Marks v. Dockery (In Re Marks)

FILED
NOT FOR PUBLICATION DEC 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARYETTA CHRISTINA No. 13-60004
MARKS,
BAP No. 12-1140
Debtor,
MEMORANDUM*
MARYETTA CHRISTINA MARKS,
AKA MaryEtta Christina Marks,
Appellant,
v.
KATHY A. DOCKERY and WELLS
FARGO BANK, NA, Trustee for Option
One Mortgage Loan Trust 2007-6, Asset-
Backed Certificates, Series 2007-6,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Dunn, and Hollowell, Bankruptcy Judges, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted: December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
MaryEtta C. Marks appeals pro se from the Bankruptcy Appellate Panel’s
(“BAP”) judgment affirming the bankruptcy court’s order granting Wells Fargo
Bank, N.A.’s (“Wells Fargo”) motion for relief from the automatic stay. We have
jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions, and
apply the same standard of review that the BAP applied to the bankruptcy court’s
ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th
Cir. 2009). We review a party’s standing de novo. Mayfield v. United States, 599
F.3d 964, 970 (9th Cir. 2010). We affirm.
Wells Fargo had standing to seek relief from the automatic stay because it
had a “colorable claim to the property at issue.” Arkison v. Griffin (In re Griffin),
719 F.3d 1126, 1128 (9th Cir 2013); Haynes v. EMC Mortg. Corp., 140 Cal. Rptr.
3d 32, 37 (Ct. App. 2012) (“[W]here a deed of trust is involved, the trustee may
initiate foreclosure irrespective of whether an assignment of the beneficial interest
is recorded.”).
We reject Marks’s argument that Wells Fargo’s motion was void because it
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 13-60004
contained a false statement regarding the date the court converted her bankruptcy
case to Chapter 13. Any error in the motion was harmless because her bankruptcy
petition was subsequently converted to Chapter 13 nunc pro tunc.
We do not consider Marks’s arguments relating to the securitization of the
subject loan or the alleged “separation” of the deed of trust and promissory note as
they were not raised before the bankruptcy court. See Mano-Y&M, Ltd. v. Field (In
re Mortgage Store, Inc.), 773 F.3d 990, 998 (9th Cir. 2014) (“A litigant may waive
an issue by failing to raise it in a bankruptcy court.”).
AFFIRMED.
3 13-60004