United States District Court, N.D. California, San Jose Division
ORDER AFFIRMING BANKRUPTCY COURT'S GRANT OF
RELIEF FROM AUTOMATIC STAY RE: DKT. NO. 12
H. KOH, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
April 18, 2016, Shetty filed in state court a complaint for
quiet title and declaratory judgment against BNYM as Trustee.
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.
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.
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.
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.
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