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1 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 8013-1

-1-

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1037—PaDKi

) 

GARRETTE MARTIN, SR. and REGINA ) Bk. No. CC-10-57965-PC 

MARTIN, )

)

Debtors. )

___________________________________)

)

GARRETTE MARTIN, SR.; REGINA )

MARTIN, )

)

Appellants, )

)

v. ) M E M O R A N D U M1

)

U.S. BANK, N.A., as Trustee, on )

behalf of the Holders of the )

Structured Asset Securities )

Corporation Mortgage Pass-Through )

Certificates, Series 2007-BC3, )

)

Appellee. ) 

___________________________________)

 Submitted Without Oral Argument on September 23, 2011 

Filed - October 5, 2011

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Peter H. Carroll, Chief Bankruptcy Judge, Presiding 

Appearances: Appellants Garrette Martin, Sr. and Regina Martin,

pro se, on brief. Gina L. Albertson, Esq. of

Albertson Law on brief for Appellee. 

Before: PAPPAS, DUNN and KIRSCHER, Bankruptcy Judges.

FILED

OCT 05 2011

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2

 Unless otherwise indicated, all chapter, section and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The

Federal Rules of Civil Procedure are referred to as “Civil Rules.”

3 There were other procedural irregularities attributable to

the Martins. First, they submitted their opening brief on April

6, 2011, one day after the deadline set by the Panel’s Conditional

Order of Dismissal for failure to prosecute this appeal. Then, on

April 22, and without leave of the Panel, they submitted a First

Amended Opening Brief, identical to the first, but adding a

missing certification. The Panel accepted the First Amended Brief

as the Martins’ opening brief in this appeal. After U.S. Bank

submitted their responsive brief on April 26, the Martins

submitted a Second Amended Opening Brief on May 18, 2011, which is

a complete revision of their earlier two briefs, and raises

numerous new issues not found in their earlier briefs. Since this

brief was filed without the permission of the Panel, it violated

Rule 8009(a)(3). Finally, the Martins ignored the order of this

Panel dated June 24, 2011, directing them to file a supplemental

(continued...)

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Chapter 72 debtors Garrette Martin, Sr. and Regina Martin

(the “Martins”) appeal the decision of the bankruptcy court

granting relief from the automatic stay to U.S. Bank National

Association, on behalf of the holders of the Structured Asset

Securities Corporation Mortgage Pass-Through Certificates, Series

2007-BC3 (“U.S. Bank”), to enforce an unlawful detainer judgment

against the Martins. We AFFIRM. 

THE MARTINS’ FAILURE TO PROVIDE AN ADEQUATE RECORD ON APPEAL

 AND U.S. BANK’S REQUEST FOR JUDICIAL NOTICE

As the appellants in this appeal, the Martins failed to

designate a record on appeal, or to provide a statement of issues

on appeal, in contravention of Rule 8006. The Martins also failed

to provide any excerpts of record, in violation of Rule 8009(b),

and consequently, their briefs failed to cite to any excerpts of

record in support of their arguments, contrary to Rules

8010(a)(1)(D) and (E).3 However, insofar as U.S. Bank has
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3(...continued)

brief discussing the implications of an intervening precedential

decision of the Panel, Veal v. Am. Home Mortg. Serv., Inc.

(In re Veal) 449 B.R. 542 (9th Cir. BAP 2011), in this appeal.

-3-

provided a designation of record, statement of issues, and

excerpts to which the Martins have not objected, as allowed under

Rule 8019, we waive the Martins’ Rule violations. 

What is missing from the excerpts and the bankruptcy court

docket is information relevant to a possible violation of the

automatic stay as a result of either an earlier, or the current

bankruptcy, and documents relating to the foreclosure. On April

26, 2011, U.S. Bank submitted a Request for Judicial Notice

(“RJN”) to the Panel dealing with nine documents: five documents

from the Official Records of Los Angeles County (“Official

Records”) relating to the foreclosure sale of the Martins’

property to U.S. Bank, two PACER docket reports for two prior

bankruptcies of the Martins, and two documents from the Los

Angeles Superior Court relating to proceedings in that court in an

action pending between the Martins and U.S. Bank. The Martins

have not objected to the RJN. The sources of all of these

documents are government or judicial agencies, and would appear to

be accurate records whose reliability cannot reasonably be

questioned. FED. R. EVID. 201(b); Mack v. Kuckenmeister, 619 F.3d

1010, 1014 n.1 (9th Cir. 2010). We therefore GRANT the RJN as to

those documents, and take notice of the existence of the

documents, but not for the truth of their contents. 

