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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. 

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-12-1276-HKiD

)

MICHAEL RENE RODARTE, ) Bk. No. 09-10411-TA

)

Debtor. )

______________________________)

)

MICHAEL RENE RODARTE, )

)

Appellant, )

)

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

)

ESTATES AT MONARCH COVE )

COMMUNITY ASSOCIATION, )

)

Appellee. )

______________________________)

Argued and Submitted on November 15, 2012

at Pasadena, California

Filed - December 6, 2012

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Theodor C. Albert, Bankruptcy Judge, Presiding 

Appearances: Douglas Crowder, Esq. argued for Appellant;

Bernard John Frimond, Esq. argued for Appellee. 

Before: HOLLOWELL, KIRSCHER, and DUNN, Bankruptcy Judges.

FILED

DEC 06 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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Michael Rene Rodarte (the Debtor) appeals an order of the

bankruptcy court that granted annulment of the automatic stay. 

We AFFIRM.

I. FACTS

The Debtor owns property as a tenant-in-common with his

father, Manuel Rodarte (Rodarte) in Dana Point, California (the

Property). The Property is part of a homeowners’ association,

the Estates at Monarch Cove Community Association (Monarch). A

dispute arose between the Debtor, Rodarte, and Monarch with

respect to maintenance of the Property. In 2003, Monarch filed a

complaint in California state court against the Debtor and

Rodarte to determine that a slope area on the Property was their

responsibility to maintain under the terms of Monarch’s

Covenants, Conditions and Restrictions (CC&Rs). Monarch

prevailed after a jury trial. On November 17, 2006, the state

court entered a judgment against the Debtor and Rodarte (the CC&R

Judgment).

The CC&R Judgment ordered the Debtor and Rodarte to repair

and restore landscaping on the Property and to provide ongoing

maintenance on it to comply with the CC&Rs. It provided that if

the Debtor and Rodarte failed to repair or maintain the Property,

Monarch was authorized to landscape and irrigate the Property to

CC&R standards and to charge the cost to the Debtor and Rodarte

by way of special assessment. Thereafter, in March 2007, the

CC&R Judgment was amended to include an award of attorneys’ fees

and costs in favor of Monarch. The CC&R Judgment was recorded in

the amount of $147,474.39, with 10% interest from August 22,

2006.
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2 Unless otherwise indicated, all chapter and section

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

“Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037.

-3-

In 2008, pursuant to the CC&R Judgment, Monarch entered the

Property to restore the landscaping. Litigation continued. In

late 2008, the state court issued an order for the Debtor to

appear on January 22, 2009, and show cause why the state court

should not grant a motion filed by Monarch to have the Property

sold.

On January 21, 2009, the Debtor filed a chapter 132

bankruptcy petition. On February 5, 2009, the Debtor filed his

bankruptcy schedules along with a chapter 13 plan. According to

the Debtor’s schedules, Monarch was the Debtor’s only creditor,

holding the CC&R Judgment as a secured claim. The Debtor

proposed to pay the CC&R Judgment in full over the term of the

plan.

Monarch moved to dismiss the Debtor’s bankruptcy case,

asserting that the Debtor filed it in bad faith to avoid

continued litigation in the state court regarding the Property. 

Monarch also objected to the Debtor’s plan on the basis that it

failed to fully provide for payment of Monarch’s claims. Monarch

asserted that in addition to the CC&R Judgment, it held two

unsecured judgments: (1) an award of costs incurred in planting

and restoring the Property in the amount of $18,544.50; and

(2) an award of $6,092.50 in attorneys’ fees and costs from

prevailing on an appeal of the CC&R Judgment. Over Monarch’s

objections, an amended plan (Plan) was confirmed on February 22,
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2010. The Plan proposed to pay Monarch’s secured claim with 6%

interest.

