FILED
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
NOT FOR PUBLICATION *
August 20, 2019
UNITED STATES BANKRUPTCY APPELLATE PANEL
Blaine F. Bates
OF THE TENTH CIRCUIT Clerk
_________________________________
In re ALEXANDER L. BEDNAR, BAP No. WO-18-099
Debtor.
_____________________________
ALEXANDER L. BEDNAR, Bankr. No. 15-11916
Adv. No. 18-01096
Plaintiff - Appellant, Chapter 7
v.
RCB BANK, FRANKLIN OPINION
AMERICAN MORTGAGE
COMPANY, FANNIE MAE, and
OKLAHOMA COUNTY SHERIFF,
Defendants - Appellees.
_________________________________
Appeal from the United States Bankruptcy Court
for the District of Oklahoma Western
_________________________________
Before ROMERO, JACOBVITZ, and MCNAMARA, 1 Bankruptcy Judges.
_________________________________
JACOBVITZ, Bankruptcy Judge.
_________________________________
*
This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and issue
preclusion. 10th Cir. BAP L.R. 8026-6.
1
Thomas B. McNamara, Bankruptcy Judge, United States Bankruptcy Court for the
District of Colorado, sitting by designation.
Alexander Bednar appeals the bankruptcy court’s dismissal of an adversary
proceeding asserting violations of the discharge injunction, breach of a settlement
agreement, and conspiracy. All of the appellant’s claims stem from his disagreement with
final state court orders for foreclosure of debts secured by his former primary residence.
He also appeals the bankruptcy court’s order denying his request for a preliminary
injunction. The bankruptcy court concluded that all the claims in the adversary
proceeding (including the request for preliminary injunctive relief) were barred under the
Rooker-Feldman doctrine as impermissible collateral attacks on final state court
judgments. The bankruptcy court also determined that the appellant failed to state a
claim upon which relief can be granted. We AFFIRM.
I. Factual and Procedural Background
Alexander Bednar (“Mr. Bednar”) and his ex-wife owned a home in Edmond,
Oklahoma (the “home”). They pledged their home to secure two promissory notes,
resulting in a first mortgage to Franklin American Mortgage Company (“Franklin”) and a
second mortgage to RCB Bank. 2 Mr. Bednar defaulted on the promissory note and
mortgage held by RCB Bank in late 2014. RCB Bank filed a petition to foreclose on its
second mortgage on January 13, 2015 in the Oklahoma District Court for Oklahoma
County (the “State Court”). Mr. Bednar defaulted on the promissory note and first
mortgage held by Franklin in May 2015.
2
Fannie Mae insured the promissory note made to Franklin.
2
Mr. Bednar filed a Chapter 7 petition under the United States Bankruptcy Code,
11 U.S.C. § 301, on May 20, 2015, staying RCB Bank’s foreclosure action. 3 The
bankruptcy court granted RCB Bank relief from the automatic stay to continue the
foreclosure action on September 14, 2015. The State Court granted RCB Bank an in rem
foreclosure judgment on January 22, 2016. The judgment provided that the foreclosure
sale would be subject to the lien of Franklin’s first mortgage. Thereafter, RCB Bank
purchased the home at a sheriff’s sale via credit bid, subject to the lien of Franklin’s first
mortgage. The State Court confirmed the sheriff’s sale to RCB Bank on October 14,
2016. Mr. Bednar did not appeal either the foreclosure judgment granted to RCB Bank or
the order confirming the sheriff’s sale to RCB Bank subject to the lien of Franklin’s first
mortgage and the time to do so under Oklahoma law expired. 4
RCB Bank also filed an adversary proceeding against Mr. Bednar in his Chapter 7
case, seeking to have its claim declared nondischargeable pursuant to § 523(a)(2)(B).
After participating in a bankruptcy court ordered mediation, RCB Bank and Mr. Bednar
entered into a settlement agreement whereby RCB Bank would quitclaim title to the
home to Mr. Bednar or his designee upon Mr. Bednar’s meeting certain conditions. 5 The
3
All future references to “Code,” “Section,” and “§” are to the Bankruptcy Code,
Title 11 of the United States Code, unless otherwise indicated.
4
Although Mr. Bednar filed motions to set aside or otherwise reconsider the State
Court’s foreclosure judgment and order confirming sale to RCB Bank, none of these
motions tolled Oklahoma’s thirty day deadline to appeal a judgment or order. The State
Court denied all Mr. Bednar’s motions to set aside or otherwise reconsider the
foreclosure judgment and order confirming sale.
5
The settlement agreement is not part of the record of appeal. See Order Denying
Construed Motion to Supplement the Record and Motion to Seal, BAP ECF No. 90.
3
parties recorded a quitclaim deed vesting title in the home to Mr. Bednar’s designee, the
MFB Revocable Trust, on August 1, 2018. The MFB Revocable Trust is a trust that Mr.
Bednar and other family members established for the benefit of Mr. Bednar’s minor
child. Mr. Bednar resided in the home with his child.
In the meantime, Mr. Bednar received a Chapter 7 discharge on September 11,
2015, and Franklin filed a petition to foreclose its first mortgage on September 29, 2016.
The State Court entered an in rem foreclosure judgment in favor of Franklin on June 11,
2018. 6 At the time of entry of the foreclosure judgment, RCB Bank held record title to
the home subject to Franklin’s mortgage. Franklin submitted the winning bid at the
August 9, 2018, sheriff’s sale. 7 The State Court confirmed the sheriff’s sale on September
6, 2018. Fannie Mae, by way of its contractual agreements with Franklin, received record
title to Mr. Bednar’s home. Mr. Bednar did not appeal either the foreclosure judgment in
favor of Franklin or the order confirming the sheriff’s sale and the time to do so under
Oklahoma law has expired. 8
This chart sets forth a timeline of these events.
6
Franklin originally received a default judgment of foreclosure on April 30, 2018;
however, based on a procedural change in the law, Franklin moved to vacate that
judgment and obtained a second foreclosure judgment entered on June 11, 2018.
7
Mr. Bednar initially placed the highest bid but failed to tender good funds
resulting in a sale to the second highest bidder, Franklin.
8
Although Mr. Bednar filed motions to set aside or otherwise reconsider the State
Court’s foreclosure judgment and order confirming sale to Franklin, none of these
motions tolled Oklahoma’s thirty (30) day deadline to appeal a judgment or order. The
State Court denied all Mr. Bednar’s motions to set aside or otherwise reconsider the
foreclosure judgment and order confirming sale.