FACTS

In December 2006, the Martins apparently executed a mortgage
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loan note, secured by a deed of trust, to finance the purchase of

a residential property in Inglewood, California (the “Property”). 

The lender was Fieldstone Mortgage Company. The nominee and

beneficiary under the Deed of Trust was Mortgage Electronic

Registration Systems, Inc. (“MERS”).

On May 12, 2008, the Martins were notified that they were in

default on mortgage loan payments in the amount of $22,405.56.

On July 2, 2008, MERS assigned the Deed of Trust and all

beneficial interest therein to Select Portfolio Servicing, Inc. as

servicing agent for U.S. Bank. 

A Notice of Trustee’s sale of the Property was recorded in

the Official Records of Los Angeles County on November 17, 2009,

with a sale date set for December 16, 2009.

Debtor Garrette Martin, Sr. (“Garrette”) filed a chapter 7

petition on February 9, 2010. The bankruptcy court ordered that

case dismissed on March 4, 2010 for his failure to file proper

schedules and statements. 

Garrette filed a second chapter 7 petition on March 9, 2010. 

The bankruptcy court dismissed the case on April 2, 2010, again

for failure to file schedules and statements.

On June 1, 2010, a nonjudicial foreclosure sale was conducted

on the Property; a trustee’s deed upon sale conveying the Property

to U.S. Bank was recorded in the Official Records of Los Angeles

County on June 10, 2010. 

U.S. Bank commenced an unlawful detainer action in Los

Angeles Superior Court on June 29, 2010. Case no. 10L01475. 

There is no indication in the records submitted that the Martins

contested this action. Judgment was entered in favor of U.S. Bank
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and against the Martins on September 29, 2010, awarding U.S. Bank

possession of the Property; a Writ of Possession was issued on

October 15, 2010. 

On November 8, 2010, the Martins filed a joint petition under

chapter 7. On their Schedule A, they claimed ownership of the

Property. 

Thirty days later, on December 8, 2010, U.S. Bank filed a

motion for relief from stay to allow it to enforce the unlawful

detainer judgment. U.S. Bank argued that the Martins and their

bankruptcy estate held no interest in the Property and no right to

continued possession, because U.S. Bank had acquired title at the

trustee’s foreclosure sale, the unlawful detainer judgment had

been entered in favor of U.S. Bank and against the Martins, and a

Writ of Possession had been issued. To support the motion, U.S.

Bank submitted the following documents: (a) a declaration

detailing the foreclosure and unlawful detainer proceedings; (b) a

copy of the trustee’s deed upon sale to U.S. Bank; (c) a copy of a

“notice for possession” served on the Martins in the unlawful

detainer action; (d) a copy of the unlawful detainer complaint;

(e) a copy of the clerk’s entry of judgment in the unlawful

detainer action; and (f) a copy of the state court Writ of

Possession. A hearing on the stay relief motion was set for

January 6, 2011. 

In apparent violation of Bankr. C.D. Cal. Local R. 9013-1(f),

requiring that any opposition to a contested motion be filed no

later than 14 days before the date set for hearing on the motion,

the Martins filed their opposition nine days before the hearing

date, on December 28, 2010. Like most of their papers in this
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appeal, the Martins’ arguments are difficult to follow. It would

appear, however, that they raised the following points: (a) that

MERS did not have legal authority to transfer beneficial ownership

of the deed of trust to U.S. Bank; (b) that U.S. Bank lacked

standing; (c) that U.S. Bank has unclean hands as the result of

various unspecified fraudulent transfers, assignments and

substitutions after the fact of a foreclosure; and (d) that the

Martins retain an equitable interest in the Property as a result

of a UCC financing statement indicating over $300,000 in

investments in the Property.