On April 9, 2010, Monarch filed a motion for relief from the

automatic stay (MRS). On April 13, 2010, Monarch filed a similar

motion for relief as to Rodarte as a co-debtor. Monarch

requested relief from the stay in order to enforce the CC&R

Judgment, including the ability to re-landscape the Property and

assess “the Debtor and his father for all postpetition costs,

including attorney fees incurred in connection with the

landscaping” if the Debtor and Rodarte failed to perform

necessary postpetition maintenance on the Property. Memorandum

of Law in Support of MRS at 2. Monarch stated that it

“anticipat[ed] filing a new legal action against [the Debtor and

Rodarte] to restrain their ongoing postpetition violations of the

[CC&Rs],” which it asserted were impacting the value of

neighboring properties. Id.

The Debtor filed an opposition to the MRS on April 16, 2010. 

He asserted that relief should not be granted because (1) Monarch

had hired three law firms and “is well-financed” and (2) Monarch

“will be in a position to make the State Court litigation so

expensive that the Debtor will be unable to make his plan

payments.” Debtor’s Response to MRS at 5-6.

On May 4, 2010, the bankruptcy court held a hearing on the

MRS (MRS Hearing) at which Monarch, the Debtor and his counsel

attended. The bankruptcy court issued a tentative ruling prior

to the MRS Hearing (MRS Tentative) stating that it intended to

grant the stay relief as to any ongoing postpetition violations: 
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3

 A transcript of the MRS Hearing was not provided in the

record and is unavailable on the bankruptcy court’s docket. 

However, we have gleaned information about the hearing from the

parties’ briefs, the docket, and from the bankruptcy court itself

when it later recounted what took place at the MRS Hearing. See

Hr’g Tr. (Apr. 18, 2012) at 12-18.

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[t]o the extent that movant needs to initiate process

to enforce the ongoing covenants (as opposed to the

monetary sums already embodied in the earlier judgment)

there is either no stay, or if there is, the movant

would be irreparably harmed . . . if this lot were

allowed to remain in a non-conforming state for the

balance of the term of the plan.

Tentative Ruling (May 4, 2010).

Consistent with the MRS Tentative, the bankruptcy court

orally ruled at the MRS Hearing that it would deny Monarch the

ability to enforce the monetary portions of the CC&R Judgment,

dealt with in the Plan, but would grant stay relief to allow

Monarch to liquidate prepetition attorney fees not dealt with in

the Plan, and to allow Monarch to reduce the fees to judgment.3

Additionally, the bankruptcy court granted stay relief so that

Monarch could pursue its remedies under state law to enforce its

CC&Rs with regard to the ongoing duties of the Debtor and

Rodarte. An entry on the bankruptcy case docket dated May 4,

2010, states: 

Hearing Held . . . Motion for Relief from Stay . . .

MOTION GRANTED IN PART AND DENIED IN PART; Relief is

denied as to sums already dealt with in the plan. 

Modify co-debtor stay as to prepetition amounts not

dealt with in the plan. Granted as to ongoing duties

under the CC&Rs.

Although the bankruptcy court orally granted relief at the

MRS Hearing on May 4, 2010, the written order denying the MRS in

part and granting it in part was not actually entered until
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4

 The order granting relief from the co-debtor stay was

entered June 21, 2010. Its terms are identical to the MRS Order.

5

 The record on appeal contains only the face page of the

state court complaint. Our understanding of the State Court

Action comes from the parties’ briefs.

6

 The Debtor’s declaration submitted with the Motion to

Establish Violation states that the amount of damages awarded was

$18,520.59. However, he has at other times stated the amount of

damages awarded was only $2,700. We cannot resolve the

discrepancy because neither the actual verdict nor the State

Court Judgment is included in the record on appeal.

-6-

sometime later, on June 29, 2010 (the MRS Order).4

 The MRS Order

was consistent with the MRS Tentative and the bankruptcy court’s

oral ruling.

