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*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. EC-11-1719-MkDJu

)

WALTER R. PINEDA, ) Bk. No. 10-91936

)

Debtor. ) Adv. No. 10-09060

______________________________)

)

WALTER R. PINEDA, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

BANK OF AMERICA, N.A.; )

RECONTRUST COMPANY, N.A.; BANK)

OF NEW YORK MELLON, N.A., )

INC,; GSR MORTGAGE LOAN TRUST )

2003-9; GOLDMAN SACHS, INC.; )

UNITED STATES TRUSTEE; GARY )

FARRAR, Chapter 7 Trustee, )

)

Appellees. )

______________________________)

Argued and Submitted on March 22, 2013

at Sacramento, California

Filed – April 23, 2013

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Ronald H. Sargis, Bankruptcy Judge, Presiding 

Appearances: Appellant Walter R. Pineda argued on his own

behalf; Andrea McDonald Hicks of Bryan Cave, LLP

argued for Appellees Bank of America, N.A.,

Recontrust Company, N.A., Bank of New York Mellon,

N.A., Inc., Goldman Sachs, Inc. and GSR Mortgage

Loan Trust 2003-9. 

FILED

APR 23 2013

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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1

Unless specified otherwise, all chapter and section

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

all “Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. All “Civil Rule” references are to

the Federal Rules of Civil Procedure.

2

Before: MARKELL, DUNN and JURY, Bankruptcy Judges.

INTRODUCTION

Chapter 71

 debtor Walter R. Pineda (“Pineda”) commenced an

adversary proceeding (“Adversary Proceeding”) against Bank of

America and others regarding the origination and securitization

of his home loan (“Loan”) and regarding enforcement of that Loan,

particularly the commencement of foreclosure proceedings. The

bankruptcy court dismissed Pineda’s first amended complaint

(“FAC”) without prejudice and with leave to amend (“First

Dismissal Order”). After Pineda filed a second amended complaint

(“SAC”), the bankruptcy court dismissed the entire adversary

proceeding without prejudice and without leave to amend, but

subject to a final decision on whether the court should abstain

under 28 U.S.C. § 1334(c)(1) (“Second Dismissal Order”). Pineda

appealed that ruling. Later, the bankruptcy court entered an

abstention order (“Abstention Order”), which fully and finally

disposed of the Adversary Proceeding. Pineda did not file a

notice of appeal after entry of the Abstention Order, but he did

file a motion for leave to appeal. 

It is debatable whether Pineda took any action that should

count as an appeal of the Abstention Order. If there was no

timely appeal of the Abstention Order, Pineda’s appeal of the

Second Dismissal Order should be dismissed as moot. We will,

however, err on the side of determining this matter on the
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2

We have derived most of the facts recited herein from the

allegations of Pineda’s complaints and from the procedural

history of Pineda’s Adversary Proceeding, which is not subject to

legitimate dispute.

3

merits, so we will treat Pineda’s motion for leave to appeal as

if it were a notice of appeal from the Abstention Order. We

AFFIRM the bankruptcy court’s Abstention Order. Because we are

affirming the Abstention Order and because both of the bankruptcy

court’s dismissal orders were without prejudice, we do not reach

any substantive issues related to the dismissal orders.

FACTS2

A. The Loan and Pineda’s Bankruptcy Case

Pineda admits that, on or about August 13, 2002, in exchange

for the Loan, he executed a promissory note (“Note”) and a deed

of trust (“Trust Deed”) against his residence located in Sonora,

California (“Property”). Pineda does not dispute that he stopped

making payments on the Loan in 2008, or that foreclosure

proceedings were commenced against the Property in January 2010,

with the recording of a Notice of Default.

Pineda attributes his financial condition to a combination

of factors including acute health problems, which at times have

required hospitalization, and the national financial crisis,

which he in part blames on the defendants named in the Adversary

Proceeding.

Apparently in response to a scheduled foreclosure sale of

the Property, Pineda filed his chapter 7 bankruptcy case in May

2010. Gary Farrar was appointed to serve as chapter 7 trustee

(“Trustee”). On his Schedule C, property claimed as exempt,
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Pineda listed as an asset “Preparation of civil complaint against 

Bank of America et al for fraud, breach of contract, violations

of truth In Lending Act.” He did not list these claims on his

Schedule B of personal property, but his Statement of Financial

Affairs listed a pending lawsuit (“State Court Lawsuit”) he and

his wife had filed in Tuolumne County Superior Court against Bank

of America and ReconTrust to enjoin foreclosure, for declaratory

relief and for an accounting (case no. CV 55686).

In August 2010, the Trustee filed his final report

reflecting that there were no non-exempt assets of any value for

him to administer, liquidate or distribute. Later that same

year, in November 2010, Pineda filed an Amended Schedule B of

personal property which contained the following entry: “Civil

Lawsuit Against Bank of America, Goldman Sachs, Bank of New York

Mellon – Estimated value 1 - 10 million dollars.” He also listed

this same asset on his Amended Schedule C, but he did not list

there any exemption value or any asset value. Pineda never filed

proof of service reflecting any service of notice of his amended

schedules, but his form notice of amended schedules contained his

signed certification stating that he had given notice of the

filing of his schedule amendments to the Trustee and all other

interested parties.

The Trustee never amended his final report. Nor did he 

take any action related to the claims against Bank of America and

others until July 2011, when he signed off on a document entitled

“Stipulation to Abandon” (“Stipulation To Abandon”) which Pineda

apparently prepared. Among other things, the Trustee stated in

the Stipulation To Abandon that he was authorizing Pineda to
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The December 2010 stipulation further provided that,

because the State Court Lawsuit essentially concerned the same

(continued...)

5

prosecute all of the claims alleged in the Adversary Proceeding

and also that he was abandoning all rights that were the subject

of the Adversary Proceeding. After the Trustee signed off on the

Stipulation To Abandon, Pineda filed it in the Adversary

Proceeding.

B. Pineda’s Adversary Proceeding

Meanwhile, Pineda commenced the Adversary Proceeding in

August 2010. Over the next year, he went through three versions

of his complaint. The first one, filed when he commenced the

Adversary Proceeding, contained the following three claims for

relief: (1) for violation of the Federal Fair Debt Collection

Practices Act, Pub. L. No. 95-109, 91 Stat. 874 (1977) (codified

at 15 U.S.C. §§ 1692, et seq.) (“Fed. FDCPA”); (2) for a

determination of the validity of Bank of America’s claimed lien

against the Property; and (3) for fraud. Pineda conceded in his

original complaint that he owed an obligation to someone on

account of the Loan, but he asserted that, as a result of the

securitization of his Loan and/or because of certain payments

defendants allegedly received from the Troubled Asset Relief

Program, or “TARP,” none of the defendants continued to have any

right or entitlement to enforce the Note or the Trust Deed.

