylor, Lafferty, Lastreto

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