In the meantime, acting on the oral ruling by the bankruptcy

court at the MRS Hearing, Monarch filed, on June 1, 2010, a

complaint in state court to enforce the CC&R Judgment (the State

Court Action). The State Court Action alleged causes of action

arising from the Debtor’s and Rodarte’s continuing violations of

the CC&Rs with respect to maintenance of the Property.5

The Debtor and Rodarte filed an answer in the State Court

Action, along with a cross complaint against Monarch. The State

Court Action was thereafter fully litigated. A jury trial was

held June 9-22, 2011. The jury subsequently found in favor of

Monarch, finding that the Debtor and Rodarte were liable for

damages in the amount of $18,520.59.6 The verdict was reduced to

a judgment entered on August 2, 2011 (the State Court Judgment). 

The State Court Judgment was amended on August 4, 2011, to

include over $300,000 in Monarch’s attorney’s fees and costs

incurred in the State Court Action. The final State Court
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7 According to Monarch, the Debtor did not assert that the

stay violation was a basis for appeal. (The Debtor answered “no”

to a question on the appeal form asking “Is there a related

bankruptcy case or a court-ordered stay that affects this

appeal?”).

8

 An identical motion was filed on February 20, 2012, but

that motion appears to be an incomplete filing.

-7-

Judgment against the Debtor and Rodarte was entered in the amount

of $342,702.92. The Debtor lost an appeal of the State Court

Judgment.7

Notwithstanding the State Court Action, the dispute between

the parties regarding maintenance of the Property was still not

resolved. Monarch informed the Debtor that it intended to enter

the Property on January 21, 2012, in order to repair the

landscaping.

On January 17, 2012, the Debtor filed a Motion for Contempt

for Violation of the Automatic Stay. Monarch filed an opposition

and requested that the bankruptcy court retroactively annul the

automatic stay under § 362(d) to June 1, 2010. The Debtor later

withdrew the motion. Thereafter, on February 26, 2012,8 the

Debtor filed a Motion to Establish Violation of Automatic Stay

(Motion to Establish Violation), alleging that Monarch violated

the automatic stay by filing the State Court Action before the

MRS Order was entered. Because the State Court Action was

commenced before the MRS Order was entered, the Debtor argued

that the State Court Judgment was void.

In the Motion to Establish Violation, the Debtor also

asserted that Monarch was only granted relief to liquidate

prepetition attorneys’ fees that were not part of the Plan and to
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pursue postpetition remedies to enforce the CC&Rs, but not to

initiate an action to recover attorneys’ fees for any

postpetition litigation.

Also in the Motion to Establish Violation, the Debtor

addressed various factors that courts consider when deciding

whether to annul the automatic stay and asserted that those

factors weighed against annulment. The Debtor requested the

bankruptcy court to void the State Court Judgment.

Monarch filed an opposition on April 4, 2012, and the Debtor

thereafter filed a reply. Monarch asserted that retroactive

annulment of the stay was appropriate under the circumstances of

the case, particularly because of the Debtor’s long silence

before asserting the alleged violation. In his reply, the Debtor

explained that, because he was without bankruptcy counsel after

the hearing on the MRS, he did not discover until sometime in

October 2011, that the State Court Action was filed before the

MRS Order was entered on the docket.

The bankruptcy court held a hearing on the Motion to

Establish Violation on April 18, 2012. Prior to the hearing, the

bankruptcy court issued a tentative ruling indicating that it

would deny the Motion to Establish Violation and instead would

grant annulment of the automatic stay. The bankruptcy court

determined that “if there were ever a case for annulment it would

be this one.” Tentative Ruling (Apr. 18, 2012) at 2. It found

that, in applying a balancing of the equities standard,

the [D]ebtor’s long silence is a strong additional

factor weighing in favor of annulment. Other obvious

factors would include that [Monarch] took the proper

precaution of first seeking relief of stay, so this is

not like those cases where the creditor blunders ahead
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without concern or cognizance of the stay. Further,

while the court cannot condone actions taken before the

relief of stay order is actually entered, the lapse is

certainly more understandable here since it apparently

took the court several weeks to process the order. 