C. Pineda’s FAC

Pursuant to stipulations between the parties filed in

December 2010 and January 2011, Pineda filed his FAC in February

2011.3

 The FAC greatly elaborated on the defendants’ alleged
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3(...continued)

subject matter as the Adversary Proceeding, the parties agreed to

dismiss the State Court Lawsuit without prejudice. The

bankruptcy court’s December 24, 2010 order based on the December

2010 stipulation did not address this aspect of the parties’

stipulation. That order merely set deadlines for filing the FAC

and the response thereto and set a continued hearing date for the

initial status conference.

4

The bankruptcy court issued memoranda of decision in

conjunction with its dismissals of the FAC and the SAC. These

memoranda included detailed descriptions of both complaints and

their allegations. In light of our analysis and resolution of

this appeal, no purpose would be served by our including in this

decision a lengthy description of the allegations of either

complaint.

5

Pineda alleged within the four claims for relief that the

defendants had violated the following California and federal laws

among others: (1) the Truth in Lending Act, 15 U.S.C. §§ 1600, et

seq.; (2) Fed. FDCPA; (3) the Real Estate Settlement Procedures

Act, 12 U.S.C. § 2605(e); (4) California’s Unfair Competition

Law, Cal. Bus. & Profs. Code §§ 17200, et seq.; (5) Cal Civ. Code

§ 2924(a) (wrongful foreclosure); and (6) Cal. Civ. Code § 1709

(fraud and deceit).

6

misconduct.4 The FAC contains only four claims for relief, for

fraud, breach of contract, unjust enrichment and declaratory

relief. But within each claim for relief Pineda alleged that the

defendants violated a host of California and federal (nonbankruptcy) laws.5

 These violations allegedly occurred as a part

of the following activities: (1) when Bank of America originated

the loan; (2) when Bank of America or its wholly-owned subsidiary

Bank of America Corp. LP (jointly, “BOA”) collected Pineda’s Loan

payments; (3) when BOA purported to sell the Loan to Goldman

Sachs, Inc. and/or defendant Goldman Sachs Mortgage Securities

Corp. (jointly, “Goldman Sachs”); (4) when Goldman Sachs paid BOA

for originating and purporting to sell the Loan; (5) when Goldman
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Sachs formed Goldman Sachs’ Risk Mortgage Trust 2003-09

(“Trust”); (6) When Goldman Sachs aggregated the Loan with other

home loans to form a portfolio of loans that purportedly became

property of the Trust; (7) When Goldman Sachs sold fractional

interests in the Trust to third-party investors; (8) when BOA

refused to properly, accurately and/or timely respond to Pineda’s

requests for a loan modification, for an accounting, and for

other information regarding the Loan; and (9) when BOA and

ReconTrust Company commenced foreclosure proceedings under the

Trust Deed.

D. Dismissal of the FAC, and the Court’s Warnings Regarding

Standing and Abstention

All of the named defendants (collectively, “Defendants”)

filed a motion to dismiss the FAC, which the bankruptcy court

granted without prejudice and with leave to amend. On June 24,

2011, the bankruptcy court entered a memorandum decision and

order explaining in detail its reasoning for dismissing the FAC

(“FAC Dismissal Memorandum”). In the FAC Dismissal Memorandum,

the bankruptcy court initially pointed out that, even though the

FAC contained 28 pages and 131 paragraphs of allegations, it was

short on the specifics regarding who harmed Pineda and how he was

harmed. Instead, much of the FAC focused on how the alleged

conduct of Defendants and others involved in the secondary

mortgage market harmed those who invested in that market, caused

a nationwide financial crisis and precipitated a significant drop

in real estate values, including the value of Pineda’s Property. 

The bankruptcy court looked at each of Pineda’s four claims

for relief as well as many of the alleged violations of
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California and federal law and determined that Pineda had not

stated any plausible claims for relief. As to each claim and

alleged violation, the court held that Pineda had failed to

allege essential elements.

More importantly for our purposes, the bankruptcy court

discussed in the FAC Dismissal Memorandum Pineda’s apparent lack

of standing to prosecute the Adversary Proceeding and whether it

might be appropriate for the court to abstain under 28 U.S.C.

§ 1334(c)(1). With respect to standing, the court pointed out

that Pineda’s claims against the Defendants were property of the

estate under § 541(a) and that only the Trustee had standing to

prosecute the claims on behalf of the estate. The court noted

that, while Pineda had disclosed the existence of the claims on

his original Schedule C and his Amended Schedule B, the Trustee

had not taken any steps to formally abandon the claims or to

permit Pineda to pursue them on behalf of the estate. The court

stated that it would not rule on standing grounds at that point,

but it advised Pineda that he needed to take action to obtain

from the Trustee either formal abandonment of the claims or

authorization for Pineda to pursue them.

As for discretionary abstention under 28 U.S.C.

§ 1334(c)(1), the court opined that it was authorized to sua

sponte consider whether it should exercise its discretion to

abstain. The court noted that Pineda already had been granted

his chapter 7 discharge and that the Trustee already had issued a

no-asset report indicating that there were no assets to

administer on behalf of the estate. Consequently, the court

said, there did not appear to be any reason for the bankruptcy
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court to exercise jurisdiction over the Adversary Proceeding,

except as a remnant of Pineda’s completed chapter 7 case.

Accordingly, the court warned Pineda:

If the Plaintiff elects to file a second amended

complaint, he must be . . . prepared to address why

this court should not abstain from hearing this

adversary proceeding. No Bankruptcy Code issues appear

to remain in this case, nor any assets to be

administered by the trustee or the Plaintiff through

any plan.

FAC Dismissal Memorandum (Jun. 24, 2011) at 32.

In July 2011, just before he filed his SAC, Pineda attempted

to address the bankruptcy court’s standing concerns by obtaining

the Trustee’s signature on the Stipulation To Abandon and by

filing it in the Adversary Proceeding. But the bankruptcy court

never entered any order approving the Stipulation to Abandon or

authorizing the Trustee’s abandonment of Pineda’s claims against

the Defendants. Among other problems, there was no proof of

service indicating that either the Trustee or Pineda gave anyone

notice of the Trustee’s proposed abandonment of Pineda’s claims.

E. Pineda’s SAC

Pineda then filed his SAC. The SAC stated significantly

fewer allegations of general misconduct against the Defendants,

but many of the same themes from the FAC were still present. 

First, Pineda alleged that BOA as originator of the Loan lied to

Pineda about the source of funds it used to make the Loan and

later refused to disclose the true source of funds for the Loan.