4
Date Event
01-13-2015 RCB Bank commences state court action to foreclose its second
mortgage
05-20-2015 Mr. Bednar commences a Chapter 7 case
08-17-2015 RCB Bank commences nondischargeability action
09-11-2015 Mr. Bednar is granted a discharge in the Chapter 7 case
09-14-2015 Bankruptcy court grants stay relief permitting continuation of the
RCB Bank foreclosure action in rem
01-22-2016 State court enters in rem foreclosure judgment in favor of RCB Bank
on its second mortgage; foreclosure remains subject to first mortgage
09-29-2016 Franklin commences state court action to foreclose its first mortgage
10-14-2016 State court confirms foreclosure sale to RCB Bank; sale is subject to
Franklin’s first mortgage
11-08-2016 Sheriff’s deed to RCB Bank is recorded; title in grantee is subject to
Franklin’s first mortgage
03-02-2017 Settlement of nondischargeability action reached; RCB Bank to
quitclaim its interest in the home to Bednar or his designee
06-11-2018 State court enters in rem foreclosure judgment in favor of Franklin;
terminating RCB Bank’s record title to the home
08-01-2018 RCB Bank’s quitclaim deed transferring the home to MFB Revocable
Trust pursuant to the settlement between RCB Bank and Bednar is
recorded
08-09-2018 Franklin submits winning bid at sheriff’s foreclosure sale on its first
mortgage
09-06-2018 State court confirms sheriff’s sale to Franklin
09-09-2018 Sheriff’s deed to Fannie Mae, Franklin’s designee, is recorded
After the conclusion of Franklin’s foreclosure action, Mr. Bednar filed an
adversary proceeding in the bankruptcy court on October 17, 2018. Mr. Bednar alleged
Franklin, Fannie Mae, and the Oklahoma County Sheriff (the “Sheriff”) violated § 524’s
discharge injunction by carrying out the second foreclosure and subsequent sale. Mr.
Bednar alleged the defendants conspired to effectuate a duplicative sale of the home and
obtain an in personam judgment against him. The specific discharge violations
complained of are (1) Franklin’s initiation of the second foreclosure proceeding; (2)
Franklin’s obtaining an ex parte default judgment against him in that proceeding; and (3)
5
Franklin conspiring with the Sheriff to credit bid $528,000 at the foreclosure sale. 9 Mr.
Bednar also sought an injunction to stay his and his child’s removal from the home and
requested an immediate hearing.
The bankruptcy court conducted a hearing on Mr. Bednar’s emergency request for
injunction on October 19, 2018. The bankruptcy court issued an order denying Mr.
Bednar’s request for an emergency injunction concluding: (1) there was no likelihood of
success on the merits; (2) there was no emergency; and (3) Mr. Bednar had not complied
with the Federal Rules of Bankruptcy Procedure or local rules in requesting an
injunction. 10
Mr. Bednar supplemented his complaint on October 23, 2018, adding RCB Bank
as a defendant. Mr. Bednar alleged RCB Bank breached the settlement agreement by
failing to deliver a valid deed to the home to him or his designee and by conspiring with
Franklin to deprive him of the benefit of his bargain under the settlement agreement ‒
title to the home free and clear of liens. He sought enforcement of the settlement
agreement and damages. 11 Mr. Bednar also filed a request for an expedited hearing on his
renewed request for an injunction. 12 The bankruptcy court set a telephonic hearing on the
9
Petition for Immediate and Permanent Equitable Relief Due to Violation of the
Discharge Injunction at 5, in Appellant’s App. at 15.
10
Order Denying Emergency Motion [Doc. 10], in Appellant’s App. at 226.
11
Supplemental Petition, in Appellants’ App. at 142 (alleging breach because the
quitclaim deed was executed in February 2018, when the transaction did not occur until
July 2018).
12
Request for Expedited Hearing and Shortened Response Time Regarding
Injunction Pending Hearing on the Merits, in Appellant’s App. at 145.
6
matters for November 1, 2018. 13 Fannie Mae, RCB Bank, and the Sheriff filed responses
and motions to dismiss on October 31, 2018.
At the telephonic hearing, the bankruptcy court heard Mr. Bednar’s legal
arguments, proffers of evidence, and unsworn statements. However, Mr. Bednar, who
requested the emergency hearing, never requested a formal in-court evidentiary hearing
or otherwise sought to introduce evidence. The bankruptcy court gave Mr. Bednar until
November 2, 2018 to respond to the opposing parties’ motions to dismiss and took the
matters under advisement. Mr. Bednar amended his complaint and again objected to the
Defendants’ motions to dismiss on November 2, 2018. Mr. Bednar filed a second
amendment to his complaint on November 7, 2018.
The bankruptcy court entered an order denying Mr. Bednar’s request for an
injunction on November 8, 2018, concluding Mr. Bednar had again failed to meet his
burden in seeking injunctive relief (the “Injunction Order”). The bankruptcy court also
entered an order dismissing Mr. Bednar’s adversary proceeding on November 9, 2018
(the “Dismissal Order”). The bankruptcy court concluded Mr. Bednar’s allegations were
an attempt to have the bankruptcy court review the State Court’s final foreclosure
judgments and orders of sale in contravention of the Rooker-Feldman doctrine.
Furthermore, the bankruptcy court determined Mr. Bednar failed to allege plausible
allegations that any defendant violated the discharge injunction or conspired together to
abuse the foreclosure process. Finally, the bankruptcy court determined that Mr. Bednar
13
Order and Notice of Telephonic Hearing, in Appellant’s App. at 192.
7
lacked standing to challenge actions regarding the home. Mr. Bednar made several
requests for a stay pending appeal, all of which were denied.
II. Jurisdiction and Standard of Review
“With the consent of the parties, this Court has jurisdiction to hear timely-filed
appeals from ‘final judgments, orders, and decrees’ of bankruptcy courts within the Tenth
Circuit.” 14 An order dismissing an adversary proceeding is final for purposes of appellate
review. 15 Upon dismissal of the adversary proceeding, the order denying injunctive relief
merged into the final order of dismissal. 16 We have jurisdiction to hear an appeal of an
interlocutory order that merged into a final order dismissing an adversary proceeding. 17
Neither party in this case elected for this appeal of the bankruptcy court’s orders to be
heard by the United States District Court pursuant to
28 U.S.C. § 158(c). Accordingly,
this Court has jurisdiction over this appeal.
