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NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-17-1001-FBJu

)

SONJA RITTER, ) Bk. No. 13-40868

)

Debtor. )

_____________________________ )

)

SONJA RITTER, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

LOIS I. BRADY, Chapter 7 )

Trustee, )

)

Appellee. )

______________________________)

Submitted Without Argument on July 27, 2017

Filed – August 8, 2017

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable William J. Lafferty, Bankruptcy Judge, Presiding

 

Appearances: Appellant Sonja Ritter, pro se, on brief.

 

Before: FARIS, BRAND, and JURY, Bankruptcy Judges.

FILED

AUG 08 2017

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

* 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.

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INTRODUCTION

Debtor Sonja Ritter appeals the bankruptcy court’s denial of

her motion to reopen her chapter 71 bankruptcy case. The

bankruptcy court correctly ruled that reopening her case would

have been futile; even if the bankruptcy court reopened her case,

she would not have been able to accomplish her objective, which

was to strip off her junior mortgage lien. We AFFIRM.

FACTUAL BACKGROUND2

When Ms. Ritter filed her chapter 7 bankruptcy petition, she

owned real property (the “Property”) valued at $185,000. Bank of

America held a first lien against her Property with a claim for

$297,229. PNC Bank held a second lien with a claim for $42,416.

Ms. Ritter filed a motion to avoid PNC Bank’s lien (“Motion

to Avoid Lien”). She stated that the senior lien exceeded the

value of the Property and requested that the court determine that

PNC Bank’s lien was unsecured under § 506. According to

Ms. Ritter, she prepared and submitted a proposed order granting

the Motion to Avoid Lien.

The bankruptcy court granted Ms. Ritter a discharge. 

Without ruling on the Motion to Avoid Lien, it closed the case.

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 Other than a hearing transcript, Ms. Ritter did not

provide the Panel with any excerpts of record. We exercise our

discretion to review the bankruptcy court’s docket. See O’Rourke

v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955,

957–58 (9th Cir. 1989).

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Over three years later, Ms. Ritter filed a motion to reopen

the case and to avoid PNC Bank’s lien (“Motion to Reopen”). She

requested that the court reopen her case and sign the order

avoiding PNC Bank’s lien because “no objection was filed and my

Court order was never signed.”

The court denied the motion, stating that it would not

reopen the case because it could not strip off the lien under

Bank of America, N.A. v. Caulkett, 135 S. Ct. 1995 (2015).

Ms. Ritter filed a motion to reconsider the denial of the

Motion to Reopen (“Motion for Reconsideration”). She reiterated

that she had filed the Motion to Avoid Lien and that, because PNC

Bank did not oppose it, the court should have granted it. At the

hearing on the Motion for Reconsideration, Ms. Ritter questioned

whether Caulkett was applicable, given that she had filed her

Motion to Avoid Lien two years prior to that decision.

The bankruptcy court entered an order denying the Motion for

Reconsideration. It explained that, based on Caulkett, it could

not grant Ms. Ritter’s request to strip off PNC Bank’s junior

lien on the Property. The court held that Ms. Ritter did not

articulate any basis for reconsideration under Civil Rule 60.

Ms. Ritter timely appealed the denial of the Motion to

Reopen and Motion for Reconsideration.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUE

Whether the bankruptcy court erred in denying Ms. Ritter’s

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Motion to Reopen and Motion for Reconsideration so that she could

avoid PNC Bank’s second mortgage lien.

STANDARD OF REVIEW

We review for abuse of discretion the denial of a motion to

reopen a bankruptcy case. Staffer v. Predovich (In re Staffer),

306 F.3d 967, 971 (9th Cir. 2002). We also review for abuse of

discretion the denial of a motion for reconsideration. N. Alaska

Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir. 1992).

To determine whether the bankruptcy court has abused its

discretion, we conduct a two-step inquiry: (1) we review de novo

whether the bankruptcy court “identified the correct legal rule

to apply to the relief requested” and (2) if it did, we consider

whether the bankruptcy court’s application of the legal standard

was illogical, implausible or “without support in inferences that

may be drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009) (en banc).

DISCUSSION

Ms. Ritter sought to reopen her bankruptcy case to void PNC

Bank’s lien because she believed that the lien should have been

stripped off in her initial chapter 7 case. When the bankruptcy

court denied her motion, she sought reconsideration, repeating

the same arguments. The bankruptcy court did not err.

Section 350(b) states that “[a] case may be reopened in

the court in which such case was closed to administer assets,

to accord relief to the debtor, or for other cause.” “[A]lthough

a motion to reopen is addressed to the sound discretion of the

bankruptcy court, ‘the court has the duty to reopen an estate

whenever prima facie proof is made that it has not been fully

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administered.’” Lopez v. Speciality Rests. Corp. (In re Lopez),

283 B.R. 22, 27 (9th Cir. BAP 2002) (citation omitted). 

“[R]eopening a case is typically ministerial and ‘presents only a

narrow range of issues: whether further administration appears to

be warranted; whether a trustee should be appointed; and whether

the circumstances of reopening necessitate payment of another

filing fee.’” Id. at 26 (citation omitted).

Nevertheless, a bankruptcy court should decline to reopen a

case when doing so would be a “pointless exercise.” Beezley v.

Cal. Land Title Co. (In re Beezley), 994 F.2d 1433, 1434 (9th

Cir. 1993); see Cortez v. Am. Wheel, Inc. (In re Cortez),

191 B.R. 174, 179 (9th Cir. BAP 1995) (“The bankruptcy court did

not abuse its discretion by denying the debtors’ motion to reopen

their bankruptcy case when there was no legal basis for granting

the relief sought.”).

The bankruptcy court properly denied the Motion to Reopen

because it could not strip off PNC Bank’s junior lien. In

Caulkett, the Supreme Court held that “a debtor in a Chapter 7

bankruptcy proceeding may not void a junior mortgage lien under

§ 506(d) when the debt owed on a senior mortgage lien exceeds the

current value of the collateral.” 135 S. Ct. at 2001. The Court

relied on its previous decision in Dewsnup v. Timm, 502 U.S. 410

(1992).

Similarly, Ms. Ritter is seeking to strip off PNC Bank’s

junior lien because her home was worth less than the amount owed

on her first mortgage. But Caulkett forbids a bankruptcy court

from doing so.

In her Motion for Reconsideration, Ms. Ritter questioned

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whether Caulkett, decided in 2015, was applicable to her 2013

bankruptcy case. The bankruptcy court correctly explained that

Caulkett restated the law as it had existed since the Supreme

Court’s 1992 decision in Dewsnup.

Ms. Ritter argues that PNC Bank did not oppose the Motion to

Avoid Lien. But the bankruptcy court can deny a motion, even if

no one opposed it, if the motion lacks legal merit. See Local

Bankruptcy Rule 9014-1(b)(4) (allowing, but not requiring, a

court to grant an unopposed motion by default); Edward H. Bohlin

Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir. 1993) (Under

similar Texas law, “[a]lthough failure to respond to a motion

will be considered a statement of no opposition, the court is not

required to grant every unopposed motion.”).

Even if the bankruptcy court had reopened Ms. Ritter’s case,

it could not void PNC Bank’s lien. Because the Motion to Reopen

was futile, the court did not abuse its discretion when it denied

the Motion to Reopen and Motion for Reconsideration.

CONCLUSION

For the reasons set forth above, the bankruptcy court did

not err. Accordingly, we AFFIRM.

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