Second, Pineda alleged that BOA twice purported to assign the

Loan creating uncertainty as to who owned the Loan. Third,

Pineda alleged that, as a result of BOA’s actions and a

succession of purported owners of the Loan and trustees of the
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Trust, uncertainty existed as to who was entitled to enforce the

Loan and who was entitled to act as their agent. And fourth,

Pineda alleged that BOA’s and ReconTrust’s Loan enforcement

activities, including their commencement of nonjudicial

foreclosure proceedings, were fraudulent, illegal and full of

inaccuracies and procedural errors.

Based on these allegations, the SAC contained the following

four claims for relief: (1) for declaratory relief; (2) for

foreclosure fraud; (3) for wrongful foreclosure; and (4) for

rescission of contract.

The SAC’s prayer for relief requested the following: (1) an

evidentiary hearing to determine the rights and obligations of

the parties; (2) a finding of foreclosure fraud giving rise to

punitive damages; (3) a finding of wrongful foreclosure;

(4) rescission of contract based on lack of consideration and

mutual assent; (5) a declaration that the Note effectively was

unsecured; (6) punitive damages; (7) a declaration that

Defendants had breached various agreements and had violated the

Real Estate Settlement Procedures Act and California’s Unfair

Competition Law; (8) a finding of fraudulent foreclosure against

BOA and ReconTrust; and (9) a finding the neither BOA nor

ReconTrust had authority under California law to commence

foreclosure proceedings against Pineda.

F. Dismissal of the SAC, and the Court’s Further Consideration

of Abstention

On September 26, 2011, the Defendants moved to dismiss the

SAC, and in December 2011, the bankruptcy court granted that

motion. On December 6, 2011, the bankruptcy court issued a
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memorandum decision and order explaining in detail its reasoning

for dismissing the SAC (“SAC Dismissal Memorandum”). In the SAC

Dismissal Memorandum, the bankruptcy court determined that Pineda

had failed to state any plausible claims for relief in his SAC. 

The court carefully evaluated each of the SAC’s claims for relief

and concluded that each claim for relief was missing allegations

of one or more essential elements.

More importantly, the court once again raised the issue of

discretionary abstention. The court noted that it previously had

raised the abstention issue in its earlier FAC Dismissal

Memorandum, that it had directed Pineda to address the abstention

issue if he filed an SAC, and that Pineda had not addressed the

abstention issue either in his SAC or in his opposition to the

Defendants’ dismissal motion. The court held that Pineda’s

Adversary Proceeding had nothing to do with his chapter 7

bankruptcy case, any of Pineda’s rights as a chapter 7 debtor, or

the administration of estate assets. The court further opined:

The Plaintiff fails to provide the court with any

substantial arguments as to why his litigation of state

and non-bankruptcy issues should be tried in this

specialized court rather than properly in either the

state court or district court, each being courts of

general jurisdiction. Though bankruptcy courts

regularly preside over matters arising under state law,

such is done to further the purposes of the Bankruptcy

Code and statutory scheme providing for debtors and

creditors enacted by Congress.

SAC Dismissal Memorandum (Dec. 6, 2011), at p. 22.

On the one hand, the bankruptcy court stated in the SAC

Dismissal Memorandum that “it is appropriate for the court to

abstain.” Id. On the other hand, the court stated that it would

issue an Order to Show Cause why the court should not abstain,
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thereby indicating a willingness to give Pineda one last chance

to address the issue and to attempt to persuade the court that

abstention was inappropriate.

Consistent with the SAC Dismissal Memorandum, the bankruptcy

court entered the Second Dismissal Order on December 6, 2011,

granting the Defendants’ motion to dismiss the SAC. That order

provided for: (1) the dismissal of the case without prejudice and

without leave to amend; and (2) the issuance of an order to show

cause why the court should not abstain under 28 U.S.C.

§ 1334(c)(1). In addition, the SAC Dismissal Order prohibited

Pineda from filing another amended complaint and from filing a

motion to amend pending the hearing on the order to show cause. 

G. Order to Show Cause re Abstention and Pineda’s Response

The bankruptcy court thereafter issued its order to show

cause why it should not abstain from hearing the Adversary

Proceeding, and Pineda filed a memorandum of points and

authorities explaining why he thought abstention was

inappropriate. Citing McDaniel v. ABN Amro Mortg. Group,

364 B.R. 644, 650 (S.D. Ohio 2007), Pineda stated that there were

thirteen factors the court should consider before abstaining

under 28 U.S.C. § 1334(c)(1). Pineda contended that all of the

McDaniel factors militated against abstention. We identify below

each of these factors and the reason (if any) Pineda gave why

each factor militated against abstention.

1. The effect or lack of effect on the efficient

administration of the estate if a court abstains

According to Pineda, his claims against the Defendants

impacted the bankruptcy estate because no notice was given to
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This argument is particularly ironic. The record reflects

that Pineda filed the Stipulation To Abandon on behalf of the

Trustee but did not file any proof of service along with that

stipulation. Pineda needed to establish his standing to

prosecute the Adversary Proceeding, but his argument against

abstention seriously undermines his efforts to establish his 

standing.

13

creditors or any other interested parties of the Trustee’s intent

to abandon as reflected in the Stipulation To Abandon.6

Pineda further asserted that his being subjected to

“financial double jeopardy” and the cloud on title to the

Property also impacted the estate, but he did not explain how the

estate was impacted. Nor was any impact on the estate evident. 

He already had received his chapter 7 discharge from his

prepetition liabilities and it was obvious the Trustee had no

intention of administering the Property or the Adversary

Proceeding claims.

Finally, Pineda mentions certain allegedly inconsistent

exhibits and declaration testimony presented by the Defendants in

the course of his litigation against them, but once again Pineda

did not in any way tie these concerns to the bankruptcy estate.

2. The extent to which state law issues predominate over

bankruptcy issues

Pineda did not identify a single bankruptcy claim or issue

from his SAC. Instead, Pineda in essence argued that the

Trustee’s failure to effectively abandon the Adversary Proceeding

claims meant that they technically still were property of the

estate. Thus, Pineda suggested that because the Adversary

Proceeding Claims were still estate property, those claims –

claims explicitly based on California and federal non-bankruptcy
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law – somehow became claims based on bankruptcy law for purposes

of this factor.

3. The difficulty or unsettled nature of the applicable

state law

According to Pineda, his complaint presented no difficult or

unsettled state law issues.

4. The presence of a related proceeding commenced in state

court or other non-bankruptcy court

According to Pineda, there no longer was any pending action

in state court. But he did not present anything to the

bankruptcy court demonstrating that the State Court Lawsuit

actually had been dismissed.

