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Sutton v. Eagle Vista Equities LLC

United States District Court, N.D. California

September 25, 2019

SUTTON, Appellant,
v.
EAGLE VISTA EQUITIES LLC, Appellee.

          ORDER GRANTING APPELLANT’S REQUEST THAT DOCUMENT BE ACCEPTED DESPITE LATE FILING, AND GRANTING APPELLANT’S MOTION FOR EXTENSION OF TIME DOCKET NOS. 7, 11

          EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Eve Sutton filed suit against Eagle Vista Equities LLC (“Eagle Vista”) and Wedgewood, Inc. (“Wedgewood”) alleging wrongful foreclosure and seeking a judgment quieting title to the property in her name. Bankruptcy Court Judge Hannah L. Blumenstiel granted summary judgment for Eagle Vista and Wedgewood, and Ms. Sutton appealed. Currently before the Court are (1) Ms. Sutton’s request that her untimely filed Designation of Record and Statement of Issues on Appeal be accepted, and (2) Ms. Sutton’s Motion for an Extension of Time.

         II. BACKGROUND

         On September 27, 2018, Eve Sutton filed suit against Eagle Vista, Wedgewood, and Bank of the West in Bankruptcy Court in the Northern District of California.[1] Notice of Appeal from Bankruptcy Court (“Notice”) at 2, Docket No. 1. As part of that suit, Ms. Sutton alleged wrongful foreclosure by Eagle Vista Equities LLC (“Eagle Vista”) and Wedgewood, Inc (“Wedgewood”). See Order Granting Summary Judgment in Favor of Eagle Vista Equities LLC And Wedgewood, Inc. (“SJ Order”) at 26–27, Docket No. 1-2. She also sought cancellation of “the Trustee’s Deed that conveyed the Property to Eagle Vista or . . . a judgment quieting title to the Property in her name.” Id. at 27. On June 28, 2019, Judge Blumenstiel granted summary judgment in favor of Eagle Vista and Wedgewood on the issues of wrongful foreclosure and quieting of the title to the property. Id. at 1, 29.

         On July 5, 1019, Ms. Sutton “appeal[ed] under 28 U.S.C. §158(a) from the Order Granting Summary Judgment in Favor of Eagle Vista Equities LLC.” Notice at 1. On August 6, 2019 the Bankruptcy Court issued a Notice of Incomplete Record on Appeal, indicating that no Designation of the Record or Statement of Issues had been filed. See Docket No. 6. Rule 8009 of the Federal Rules of Bankruptcy Procedure requires that an appellant “file and serve the designation and statement within 14 days after . . . the appellant’s notice of appeal as of right becomes effective under Rule 8002.” Fed. R. Bankr. P. 8009(a)(1). On August 7, 2019, counsel for Ms. Sutton filed a Designation of Record and Statement of Issues on Appeal. See Docket No. 7 (“DRSI”). As part of that filing, counsel included a “Request That Document Be Accepted Despite Late Filling.” Id. A copy of the filing was served on the parties by U.S. Mail. Id. at 8.

         On September 19, 2019, Ms. Sutton also filed an ex parte motion for “an extension of time to file her Opening Brief and Excerpts of Record.” See Ex Parte First Motion for Extension of Time to File Excerpts of Record and Opening Brief (“Mot.”) at 1, Docket No. 11.[2] In this Court’s Scheduling Order from July 8, 2019, the Court ordered that Appellant’s brief would be due “no more than 30 days after docketing of notice that the record has been transmitted or is available electronically on the District Court’s docket.” Notice of Filing of Appeal and Scheduling Order, Docket No. 2. Ms. Sutton requests “an extension of time until Friday, November 1, 2019 to file Appellant’s Opening Brief and Request for Stay on Appeal.” Mot. ¶ 8. However, the record has not yet been transmitted to the Court (and the Court has been informed that the record will not be transmitted unless it issues a ruling granting Ms. Sutton’s request that her Designation of Record and Statement of Issues be accepted despite their late filling).

         There is also an Unlawful Detainer action currently pending before Judge Gerald Buchwald in the San Mateo Superior Court (Action CLJ 211439). See Mot. ¶ 3. That case is separate from-but related to-the Wrongful Foreclosure case on appeal in this Court. On July 28, 2019, Eagle Vista asked the San Mateo Superior Court to grant it immediate possession of the property, while Ms. Sutton’s request for a stay pending appeal was set for hearing before Judge Blumenstiel on August 15, 2019. Id. ¶ 4–5. Eagle Vista’s request for immediate possession was denied, and Judge Blumenstiel subsequently denied Ms. Sutton’s request for a stay pending appeal. Id. Eagle Vista then renewed its request for possession in light of Judge Blumenstiel’s decision, and Judge Buchwald “concluded that Ms. Sutton was entitled to a stay pending the appeal to [the district court] of the decision of Judge Blumenstiel.” Id. ¶ 6. As a condition of that stay, Ms. Sutton must pay $2, 000 per month in rent to Eagle Vista; a further hearing has been set in the San Mateo court for December 16, 2019 so that the parties can update Judge Buchwald of the status of this appeal. Id.

         III. DISCUSSION

         A. Legal Standard

         “An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the district court or [Bankruptcy Appellate Panel] to act as it considers appropriate, including dismissing the appeal.” Fed. R. Bankr. P. 8003. Typically, “[a] procedural violation of a bankruptcy rule alone is an insufficient basis for granting a motion to dismiss an appeal.” Abrahams v. Hentz, No. 12CV1560-GPC-BGS, 2013 WL 3147732, at *7 (S.D. Cal. June 18, 2013), aff'd sub nom. In re Abrahams, 601 Fed.Appx. 570 (9th Cir. 2015) (citing Fitzsimmons v. Nolden, 920 F.2d 1468, 1472 (9th Cir.1990)).

         The court may enlarge the time “on motion made after the expiration of the specified period . . . where the failure to act was the result of excusable neglect.” Fed. R. Bankr. P. 9006(b). The Supreme Court has “adopted a four-factor equitable test for determining what constitutes excusable neglect: [1] the danger of prejudice to the non-moving party, [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” Baldwin v. United States, 823 F.Supp.2d 1087, 1113–14 (D. N. Mar. I. 2011) (internal quotations and brackets omitted) (citing Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993)).

         B. Request That Document Be Accepted ...


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