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FILED

MAR 28 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. AK-13-1157-JuKuPa

)

GEORGE ELLIOTT DOCKWEILER, ) Bk. No. 12-00694

)

Debtor. )

______________________________)

)

DONALD RAY GASKIN )

)

 Appellant, )

)

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

)

WILLIAM M. BARSTOW, III, )

TRUSTEE; UNITED STATES )

TRUSTEE; GEORGE ELLIOTT )

DOCKWEILER, )

)

 Appellees. )

______________________________)

Argued and Submitted on March 20, 2014

at Pasadena, California 

Filed - March 28, 2014

Appeal from the United States Bankruptcy Court

for the District of Alaska

Honorable Herbert A. Ross, Bankruptcy Judge, Presiding

_________________________

Appearances: Appellant Donald Ray Gaskin argued pro se; Harold

Francis Cahill, III argued for appellee George

Elliot Dockweiler.

_________________________

Before: JURY, KURTZ, and PAPPAS, Bankruptcy Judges.

* 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.

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California judgment creditors Donald and Mary Joan Gaskin

(Gaskin)1 appeal from the bankruptcy court’s order denying their

application to sell real property in Alaska owned by chapter 72

debtor, George Elliot Dockweiler.3 For the reasons stated

below, we conclude that the appeal is moot and therefore DISMISS

for lack of jurisdiction. 

I. FACTS

In April 2006, Gaskin loaned $50,000 to debtor. Debtor

evidently signed a promissory note which was allegedly secured

by a deed of trust on a twenty-acre parcel of land in Kern

County, California. The note bore interest at the rate of 14%,

compounded, and was due and payable in April 2008. The

documents evidencing the loan and security are not included in

the record on appeal. Debtor never repaid the loan. 

Gaskin asserts that debtor fraudulently sold the Kern

County property in 2008 without disclosing Gaskin’s lien and

pocketed $120,000 in profit. Gaskin further alleges that around

the same time, debtor moved to Alaska, maintaining a dualresidency status with California. 

In June 2009, Gaskin filed a lawsuit against debtor in the

1 Although Mary Gaskin is also a judgment creditor, our use

of “Gaskin” refers to Donald since he filed the bulk of the

pleadings in the bankruptcy court.

2 Unless otherwise indicated, all chapter and section

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

“Rule” references are to the Federal Rules of Bankruptcy

Procedure.

3 The chapter 7 trustee, William Barstow, III, and the U.S.

Trustee have not participated in this appeal.

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Los Angeles Superior Court, alleging causes of action for breach

of contract, bad faith and fraud. Gaskin obtained a judgment

against debtor by default in the amount of $77,114.93 and 

recorded the judgment as a lien against debtor’s real property

located in Los Angeles County.4 At the time of this appeal,

Gaskin contends that debtor owes him more than $140,000 on the

judgment.

At some point, debtor purchased real property in Port

Protection, Alaska, which he co-owned with his brother. They

used the property to operate a water and land touring company

called Port Protection Adventures LLC. Debtor also owned a

five-acre lot in Delta Junction, Alaska. Gaskin recorded the

California judgment in the Petersburg Recording District where

the Port Protection property was located on January 18, 2011. 

As a result, Gaskin asserts a judgment lien against the Port

Protection property. 

In a September 2012 letter from debtor to Gaskin, debtor

acknowledged Gaskin’s judgment lien and gave him “once chance”

to settle the matter. Debtor proposed that Gaskin pay him an

additional $10,000 and in exchange, debtor would transfer to

Gaskin his 50% share of the Port Protection property or Gaskin

could have debtor’s brother buy him out. Debtor told Gaskin

that he did not live on the Port Protection property anymore,

did not get along with his brother, and would be filing a

chapter 7 bankruptcy in October. No settlement was reached.

4 It is unclear what property debtor owned in California at

that time.

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On November 21, 2013, debtor filed his chapter 7 petition. 

William Barstow, III, was appointed the trustee. Debtor listed

Gaskin and his wife as unsecured creditors owed $93,296 in

Schedule F. He also listed Gaskin and his wife as secured

creditors holding a judgment lien against his real property in

Port Protection in the amount of $93,296 in Schedule D. Debtor

valued his one-half interest in the Port Protection property at

$75,000. Finally, debtor listed Gaskin and his wife as secured

creditors holding a judgment lien against his real property in

Delta Junction in the amount of $93,296. Debtor valued the

Delta Junction property at $10,000. Debtor did not dispute

Gaskin’s debt listed in his schedules.

