Dusko Cavic v. John Wolfe

FILED
NOT FOR PUBLICATION MAY 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: DUSKO CAVIC; No. 09-60016
LJILJANA CAVIC,
BAP No. CC-08-1220-PaDC
Debtors,
MEMORANDUM *
DUSKO CAVIC,
Appellant,
v.
JOHN M. WOLFE, Chapter 7 Trustee;
VESTIN MORTGAGE, INC.; UNITED
STATES TRUSTEE; MICHAEL J.
MIGAN; MICHAEL SHUSTEK; PAUL
CONNAGHAN; MATTHEW Q.
CALLISTER; JOSEPH MONA
MICHAEL; EMERALD QTR, LLC;
STAN PACK, Certified Public
Accountant; COREY B. BECK,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Carlson, and Dunn, Bankruptcy Judges, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted May 6, 2010
Pasadena, California
Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge.**
Dusko Cavic appeals the Bankruptcy Appellate Panel’s affirmance of the
bankruptcy court’s order approving five settlement agreements between
bankruptcy trustee John M. Wolfe and defendants in adversary proceedings. We
affirm.
Defendants argue that this appeal should be dismissed as moot because the
settlements have been consummated according to the agreements approved by the
bankruptcy court and Cavic did not diligently pursue a stay pending the outcome of
this litigation. This appeal is not moot because defendants have not met the “heavy
burden” of demonstrating that there is “no effective relief remaining for the court
to provide.” Focus Media, Inc. v. Nat’l Broad. Co. Inc. (In re Focus Media, Inc.),
378 F.3d 916, 923 (9th Cir. 2004) (internal quotation marks omitted). It might be
possible for the bankruptcy court to unwind the settlements because this matter is
limited to a small number of parties, all before the court, and presents issues
involving the transfer of money and not real property. See Baker & Drake, Inc. v.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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Pub. Serv. Comm’n of Nevada, 35 F.3d 1348, 1351 (9th Cir. 1994) (holding that an
appeal is not moot when it is not impractical for the court to fashion relief and
stating that “[f]ailure to obtain a stay, standing alone, is often fatal but not
necessarily so; nor is the ‘substantial culmination’ of a relatively simple
reorganization plan”).
Nonetheless, we affirm the BAP’s determination that the bankruptcy court
did not abuse its discretion in approving the five settlement agreements. The
bankruptcy court adequately considered the agreement created between Cavic,
Wolfe, and special counsel Michael Migan, and it found based on the information
provided that the settlement agreements were fair and equitable. See Martin v.
Kane (In re A & C Props.), 784 F.2d 1377, 1381 (9th Cir. 1986) (discussing the
factors the bankruptcy court must consider in determining the “fairness,
reasonableness and adequacy of a proposed settlement agreement”). Cavic was
given the opportunity to participate in the overbid procedures at the time the court
considered the settlement agreements, and he did not submit any overbids.
The bankruptcy court’s subsequent allowance of reimbursement of
attorney’s fees and costs for Cavic does not render the bankruptcy court’s decision
to approve the settlements an abuse of discretion. At the time the bankruptcy court
was considering the settlement agreements, it considered, along with a wealth of
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other evidence, that Cavic had not yet been awarded the administrative claim and
that Cavic could not credit bid a yet-to-be-determined claim. The bankruptcy court
therefore did not abuse its discretion in approving the settlement agreements.
AFFIRMED.
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