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In Re Marciano

December 10, 2012

IN RE MARCIANO


Bk. Case No. 1:11-BK-10426-VK

The opinion of the court was delivered by: Present: The Honorable A. Howard Matz, U.S. District Judge

O; JS-6

CIVIL MINUTES - GENERAL

Stephen Montes Not Reported

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:

Proceedings: IN CHAMBERS (No Proceedings Held)

Appellant-Debtor Georges Marciano appeals from two related bankruptcy court orders approving of the sale of real and personal property.*fn1 Marciano's objections are based on the fact that the Order of Relief in his personal bankruptcy case is currently on appeal before the Ninth Circuit Court of Appeals. He contends that in light of this appeal, the bankruptcy court should have delayed the sales of his assets. Because the arguments that Marciano raises in these appeals have already been rejected by the Ninth Circuit and the Ninth Circuit Bankruptcy Appellate Panel ("BAP"), the law of the case requires this Court to defer to those earlier determinations. Accordingly, the Court AFFIRMS the bankruptcy court's orders. The Motion to Dismiss of Appellee Lasky Properties, Inc. in CV12-5726 is DENIED.*fn2

BACKGROUND

As the parties are well aware of the factual background of the case, an exhaustive description of the underlying circumstances is unnecessary. It is, however, necessary to provide some of the background of the ongoing bankruptcy proceedings, as well as the particular orders at issue in these appeals.

A. Ongoing Bankruptcy Proceedings and Marciano's Attempts to Stay the Case

On October 27, 2009, some of Marciano's creditors filed an involuntary petition against him in bankruptcy court under Chapter 11 of the Bankruptcy Code. Marciano actively opposed the petition, but the creditors prevailed. On December 10, 2010, the bankruptcy court entered an Order of Relief bringing Marciano's assets and liabilities under bankruptcy court jurisdiction. Marciano then appealed the Order of Relief to the BAP, arguing that the Order of Relief should not have been granted because a large portion of his liabilities arose from state court judgments that were then on appeal. A divided panel of the BAP affirmed the Order of Relief on September 15, 2011. Marciano then appealed the BAP's decision to the Ninth Circuit. That appeal is currently pending.

Marciano has doggedly sought to stay the bankruptcy proceedings for the duration of his appeal of the Order of Relief. In January 2011, before the BAP issued its decision affirming the Order of Relief, Marciano asked the bankruptcy court to stay all aspects of the bankruptcy proceedings during the pendency of the appeal. That request was denied. He then asked the BAP and the Ninth Circuit to stay the bankruptcy proceedings, but those requests were also denied. He again made similar requests to the bankruptcy court and the BAP in May 2011, and those requests were similarly unsuccessful.

Marciano's efforts to stay the case did see some success, however, in July 2012, when the Ninth Circuit granted his request to stay the bankruptcy proceedings pending the Circuit's review of the BAP's decision affirming the Order of Relief. The Ninth Circuit remanded to the BAP "for the limited purpose of establishing the appropriate conditions to protect the rights of all parties in interest and to maintain the status quo." On remand, the BAP ordered that Marciano post bond within thirty days as a condition of the stay. Marciano failed to post the required bond. Accordingly, the stay was terminated. Shortly after the stay was terminated, Marciano attempted ...


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