5. The jurisdictional basis, if any, other than 28 U.S.C.

§ 1334

Pineda did not really give any reason why this factor

militated against abstention. He merely reiterated his belief

that bankruptcy court jurisdiction was appropriate under

28 U.S.C. §§ 1334 and 157(b)(2)(K).

6. The degree of relatedness or remoteness of the

proceeding to the main bankruptcy case

Pineda argued that the Adversary Proceeding claims were

interrelated with the bankruptcy case because the claims would in

essence determine the issue of who was entitled to enforce the

Loan. But Pineda offered no explanation why that issue was of

any relevance to the bankruptcy case, when Pineda already had

been discharged and the Trustee obviously had no intention of

administering the Property which secured the Loan.
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7. The substance rather than form of an asserted core

proceeding

According to Pineda, the substance of the core proceeding 

would be the determination of who was entitled to enforce the

Loan. However, Pineda did not identify any genuine connection

between this purportedly core proceeding and his bankruptcy case.

8. The feasibility of severing state law claims from core

bankruptcy matters to allow judgments to be entered in state

court with enforcement left to the bankruptcy court

Pineda asserted that the purportedly core claims could not

be severed from his state law claims “because of the tainted

documents submitted by the defendants.” Pineda’s assertion is

incomprehensible, nonsensical, or both.

9. The burden on this court's docket

According to Pineda, while there might be some burden, the

bankruptcy court should take into account the fact that it

already was very familiar with his Adversary Proceeding, whereas

any state court presiding over the matter would be starting from

scratch. Pineda ignores the fact that, after over a year of

bankruptcy court litigation and after having filed three versions

of his complaint, his Adversary Proceeding had not gotten past

the pleading stage. Nor had discovery commenced. Even if the

bankruptcy court had been willing to give him another chance to

amend his complaint, the bankruptcy court litigation was still

very much just beginning.
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10. The likelihood that the commencement of the proceeding

in bankruptcy court involves forum shopping by one of the

parties.

Pineda claimed there was no indication of forum shopping on

his part. The bankruptcy court found otherwise, as we discuss

below.

11. The existence of a right to a jury trial

Pineda did not directly answer the question of whether any

of the parties to the Adversary Proceeding still might claim a

right to a jury trial. Instead, he merely stated that he had not

requested a jury trial.

12. The presence in the proceeding of non-debtor parties

Pineda did not directly address this factor either. He

merely stated that “[n]o issues of non-debtor parties is

presently a factor.” Pineda ignored the fact that all of the

Defendants were non-debtor parties, and that none of them had

filed proofs of claims or otherwise participated in his

bankruptcy case, except as parties to the adversary proceeding.

13. Any unusual or other significant factors

Pineda did not identify any unusual factors, but he did

claim that the court could authorize him to prosecute the

Adversary Proceeding on behalf of the estate as if he were

“debtor-in-possession.” This is simply wrong. There is no such

thing as a chapter 7 debtor in possession.

H. The Abstention Hearing and the Abstention Ruling

On February 22, 2012, the bankruptcy court held a hearing on

the Order to Show Cause during which the court engaged in a

lengthy colloquy with Pineda regarding the propriety of
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abstention. At the conclusion of the colloquy, the court ruled

that it was going to sustain its Order to Show Cause and that it

was going to abstain from hearing the Adversary Proceeding. 

The court’s reasoning supporting its abstention ruling is

set forth in a minute entry dated February 22, 2012 (“Abstention

Minute Entry”). In the Abstention Minute Entry, after

summarizing the procedural history of the bankruptcy case and the

contents of the SAC, the bankruptcy court noted once again that

the bankruptcy case was completed some time ago, when Pineda

received his discharge and when the trustee determined that there

were no assets worth administering on behalf of the estate. The

court acknowledged that the Trustee had not formally abandoned

the Adversary Proceeding claims, that the Stipulation to Abandon

was not effective to abandon them formally, and so the Adversary

Proceeding claims technically were still estate assets. But the

court found that, during the more than 21 months the bankruptcy

case had been open, neither the Trustee nor any creditors had

shown any interest in having the claims prosecuted on behalf of

and for the benefit of the estate. Hence, the court reasoned, it

was clear that the Adversary Proceeding claims would be

prosecuted, if at all, by Pineda for his own personal benefit. 

Citing Christensen v. Tucson Estates, Inc. (In re Tucson Estates,

Inc.), 912 F.2d 1162, 1167 (9th Cir.1990), the bankruptcy court

stated that the Ninth Circuit had adopted factors to guide the

abstention analysis identical to the abstention factors Pineda

had drawn from McDaniel. Set forth below is a summary of the

court’s consideration of each of these factors.
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1. The effect or lack thereof on the efficient

administration of the estate if a Court recommends

abstention

The bankruptcy court pointed out that, by filing his no

asset report and by signing off on the Stipulation to Abandon,

the Trustee had indicated many months before that he was finished

administering the bankruptcy estate. Consequently, the

prosecution of the Adversary Proceeding claims would have no

bearing on estate administration regardless of where and whether

Pineda prosecuted the claims for his own benefit.

2. The extent to which state law issues predominate over

bankruptcy issues

According to the bankruptcy court, the SAC raised no

bankruptcy law issues. Moreover, the bankruptcy court found, the

Adversary Proceeding would not affect the estate in any way.

3. The difficulty or unsettled nature of the applicable law

The bankruptcy court agreed with Pineda that California law

governing foreclosure procedures is generally well settled. 

However, the court pointed out that Pineda’s SAC did not limit

itself to an attack on the foreclosure procedures utilized by BOA

and ReconTrust. Rather, Pineda attempted to assert in the SAC

relatively novel legal theories purportedly entitling him to

invalidate lien rights if the Defendants (1) failed to accurately

disclose to him the source of funds for his Loan or

(2) transferred the rights under the Loan to a mortgage loan

securitization trust.
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4. The presence of a related proceeding commenced in state

court or other nonbankruptcy court

The bankruptcy court noted that, even if the State Court

Lawsuit no longer was pending, there was no bar to Pineda

commencing a new action in state court.

5. The jurisdictional basis, if any, other than 28 U.S.C.

§ 1334

The bankruptcy court noted that Pineda had not posited any

basis for federal court jurisdiction other than 28 U.S.C. § 1334.

6. The degree of relatedness or remoteness of the

proceeding to the main bankruptcy case 

The bankruptcy court found that there was no connection

between the Adversary Proceeding and Pineda’s bankruptcy case. 

As the bankruptcy court put it, the Trustee had demonstrated that

he had no intention of either prosecuting the Adversary

Proceeding claims or otherwise administering them for the benefit

of the estate. The court also mentioned that Pineda was not

seeking to reorganize in a chapter 11 or rehabilitate in a

chapter 13.

