In re: Sharon Hamilton

FILED
OCT 30 2020
NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. EC-20-1037-STL
SHARON HAMILTON,
Debtor. Bk. No. 9:16-bk-90219
SUZANNE CONRY,
Appellant,
v. MEMORANDUM*
SHARON HAMILTON; B&B 2ND
MORTGAGE, LLC; HIGH POINTE, LLC;
B&B VENTURES, LLC,
Appellees.
Appeal from the United States Bankruptcy Court
for the Eastern District of California
Robert S. Bardwil, Bankruptcy Judge, Presiding
Before: SPRAKER, TAYLOR, and LAFFERTY, Bankruptcy Judges.
This appeal concerns roughly 460 acres of land in Weld County,
Colorado, the appurtenant oil, gas, and mineral rights, and the royalties
derived therefrom (“Property Rights”). Chapter 13 debtor Sharon Hamilton
and her husband Terry have been fighting for nearly two decades with
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Eugene Barker, Edward Maynes, B&B 2nd Mortgage, LLC, B&B Ventures,
LLC, and High Pointe, LLC (collectively, “Barker Parties”) over ownership
of the Property Rights.1 This appeal, however, does not directly involve Ms.
Hamilton or her husband. Rather, appellant Suzanne Conry is another
competing claimant also involved in the various lawsuits concerning
ownership of the Property Rights. The resulting litigation history is long
and convoluted. That history, however, is largely irrelevant to the
resolution of this appeal and is not repeated here.
Ms. Conry appeals the bankruptcy court’s order granting the Barker
Parties’ motion for relief from stay and the denial of her two Civil Rule
60(b) motions seeking relief from that order.2 The relief from stay order
modified the automatic stay so that Ms. Conry’s federal district court
lawsuit regarding ownership of the Property Rights could move forward
“in all respects.” Ms. Conry complains that she was not provided proper
notice of the motion and was denied her opportunity to contest the motion.
Ms. Conry did not timely file her notice of appeal from the relief from
stay order, so the scope of our review is limited to the denial of her two
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532, all "Rule" references are to the Federal Rules of
Bankruptcy Procedure, and all "Civil Rule" references are to the Federal Rules of Civil
Procedure.
2
Rule 9024 makes Civil Rule 60 applicable in bankruptcy cases.
2
Civil Rule 60(b) motions.3 Regardless of the scope of our review, her appeal
must be dismissed because Ms. Conry is not a “person aggrieved” by the
modification of the debtor’s stay.4 The stay modification did nothing but
remove an impediment to adjudicating her claims against the Barker Parties
and the Hamiltons.5 This helped rather than harmed Ms. Conry.
Only persons aggrieved by an order or judgment have standing to
appeal bankruptcy decisions. Duckor Spradling & Metzger v. Baum Tr. (In re
P.R.T.C., Inc.), 177 F.3d 774, 777 (9th Cir. 1999). Here, Ms. Conry was not
“directly and adversely affected pecuniarily” by the orders on appeal. Id.(citing Fondiller v. Robertson (In re Fondiller), 707 F.2d 441, 442 (9th Cir.
1983)). She, therefore, was not “aggrieved” by the termination of
Ms. Hamilton’s stay and thus lacks standing to appeal.
3
“An appeal from an order denying a Civil Rule 60 motion, when filed more
than 14 days after the underlying order or judgment, raises only the merits of the order
denying the motion and does not raise the merits of the underlying judgment or order.”
Tevis v. Burkart (In re Tevis), BAP No. EC-13-1211-KiKuJu, 2014 WL 345207, at *3 (9th
Cir. BAP Jan. 30, 2014) (citing Marazitit v. Thorpe, 52 F.3d 252, 254 (9th Cir. 1995)), aff'd,
668 F. App’x 729 (9th Cir. 2016) .
4
Though the issue of standing to appeal generally is reviewed de novo, whether
an appellant is a “person aggrieved” by the order appealed is a question of fact that we
review in the first instance. See Palmdale Hills Prop., LLC v. Lehman Commercial Paper, Inc.
(In re Palmdale Hills Prop., LLC), 654 F.3d 868, 873 (9th Cir. 2011).
5
In Ms. Conry’s lawsuit, the district court independently stayed all matters and
controls the termination of that stay. The bankruptcy court’s modification of the
automatic stay removed only the impediment to the prosecution of her causes of action
directly arising from Ms. Hamilton’s bankruptcy filing.
3
This result is consistent with the purpose of the automatic stay, which
is intended to protect the debtor and the bankruptcy estate – not individual
creditors or other unrelated litigants. See U.S. Bank, N.A. v. SFR Inv. Pool 1,
LLC (In re Petrone), 754 F. App’x 590, 591 (9th Cir. Feb. 22, 2019). As a result,
“only a debtor or bankruptcy trustee can appeal an adverse decision by the
bankruptcy court under the Bankruptcy Code's section on automatic stays,
11 U.S.C. § 362, because § 362 is intended to protect solely the interests of
debtors and their estates.” Id. (citing Tilley v. Vucurevich (In re Pecan Groves
of Ariz.), 951 F.2d 242, 245 (9th Cir. 1991)).
For these reasons, Ms. Conry lacks standing to appeal the termination
of the automatic stay or the denial of her Civil Rule 60(b) motions. Her
appeal must be DISMISSED.6
6
Ms. Conry strongly believes that the Barker Parties engaged in misconduct by
not serving her with a copy of their relief from stay motion and by misrepresenting
certain facts. But these matters were irrelevant to the decision to modify the stay which
required consideration of “judicial economy, the expertise of the [non-bankruptcy]
court, prejudice to the parties, and whether exclusively bankruptcy issues are
involved.” Merriman v. Fattorini (In re Merriman), 616 B.R. 381, 387 (9th Cir. BAP 2020)
(citing Kronemyer v. Am. Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915, 921 (9th
Cir. BAP 2009)). Further, stay proceedings are summary in nature and may not be used
to address the merits of the litigants’ underlying claims. Veal v. Am. Home Mortg.
Servicing, Inc. (In re Veal), 450 B.R. 897, 914 (9th Cir. BAP 2011) (citing Grella v. Salem Five
Cent Sav. Bank, 42 F.3d 26, 33 (1st Cir. 1994)). Accordingly, stay relief rulings are
afforded little or no preclusive effect in future litigation. Id. Thus, the stay relief
determination did not aggrieve Ms. Conry by deciding an issue extant in her lawsuit.
Her desire to correct statements she considers misleading neither confers standing nor
demonstrates reversible error as to the decision to modify Ms. Hamilton’s stay.
4