Considering each of the bankruptcy court’s orders, an order denying a request for
a preliminary injunction is reviewed for abuse of discretion. 18 The abuse of discretion
standard requires the appellate court to give deference to the trial court’s “evaluation of
14
Straight v. Wyo. Dep’t of Trans. (In re Straight),
248 B.R. 403, 409 (10th Cir.
BAP 2000) (first quoting
28 U.S.C. § 158(a)(1), and then citing
28 U.S.C. § 158(b)(1),
(c)(1) and Fed. R. Bankr. P. 8002).
15
Funderburgh v. Manchester (In re Funderburgh),
526 B.R. 361, 369 (10th Cir.
BAP 2015).
16
Expert S. Tulsa, LLC v. First Am. Title Ins. Co. (In re Expert S. Tulsa, LLC),
522
B.R. 634, 642 n.41 (10th Cir. BAP 2014) (stating interlocutory orders and judgments
merged into the order dismissing an adversary proceeding).
17
Id.
18
Heideman v. S. Salt Lake City,
348 F.3d 1182, 1188 (10th Cir. 2003) (citing Utah
Licensed Beverage Ass’n v. Leavitt,
256 F.3d 1061, 1065 (10th Cir. 2001)).
8
the salience and credibility of testimony, affidavits, and other evidence. We will not
challenge that evaluation unless it finds no support in the record, deviates from the
appropriate legal standard, or follows from a plainly implausible, irrational, or erroneous
reading of the record.” 19
The bankruptcy court’s dismissal of an adversary proceeding for failure to state a
claim is reviewed de novo. 20 “[T]o withstand a Rule 12(b)(6) motion to dismiss, a
complaint must contain enough allegations of fact, taken as true, ‘to state a claim to relief
that is plausible on its face.’” 21
III. Issues Preliminary to Court’s Review
a. Standing
The Supreme Court’s standing jurisprudence “contains two strands: Article III
standing, which enforces the Constitution’s case-or-controversy requirement . . . and
prudential standing which embodies judicially self-imposed limits on the exercise of
federal jurisdiction.” 22 Without further explanation, the bankruptcy court concluded that
Mr. Bednar “lack[ed] standing to challenge actions regarding [his home] since he has no
19
Id. (quoting United States v. Robinson,
39 F.3d 1115, 1116 (10th Cir. 1994)).
20
Gee v. Pacheco,
627 F.3d 1187, 1183 (10th Cir. 2010) (“We review de novo the
grant of a Rule 12(b)(6) motion to dismiss . . . .” (citing Howard v. Waide,
534 F.3d
1227, 1242-43 (10th Cir. 2008))).
21
Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl.
Corp. v. Twombly,
550 U.S. 554, 570 (2007)).
22
The Wilderness Society v. Kane Ct.y, Utah,
632 F.3d 1162, 1168 (10th Cir. 2011);
see also VR Acquisitions, LLC v. Wasatch Cty.,
853 F.3d 1142 (10th Cir. 2017)
(explaining the difference between constitutional and prudential standing).
9
ownership in interest in that property.” 23 This holding appears to implicate prudential
standing concerns (i.e. person aggrieved). But, the bankruptcy court did not clearly
distinguish between constitutional and prudential standing. Accordingly, we consider
both “strands” of standing.
1. Constitutional Standing
Although the appellees have not objected to Mr. Bednar’s standing to proceed in
this appeal, constitutional standing is a jurisdictional question. 24 As a federal court, “we
have an independent duty to examine our own jurisdiction.” 25 “Because constitutional
standing is necessary to the court’s jurisdiction, as a general rule it must be addressed
before proceeding to the merits.” 26 As such, the question of whether a plaintiff has
alleged a “case or controversy . . . . is the threshold question in every federal case,” is
considered prior to the substantive issues raised by the parties. 27
“The Constitution limits the jurisdiction of federal courts to ‘[c]ases and
[c]ontroversies.’” 28 Supreme Court cases establish that to meet constitutional minimums
23
Dismissal Order at 10, in Appellant’s App. at 390.
24
Utah Animal Rights Coal. v. Salt Lake Cty.,
566 F.3d 1236, 1240 (10th Cir. 2009)
(citing Initiative & Referendum Inst. v. Walker,
450 F.3d 1082, 1087 (10th Cir. 2006) (en
banc) (“Because [standing] goes to our jurisdiction, we must address it before proceeding
to the merits.”)).
25
Hill v. Vanderbilt Capital Advisors, LLC,
702 F.3d 1220, 1223 (10th Cir. 2012)
(quoting Amazon, Inc. v. Dirt Camp, Inc.,
273 F.3d 1271, 1274 (10th Cir. 2001)).
26
Carolina Cas. Ins. Co. v. Pinnacol Assurance,
425 F.3d 921, 926 (10th Cir. 2005)
(citing Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 96-97, 97 n.2 (1998)).
27
Warth v. Seldin,
422 U.S. 490, 498 (1975).
28
Utah Animal Rights Coal.,
566 F.3d at 1240 (quoting U.S. Const. art. III, § 2);
Cornhusker Cas. Co. v Skaj,
786 F.3d 842, 851 (10th Cir. 2015).
10
of standing a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” 29 “To establish injury in fact, a plaintiff must show that he or
she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” 30 It is the
plaintiff’s burden to establish these elements are met. 31
As this appeal comes to us on a motion to dismiss for failure to state a claim upon
which relief may be granted, the Court must “presume[] all of [the] plaintiff’s factual
allegations are true and construe[] them in the light most favorable to the plaintiff.” 32 As
this presumption does not apply to a plaintiff’s legal conclusions, 33 “[f]or purposes of
standing, we must assume the [p]laintiffs’ claim has legal validity.” 34 In other words, an
29
Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016) (first citing Lujan v.
Defenders of Wildlife,
504 U.S. 555, 560-61 (1992), and then citing Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000)); Lujan v.
Defenders of Wildlife,
504 U.S. at 560 (1992) (standing requires (1) “an invasion of a
legally protected interest” which is “concrete and particularized,” and “actual or
imminent, not ‘conjectural’ or ‘hypothetical;’” (2) that is “fairly traceable to the
challenged action of the defendant;” and (3) that is likely to be “redressed by a favorable
decision.”).
30
Spokeo,
136 S. Ct. at 1548 (quoting Lujan,
504 U.S. at 560).
31
Id. (citing FW/PBS, Inc. v. Dallas,
493 U.S. 215, 231 (1990)).
32
Hall v. Bellmon,
935 F.2d 1106, 1109 (10th Cir. 1991) (citing Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
33
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”).
