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Shetty v. Bank of New York Mellon

United States District Court, N.D. California, San Jose Division

February 23, 2018

NIKI-ALEXANDER SHETTY, Appellant,
v.
THE BANK OF NEW YORK MELLON, Appellee.

          ORDER AFFIRMING BANKRUPTCY COURT'S GRANT OF RELIEF FROM AUTOMATIC STAY RE: DKT. NO. 12

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         Appellant Niki-Alexander Shetty (“Shetty”) appeals an order of the United States Bankruptcy Court for the Northern District of California (the “Bankruptcy Court”), which granted The Bank of New York Mellon (“BNYM”) relief from an automatic stay. Having considered the briefing of the parties, the relevant law, and the record in this case, the Court AFFIRMS the Bankruptcy Court's grant of relief from the automatic stay.

         I. BACKGROUND

         A. Factual Background

         On September 23, 2005, Jose Rincon and Ofelia Colimote obtained a loan from First Magnus Financial Corporation for real property located at 10 Quinn Avenue, Freedom, California. Excerpts of Record (“ER”), ECF No. 12-1 at 64, 71. The loan was secured by a deed of trust. ER 71. Mortgage Electronic Registration Systems, Inc. (“MERS”) was named as beneficiary of the trust. ER 72.

         On August 22, 2011, MERS assigned the deed of trust to The Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-58, Mortgage Pass-Through Certificates, Series 2005-58 (“BNYM as Trustee”). ER 94.

         On September 18, 2015, Rincon and Colimote recorded a grant deed transferring title to the property at 10 Quinn Avenue to Shetty. ER 214. Shetty contends that he bought the property from Rincon and Colimote on September 14, 2015, ECF No. 12 at 3, but the contract is not included in the excerpts of record.

         On December 23, 2015, BNYM as Trustee, acting as beneficiary of the deed of trust, executed a Substitution of Trustee to name the Law Offices of Les Zieve as trustee of the deed of trust. ER 69. The Substitution of Trustee was recorded on January 20, 2016. ER 69. Also on January 20, 2016, the Law Offices of Les Zieve recorded a Notice of Default and Election to Sell Under Deed of Trust. ER 97.

         On April 18, 2016, Shetty filed in state court a complaint for quiet title and declaratory judgment against BNYM as Trustee. ER 205.

         On April 22, 2016, the Law Offices of Les Zieve recorded a Notice of Trustee's Sale. ER 102. The sale was scheduled to take place on May 18, 2016. ER 102. BNYM as Trustee bought the property. ER 105. On May 23, 2016, a Trustee's Deed Upon Sale was recorded. ER 105.

         On July 1, 2016, BNYM served Rincon and Colimote with a notice to quit. ER 109-10, 112. On July 7, 2016, BNYM filed an unlawful detainer action in state court. ER 116-18. On October 7, 2016, BNYM filed a motion for summary judgment on the unlawful detainer action. ER 42.

         On October 20, 2016, the day before the motion for summary judgment was set to be heard, Colimote filed a petition for Chapter 13 bankruptcy. ER 136-42, 151. On November 7, 2016, the Bankruptcy Court dismissed Colimote's case for failure to obey the Bankruptcy Court's order to file missing documents. ER 147. After the Colimote bankruptcy case ended, BNYM re-noticed its motion for summary judgment in the unlawful detainer action for December 14, 2016. ER 151. The hearing was reset for December 16, 2016 pursuant to the state court clerk's request. ER 153.

         On December 12, 2016, Shetty filed in state court a First Amended Verified Complaint against the Law Offices of Les Zieve for wrongful foreclosure, among other causes of action. ER 222.

         On December 15, 2016, the day before the motion for summary judgment in the unlawful detainer action was set to be heard, Rincon filed a petition for Chapter 11 bankruptcy. ER 155-61. On December 30, 2016, the Bankruptcy Court dismissed ...


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