7. The substance rather than form of an asserted “core”

proceeding

The bankruptcy court ruled that none of the Adversary

Proceeding claims constituted a core proceeding. According to

the bankruptcy court, the Adversary Proceeding was a “related-to”

matter in which all of the claims were based on non-bankruptcy

law and were based on events that arose prior to and/or

independent of Pineda’s bankruptcy case.
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In this regard, Pineda’s comments at the February 22, 2012

abstention hearing seemed to confirm the court’s forum shopping

suspicions, as follows:

MR. PINEDA: But I think it's morally wrong, your

Honor, to allow the bank to basically --

THE COURT: Then go to court that properly has

jurisdiction to exercise the State Court's -- Superior

Court[s] have general jurisdiction where you can raise

it. If you have a federal -- 

MR. PINEDA: They've already taken judicial notice of

the bogus assignment. I'm going to go in there dead on

(continued...)

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8. The feasibility of severing state law claims from core

bankruptcy matters to allow judgments to be entered in state

court with enforcement left to the bankruptcy court

According to the bankruptcy court, Pineda had not stated any

core bankruptcy claims to sever.

9. The burden on [the bankruptcy court's] docket

The court stated that its docket was significantly impacted

and that, with all of the matters it had genuinely arising under

Title 11, arising in cases under Title 11, or in related-to

matters actually impacting the bankruptcy case, it was in no

position to hear the Adversary Proceeding.

10. The likelihood that the commencement of the proceeding

in bankruptcy court involves forum shopping by one of the

parties

The bankruptcy court found that Pineda was seeking to forum

shop based on two grounds: (1) the advantages of the automatic

stay, and (2) an apparent belief that he was less likely to

prevail if he prosecuted his claims in state court.7
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(...continued)

arrival.

Hr’g Tr. (Feb 22, 2012) at 16:6-14.

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11. The existence of a right to a jury trial

The bankruptcy court acknowledged that the Defendants had

not filed an answer yet, so it was unknown whether they would

claim a right to a jury trial. But the bankruptcy court pointed

out that the claims were the type for which jury trial rights

exist.

12. The presence in the proceeding of nondebtor parties

Curiously, the court stated that the Adversary Proceeding

only involved Pineda and BOA. The bankruptcy court did not

mention the other Defendants or the fact that none of the

Defendants had filed a proof of claim or otherwise participated

in Pineda’s bankruptcy case, except as defendants in the

Adversary Proceeding.

Separate and apart from the Tucson factors, the bankruptcy

court also noted the conundrum Pineda faced regarding standing. 

As the court put it, the Adversary Proceeding claims technically

were still estate property and apparently would remain estate

property until the bankruptcy case was closed. As such, Pineda

still lacked standing to prosecute the claims. While Pineda

could have attempted to cure his lack of standing by taking

additional steps towards formal abandonment of the claims, this

only would have served to further undermine any lingering

technical connection between the claims and his bankruptcy case.

At the conclusion of its abstention analysis, the bankruptcy
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court stated:

For this bankruptcy court to continue with the

litigation would have it make a determination on new,

uncharted state law theories, invalidate notes and 

deeds of trust, terminate rights in real property, and

award actual and punitive damages to [Pineda], all of

which has no impact on the bankruptcy estate. To do so

disregards the California Superior Courts as the state

court of general jurisdiction to address those issues,

and intrudes bankruptcy jurisdiction when it has no

impact on the bankruptcy case.

Abstention Minute Entry (Feb. 22, 2012) at p. 6.

On February 27, 2012, the bankruptcy court entered its

Abstention Order. In addition to abstaining from hearing the

Adversary Proceeding pursuant to 28 U.S.C. § 1334(c)(1), the

court also directed the clerk of court to close the adversary

proceeding and prohibited Pineda from filing any further

complaints or motions seeking relief from the bankruptcy court. 

I. Pineda’s Filing of a Notice of Appeal and a Motion for Leave

to Appeal

On December 20, 2011, Pineda timely filed a notice of appeal

from the December 6, 2011 Second Dismissal Order. Pineda did not

file either a new notice of appeal or an amended notice of appeal

after the court entered the Abstention Order. But in response to

an order from this Panel issued on February 16, 2012, questioning

the finality of the Second Dismissal Order, Pineda filed on

March 7, 2012, a motion for leave to appeal. We discuss below

the implications of these filings on our jurisdiction.

JURISDICTION

Generally speaking, we have jurisdiction to review final

bankruptcy court orders and judgments under 28 U.S.C. § 158, and

the bankruptcy court’s jurisdiction is based on 28 U.S.C. § 1334. 
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We further address our jurisdiction and the bankruptcy court’s

jurisdiction in the discussion section of this decision. 

ISSUES

1. Do we have jurisdiction to review the Abstention Order?

2. Did the bankruptcy court abuse its discretion by abstaining

from hearing the Adversary Proceeding under 28 U.S.C.

§ 1334(c)(1)?

3. Do any of Pineda’s arguments on appeal justify reversal? 

STANDARDS OF REVIEW

We must raise sua sponte issues regarding our appellate

jurisdiction, and we review those issues de novo. See Belli v.

Temkin (In re Belli), 268 B.R. 851, 853-54 (9th Cir. BAP 2001).

We review the bankruptcy court's Abstention Order for an

abuse of discretion. In re Bankr. Petition Preparers who are not

Certified Pursuant to Requirements of Ariz. Sup. Ct.,

307 B.R. 134, 140 (9th Cir. BAP 2004). Under the abuse of

discretion standard of review, 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). And if the

bankruptcy court identified the correct legal rule, we then

determine under the clearly erroneous standard whether its

factual findings and its application of the facts to the relevant

law were: "(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).
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DISCUSSION

A. Appellate Jurisdiction

As mentioned above, Pineda timely filed a notice of appeal

from the Second Dismissal Order on December 20, 2011. However,

the Second Dismissal Order was not a final order because it did

not fully and finally dispose of the Adversary Proceeding. The 

Second Dismissal Order explicitly left open for future

determination the issue of abstention, and the bankruptcy court

clearly anticipated further proceedings on the abstention issue

at the time it entered the Second Dismissal Order. Consequently,

the Second Dismissal Order was interlocutory – not final –

because it did not manifest the court’s intent to be its final

act in the matter. See Brown v. Wilshire Credit Corp.

(In re Brown), 484 F.3d 1116, 1120 (9th Cir. 2007); Mullen v.

Hamlin (In re Hamlin), 465 B.R. 863, 868 (9th Cir. BAP 2012).

We generally lack jurisdiction to hear appeals from

interlocutory orders unless we grant leave to appeal. See

Giesbrecht v. Fitzgerald (In re Giesbrecht), 429 B.R. 682, 687

(9th Cir. BAP 2010). On February 16, 2012, the Panel issued an

order advising Pineda of the finality defect and directing him

either to file a motion for leave to appeal or to take other

action to establish that the Panel had jurisdiction over his

appeal. In response, Pineda filed both a motion for leave to

appeal and a responsive brief explaining why he believed the

Second Dismissal Order was a final order. He filed these

documents with the Panel on March 6, 2012, and in the adversary

proceeding on March 7, 2012.