Lastly, it is simply an affront to equity (not to

mention a tremendous waste of resources) that the

debtor should remain silent awaiting the results of the

jury verdict, judgment and then even filing an appeal

there from [sic], and then attempt to circumvent all by

seeking a late declaration that the entire Superior

Court action was void ab initio. This serves no

legitimate bankruptcy purposes and is game playing

(like heads I win, tails you lose) at its worse [sic].

Id. 

At the hearing, the Debtor accused Monarch of lying to

the bankruptcy court about the reasons it filed the MRS,

asserting that the Debtor had no indication that Monarch

intended to immediately bring a cause of action against the

Debtor. The bankruptcy court addressed the Debtor’s concern

by reviewing the MRS Order and stating that it was clear

that the reason Monarch filed the MRS was to be able to

return to state court to enforce the CC&R Judgment if

necessary during the term of the Plan.

On May 11, 2012, the bankruptcy court entered its order

denying the Motion to Establish Violation and granting

annulment of the automatic stay retroactive to June 1, 2010. 

The Debtor timely appealed.

II. JURISDICTION

The bankruptcy court had jurisdiction pursuant to

28 U.S.C. §§ 1334 and 157(b)(2)(G). We have jurisdiction

under 28 U.S.C. § 158.
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III. ISSUE

Whether the bankruptcy court abused its discretion in

annulling the automatic stay.

IV. STANDARDS OF REVIEW

A bankruptcy court’s decision to grant retroactive

relief from the automatic stay is reviewed for an abuse of

discretion. Nat’l Envtl. Waste Corp. v. City of Riverside

(In re Nat’l Envtl. Waste Corp.), 129 F.3d 1052, 1054 (9th

Cir. 1997); Williams v. Levi (In re Williams), 323 B.R. 691,

696 (9th Cir. BAP 2005).

A bankruptcy court abuses its discretion if it bases a

decision on an incorrect legal rule, or if its application

of the law 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, 1262 (9th Cir.

2009) (en banc); Ellsworth v. Lifescape Med. Assocs., P.C.

(In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP 2011).

V. DISCUSSION

Monarch contends that it did not violate the automatic

stay because the stay was dissolved after the bankruptcy

court’s oral ruling at the MRS Hearing. 

Ordinarily, a judgment or order is effective when

entered. Rule 9021; see also Beatty v. Traub

(In re Beatty), 162 B.R. 853, 857 (9th Cir. BAP 1994),

overruled on other grounds by Marrama v. Citizens Bank of

Mass., 549 U.S. 365 (2007). Courts have, however,

determined that entry of an order is not always necessary to

effectuate it, particularly when the parties had notice of
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the oral order. Noli v. Comm’r of Internal Revenue, 860

F.2d 1521, 1525 (9th Cir. 1988); Am.’s Servicing Co. v.

Schwartz-Tallard, 438 B.R. 313, 318 (D. Nev. 2010). Here,

the Debtor clearly had notice that the bankruptcy court

granted Monarch stay relief to return to state court and

enforce the terms of the CC&R Judgment because he had

attended, with counsel, the MRS Hearing. The Debtor and

Rodarte also had constructive notice of the stay relief

because the oral ruling was entered on the bankruptcy case

docket the same day. Therefore, it is unclear how the

Debtor was prejudiced by Monarch’s action taken before the

MRS Order was entered as he was aware of the existence and

extent of the stay relief. See Noli, 860 F.2d at 1525. 

A bankruptcy court has discretion to determine whether

its order is immediately effective when given orally. Am.’s

Servicing Co., 438 B.R. at 318; see also Sewell v. MGF

Funding, Inc. (In re Sewell), 345 B.R. 174, 179 (9th Cir.