34
Initiative & Referendum Inst. v. Walker,
450 F.3d 1082, 1093 (10th Cir. 2006) (en
banc) (citing Utah Animal Rights Coal. v. Salt Lake City Corp.,
371 F.3d 1248, 1256
(10th Cir. 2004)
11
appellate court does not decide the legal issues presented in the appeal to decide whether
an appellant has standing for the appellate court to address those issues.
In Mr. Bednar’s complaint, as supplemented, he alleged facts intended to lead to
the conclusions that (1) RCB Bank breached the settlement agreement by not conveying
title to the home to Mr. Bednar’s designee, a family trust; and (2) RCB Bank’s
foreclosure terminated Franklin’s lien rights in the home, rendering Franklin’s entire
foreclosure improper and in violation of the discharge injunction. Under Mr. Bednar’s
theory of the case, but for the wrongful acts of RCB Bank and Franklin, under the
settlement agreement he would have the right to own the home free and clear of liens and
the right to give his property (the home) to a family trust established for the benefit of his
minor child (the MFB Revocable Trust). Assuming this theory is correct, RCB Bank’s
failure to abide by the settlement agreement and Franklin’s unlawful foreclosure of an
invalid lien affected Mr. Bednar’s contractual and property rights, principally being the
loss of property and wrongful dispossession of Mr. Bednar and his minor child from the
home. Injury to contractual rights and property interests represent harms sufficient to
confer constitutional standing to a plaintiff.
In addition, Mr. Bednar has constitutional standing to appeal the dismissal of the
adversary proceeding claiming violation of the discharge injunction. The discharge
injunction is a protection the debtor earns by obtaining a discharge in a bankruptcy case
and typically is the principal benefit bestowed on a Chapter 7 debtor. 35
35
See Love v. Royal (In re Love), No. WY-97-001,
1997 WL 837795, at *1 (10th
Cir. BAP July 17, 1997).
12
Accordingly, Mr. Bednar has constitutional standing in this appeal.
2. Prudential Standing
No party raised any argument in the bankruptcy court concerning alleged lack of
standing. Notwithstanding, the bankruptcy court addressed the issue sua sponte through a
single sentence at the end of the Dismissal Order. Without any analysis, the bankruptcy
court noted a lack of standing to address some or all of the claims. On appeal, the
appellees have not asserted any standing argument.
“Prudential standing is not a jurisdictional limitation . . . .” 36 Thus, we are not
obligated to consider the issue if not raised by one of the parties. While Mr. Bednar may
not have prudential standing to raise some of the claims asserted in the complaint, we
believe that the proper course is not to decide the appeal on that basis because none of the
parties have argued the issue. Under such circumstances, any prudential standing
argument has been forfeited. 37
36
Kerr v. Polis,
930 F.3d 1190, 1194 (10th Cir. 2019) (quoting Niemi v. Lasshofer,
770 F.3d 1331, 1345 (10th Cir. 2014)).
37
Finstuen v. Crutcher,
496 F.3d 1139, 1147 (10th Cir. 2007) (“Prudential standing
is not jurisdictional in the same sense as Article III standing . . . . We could therefore
decline to address this argument, as it was not raised in the court below.”); Grubbs v.
Bailes,
445 F.3d 1275, 1281 (10th Cir. 2006) (“Questions relating to prudential standing,
however, may be pretermitted in favor of a straightforward disposition on the merits.”);
see also Bd. of Miss. Levee Comm’rs v. EPA,
674 F.3d 409, 417 (5th Cir. 2012) (“Unlike
constitutional standing, prudential standing arguments may be waived.”); Independent
Living Center of So. Cal., Inc. v. Shewry,
543 F.3d 1050, 1065 n. 17 (9th Cir. 2008)
(“[P]rudential standing is not a jurisdictional limitation on our review. By failing to
articulate any argument challenging . . . prudential standing, the [appellee] has waived
that argument.”).
13
b. Preservation of Issues on Appeal
Appellees assert that Mr. Bednar forfeited his arguments on appeal by failing to
adequately address them in his appellate briefs. Generally, concerns over preservation of
issues arise when a party fails to adequately present an argument to the trial court. 38
However, the Tenth Circuit recognizes that parties may also forfeit arguments presented
to the trial court by failing to adequately address them in appellate briefing. 39 An
appellant’s opening brief must “contain the appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the appellant
relies.” 40 As such, appellate courts may “decline[] to consider arguments that are not
raised, or are inadequately presented, in an appellant’s opening brief.” 41
Appellees raised these same arguments in a Combined Motion to Strike
Appellant’s Brief and Appendix and a Motion to Dismiss. 42 For the reasons stated in our
Order Denying Motions to Dismiss, 43 we decline to find that Mr. Bednar forfeited his
arguments on appeal.
38
Singleton v. Wulff,
428 U.S. 106, 120 (1976) (“It is the general rule, of course, that
a federal appellate court does not consider an issue not passed upon below.”).
39
Holmes v. Colo. Coal. for Homeless Long Term Disability Plan,
762 F.3d 1195,
1199 (10th Cir. 2014) (citing multiple cases for the proposition that failure to adequately
brief an argument results in waiver).
40
Fed. R. Bankr. P. 8014(a)(8).
41
Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (first citing Exum v.
U.S. Olympic Comm.,
389 F.3d 1130, 1133 n.4 (10th Cir. 2004), and then citing Gross v.
Burggraf Constr. Co.,
53 F.3d 1531, 1547 (10th Cir. 1995)).
42
BAP ECF Nos. 26 and 33.
43
BAP ECF No. 55.
14
IV. Discussion
Mr. Bednar appeals the bankruptcy court’s order dismissing his claims for
violation of the discharge injunction, breach of the settlement agreement, and conspiracy
based on the Rooker-Feldman doctrine and for failure to state a claim upon which relief
can be granted. Further, Mr. Bednar appeals the bankruptcy court’s order denying
injunctive relief. We agree that the dismissed claims are barred by Rooker-Feldman and
were properly dismissed for failure to state a claim upon which relief can be granted. We
also conclude that the bankruptcy court did not err by denying injunctive relief.
a. The Rooker-Feldman Doctrine and its applicability
Mr. Bednar’s second amended complaint 44 (hereafter the “complaint”) asserts
claims for violation of the discharge injunction, breach of a settlement agreement
between RCB Bank and Mr. Bednar, and conspiracy. The bankruptcy court dismissed the
claims under the Rooker-Feldman doctrine. 45 We begin by examining the Rooker-
Feldman doctrine and its applicability to the State Court judgments and orders at issue.