In relevant part, the leave motion references the bankruptcy
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court’s abstention ruling and “respectfully requests this

Honorable Panel grant leave to appeal” the abstention ruling. 

After reviewing Pineda’s response, our motions panel issued an

order deeming the finality defect satisfied as a result of the

bankruptcy court’s entry of the Abstention Order on February 27,

2012.

The entry of the Abstention Order “cured” the finality

defect associated with Pineda’s appeal of the Second Dismissal

Order. See Parks v. Drummond (In re Parks), 475 B.R. 703, 706

(9th Cir. BAP 2012); see also Rains v. Finn (In re Rains),

428 F.3d 893, 901 (9th Cir 2005); Cato v. Fresno City, 220 F.3d

1073, 1074-75 (9th Cir. 2000); Dannenberg v. Software Toolworks,

Inc., 16 F.3d 1073, 1075 (9th Cir. 1994).

Nonetheless, even if the entry of the Abstention Order

effectively gave us jurisdiction to review the Second Dismissal

Order, our review of that order would be moot unless Pineda also

appealed the Abstention Order. In other words, unless we also

have jurisdiction over the Abstention Order, there is no way we

could provide any meaningful relief with respect to any rulings

in the Second Dismissal Order. See, e.g., In re Parks, 475 B.R.

at 706; Omoto v. Ruggera (In re Omoto), 85 B.R. 98, 99–100 (9th

Cir. BAP 1988). 

In order to appeal the Abstention Order, Pineda should have

filed pursuant to Rules 8001 and 8002 either a new notice of

appeal or an amended notice of appeal within the time limits

specified in Rule 8002. In the absence of either, our

jurisdiction would be limited to reviewing the Second Dismissal

Order. See, e.g., United Computer Sys., Inc. v. AT & T Corp.,
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8

Rule 8001(a) states in relevant part:

The notice of appeal shall (1) conform substantially to

the appropriate Official Form, (2) contain the names of

all parties to the judgment, order, or decree appealed

from and the names, addresses, and telephone numbers of

their respective attorneys, and (3) be accompanied by

the prescribed fee.

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298 F3d 756, 761 (9th Cir. 2002) (limiting review to timely

appealed judgment); Pacific Employers Ins. Co. v. Domino's Pizza,

Inc., 144 F3d 1270, 1278 (9th Cir. 1998)(same); see generally

Rule 8002(b)(4) (“A party intending to challenge an alteration or

amendment of the judgment, order, or decree shall file a notice,

or an amended notice, of appeal within the time prescribed by

this Rule 8002 measured from the entry of the order disposing of

the last such motion outstanding.”).

On the other hand, before the expiration of the time to

appeal the Abstention Order, Pineda filed his motion for leave to

appeal. The leave motion explicitly requested that the Panel

grant Pineda permission to appeal the Abstention Order. While

not formally entitled a notice of appeal, there is little doubt

that Pineda expressed an intent to appeal the Abstention Order. 

And while his leave motion did not satisfy all of the

requirements for a notice of appeal under Rule 8001(a),8

 that

rule does not indicate that those requirements necessarily apply

to an amended notice of appeal.

In light of the above circumstances, the liberal

construction given to notices of appeal, and the general policy

favoring decisions on the merits, we will construe Pineda’s leave

motion as an amended notice of appeal seeking review of the
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9We note that the appellants in Smith and Brannan were pro

se litigants. We also note that Pineda, while nominally a pro se

litigant, was formerly an attorney. It is questionable whether

the liberality afforded to pro ses without formal legal training

should be extended to Pineda, who obviously had such training and

who obviously knew how to file a notice of appeal. In the final

analysis, however, these concerns are not sufficient to cause us

to depart from our conclusion that we have jurisdiction to review

the Abstention Order.

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Abstention Order. See, e.g., Smith v. Barry, 502 U.S. 244,

248-50 (1992) (construing pro se’s appellate brief as a potential

notice of appeal); Brannan v. U.S., 993 F.2d 709 (9th Cir. 1993)

(construing pro se’s letter challenging district court order as a

notice of appeal).9 Even though Pineda intended the leave motion

to serve as a request for leave to appeal under Rule 8003(a),

this does not mean that the leave motion could not also serve as

an amended notice of appeal for purposes of Rules 8001 and 8002. 

See Smith, 502 U.S. at 249.

Accordingly, we will proceed to examine the merits of the

Abstention Order.

B. Review of Abstention Order

 By way of district court referral, bankruptcy courts have

original but not exclusive jurisdiction over all civil

proceedings arising under title 11, or arising in or related to

cases under title 11. See 28 U.S.C. § 1334(b); 28 U.S.C.

§ 157(a). A proceeding “arises under” title 11 if its asserts a

right to relief created by the Bankruptcy Code. See Cal.

Franchise Tax Bd. v. Wilshire Courtyard (In re Wilshire

Courtyard), 459 B.R. 416, 424 (9th Cir. BAP 2011). A proceeding

“arises in” a case under title 11 if it is an administrative
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10Rule 5011(b) at one time prohibited bankruptcy courts from

entering final abstention orders, but that Rule was amended in

1991 explicitly for the purpose of ending that prohibition. See

Advisory Committee Notes Accompanying Rule 5011. In addition,

courts have held that bankruptcy courts have authority to enter

(continued...)

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matter that only could occur in a bankruptcy case and would have

no existence outside of bankruptcy. See id.; Krasnoff v.

Marshack (In re General Carriers Corp.), 258 B.R. 181, 189 (9th

Cir. BAP 2001). Meanwhile, a proceeding typically is considered

“related to” a case under title 11 proceeding if it potentially

will have some impact on the bankruptcy case or the bankruptcy

estate, but it does not invoke a right to relief created by the

Bankruptcy Code and could exist outside of bankruptcy. Id.

In an effort to define which types of proceedings

non-Article-III bankruptcy judges could hear and determine by

final judgment, Congress created a non-exhaustive list of

so-called “core” proceedings. See 28 U.S.C. § 157(b)(2); see

also Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins.

Agency, Inc.), 702 F.3d 553, 565 (9th Cir. 2012).

Notwithstanding the broad jurisdictional grant afforded to

bankruptcy courts under 28 U.S.C. §§ 1334(b) and 157(a), Congress

also has given bankruptcy courts discretionary authority to

abstain from hearing certain matters:

. . . nothing in this section prevents a district court

in the interest of justice, or in the interest of

comity with State courts or respect for State law, from

abstaining from hearing a particular proceeding arising

under title 11 or arising in or related to a case under

title 11.

28 U.S.C. § 1334(c)(1).10 
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10(...continued)

final orders for discretionary abstention under 28 U.S.C.

§ 1334(c)(1), even in non-core proceedings. See Holtzclaw v.