Gaskin appeared and questioned debtor at the § 341(a) 

meeting of creditors. He also sent a letter to the trustee

dated January 2, 2013, asserting that debtor’s case should be

dismissed on the grounds that debtor had undisclosed or 

under-reported assets.5 After investigating, the trustee

apparently concluded that any assets debtor owned had no

recoverable value for the estate. On January 4, 2013, the

trustee filed a report of no distribution and indicated his

intent to abandon the assets and close the case.

Shortly thereafter, Gaskin sought relief from the automatic

stay so that he could enforce his lien rights against debtor’s

real property. The bankruptcy court granted the unopposed

motion on March 1, 2013. 

5 The letter did not ask the trustee to sell the Port

Protection property as Gaskin asserted at oral argument.

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On March 11, 2012, Gaskin filed an application to sell

debtor’s Port Protection property in order to satisfy his lien. 

The next day, debtor received his § 727 discharge. 

On March 13, 2013, the bankruptcy court denied Gaskin’s

application to sell debtor’s real property. In the order, the

bankruptcy court reasoned:

When the court lifted the stay on March 1, 2013, it

realized the stay was soon about to be lifted in any

event, when the debtor was granted a discharge, which

happened on March 12, 2013, and the case is closed,

which should happen almost immediately since the

trustee said there were no assets to liquidate.

Mr. Gaskin’s application to sell is being denied

because it is not the function of bankruptcy court to

liquidate property which is being abandoned by the

trustee, solely to enforce the claim of a secured

creditor. This is now a private matter between

Mr. Gaskin and the debtor. Nor does the matter

currently involve the debtor’s discharge (subject to

the comments in the following bullet point, cautioning

Mr. Gaskin about not violating the discharge

injunction).

Parenthetically, if Mr. Gaskin does not currently have

a valid judgment lien, he is probably barred from

asserting one at this time due to the discharge

injunction, which takes the place of the automatic

stay, post-discharge. I do not rule that his

purported judgment lien is (or, is not) defective. A

copy of the California judgment is attached to the

motion for relief from stay. It was recorded in the

Petersburg Recording District. AS 09.30.010

contemplates only the judgments of Alaskan or

federal courts can become judgment liens. It is

possible that Mr. Gaskin should have first

domesticated the California judgment under AS

09.30.200, et. seq. I am uncertain if Mr. Gaskin

properly domesticated the California judgment. If

not, it may now be too late to get a valid judgment

lien due to Mr. Dockweiler’s bankruptcy discharge.

Two days later, on March 15, 2013, a Final Decree was

entered and the case closed.

On March 26, 2013, Gaskin filed an application for

appellate review in which he sought review of the bankruptcy

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court’s order denying his application to sell debtor’s real

property. On April 1, 2013, the bankruptcy court entered an

order treating Gaskin’s March 26, 2013 application as a notice

of appeal. Therefore, Gaskin’s appeal of the order was timely.6

II. JURISDICTION

The bankruptcy court had jurisdiction over this proceeding

under 28 U.S.C. §§ 1334 and 157(b)(2)(A). We address our

jurisdiction under 28 U.S.C. § 158 below. 

III. ISSUES

Is this appeal moot? If not, did the bankruptcy court err

in denying Gaskin’s application to sell debtor’s real property? 

IV. STANDARDS OF REVIEW

We lack jurisdiction to hear moot appeals. I.R.S. v.

Pattullo (In re Pattullo), 271 F.3d 898, 901 (9th Cir. 2001). 

If an appeal becomes moot while it is pending before us, we must

dismiss it. Id. 

The bankruptcy court’s findings of fact are reviewed under

the clearly erroneous standard, and its conclusions of law are

reviewed de novo. Ragsdale v. Haller, 780 F.2d 794, 795 (9th

Cir. 1986).

V. DISCUSSION

A. The Limited Scope Of Our Review

Gaskin’s March 26, 2013 application for appellate review,

which was treated as a notice of appeal, refers only to the

bankruptcy court’s March 13, 2013 order denying his application

6 On June 19, 2013, the Clerk’s office issued an Order Re

Mootness and Oral Argument which requested the parties to address

the issue of mootness in their briefs.