The Tenth Circuit has explained that “[t]he Rooker-Feldman doctrine precludes a
losing party in state court who complains of injury caused by the state-court judgment
44
Mr. Bednar filed four complaints. (Bankruptcy Docket Nos. 1, 13, 37, and 39.) It
appears that the bankruptcy court considered the second amended complaint, which was
the last complaint, as the operative pleading notwithstanding Mr. Bednar’s failure to
comply with the requirements for amendment under Fed. R. Civ. P. 15, as incorporated
by Fed. R. Bankr. P. 7015. The second amended complaint is not a model of clarity.
45
The Rooker-Feldman doctrine is based on a pair of Supreme Court decisions:
Rooker v. Fid. Tr. Co.,
263 U.S. 413 (1923) and Dist. of Columbia Court of Appeals v.
Feldman,
460 U.S. 462 (1983).
15
from bringing a case seeking review and rejection of that judgment in federal court.” 46
Rooker-Feldman and its progeny do “not deprive a federal court of jurisdiction to hear a
claim just because it could result in a judgment inconsistent with a state-court
judgment.” 47 Instead, the doctrine prohibits “a federal action that tries to modify or set
aside a state-court judgment because the state proceedings should not have led to that
judgment.” 48 “Rooker-Feldman can bar a federal-court claim [ ] only if ‘an element of the
claim is that [a prior state-court] judgment was wrongful.” 49 Rooker-Feldman is
jurisdictional in the sense that federal courts do not have jurisdiction to modify or set
aside a state court judgment because the state proceedings should not have led to that
judgment. 50 Only final state court judgments and orders are entitled to preclusive effect
under Rooker-Feldman. 51
Mr. Bednar does not challenge the finality of the State Court judgment foreclosing
RCB Bank’s second mortgage lien (the “RCB Judgment”) and the order confirming the
46
Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller),
666 F.3d 1255, 1261 (10th
Cir. 2012) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 291-92
(2005)).
47
Mayotte v. U.S. Bank Nat’l Ass’n, as Tr. for Structured Asset Inv. Loan Tr. Mortg.
Pass-Through Certificates, Series 2006-4,
880 F.3d 1169, 1174 (10th Cir. 2018).
48
Id. (citing Exxon Mobil,
544 U.S. at 291).
49
Id. at 1175 (quoting Campbell v. City of Spencer,
682 F.3d 1278, 1284 (10th Cir.
2012)).
50
Id. at 1170 (“The jurisdictional doctrine is the Rooker-Feldman doctrine, which
forbids lower federal courts from reviewing state-court civil judgments.”).
51
Exxon Mobil,
544 U.S. at 293 (quoting Parsons Steel, Inc. v. First Ala. Bank, 474
U.S 518, 523 (1986) (explaining the Full Faith and Credit Act,
28 U.S.C. § 1738,
“requires the federal court to ‘give the same preclusive effect to a state-court judgment as
another court of that State would give.’”)).
16
Sheriff’s sale to RCB Bank (the “RCB Sale Order”). 52 Mr. Bednar did not appeal the
RCB Judgment or the RCB Sale Order and the time to appeal has expired. The RCB
Judgment and the RCB Sale Order are therefore entitled to preclusive effect under
Rooker-Feldman.
Mr. Bednar contends the State Court judgment foreclosing Franklin’s first
mortgage lien and the order confirming the Sheriff’s sale to Franklin are not final for two
reasons. First he argues that the time to appeal Franklin’s foreclosure judgment was tolled
because he sought reconsideration of the finding in the judgment that Franklin, as the
holder of the promissory note and mortgage, was “entitled to enforce the [promissory
n]ote.” 53 Although Mr. Bednar sought reconsideration of this issue, nothing on the State
Court docket suggests Mr. Bednar tolled the time to file a notice of appeal. Under
Oklahoma law, the deadline for appealing is “within thirty (30) days from the date of the
judgment, decree, or appealable order.” 54 That strict deadline may be tolled upon filing a
motion for a new trial or reconsideration within ten days of the entry of the judgment. 55
However, Oklahoma law confirms that “[t]he time to appeal from a judgment . . . is not
extended or affected by the filing of a motion to . . . modify, vacate or reconsider the
52
Mr. Bednar states motions challenging the Sheriff’s sale “are being set” in the
State Court but the record before this Court provides no evidence the RCB Sale Order is
not a final, unappealable order. Appellant’s Reply Br. to Fannie Mae 13.
53
The finding is set forth in the June 11, 2018 Journal Entry of Judgment at 4, in
Appellant’s App. at 281.
54
Okla. Stat. Ann. tit. 12 § 990(A) (2019).
55
Okla. Stat. Ann. tit. 12 § 990.2(A) (2019).
17
judgment . . . that is filed more than ten (10) days after the judgment . . . .” 56 Mr. Bednar
did not file a motion to reconsider or a motion for new trial within the statutory deadline
of ten days of entry of Franklin’s foreclosure judgment. In any event, taking judicial
notice of the State Court’s docket in Franklin’s foreclosure proceeding, it is clear RCB
Bank held record title to Mr. Bednar’s home on the date of Franklin’s foreclosure
judgment. 57
Second, Mr. Bednar argues that the order confirming the sale to Franklin is not
final because motions challenging that sale “are being set;” 58 however, the State Court
docket revealed no timely filed pending motion to reconsider that would render the order
confirming the Sherriff’s sale to Franklin non-final.
We conclude that the State Court judgment foreclosing Franklin’s first mortgage
lien and the order confirming the Sheriff’s sale to Franklin are no longer appealable
orders and are therefore preclusive under Rooker-Feldman in relation to all the claims
asserted in the complaint.
56
Okla. Stat. Ann. tit. 12 § 990.2(B) (2019); see also McMillian v. Holcomb,
907
P.2d 1034, 1036 (Okla. 1995) (“A timely filed motion for new trial extends the time to
appeal; an untimely one does not.”).
57
With the parties’ consent at oral argument, this Court took judicial notice of the
State Court dockets in the RCB Bank and Franklin foreclosure actions, cases CJ-2015-
192 and CJ-2016-5004, and of the documents filed in the foreclosure actions as reflected
on the dockets. See Mills v. Denver Tramway Corp.,
155 F.2d 808, 812 (10th Cir. 1946)
("[W]hether an appellate court will for the first time take judicial notice of a judicially
notable fact rests largely in its own discretion."); United States v. Birch, 169 F.3d 666,
671 (10th Cir. 1999) (“Judicial notice may be taken at any time, including on appeal.”).