State Farm Fire and Casualty Co. (In re Holtzclaw), 131 B.R. 162,

164 (E.D. Cal. 1991) (citing cases). In any event, by not

objecting to the bankruptcy court entering a final decision and

by all of his other conduct before the bankruptcy court and on

appeal, Pineda has forfeited any objection he otherwise might

have made to the bankruptcy court’s entry of a final abstention

order. See In re Bellingham Ins. Agency, Inc., 702 F.3d at

566-70.

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Here, the bankruptcy court considered Pineda’s SAC, the

relevant circumstances from Pineda’s bankruptcy case and the

permissive abstention factors recited in In re Tucson Estates,

Inc., 912 F.2d at 1167. It thereafter concluded that it would

abstain under 28 U.S.C. § 1334(c)(1).

It bears repeating at this point that, under the abuse of

discretion standard of review, if the bankruptcy court identified

the correct legal rule to apply, we only will overturn its

decision if its factual findings or its application of facts to

the law were “illogical, implausible or without support in

inferences that may be drawn from facts in the record.” Hinkson,

585 F.3d at 1262. 

In this case, the bankruptcy court applied the correct law. 

It considered, among other factors, the Tucson Estates factors.

We already have gone over in detail both Pineda’s assessment of

these factors and the bankruptcy court’s assessment of these

factors. It suffices for us to say here that we disagree with

most of Pineda’s assessment and that we agree with substantially

all of the bankruptcy court’s assessment. We certainly do not

see anything in the bankruptcy court’s assessment that is
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illogical, implausible or without support in the record. Nor

does anything in Pineda’s opening appeal brief persuade us

otherwise, as we explain below. 

Furthermore, we also agree with the bankruptcy court’s

overarching assessment that the Adversary Proceeding would not

have any impact on either the bankruptcy estate or the bankruptcy

case, given that Pineda already had received his discharge and

given that the Trustee had clearly demonstrated that he had no

interest in administering either the Property or the Adversary

Proceeding claims on behalf of and for the benefit of the estate.

In short, we see no reversible error in the bankruptcy

court’s abstention ruling.

C. Pineda’s Arguments on Appeal

In addition to Pineda’s differing assessment of the Tucson

Estates factors, which we addressed above, Pineda’s opening

appeal brief makes four other arguments why we should reverse the

bankruptcy court’s abstention order. We will address each of

these arguments in turn.

1. 28 U.S.C. § 157(b)(2)(K)

First, Pineda has argued on appeal that the bankruptcy court

erred in entering the Abstention Order because the bankruptcy

court did not acknowledge that his Adversary Proceeding in part

sought a determination of the validity of liens against the

Property. Consequently, Pineda argues, the Adversary Proceeding

was a core proceeding under 28 U.S.C. § 157(b)(2)(K), so the

bankruptcy court should not have abstained.

But Pineda’s reliance on the nominally core nature of his

lien validity claim is misplaced. Section 1334(c)(1) and the
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Tucson Estates factors permit discretionary abstention even when

the litigation includes core as well as non-core claims. Indeed,

one of the Tucson Estates factors called upon the bankruptcy

court to assess the substance rather than the form of any

asserted “core” claim.

Here, as reflected in the record, the bankruptcy court was

well aware that, technically, all of the Adversary Proceeding

claims and the Property were still property of the estate, so the

lien validity claim at least nominally would qualify as a

28 U.S.C. § 157(b)(2)(K) core proceeding. But the court also

considered the fact that neither the Property nor the Adversary

Proceeding claims were going to have any impact on either the

bankruptcy case or the bankruptcy estate because the bankruptcy

case essentially was completed. Pineda already had received his

chapter 7 discharge, and the Trustee had made it clear that he

had no intention of administering the Property, the Adversary

Proceeding claims or any other estate assets. Consequently, the

bankruptcy court found that there was no substance to Pineda’s

so-called core claim. We cannot say that this finding was

illogical, implausible or without support in the record.

2. Violation of Stay

Second, Pineda has argued on appeal that the bankruptcy

court erred in entering the Abstention Order because he has a

claim against the Defendants pursuant to § 362(k) for violation

of the automatic stay. According to Pineda, sometime in early

2011, the Defendants rescheduled a foreclosure sale on the

Property for March 15, 2011. Pineda now asserts that he is

entitled to damages under § 362(k) because the automatic stay in
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his bankruptcy case was still in effect.

Assuming without deciding that Pineda has a claim for relief

under § 362(k), this argument still fails. None of Pineda’s

complaints ever attempted to state a claim for relief under

§ 362(k). Nor did Pineda mention this prospective claim in his

response to the order to show cause re abstention. Nor did he

mention it at the abstention hearing. Simply put, Pineda did not

present his prospective § 362(k) claim to the bankruptcy court

for consideration, so we will not consider it here on appeal.

We typically will not consider issues raised for the first

time on appeal when the bankruptcy court had no opportunity to

consider them. See United Student Aid Funds, Inc. v. Espinosa,

559 U.S. 260, ___ n.9, 130 S.Ct. 1367, 1376 n.9 (2010) ("We need

not settle that question, however, because the parties did not

raise it in the courts below."); Scovis v. Henrichsen

(In re Scovis), 249 F.3d 975, 984 (9th Cir. 2001) (holding that

court would not consider issue raised for the first time on

appeal absent exceptional circumstances). Nor will we consider

facts and documents not before the bankruptcy court. See Oyama

v. Sheehan (In re Sheehan), 253 F.3d 507, 512 n.5 (9th Cir.

2001); Kirschner v. Uniden Corp. of Am., 842 F.2d 1074, 1077–78

(9th Cir. 1988). As stated by the Ninth Circuit in Kirschner,

“‘We are here concerned only with the record before the trial

judge when his decision was made.’” Kirschner, 842 F.2d at 1077

(quoting United States v. Walker, 601 F.2d 1051, 1055 (9th Cir.

1979)).

Pineda contends that exceptional circumstances justify our

consideration of his prospective § 362(k) claim in the first
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instance. But we are unpersuaded that there are any

circumstances, exceptional or otherwise, that would justify our

consideration of this claim. To the contrary, all of the

relevant circumstances militate against such consideration. 

Pineda has admitted that he knew of the alleged stay violation in

or around March 2011. Even though he filed his SAC in August

2011, he did not include in the SAC his prospective § 362(k)

claim. He also did not request leave to further amend his

complaint to add that claim after he filed the SAC.

We acknowledge that, in December 2011, when the bankruptcy

court issued the Second Dismissal Order, the court prohibited

Pineda from thereafter filing another amended complaint or from

requesting leave to do so, at least until the court heard the

order to show cause re abstention. But Pineda has not explained 

why he could not have amended his complaint to add that claim

before December 2011, especially when he has admitted to knowing

of the alleged stay violation in or around March 2011. Even

after December 2011, by way of the order to show cause re

abstention, the bankruptcy court directed Pineda to file a

responsive brief explaining all reasons why he thought abstention

was inappropriate. Pineda could have mentioned his prospective

§ 362(k) claim in that brief, or at least at the abstention

hearing, but he did not do so. Accordingly, we will not consider

the prospective § 362(k) claim as potential grounds for reversal

of the Abstention Order.