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to sell debtor’s real property. Yet, Gaskin’s opening appeal

brief suggests that he is now seeking appellate review of

numerous other issues; he also raises arguments not addressed to

the bankruptcy court in the first instance.7 He further seeks

new relief beyond the sale order. For example, Gaskin requests

that we remand the case to the bankruptcy court, reopen the

bankruptcy case, and revoke debtor’s discharge. This relief has

nothing to do with the court’s denial of Gaskin’s application to

sell debtor’s real property to satisfy his asserted lien. 

The scope of our review is limited to the issues directly

on appeal and other issues either “inextricably intertwined”

with the issues on appeal or those issues essential to

resolution of the order on appeal. See Swint v. Chambers Cnty.

Comm’n, 514 U.S. 35, 45 (1995). Here, the sole issue on appeal

is whether the bankruptcy court’s denial of the application to

sell real property was in error. In turn, the closing of

debtor’s bankruptcy case and simultaneous abandonment of

debtor’s real property under § 554(c) raises a mootness issue. 

Gaskin’s claims regarding the trustee’s alleged negligence and

debtor’s alleged fraud8 are neither “inextricably intertwined”

7 Based on Gaskin’s pro se status, we liberally construe

his pleadings and other documents. See Nilsen v. Nielson

(In re Cedar Funding, Inc.), 419 B.R. 807, 816 (9th Cir. BAP

2009).

8 The bankruptcy court sent a notice to creditors that the

last day to file a complaint objecting to debtor’s discharge

under §§ 523 or 727 was February 25, 2013. Although Gaskin was

served with the notice, at no time did Gaskin file a

nondischargeability complaint against debtor, or an objection to

debtor’s discharge.

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with the issues on appeal nor essential to resolution of the

order on appeal. Likewise, whether his California judgment is

entitled to full faith and credit in Alaska or was properly

domesticated are issues not before us. Accordingly, we do not

address or consider many of Gaskin’s arguments in this

memorandum.

B. The Appeal is Moot

The United States Supreme Court has instructed that a case

becomes moot when it is “impossible for the court to grant ‘any

effectual relief whatever’ to a prevailing party.” Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992); see

also Felton Pilate v. Burrell (In re Burrell), 415 F.3d 994, 998

(9th Cir. 2005) (“The test for mootness of an appeal is whether

the appellate court can give the appellant any effective relief

in the event that it decide the matter on the merits in his

favor.”). We conclude that, under these circumstances, we

cannot provide “any effectual relief whatever” to Gaskin even if

we were to decide the matter in his favor.

1. Statutory Consequences of Closing

Gaskin’s appeal was rendered moot by the closing of the

case and the simultaneous technical abandonment of debtor’s

property under § 554(c) by operation of law. On March 15, 2013,

two days after the bankruptcy court denied Gaskin’s motion to

sell, the case closed. Relying on § 554(a), Gaskin complains

that he did not get notice or an opportunity to be heard before

the trustee abandoned debtor’s real property. However, the

trustee in this case did not file a motion to abandon the

property under § 554(a), instead choosing simply to not

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administer the asset and leaving the abandonment to occur at the

closing of the case under § 554(c). Upon closing, and in the

absence of a court order to the contrary, property of the estate

that was scheduled is abandoned to the debtor by operation of

law under § 554(c) and ceases to be property of the estate. See

Diamond Z Trailer, Inc. v. JZ L.L.C. (In re JZ L.L.C.), 371 B.R.

412, 418 (9th Cir. BAP 2007); see also Hopkins v. Idaho State

Univ. Credit Union ( In re Herter), 456 B.R. 455, 467 (Bankr. D.

Idaho 2011) (“When a property is abandoned, it reverts to the

debtor as if no bankruptcy petition had been filed.”) (citing

Dewsnup v. Timm, 908 F.2d 588, 590 (10th Cir. 1990)). Even if

we were to reverse the bankruptcy court’s order, we are unable

to fashion any effective relief for Gaskin when the property is

no longer property of the estate and has reverted to debtor.

