IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 13, 2011
BETSEY WARREN LEBBOS; DEBTOR,
BETSEY WARREN LEBBOS, APPELLANT,
Appellee, Linda Shuette, is the Chapter 7 trustee in Appellant/Debtor, Betsey Warren Lebbos' parent bankruptcy case. The bankruptcy court granted Schuette an award of fees and costs after Lebbos defaulted in the underlying adversary action by Schuette, seeking to void two allegedly fraudulent transfers of a condominium. Lebbos appealed the award to this court on August 7, 2008. (See ECF No. 1.) On March 23, 2009, this court issued a memorandum and order (ECF No. 18) denying Lebbos' appeal and entering judgment in the case (ECF No. 19). Specifically, the court upheld the bankruptcy court's February 13, 2008, order awarding Schuette $5,388.80 in attorneys' fees and costs. (ECF No. 18 at 3:24-4:2; 5:8-26; 7:12-17.) Moreover, the court affirmed the bankruptcy court's June 18, 2008, order awarding Schuette $1,133.40 in costs incurred obtaining a default judgment against Lebbos. (Id. at 4:6-17; 7:12-17.)
Lebbos appealed the court's denial to the United States Court of Appeals for the Ninth Circuit. (See ECF No. 21.) On November 2, 2011, the Circuit issued an order and memorandum holding that "the bankruptcy court's order of February 13, 2008, awarding attorney's fees and costs to chapter 7 bankruptcy trustee Linda Schuette as a sanction against Lebbos" was not an abuse of discretion. (ECF No. 22 at 2.)
The Ninth Circuit, upon review, also held that "[t]he district court lacked subject matter jurisdiction to review the February 13, 2008 order awarding attorney's fees and costs because the notice of appeal was untimely as to that award." (Id.) Accordingly, the court of appeals remanded to this court "with instructions to vacate the portion of its decision reviewing the February 13, 2008 order." (Id. at 2-3.)
In light of the Ninth Circuit's memorandum, the court, via minute order, set a status conference for December 14, 2011. (ECF No. 24.) The minute order instructed the parties to file a joint status report no later than December 7, 2011. (Id.) On December 5, 2011, Schuette filed a status report, explaining that a joint status report could not be filed because Lebbos refuses to cooperate with Schuette's counsel. (ECF No. 25 at 1:24-28.) Lebbos failed to file a status report as required by the court's November 10, 2011, minute order. For these reasons, the court vacated the status conference previously set for December 14, 2011, and instead issues this written order. (ECF No. 26.)
Based on the foregoing, and in accordance with the remand instruction provided by the Ninth Circuit, the court hereby vacates those portions of the prior order issued on March 23, 2009 (ECF No. 18), reviewing the bankruptcy court's order of February 13, 2008. Specifically, those portions vacated are the parts of the court's order affirming the bankruptcy court's order awarding Schuette $5,388.80 in attorneys' fees and costs. (See ECF No. 18 at 3:24-4:2; 5:8-26; 7:12-17.) However, those portions of the same order affirming the bankruptcy court's June 18, 2008, order awarding Schuette $1,133.40 in costs are notvacated. (See id. at 4:6-17; 7:12-17.)
This matter requires no further action. Therefore, the Clerk of the Court is directed to CLOSE this file.
IT IS SO ORDERED.
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