Hossein Fatehmanesh v. David Seror ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: REZA FATEH MANESH, No. 18-60009
Debtor. BAP No. 17-1031
______________________________
HOSSEIN FATEHMANESH, MEMORANDUM*
Appellant,
v.
DAVID SEROR, Chapter 7 Trustee,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Lafferty, Kurtz, and Faris, Bankruptcy Judges, Presiding
Submitted August 6, 2019**
Before: FARRIS, D.W. NELSON, and TROTT, Circuit Judges.
Hossein Fatehmanesh appeals pro se from the judgment of the Bankruptcy
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellate Panel (“BAP”) affirming the bankruptcy court’s judgment after a bench
trial in the chapter 7 trustee’s adversary proceeding seeking turnover of property
belonging to the bankruptcy estate. We have jurisdiction under 28 U.S.C.
§ 158(d). We independently review the bankruptcy court’s decision on appeal
from the BAP. Burnett v. Resurgent Capital Servs. (In re Burnett), 435 F.3d 971,
975 (9th Cir. 2006). We affirm.
The bankruptcy court did not abuse its discretion by applying California’s
principles of issue preclusion because the issues litigated in the state court action
resolved the issue in the adversary proceeding, and California law precludes
relitigation of issues decided in a prior proceeding. See Diamond v. Kolcum (In re
Diamond), 285 F.3d 822, 826 (9th Cir. 2002) (“In determining whether a party
should be estopped from relitigating an issue decided in a prior state court action,
the bankruptcy court must look to that state’s law of collateral estoppel.”); DKN
Holdings, LLC v. Faerber, 352 P.3d 378, 386 (Cal. 2015) (elements of issue
preclusion or collateral estoppel under California law); see also Dias v. Elique, 436
F.3d 1125, 1128 (9th Cir. 2006) (decision to apply issue preclusion reviewed for an
abuse of discretion).
The bankruptcy court did not abuse its discretion by finding Fatehmanesh in
contempt for violating the automatic stay because Fatehmanesh knew of the
automatic stay and refused to cure his violation. See Knupfer v. Lindblade (In re
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Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003) (setting forth standard of review and
stating that party seeking an order of contempt has the burden to show the
contemnor violated the automatic stay). To the extent that Fatehmanesh challenges
the bankruptcy court’s award of attorney’s fees, Fatehmanesh did not appeal from
the bankruptcy court’s order awarding fees, and we lack jurisdiction to address it.
See Fed. R. Bankr. P. 8002(a)(1) (notice of appeal must be filed within 14 days);
28 U.S.C. § 158(c)(2) (an appeal to the BAP must be taken within the time
provided in Rule 8002).
The BAP properly concluded that the bankruptcy court’s application of the
Rooker–Feldman doctrine amounted to harmless error because the chapter 7
trustee was otherwise entitled to judgment on the merits. See Fed. R. Bankr. P.
9005 (incorporating Fed. R. Civ. P. 61’s harmless error rule).
Fatehmanesh does not identify or contend that any exceptional
circumstances justify consideration of the several issues he raises on appeal here
but failed to raise before the BAP. We therefore decline to consider those newly
raised issues. See In re Burnett, 435 F.3d at 976-77 (“[A]n issue is waived if not
presented to the BAP, unless exceptional circumstances exist to justify
consideration of the issue.”).
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Appellant’s motion for appointment of counsel (Docket Entry No. 23) is
denied.
AFFIRMED.
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