2. There Is No Statutory Basis For The Sale

Although Gaskin could seek to reopen the case, “[r]evoking

a technical abandonment requires more than a mere exercise of

the § 350(b) reopening power.” Menk v. LaPaglia (In re Menk),

241 B.R. 896, 913–14 (9th Cir. BAP 1999) (“Property that is

technically abandoned under § 554(c) is not automatically reeled

back [into the estate] by virtue of reopening.”). The standard

for relief from a technical abandonment is Civil Rule 60(b).9

9 Civil Rule 60 is made applicable to bankruptcy cases by

incorporation through Rule 9024. Civil Rule 60(b) provides: 

(b) Grounds for Relief from a Final Judgment, Order, or

Proceeding. On motion and just terms, the court may

relieve a party or its legal representative from a

final judgment, order, or proceeding for the following

continue...

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Id. at 914. 

Assuming that Gaskin could obtain relief from the technical

abandonment under Civil Rule 60(b) and the property brought

back into debtor’s estate, Gaskin has pointed to no statutory

authority that would allow the bankruptcy court to order the

sale under these circumstances, nor could we find any. A

chapter 7 trustee may sell property under § 363,10 but such a

sale is generally for the benefit of unsecured creditors and not

for the benefit of secured creditors of the debtor. 

In re Gallagher, 283 B.R. 342, 344 (Bankr. M.D. Fla. 2002);

In re Tobin, 202 B.R. 339, 340 (Bankr. D.R.I. 1996)

(“[A]dministration of assets by chapter 7 trustees, where the

property is clearly over-encumbered by valid liens, in no way

9...continue

reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect; 

(2) newly discovered evidence that, with

reasonable diligence, could not have been

discovered in time to move for a new trial

under Rule 59(b); 

(3) fraud (whether previously called

intrinsic or extrinsic), misrepresentation,

or misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released

or discharged; it is based on an earlier

judgment that has been reversed or vacated;

or applying it prospectively is no longer

equitable; or 

(6) any other reason that justifies relief.

10 Gaskin’s motion requested the court to order the sale. 

No statutory authority exists whereby a party, rather than the

case trustee, may request the court to sell the property.

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comports with their obligation to enhance the estate for the

benefit of unsecured creditors and to expeditiously close the

estate.”). Moreover, when property has inconsequential value to

the estate, abandonment under § 554, rather than sale under

§ 363, is the proper course. In re Ayer, 137 B.R. 397, 401

(Bankr. D. Mont. 1992) (“Numerous courts have recognized that

where the estate has no equity in a property, and the estate is

to be liquidated, abandonment will virtually always be

appropriate, because no unsecured creditor could benefit from

its administration.”) (citations omitted). Without statutory

authority to order the sale, we once again would not be able to

fashion effective relief for Gaskin even if we reversed the

bankruptcy court’s order and Gaskin were able to obtain relief

from the technical abandonment. Accordingly, this appeal is

moot.

3. Gaskin Can Enforce Whatever Lien Rights He Has

Our conclusion on mootness does not affect Gaskin’s alleged

lien or state law remedies. The automatic stay is not an

impediment to Gaskin’s efforts to enforce his judgment lien — to

the extent one exists against the real property — because the

stay terminated by operation of law under § 362(c)(2)(A) when

the case was closed (although Gaskin had already obtained relief

by court order). Moreover, Gaskin’s lien (again, to the extent

it exists) passed through debtor’s bankruptcy unaffected. See

Dewsnup v. Timm, 502 U.S. 410, 418 (1992). Simply put, the

bankruptcy court’s denial of his application for a sale did not

impair any substantive lien rights that Gaskin may have in the

property. 

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In sum, due to the abandonment of the property and

termination of the stay upon the closing of the case, Gaskin is

free to enforce any state law lien rights he may have against

the property (not the debtor)11 as if the bankruptcy did not

exist. As the bankruptcy court recognized, the enforcement of

Gaskin’s state law lien rights against debtor’s property is now

a private matter between the parties.

VI. CONCLUSION

For the reasons stated, the appeal is moot. In this case,

we need not reach the merits and DISMISS for lack of

jurisdiction.

11 To be clear, due to debtor’s § 727 discharge, Gaskin

cannot hold debtor personally liable for the debt. In addition,

if for some reason Gaskin’s California judgment lien was not

properly domesticated in Alaska and/or his lien found invalid for

other reasons, the discharge injunction under § 524 prevents

Gaskin from taking steps now to perfect his lien against debtor’s

property.

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