The bankruptcy court took the U.S. Bank stay relief motion

off calendar on January 6, 2011, granting the motion for relief

from stay. Although the court did not directly refer to the

opposition of the Martins, the court stated that “the failure of

the debtor, the trustee, and all other parties in interest to file

written opposition at least 14 days prior to the hearing as

required by LBR 9013-1(f) is considered as consent to the granting

of the motion. LBR 9013-1(h).” Finding that the submissions of

U.S. Bank established a prima facie case for relief from stay, and

that the motion was not timely challenged, the bankruptcy court

granted the motion. The court also observed that “Debtor filed

the bankruptcy petition on November 8, 2010 in an apparent effort

to stay enforcement of the unlawful detainer judgment.” 

The bankruptcy court entered its order granting relief from

stay on January 11, 2011. The Martins filed a timely appeal on

January 19, 2011. 

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
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and 157(b)(2)(G). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Whether the bankruptcy court abused its discretion in

granting relief from stay to U.S. Bank to enforce the unlawful

detainer judgment.

STANDARD OF REVIEW

We review orders granting relief from the automatic stay for

abuse of discretion. Kronemyer v. Am. Contractors Indem. Co.

(In re Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP 2009). In

applying an abuse of discretion test, we first "determine de novo

whether the [bankruptcy] court identified the correct legal rule

to apply to the relief requested." United States v. Hinkson,

585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If the bankruptcy

court identified the correct legal rule, we then determine whether

its "application of the correct legal standard [to the facts] was

(1) illogical, (2)implausible, or (3) without support in

inferences that may be drawn from the facts in the record." Id.

(internal quotation marks omitted). If the bankruptcy court did

not identify the correct legal rule, or if its application of the

correct legal standard to the facts was illogical, implausible, or

without support in inferences that may be drawn from the facts in

the record, then the bankruptcy court has abused its discretion. 

Id.

DISCUSSION

The bankruptcy court did not abuse its discretion in

granting relief from stay to U.S. Bank to enforce

the unlawful detainer judgment.

A. There is no showing that U.S. Bank violated the automatic

stay.
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4 The Martins’ Second Amended Opening Brief continued the

allegation that U.S. Bank had violated the automatic stay, but

without further detail.

-8-

As an apparent defense to enforcement of an unlawful detainer

judgment, the Martins argue in all three of their briefs that U.S.

Bank violated the automatic stay by conducting an improper

foreclosure. Indeed, this was the only argument made in the

Martins’ first two briefs. The precise words used in their

original and First Amended Briefs4

 are as follows:

1. On November 18, 2010, at approx. 2:36 P.M., the

Appellant filed a Petition for Bankruptcy Chapter 7

protection, by filing with the Los Angeles Central

District bankruptcy clerk, the petition and filings

fees.

2. The Deed of Trust was scheduled to be sold at 3:30

P.M, by the Creditor and Creditor’s Trustee. As such,

Noticed properly served the same day, giving Notice a

Bankruptcy Petition naming the Creditor and Trustee as

such at 2:58 P.M., whereas the Trustee completed the

sale in violation of the Automatic Stay of Protection,

at 3:30 P.M.

Martin’s Original Op. Br. at 3, First Amended Op. Br. at 3.

Obviously, there are two factually incorrect statements in

the Martins’ allegations. First, the Martins’ bankruptcy petition

was filed on November 8, 2010, not November 18, 2010. Second, the

deed of trust foreclosure sale did not occur on either November 8

or 18, 2010, but over six months earlier, on June 1, 2010, when

there was no pending bankruptcy case or automatic stay in effect.

Under § 362(a), an automatic stay arises upon the

commencement of a bankruptcy case which, 

operates as a stay, applicable to all entities, of —

(1) the commencement or continuation, including the

issuance or employment of process, of a judicial,

administrative, or other action or proceeding against

the debtor that was or could have been commenced before

the commencement of the case under this title, or to
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recover a claim against the debtor that arose before the

commencement of the case under this title; (2) the

enforcement, against the debtor or against property of

the estate, of a judgment obtained before the

commencement of the case under this title[.]

The stay under § 362 is extremely broad in scope, and

prohibits almost any type of formal or informal collection or

legal action against a debtor or the property of the estate. 

Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 495,

503 (1986). The automatic stay prevents continuation of a

foreclosure proceeding concerning a debtor’s property, or property

of a bankruptcy estate, during the pendency of the bankruptcy

case. Countrywide Home Loans, Inc. v. Hoopai (In re Hoopai),

581 F.3d 1090, 1093 (9th Cir. 2010). Additionally, the automatic

stay bars enforcement of an unlawful detainer judgment or writ of

possession while the debtor is in bankruptcy. Edwards v. Wells

Fargo Bank, N.A. (In re Edwards), 454 B.R. 100, 2011 WL 3211357

* 12 (9th Cir. BAP 2011).

An essential element in all this case law, however, is that

there must be a pending bankruptcy case for the automatic stay to

apply. See § 362(c)(1) and (2) (providing that the automatic stay

continues until the bankruptcy case is dismissed); Ung v. Boni

(In re Boni), 240 B.R. 381, 384 (9th Cir. BAP 1999). 

Garrette’s first bankruptcy case was pending from February 9,

2010 to March 4, 2010. His second bankruptcy case was open from

March 9, 2010 to April 4, 2010. The Martins’ latest bankruptcy

case was filed on November 8, 2010, and remains pending. In other

words, none of the bankruptcy cases were pending on June 1, 2010,

the date of the foreclosure sale; on June 10, 2010, the date of

the recording of U.S. Bank’s trustee deed of sale in the Official
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Records; on June 29, 2010, when U.S. Bank commenced its unlawful

detainer action; on September 29, 2010, when the state court

granted judgment in the unlawful detainer action in favor of

U.S. Bank; or on October 15, 2010, when the state court issued the

Writ of Possession. Simply put, none of the critical actions

taken by U.S. Bank against the Martins or the Property violated

any automatic stay.

B. The bankruptcy court did not abuse its discretion in

relying on the local bankruptcy rules.

The bankruptcy court based its decision to grant relief from

stay in favor of U.S. Bank, at least in part, on the failure of

any party in interest to object to the motion. In doing so, the

court relied on two provisions of the local bankruptcy rules,

LBR 9013-1 (f) and (h):

LBR 9013-1. MOTION PRACTICE AND CONTESTED MATTERS

. . . .

(f) Opposition, Joinders, and Responses to Motions.

Except as set forth in [provisions not relevant here]

each interested party opposing, joining, or responding

to the motion must file and serve on the moving party

and the United States trustee not later than 14 days

before the date designated for hearing either:

(1) A complete written statement of all reasons in

opposition thereto or in support or joinder thereof,

declarations and copies of all photographs and

documentary evidence on which the responding party

intends to rely, and any responding memorandum of points

and authorities. The opposing papers must advise the

adverse party that any reply to the opposition must be

filed with the court and served on the opposing party

not later than 7 days prior to the hearing on the

motion; or

(2) A written statement that the motion will not be

opposed.

. . .

(h) Failure to File Required Papers. Papers not timely
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5

 In a recent opinion, the Ninth Circuit commented on the

rule applicable in the District Court of the Central District of

California that apparently is the model for the bankruptcy court’s

LBR 9013-1. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,

1259 n.6 (9th Cir. 2010). Like the bankruptcy rule, C.D. Cal.

Local R. 6-1 provides that any opposition papers must be filed no

later than fourteen days before the hearing. The court of appeals

found this rule “unusual” because it would allow a movant to file

a motion twenty-one days before a scheduled hearing, leaving the

opposing party only seven days to file the opposition. Id. The

Ninth Circuit noted that all other districts of the Ninth Circuit

allowed the opposing party a minimum of fourteen days to file an

opposition. While Ahanchian could reflect the Ninth Circuit’s

potential concern regarding the bankruptcy court’s LBR 9013-1,

there is no cause for alarm under the facts of this case, since

the Martins were given at least fourteen days notice of the U.S.

Bank motion and to file a timely opposition. They failed to do

so.

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filed and served may be deemed by the court to be

consent to the granting or denial of the motion, as the

case may be.

We “afford a high level of deference to local rules.” Guam Sasaki

Corp. v. Diana’s, Inc., 881 F.2d 713, 715 (9th Cir. 1989); Moncur

v. Apricredit Accept. Co. (In re Moncur), 328 B.R. 183, 191 (9th

Cir. BAP 2005) (“[W]e defer to the bankruptcy court's construction

and interpretation of its own orders and local rules[.]”). The

Ninth Circuit has held that failure to comply with a local rule

requiring timely opposition to a motion is proper grounds for

granting that motion. Ghazil v. Moran, 46 F.3d 52, 53 (9th Cir.