We take judicial notice of the dockets in State Court cases CJ-2015-192 and CJ-2016-
5004.
58
Appellant’s Reply Br. to Fannie Mae 13.
18
b. The bankruptcy court did not err by dismissing the claim for
violation of the discharge injunction.
The complaint alleges violations of the discharge injunction in two respects: first,
by Franklin’s foreclosure of its lien against the home; and second, by Franklin credit
bidding its judgment at the Sheriff’s sale. Mr. Bednar also argues that Franklin
improperly credit bid more than the amount of its judgment in violation of the discharge
injunction.
The violation of the discharge injunction claim is largely predicated on Mr.
Bednar’s position that Franklin forfeited its interest in his home by failing to assert its
rights in the RCB Bank foreclosure action. Mr. Bednar argues that under Oklahoma law,
Franklin’s first mortgage lien against the home was merged into and extinguished by the
earlier state court judgment foreclosing RCB Bank’s second lien. Mr. Bednar reasons that
because Franklin’s lien was extinguished under state law by foreclosure of RCB Bank’s
second lien, Franklin’s subsequent purported in rem efforts to enforce its first lien were in
fact acts taken in personam to collect a discharged debt; consequently, Franklin had no
right to credit bid. The complaint also alleges Franklin’s foreclosure of its lien violated
the discharge injunction because (a) the second foreclosure sale to Franklin could not
take place while the first Sheriff’s sale to RCB Bank was at issue in a pending appeal; (b)
Franklin’s foreclosure violated the terms of its mortgage; and (c) Franklin’s credit bid
exceeded the amount of its judgment.
We will start by examining the scope of the discharge injunction and what a debtor
must allege and prove to obtain relief for a violation of the discharge injunction.
19
In relevant part, § 524 states:
(a) A discharge in a case under this title-
(1) voids any judgment at the time obtained, to the extent that
such judgment is a determination of the personal liability of
the debtor with respect to any debt discharged under section
727 . . . of this title . . . ;
(2) operates as an injunction against the commencement or
continuation of an action, the employment of process, or an
act, to collect, recover or offset any such debt as a personal
liability of the debtor . . . . 59
Under § 524(a), only acts to collect, recover or offset a discharged debt as a
personal liability of the debtor are enjoined. In other words, an act taken in personam to
collect a debt is enjoined. In contrast, an act taken in rem to enforce in interest in property
is not enjoined. For example, an act taken in rem to enforce a prepetition lien against
collateral in which the debtor has an interest is not enjoined by the discharge injunction. 60
We have explained,
[t]he discharge injunction does not constitute a blanket prohibition against
all actions undertaken by creditors after the entry of discharge. Actions to
collect against the debtor personally are enjoined. In contrast, in rem
actions, which include actions to enforce a lien against encumbered
property, are not prohibited by the discharge injunction. 61
59
11 U.S.C. § 524(a).
60
See Johnson v. Home State Bank,
501 U.S. 78, 84 (1991) (“a bankruptcy discharge
extinguishes only one mode of enforcing a claim—namely, an action against the debtor in
personam—while leaving intact another—namely, an action against the debtor in rem”);
Paul v. Iglehart (In re Paul),
534 F.3d 1303, 1308 n.6 (10th Cir. 2008) (“The discharge
injunction prohibits efforts to collect a debt ‘as a personal liability of the debtor,’ . . . and
thus in rem rights are not affected.”).
61
In re Jester, No. EO-15-002,
2015 WL 6389290, at *5 (10th Cir. BAP October
22, 2015), aff’d 656 Fed. App’x 425 (10th Cir. 2016).
20
Further, not every violation of the discharge injunction entitles a debtor to relief.
The discharge injunction is enforced through the bankruptcy court’s civil contempt
powers under § 105(a). 62 A creditor may be held in civil contempt for violating the
discharge injunction where “there is not a ‘fair ground of doubt’ as to whether the
creditor’s conduct might be lawful under the discharge order.” 63 The “fair ground of
doubt” standard is an objective standard. There is no fair ground of doubt when the
creditor violates a discharge injunction “based on an objectively unreasonable
understanding of the discharge order or the statutes that govern its scope.” 64 A “creditor’s
good faith belief” that the discharge injunction does not apply to the creditor’s act that
violated the discharge injunction does not by itself preclude a civil contempt sanction. 65
Conversely, it is not sufficient to hold a creditor in civil contempt by finding that “the
creditor was aware of the discharge order and intended the actions that violated the
order.” 66
Next, we will address whether the complaint states a claim for violation of the
discharge injunction upon which relief could be granted. Mr. Bednar argues that
Franklin’s first mortgage lien was extinguished in the RCB Bank foreclosure action. As
discussed above, Mr. Bednar is barred by Rooker-Feldman from attacking the validity of
the state court judgments foreclosing RCB’s second mortgage lien and Franklin’s first
62
Taggart v. Lorenzen,
139 S. Ct. 1795, 1801 (2019).
63
Id. at 1804.
64
Id. at 1802.
65
Id.
66
Id. at 1803.
21
mortgage lien against the home or attacking the orders confirming the foreclosure sales to
RCB Bank and to Franklin pursuant to the judgments. The RCB Bank Judgment
expressly provided that the home was to be sold “subject to the mortgage line [sic] of
Franklin [].” 67 This was consistent with Oklahoma Supreme Court precedent determining
that “[t]he foreclosure of [a] junior mortgage [i]s subject to the priority of the senior
mortgage.” 68 Therefore, Franklin’s lien against Mr. Bednar’s home remained in place
following foreclosure of RCB Bank’s junior lien. Similarly, Mr. Bednar’s arguments that
the second foreclosure sale to Franklin could not take place while the RCB Bank Sale
Order was at issue in a pending appeal, and that Franklin’s foreclosure violated the terms
of its mortgage, are barred by Rooker-Feldman.
Our review of Franklin’s foreclosure judgment discloses that the State Court
granted in rem relief against the property, including a right to credit bid up to the amount
of the judgment, not in personam relief against Mr. Bednar. 69 The order confirming the
Sheriff’s sale confirmed Franklin’s credit bid. As explained above, the discharge
injunction enjoins enforcement of a debtor’s personal liability for a debt but it does not
extinguish the lien against collateral securing the discharged debt and does not enjoin
67
March 31, 2016 Journal Entry of Judgment at 5, in Appellant’s App. at 167. The
Journal Entry of Judgment repeatedly recognizes that Franklin retained a superior lien.