BAP 2006). In this case, the bankruptcy court acted under

the well-accepted rule that orders are effective when

written and docketed. See In re Brown, 290 B.R. 415, 421

(Bankr. M.D. Fla. 2003). Consequently, the bankruptcy court

determined there was a violation of the automatic stay, but

that annulment was appropriate under the circumstances. We

address below the merits of that decision.

The bankruptcy court determined that Monarch violated

the automatic stay because the MRS Order had not been

entered before the State Court Action was initiated. In the

Ninth Circuit, actions taken in violation of the stay are
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void. Schwartz v. United States (In re Schwartz), 954 F.2d

569, 571-72 (9th Cir. 1992); see also Algeran, Inc. v.

Advance Ross Corp., 759 F.2d 1421, 1425 (9th Cir. 1985). 

However, an action taken in violation of the automatic

stay may be declared valid if cause exists for retroactive

annulment of the stay. Id. at 573. Section 362(d) empowers

the bankruptcy court to annul the stay. It provides: 

On request of a party in interest and after notice

and a hearing, the court shall grant relief from

the stay provided under subsection (a) of this

section, such as by terminating, annulling,

modifying, or conditioning such stay-

(1) for cause, including the lack of adequate

protection of an interest in property of such

party in interest.

11 U.S.C. § 362(d); In re Schwartz, 954 F.2d at 572

(“[S]ection 362(d) gives the bankruptcy court wide latitude

in crafting relief from the automatic stay, including the

power to grant retroactive relief from the stay.”).

In analyzing whether “cause” exists to annul the stay

under § 362(d)(1), the bankruptcy court is required to

balance the equities of the creditor’s position in

comparison to that of the debtor. In re Nat’l Envtl. Waste

Corp., 129 F.3d at 1055. Under this approach, the

bankruptcy court considers (1) whether the creditor was

aware of the bankruptcy petition and automatic stay, and

(2) whether the debtor engaged in unreasonable or

inequitable conduct. Id. The Bankruptcy Appellate Panel

approved additional factors for consideration in Fjeldsted

v. Lien (In re Fjeldsted), 293 B.R. 12, 24 (9th Cir. BAP

2003). The Fjeldsted factors are employed to “further
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examine the debtor’s and creditor’s good faith, the

prejudice to the parties, and the judicial or practical

efficacy of annulling the stay.” Id. at 24-25. The factors

include:

1. Number of filings;

2. Whether, in a repeat filing case, the

circumstances indicate an intention to delay

and hinder creditors;

3. A weighing of the extent of prejudice to

creditors or third parties if the stay relief

is not made retroactive, including whether

harm exists to a bona fide purchaser;

4. The debtor’s overall good faith (totality of

the circumstances test)

5. Whether creditors knew of stay but

nonetheless took action, thus compounding the

problem;

6. Whether the debtor has complied, and is

otherwise complying with the Bankruptcy Code

and Rules;

7. The relative ease of restoring parties to the

status quo ante;

8. The costs of annulment to debtors and

creditors;

9. How quickly creditors moved for annulment, or

how quickly debtors moved to set aside the

sale or violative conduct;

10. Whether, after learning of the bankruptcy,

creditors proceeded to take steps in

continued violation of the stay, or whether

they moved expeditiously to gain relief;

11. Whether annulment of the stay will cause

irreparable injury to the debtor;

12. Whether stay relief will promote judicial

economy or efficiencies.

Id. at 25.
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The factors merely present a framework for analysis and

“[i]n any given case, one factor may so outweigh the others

as to be dispositive.” Id.; In re Williams, 323 B.R. at

700.