3. Bias/Due Process 

Third, Pineda has argued on appeal that the court was biased

against him, and as a result of that bias he was denied due
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process. As a threshold matter, we note that Pineda is emphatic

he is not arguing that the bankruptcy judge had a duty to recuse

himself. In his reply brief on appeal, Pineda states:

Appellees [sic] counsels’ argument of Appellant’s

request for recusal is . . . misplaced. Appellant’s

issue of violation of a fair hearing has been

misconstrued by Appellees [sic] counsel as a request

for recusal.

Aplt Reply Br. (Jun. 18, 2012) at p. 4 (emphasis added). Pineda

also states:

The Honorable Ronald H. Sargis [sic] decisions have

been favorable to both sides. Appellant’s claims of

violation of due process right to fair hearing involves

Appellee’s submission of false declaration and

intentional violation of [§] 362.

Id. at n.2.

Consequently, Pineda has waived any recusal argument he

otherwise could have made on appeal. See Burnett v. Resurgent

Capital Servs. (In re Burnett), 435 F.3d 971, 975-76 (9th Cir.

2006); Golden v. Chicago Title Ins. Co. (In re Choo), 273 B.R.

608, 613 (9th Cir. BAP 2002).

As for Pineda’s due process claim, due process requires

reasonable notice and a meaningful opportunity to be heard. See

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950); see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

("The fundamental requirement of due process is the opportunity

to be heard at a meaningful time and in a meaningful manner.");

Berry v. U.S. Trustee (In re Sustaita), 438 B.R. 198, 210 (9th

Cir. BAP 2010), aff'd, 460 Fed. Appx. 627 (9th Cir. 2011) ("prior

to sanctioning a party, the court must provide the party to be

sanctioned with particularized notice to comport with due

process.")
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Here, Pineda had an abundance of notice and opportunity to

be heard on the abstention issue. The bankruptcy court raised

the abstention issue several times, including but not limited to

in the FAC Dismissal Memorandum, in the SAC Dismissal Memorandum

and in the order to show cause re abstention. Each time, the

bankruptcy court asked Pineda to explain why abstention was

inappropriate. The bankruptcy court also held hearings on the

FAC, on the SAC and on the order to show cause re abstention

during which Pineda had the opportunity to orally argue the

abstention issue. In sum, Pineda had months of notice and a

number of hearings to address the abstention issue. This is well

beyond the level of notice and opportunity for hearing that due

process required.

While not entirely clear, Pineda apparently contends that

the bankruptcy judge’s alleged bias rendered the notice and

hearings meaningless. We disagree. Pineda has not pointed us to

anything in the record that would lead us to conclude that the

judge was biased against Pineda. Pineda primarily points to two

events that he contends establish bias. One of these was the

court’s statement at a hearing as follows: 

Here's the other question I had for the two of you.

This is still sitting in a Chapter 7, probably getting

close to a dismissal date, but there was a request for

a TRO.

Is the automatic stay not in effect in this case? Or

do you just say, Judge, I know the case will close and

the automatic stay is going to go away, so I just want

to go ahead and give you a heads up and let's get

started on the injunction.

Hr’g Tr. (April 6, 2011) at 55:12-20.

According to Pineda, the bankruptcy court demonstrated its
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bias because it was offering potential excuses for the

Defendants’ alleged stay violation. We disagree. In part, the

hearing was held to address Pineda’s request for a temporary

restraining order to prevent a foreclosure on the Property. The

only logical construction of the court’s statement, taken in

context, is that the court was perplexed why Pineda needed a

restraining order when the automatic stay ordinarily should have

been in effect and normally would have barred foreclosure

proceedings against the Property. If anything, the comment

helped Pineda because it suggested to Pineda another potential

ground for challenging the Defendants’ actions: a potential

action for violation of the automatic stay.

In any event, the court had legitimate grounds for inquiring

regarding the status of the automatic stay. If the stay was

still in effect, Pineda had no immediate need for a temporary

restraining order.

Pineda further contends that the bankruptcy court also

demonstrated its bias because it never enforced Rule 7007.1,

which in relevant part requires any party who is a corporation to

file a disclosure statement identifying any corporation that owns

10% or more of its stock. But a procedural omission of this

nature simply does not amount to a showing of bias by itself. If

Pineda had filed a motion requesting any sort of relief based on

the Defendants’ noncompliance with Rule 7007.1, and if the

bankruptcy court had denied that relief, the bankruptcy court’s

affirmative refusal to enforce Rule 7007.1 might have raised some

legitimate concerns. But Pineda has not pointed us to anything

in the record reflecting that the court affirmatively refused to
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11Pineda also argues that, because the bankruptcy court did

not enforce Rule 7007.1 sua sponte, that failure by itself is

reversible error. For the same reason we rejected above Pineda’s

bias argument based on Rule 7007.1, we also reject his reversible

error argument based on Rule 7007.1.

12For instance, on page 23 of his opening appeal brief,

Pineda stated: “The court's order prohibiting Appellant the right

to pursue relief for Appellees [sic] intentional violation of

11 U.S.C. § 362(a) constitutes an abuse of discretion and also

error, as a matter of law.”

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enforce Rule 7007.1. Nor have we ourselves found anything in the

record along these lines. As a result, we do not perceive any

conduct which demonstrates bias.11

4. Prohibition Against Future Filings

Finally, while Pineda did not devote any significant portion

of his appellate briefing to the issue, Pineda does complain in

passing about the provision in the bankruptcy court’s Abstention

Order prohibiting him from filing any further complaints or

motions seeking relief from the bankruptcy court.12 While the

bankruptcy court’s prohibition seems broad in isolation, we hold

that it must be construed in the context in which it was made and

limited on that basis. We construe this prohibition as only

applying to the Adversary Proceeding and the Adversary Proceeding

claims. Given that limited construction of the prohibition and

given our holding that the bankruptcy court properly abstained

from hearing the Adversary Proceeding claims, we hold that the

bankruptcy court did not commit reversible error by including the

prohibition in its Abstention Order.
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13On August 9, 2012, Pineda filed in the BAP Clerk’s Office

a request to supplement the record. That request might be more

properly characterized as a notice of supplemental authorities. 

Regardless of how we characterize it, we hereby DENY that

request. The supplemental authority cited in the request is

irrelevant to both the arguments in Pineda’s opening brief and to

our analysis and disposition of this appeal.

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CONCLUSION

For the reasons set forth above, we AFFIRM.13