The State Court awarded judgment that “the Plaintiff’s right, title and interest in and to
the Mortgaged Property [] be a valid lien superior to that of all parties except Franklin . . .
.”
Id.
68
Okla. State Bank of Enid v. Dotson,
235 P. 181, 183 (Okla. 1925).
69
June 11, 2018 Journal Entry of Judgment at 5, in Appellant’s App. at 282 (“IT IS
THEREFORE ORDERED . . . by the Court that the Plaintiff, Franklin American
Mortgage Company, have judgment in rem against the real property . . . .”).
22
foreclosure of the lien to collect discharged debt. In entering the in rem judgment
foreclosing on Franklin’s lien, the State Court concluded Franklin had a valid lien against
the home. An in rem proceeding is not a violation of the discharge injunction. 70
The true objective of Mr. Bednar’s allegations before the bankruptcy court was to
obtain a review of state law issues already determined by the State Court. Mr. Bednar
failed to preserve his appellate rights in either State Court foreclosure proceeding and the
decisions in those proceedings have long since become final. Applying Rooker-Feldman,
we lack jurisdiction to consider these arguments.
Likewise, we find no error in the bankruptcy court’s dismissal of Mr. Bednar’s
claims of violation of the discharge injunction based on Franklin’s allegedly credit
bidding a deficiency judgment at the Sheriff’s sale. In Oklahoma, a judgment creditor
foreclosing a first lien may credit bid up to the amount of the creditor’s judgment at a
foreclosure sale. 71 There is no such thing under Oklahoma law as a credit bid of a
deficiency judgment. If the bid exceeds the amount of the judgment, the creditor must
pay cash for the excess. 72 If Mr. Bednar means to suggest that Franklin’s credit bid was
70
In re Jester, No. EO-15-002,
2015 WL 6389290, at *5 (10th Cir. BAP Oct 22,
2015), aff’d 656 Fed. App’x 425 (10th Cir. 2016).
71
McDonald v. Harrod,
135 P.2d 979, 981 (Okla. 1943) (citing Barnard v. First
Nat’l Bank of Miami,
55 P.2d 972 (Okla. 1936)) (“Since the purchaser was the judgment
creditor, payment of the purchase price to the sheriff was not necessary, as it was entitled
to have the amount of its bid credited on its judgment.”).
72
Cf. Charles F. Curry Co. v. Goodman,
737 P.2d 963, 965 (Okla. Civ. App. 1987)
(concluding requiring a creditor “to pay cash to the court clerk only to recover all such
cash following confirmation of sale of the property would” place “an unnecessary
burden” on a creditor.).
23
in fact an in personam bid because Franklin’s lien was extinguished by RCB Bank’s prior
foreclosure judgment, as discussed above, Rooker-Feldman prevents Mr. Bednar from
making that argument. The RCB Judgment expressly provides that the foreclosure of
RCB Bank’s second mortgage lien will remain subject to Franklin’s first mortgage lien,
and Rooker-Feldman bars Mr. Bednar from collaterally attacking that judgment.
Likewise, Rooker-Feldman bars a collateral attack on the Franklin foreclosure judgment,
which determined that Franklin had a “a first, prior and superior” lien against the home. 73
In addition, Mr. Bednar may not now challenge the amount of Franklin’s credit
bid. The State Court confirmed the sale “for the price of $528,200.00, as credit on
[Franklin’s] judgment.” 74 The appropriate time to challenge Franklin’s credit bid was at
the hearing on the confirmation of the Sheriff’s sale. Mr. Bednar did not appeal the Order
Confirming Sale, and the time to do so has expired. Under Rooker-Feldman, Mr. Bednar
cannot collaterally attack that order in bankruptcy court by claiming a discharge
injunction violation based on an allegation that Franklin’s credit bid was excessive under
Oklahoma law.
In any event, Franklin’s credit bid did not exceed the amount of its judgment.
Franklin was entitled to bid up to the amount of its judgment at the Sheriff’s sale. The
record indicates the principal due on the promissory note as of the date Franklin filed the
foreclosure action was $433,574.38, not including interest, escrow advancements, and
73
June 11, 2018 Journal Entry of Judgment at 4, in Appellant’s App. at 281.
74
Order Confirming Sale at 1, in Appellant’s App. at 120.
24
attorney fees. 75 In addition to the unpaid principal balance of the promissory note,
Franklin’s judgment amount included these amounts plus “the further sum of all advances
by [Franklin], if any, for taxes, insurance premiums, or expenses . . . and for all costs of
[the foreclosure] action.” 76 Both the promissory note and mortgage authorize Franklin to
recoup advances, attorney fees, and court costs. 77 These fees and costs then became a part
of the total judgment amount, which with accrued interest from April 2014 easily
surpassed Franklin’s winning credit bid of $528,200.
Accordingly, the bankruptcy court did not err by dismissing the claim for violation
of the discharge injunction.
c. The bankruptcy court did not err by dismissing the claim for
breach of settlement agreement.
The complaint alleges that RCB Bank breached its promise under the settlement
agreement to convey its interest in the home to Mr. Bednar in two ways. First, the
complaint alleges that RCB Bank had nothing to convey because the foreclosure sale to
RCB Bank, based on a winning bid of less than two thirds of the home’s appraised
value—contrary to the requirements of Oklahoma law, was invalid. Second, the
complaint alleges the quitclaim deed purporting to convey title to the home to Mr. Bednar
had multiple defects.
75
June 11, 2018 Journal Entry of Judgment at 5, in Appellant’s App. at 282.
76
Id. at 6, in Appellant’s App. at 283.
77
See Sisney v. Smalley,
690 P.2d 1048, 1049 (Okla. 1984) (citing Garner v. City of
Tulsa,
651 P.2d 1325 (Okla. 1982)) (“As a general rule, attorney fees to a prevailing
party are not recoverable in the absence of a statute or an enforceable contract.”);
Okla.
Stat. tit. 42, § 176 (1910).
25
The State Court entered a final order confirming the Sheriff’s sale to RCB Bank
pursuant to the foreclosure judgment entered in its favor. Mr. Bednar did not appeal the
judgment or order. Under Rooker-Feldman, he cannot now challenge the validity of the
Sheriff’s sale in bankruptcy court based on the amount of RCB Bank’s bid.