1995) (upholding a similar local rule in Nevada that provided “the

failure of the opposing party to file a memorandum of points and

authorities in opposition to any motion shall constitute a consent

to the granting of the motion.").5

Of course, the bankruptcy court did not rely solely on the

local bankruptcy rules in granting relief from stay. U.S. Bank

presented ample evidence to show that it had properly completed a

nonjudicial foreclosure sale on the Property prepetition, that it
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was the holder of recorded title to the Property, and that it

sought and obtained an unlawful detainer judgment and Writ of

Possession against the Martins from the state court before the

Martins filed their bankruptcy petition. The bankruptcy court

therefore had an adequate basis to conclude that U.S. Bank had

presented a prima facie case for relief from stay. 

A creditor meets its burden of presenting a prima facie case

for stay relief when it shows that it is the title holder on a

property under a recorded trustee’s deed of sale. In re Edwards,

2011 WL 3211357 * 9. The bankruptcy court correctly determined

that a lawful foreclosure sale had extinguished the Martins’

rights of ownership and possession of the Property. Moeller v.

Lien, 25 Cal. App.4th 822, 831 (Cal. Ct. App. 1994). The court

found that the unlawful detainer judgment had been entered

prepetition, and that “Debtor[s] filed the bankruptcy petition on

November 8, 2010 in an apparent effort to stay enforcement of the

unlawful detainer judgment.” 

Based on this record, the bankruptcy court did not abuse its

discretion in granting relief from the stay.

C. The Martins’ other arguments in the bankruptcy court and

on appeal lack merit.

As noted above, the Martins submitted a late opposition to

the motion for relief from stay in the bankruptcy court that was

not considered by the court. Then, in this appeal, they have

submitted three “opening” briefs, the third of which was submitted

without permission of the Panel, and reiterated arguments that

they made in the late opposition in the bankruptcy court. As

discussed above, we affirm the bankruptcy court’s decision to
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consider only timely motion oppositions. Out of respect for that

decision, we could strike the Second Amended Brief and its

arguments as submitted in violation of Rule 8009(a)(3). However,

even were we to consider the arguments the Martins made in the

late opposition filed in the bankruptcy court, or in the late and

improperly filed Second Amended Opening Brief, those arguments are

without merit.

The thrust of the Martins’ arguments is that the foreclosure

sale was improper, because neither MERS nor U.S. Bank had

authority to conduct it, and that U.S. Bank was not a holder in

due course of the note or deed of trust and lacked standing to

seek relief from stay in the bankruptcy court.

A recent Opinion of the Panel touches on the Martins’

arguments, In re Edwards. Despite the Martins’ arguments, the

issue in this appeal is not whether U.S. Bank was the holder of

the note at the time of the foreclosure sale, but rather whether

U.S. Bank has some cognizable property interest under state law

that would allow it to prosecute a motion for relief from stay to

enforce an unlawful detainer judgment. Or more specifically, in

light of In re Edwards, the issue here is whether, when taken

together, U.S. Bank’s recorded trustee’s deed of sale and the

unlawful detainer judgment demonstrate that U.S. Bank held a

colorable interest in the Property. In re Edwards, 2011 WL

3211357 * 9. 

Analyzing California law in In re Edwards, the Panel

concluded that the specific combination of a recorded deed of sale

with a subsequent unlawful detainer judgment satisfied the

colorable interest requirement for standing to seek relief from
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6 The Martins’ other arguments are equally unpersuasive. 

That the Martins made substantial improvements to the Property is

simply not probative that they retained an equity interest in the

Property post-foreclosure. And their various allegations that, in

other cases, MERS has improperly transferred interests in trust

deeds or property, even if true, do not prove that MERS may have

acted improperly in this case.

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the automatic stay to enforce an unlawful detainer judgment and

Writ of Possession. In re Edwards, 2011 WL 3211357 * 11. In

other words, the Panel has already determined that, under facts

similar to those in this appeal, U.S. Bank indeed had standing to

ask the bankruptcy court for stay relief to recover possession of

the Property.6

CONCLUSION

The bankruptcy court did not abuse its discretion in granting

U.S. Bank relief from stay to enforce the unlawful detainer

judgment. We AFFIRM the order of the bankruptcy court.