The record demonstrates that the bankruptcy court

properly balanced the equities. The bankruptcy court found

that the Debtor’s “long silence” was a strong factor

weighing in favor of annulment and that it was “simply an

affront to equity” that the Debtor should remain silent

throughout the State Court Action and after losing an appeal

of the State Court Judgment before raising the issue of a

technical stay violation. The bankruptcy court found this

conduct amounted to “game playing.” Indeed, the bankruptcy

court found that the Debtor “doubled down and lost” in his

dispute against Monarch. Hr’g Tr. (Apr. 18, 2012) at

14:4-5. It found that the Debtor was essentially seeking a

“pass on the last year and a half” through its Motion to

Establish Violation. Id. at 14:6-7. 

The bankruptcy court weighed the Debtor’s conduct

against the fact that Monarch had taken the proper

precaution to seek relief from the stay in the first

instance. Although it acknowledged that it took several

weeks for the bankruptcy court to process the MRS Order, it

“could not condone” Monarch’s filing of the State Court

Action. Nevertheless, it found that there was no equitable

reason for, or bankruptcy purpose served by, declaring the

State Court Judgment void. It stated:
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[A] strict mechanical view of the law would

suggest that there’s some substance to [declaring

the State Court Judgment void as a violation of

the stay]. But, anybody who stops for a minute

and thinks where’s the equity, where’s the

judicial resources, what’s the bankruptcy purpose,

if any, to be served, would know that it is a

ridiculous argument. And it is, in fact, a

ridiculous argument.

Id. at 14:9-14.

After reviewing the record, we cannot say that the

bankruptcy court abused its discretion in its analysis

supporting annulment of the stay. Furthermore, we find the

Debtor’s arguments on appeal, that the bankruptcy court made

several errors in applying the balancing test, unavailing. 

We briefly address those arguments below.

First, the Debtor argues that the bankruptcy court made

a clearly erroneous finding that the Debtor deliberately

waited until after the jury trial to move to establish a

violation of the automatic stay as a legal tactic. He

insists that, because he did not have bankruptcy counsel to

assist him, he did not know there was a violation of the

stay. He argues that the bankruptcy court erred in finding

his explanation for the delay was not credible.

We give findings of fact based on credibility

particular deference. Rule 8013; Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 575 (1985). This

deference is given to inferences drawn by the bankruptcy

court. Arab Monetary Fund v. Hashim (In re Hashim),

379 B.R. 912, 925 (9th Cir. BAP 2007). Additionally, where

there are two permissible views of the evidence, the fact 

finder’s choice between them is not clearly erroneous. Id.
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9

 The parties have not provided us with the controlling

state statutes that provide for arbitration under these

circumstances or suggested that there is a time requirement

within which a party must request arbitration.

10 At oral argument, the Debtor acknowledged that he

determined the stay violation was significant only after the

state court awarded over $300,000 in attorneys’ fees since the

actual damages award was “nominal.”

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(citing Anderson, 470 U.S. at 574 (“This applies to

credibility-based findings and to findings based on

inferences from other facts.”)). Accordingly, the

bankruptcy court’s finding that the Debtor’s silence was a

legal tactic cannot be clearly erroneous.

The Debtor also argues that the bankruptcy court failed

to give proper weight to the “extreme prejudice suffered by

the Debtor.” Appellant’s Opening Br. at 14. He asserts

that he was highly prejudiced by the stay violation because

he could have avoided a costly jury trial in lieu of

arbitration.9

As we noted above, the Debtor had actual knowledge of

the bankruptcy court’s decision, delivered at the MRS

Hearing, to grant stay relief so that Monarch could enforce

the CC&R Judgment. Indeed, he has not articulated in what

way the violation of the stay actually prejudiced him.

Rather, he argues only that he was prejudiced due to the

outcome of the State Court Action since he lost on the

merits, and more specifically, because the state court

awarded over $300,000 in attorneys’ fees.10 Thus, if

Monarch had waited to file the State Court Action after
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entry of the MRS Order, and the Debtor again had

participated fully in the litigation resulting in the same

outcome, what prejudice could the Debtor demonstrate? 

Similarly, what prejudice could the Debtor demonstrate if he

had prevailed in the State Court Action?