Any defect in the quitclaim deed did not injure Mr. Bednar. The quitclaim deed,
even if it had been validly executed and delivered, would not have conveyed anything to
Mr. Bednar. While RCB Bank asserts it performed all acts required under the settlement
agreement, Franklin’s foreclosure on the home after the settlement was reached
terminated any interest RCB Bank held in the home. 78 RCB Bank no longer held title to
or any other interest in the property and could not convey title to Mr. Bednar. Review of
RCB Bank’s interest in the home, other than concluding Franklin’s foreclosure
extinguished RCB Bank’s interest in the home, would require contradicting the State
Court’s judgment. Such review is precluded by the Rooker-Feldman doctrine. Because
Mr. Bednar suffered no injury even if the quitclaim deed had not been defective, the
complaint failed to state a claim for breach of the settlement agreement upon which relief
could be granted. The bankruptcy court did not err by dismissing the claim. 79
78
June 11, 2018 Journal Entry of Judgment at 7, in Appellant’s App. at 284
(ordering all defendants, including RCB Bank were “barred, foreclosed and enjoined
from asserting or claiming any right, title, interest . . . to said real estate and premises.”).
79
If Mr. Bednar is arguing that RCB Bank violated the discharge injunction by
failing to deliver to him a valid quitclaim deed to the home, the argument fails for the
same reason.
26
d. The bankruptcy court did not err by dismissing the claims for
civil conspiracy.
Finally, the complaint asserts claims for civil conspiracy. The complaint alleges
the Sheriff conspired with Franklin to orchestrate an unlawful foreclosure in violation of
the discharge injunction by (a) allowing Franklin to credit bid at the foreclosure sale
based on an invalid foreclosure judgment, and (b) allowing Franklin to credit bid more
than the amount of its judgment. The complaint alleges further that RCB Bank and
Franklin, by conducting the two foreclosure sales based on invalid state court judgments
entered in violation of the discharge injunction, conspired to frustrate the settlement
between RCB Bank and Mr. Bednar.
The bankruptcy court correctly recognized that civil conspiracy requires “a
combination of two or more persons to do an unlawful act, or to do a lawful act by
unlawful means.” 80 As such “[t]here can be no civil conspiracy where the act complained
of and the means employed are lawful.” 81 The State Court ordered the Sheriff to sell the
home 82 and confirmed the Sheriff’s sale to Franklin. 83 The Rooker-Feldman doctrine
prevented the bankruptcy court from revisiting the order confirming the Sheriff’s sale.
Franklin’s foreclosure was not a violation of the discharge injunction. The Sheriff’s
actions taken as a result of the foreclosure judgment also did not violate the discharge
80
Brock v. Thompson,
948 P.2d 279, 294 (Okla. 1997) (citing Jurkowski v. Crawley,
637 P.2d 56, 62 (Okla. 1981)).
81
Id. (citing N.A.A.C.P. v. Claiborne Hardware Co.,
458 U.S. 886, 928 (1982)).
82
June 11, 2018 Journal Entry of Judgment at 6, in Appellant’s App. at 283.
83
Order Confirming Sale, in Appellant’s App. at 120.
27
injunction. 84 Therefore, the bankruptcy court did not err in dismissing the civil
conspiracy claim alleged against the Sherriff for failure to state a claim.
To the extent Mr. Bednar alleged that RCB Bank and Franklin conspired to
frustrate the settlement between RCB Bank and Mr. Bednar by conducting the two
foreclosure sales based on invalid state court judgments entered in violation of the
discharge injunction, the argument also fails. Rooker-Feldman prevents us from
reviewing whether the state court foreclosure judgments were entered in accordance with
Oklahoma law. Mr. Bednar’s recourse was to appeal those judgments.
e. The bankruptcy court did not err by denying injunctive relief.
Mr. Bednar sought injunctive relief based on his allegation that the foreclosure
sale to RCB Bank was invalid because the sale price was not at least two-thirds of the
value of the home. 85 However, the State Court entered an order confirming the sale,
which became preclusive upon Mr. Bednar’s failure to appeal. Thus, any review of the
foreclosure sale to RCB Bank would have required the bankruptcy court to “review and
reject[]” the State Court’s final order confirming the sale in violation of Rooker-
Feldman. 86 Mr. Bednar argues motions challenging the Sheriff’s sale “are being set;”
84
Cf. Westman v. Andersohn (In re Westman),
300 B.R. 338, 344-45 (Bankr. D.
Minn. 2003) (explaining where sheriff statutorily required to levy and sell property on
behalf of judgment creditor, it was the creditor’s duty to prevent violations of the § 362
automatic stay).
85
Second Amended Complaint at 3, in Appellant’s App. at 354.
86
Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller),
666 F.3d 1255, 1261 (10th
Cir. 2012) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 291-92
(2005)).
28
however, the State Court docket reveals no timely filed pending motion to reconsider that
would render the sale confirmation order non-preclusive.
Mr. Bednar also sought an injunction to prevent Franklin and Fannie Mae from
depriving him of possession of his home on the ground that Franklin and Fannie Mae
forfeited their interests in his home by failing to assert their rights in RCB Bank’s
foreclosure proceeding. The Second Amended Complaint alleges Franklin and Fannie
Mae’s “rights were merged into [RCB Bank’s foreclosure judgment] and as such, [ ] it
did not have any further right or interest to litigate in rem regarding the property.” 87
Coupled with this argument, Mr. Bednar also sought declaratory relief confirming “the
second sheriff sale [to Franklin] was invalid and moot.” 88 This is also the basis of the
claim of conspiracy, which relates to what transpired in connection with the foreclosure
sale to Franklin.
We have already concluded that Rooker-Feldman prevented Mr. Bednar from
attacking the validity of Franklin’s lien or the Sheriff’s sale to Franklin. The bankruptcy
court did not err by denying injunctive relief.
V. Conclusion
Mr. Bednar’s arguments on appeal related to the foreclosure sales of his home are
not subject to review by this Court under the Rooker-Feldman doctrine. The bankruptcy
court did not err in dismissing the claims for violation of the discharge injunction, breach
87
Second Amended Complaint at 3, in Appellant’s App. at 354.
88
Id., in Appellant’s App. at 354.
29
of the settlement agreement, and conspiracy, and denying injunctive relief, based on
Rooker-Feldman.
Accordingly, the judgment and order of the bankruptcy court are AFFIRMED.
30
