Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jo Ann Vassallo v. Randall D. Naiman

March 2, 2012

JO ANN VASSALLO,
APPELLANT,
v.
RANDALL D. NAIMAN, NAIMAN LAW GROUP, P.C., APPELLEES.



OPINION

The court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a). Title 28 U.S.C. § 158(a) grants the district courts jurisdiction "to hear appeals from final judgments, orders, and decrees" from bankruptcy courts. In the bankruptcy proceeding regarding appellant Jo Ann Vassallo's adversary claim against appellees Randall D. Naiman and Naiman Law Group, P.C. for violation of the bankruptcy stay, Bankruptcy Judge Robert S. Bardwil granted appellees' motion for summary judgment. Vassallo now appeals that ruling.

I. Factual and Procedural Background On July 24, 2008, appellant filed for Chapter 11

bankruptcy in the Eastern District of California. (Designation of Record ("DOR") at 2 (Docket No. 5-1).) Appellant's petition was dismissed on October 23, 2008. (Id.) Appellant then filed the present case for Chapter 13 bankruptcy on November 21, 2008. (Id.) An automatic 30-day stay was triggered, pursuant to 11 U.S.C. § 263(c)(3)(A), upon appellant's filing of the bankruptcy case. (Id.)

On December 6, 2008, appellees served a three-day Notice to Quit upon appellant. (Id.) Appellant called Naiman Law Group on December 17, 2008, and gave verbal notice that she had filed for bankruptcy. (Id.)

On December 21, 2008, the automatic 30-day stay expired. (Id.) Two days later, on December 23, 2008, appellees filed an unlawful detainer action against appellant in state court. (Id. at 3.)

On February 5, 2009, appellant commenced the underlying adversary proceeding against appellees alleging violations of the automatic bankruptcy stay. (App. to Appellees' Brief Ex. 4 (Docket No. 9-1).) The deadline to file dispositive motions in the adversary proceeding was originally set for November 30, 2010. During a hearing held on April 7, 2011, appellees requested that the bankruptcy court grant the parties leave to file a motion for summary judgment in light of relevant new case law. The bankruptcy court agreed to permit motions for summary judgment if they were filed within two weeks of the hearing. (Id. Ex. 6.)

Appellees timely filed their motion for summary judgment on April 21, 2011. On May 10, 2011, appellant timely filed her opposition to appellees' motion for summary judgment. Appellant's opposition to the summary judgment motion also included a counter motion for summary judgment. The bankruptcy court denied appellant's counter motion for summary judgment as untimely and explained that the "counter motion would be denied in any event for the reasons stated in the court's tentative ruling on [appellees'] motion for summary judgment." (DOR at 1.)

After hearing appellees' motion for summary judgment, the bankruptcy court determined that there were no disputed material facts and entered judgment in favor of appellees. (Id. at 2-4.) The bankruptcy court found that, even if appellant could prove the facts asserted in her Third Amended Complaint ("TAC"), she would not have been entitled to any damages for appellees' alleged violations of the automatic stay. (Id. at 3.)

Appellant filed a notice of appeal with this court on August 1, 2011, arguing that the bankruptcy court improperly granted appellees' motion to dismiss. (Docket No. 1.)

Appellant raises three issues on appeal: (1) Whether the posting of a Notice to Quit after the debtor has filed for bankruptcy and before the creditor has received actual notice of the bankruptcy filing violates an automatic stay under 11 U.S.C. § 362; (2) Whether the filing of an unlawful detainer action after the termination of the automatic stay is a continuation of an original violation of the stay if the three-day Notice to Quit was filed during the stay and was not refiled; and (3) Whether a plaintiff has the right to file a counter motion for summary judgment as part of its timely opposition to a defendant's motion when the deadline to file for summary judgment has passed.

II. Discussion

A district court reviewing a bankruptcy court's

judgment on appeal must review findings of fact under the clearly erroneous standard and conclusions of law de novo. In re Van De Kamp's Dutch Bakeries, 908 F.2d 517, 518 (9th Cir. 1990). As the material facts of this case appear largely undisputed, the court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.