Furthermore, it is entirely unclear how Monarch’s

filing of the State Court Action before the MRS Order was

docketed affected in any way the Debtor’s ability to have

asserted his right to arbitrate in defending against the

State Court Action. The Debtor’s counsel apparently

conceded this point: “now that we’ve lost the lawsuit,

we’re going to do it again. And this time, we’re not going

to make the mistakes that caused us to lose. We get a

second bite at the apple too because what was done before

was void.” Hr’g Tr. (Apr. 18, 2012) at 8:2-5.

The policy behind § 362 is to protect the bankruptcy

estate from being depleted by creditors. It is intended to

give debtors “breathing room” after filing the petition by

stopping collection efforts, harassment, and foreclosure

actions. It also prevents “piecemeal dismemberment” of the

estate and allows the debtor time to reorganize. Lehman

Commercial Paper, Inc. v. Palmdale Hills Prop., LLC

(In re Palmdale Hills Prop., LLC), 423 B.R. 655, 663

(9th Cir. 2009). Here, the Debtor had the breathing room

afforded by the stay to reorganize and confirm a chapter 13

plan. But as the bankruptcy court noted, simply because the

Debtor is in bankruptcy, it does not give him license to

disregard his ongoing duties with respect to the Property. 
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11 At oral argument, the Debtor argued that the causes of

action “may have included” prepetition damages. However, because

the state court complaint is not included in the record, we have

no way of evaluating that argument. Moreover, this argument was

not made to the bankruptcy court, and therefore, it is waived on

appeal. Campbell v. Verizon Wireless S-CA (In re Campbell),

336 B.R. 430, 434 n.6 (9th Cir. BAP 2005) (citing O’Rourke v.

Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957

(9th Cir. 1989) (“The rule in this circuit is that appellate

courts will not consider arguments that are not ‘properly

raise[d] in the trial courts.’”)). The Debtor’s argument to the

bankruptcy court was that a request for attorneys’ fees was

outside the scope of the MRS Order.

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Hr’g Tr. (Apr. 18, 2012) at 15-18; Tentative Ruling (May 4,

2010) at 2.

The Debtor also argues that the bankruptcy court erred

in annulling the stay because it allowed Monarch to have

exceeded the scope of the MRS Order. The Debtor asserts

that Monarch brought new causes of action against the Debtor

in its State Court Action that were not contemplated by the

parties. However, the record demonstrates that the MRS was

filed, and the MRS was granted, so that Monarch could pursue

enforcement of the CC&R Judgment as to postpetition

violations. The MRS stated that Monarch anticipated filing

a new state court action to enforce the CC&R Judgment, which

would include recovery for monetary damages and attorneys’

fees.11

The Debtor’s final argument on appeal is that the

bankruptcy court erred in annulling the automatic stay

because Monarch “did not make a separately noticed motion

asking for retroactive annulment, depriving Debtor of due
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process and the ability to oppose the request.” Appellant’s

Opening Br. at 18. This argument is a non-starter. The

Debtor opposed annulment in his Motion to Establish

Violation. He set out the Fjeldsted factors and contended

that they weighed against annulment. The Debtor also filed

a reply brief reiterating his argument that there was no

“cause” or factors that supported annulment. Additionally,

the Debtor, through counsel, argued his motion to the

bankruptcy court at the April 18, 2012 hearing. 

Consequently, there is no basis for the Debtor to assert

that he was deprived of due process here. 

According to the bankruptcy court, retroactive

annulment of the stay was appropriate in light of the

Debtor’s conduct — waiting until after the State Court

Action resulted in an adverse judgment before asserting that

there was a stay violation, and in light of its finding that

voiding the State Court Judgment would not support any

bankruptcy purpose, but would instead be a waste of judicial

resources. That decision was not illogical, implausible, or

unsupported by the evidence in the record, and therefore,

was not an abuse of discretion.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM.