NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

DANIELA M. FARINA, 

 Debtor.

BAP No. NC-22-1233-SCF*

Bk. No. 22-10021

Adv. No. 22-01004

MEMORANDUM**

DANIELA M. FARINA,

 Appellant, 

v.

JANINA M. HOSKINS, Chapter 7 

Trustee, 

Appellee.

Appeal from the United States Bankruptcy Court

for the Northern District of California 

Roger L. Efremsky, Bankruptcy Judge, Presiding

Before: SPRAKER, CORBIT, and FARIS, Bankruptcy Judges.

* This appeal was concurrently heard with two others: (1) Farina v. Hoskins (In re 

Farina), BAP No. NC-22-1232-FSC (9th Cir. BAP argued July 28, 2023); and (2) Farina v. 

Hoskins (In re Farina), BAP No. NC-22-1235-CFS (9th Cir. BAP argued July 28, 2023). 

These companion appeals will be the subject of their own separate written decisions. In 

addition, this Panel recently heard and decided another appeal prosecuted by Farina, 

which also is the subject of its own written decision. See Farina v. Hoskins (In re Farina), 

BAP No. NC-22-1071-TBF, 2022 WL 17484959 (9th Cir. BAP Dec. 7, 2022). 

** This disposition is not appropriate for publication. Although it may be cited for 

whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential 

value, see 9th Cir. BAP Rule 8024-1. 

FILED

AUG 11 2023

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
2

INTRODUCTION

The bankruptcy court entered summary judgment denying debtor 

Daniela M. Farina a discharge in her chapter 71 bankruptcy case under 

§ 727(a)(6)(A). The court held that that debtor willfully and intentionally 

refused to obey the bankruptcy court’s order to immediately vacate a 

residential property on First Avenue in Napa, California (“Property”). As a 

result of Farina’s refusal, the chapter 7 trustee Janina M. Hoskins was 

unable to obtain exclusive possession and control of the Property until the 

United States Marshals Service secured the premises for the estate.

None of Farina’s arguments on appeal justify reversal. Accordingly,

we AFFIRM.

FACTS2

A. The vacancy of the Property prior to Farina’s bankruptcy filing.

Farina co-owned the Property with her former business partner and 

boyfriend, Victor Alam. Farina and Alam were parties in a prepetition state 

court lawsuit in the Napa County Superior Court in which a receiver was 

appointed. According to the receiver, Farina had “occupied” the Property 

from July 31, 2021, until sometime prior to November 17, 2021. But on 

1 Unless specified otherwise, all chapter and section references are to the 

Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules 

of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of 

Civil Procedure.

2 We exercise our discretion to take judicial notice of documents electronically 

filed in the underlying bankruptcy case and adversary proceeding. See Atwood v. Chase 

Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
3

November 17, 2021, the receiver’s representative inspected the Property

and found that no one was living there. According to the receiver’s 

representative, there was “almost a complete absence of furniture 

throughout the house, no cooking utensils in the kitchen, no dry goods, 

only a few items in the refrigerator, numerous partially-emptied liquor 

bottles on kitchen countertops, and only a minimal number of personal 

items, which largely appeared to be business related.” By comparing what 

was in the house during his November 2021 inspection with MLS listing 

photos from May 2020, the receiver’s representative further concluded that 

a number of appliances, lighting fixtures, and the home’s thermostat had 

been removed, thereby rendering the Property “uninhabitable.”

The receiver’s representative also set up a video camera in December 

2021 to monitor the Property. According to the receiver’s representative, 

the footage from the camera showed that Farina occasionally would visit 

the Property but was not living there. During these visits, Farina never 

took any steps suggesting that she was resuming occupancy, such as 

refurnishing the premises.

B. Farina files bankruptcy and lists the Property as her residence, but 

the Property remains empty and vacant.

In her bankruptcy petition filed on January 18, 2022, Farina identified 

the Property as where she lived. However, one week before her chapter 7 

filing, Farina filed a motion in a pending state court lawsuit to transfer 

venue from the Napa County Superior Court, where the action was filed, to 
4

the Circuit Court of San Mateo County. In support of this motion, Farina 

specifically claimed that both she and the defendant resided in San Mateo 

County.

Hoskins inspected the Property on March 3, 2022. She stated that it 

was largely in the same condition as the receiver found in his November 

2021 inspection. As Hoskins remarked in a later declaration, “[a]s of March 

3, 2022, other than boxes and moving items in the garage, the house was 

empty. There were no furnishings, personal belongings, or other effects 

that you would expect to see when a person resides at a house.” Hoskins 

attached photos she took during her March 3, 2022 inspection to 

substantiate her remarks.

C. Farina’s occupancy of the Property and Hoskins’ recovery of 

possession.

On March 4, 2022, the day after Hoskins’ inspection, one of the real 

estate brokers Hoskins had retained to market and sell the Property visited 

the Property. He and his associate discovered that sometime after Hoskins’ 

March 3, 2022 inspection, Debtor and her father, Claudio Nicolosi, had 

occupied the Property. As a result, Hoskins’ representatives were unable to 

secure the Property for the estate or to commence their marketing 

preparations.

Hoskins quickly took steps to recover possession of the Property 

from Farina and anyone else staying there. On March 7, 2022, Hoskins 

sought an order for judgment of possession (“Order of Possession”) and a 
5

writ of assistance on an ex parte basis. The bankruptcy court granted the 

motion and entered the Order of Possession the same day. The Order of 

Possession provided that “any action to assert possession over the 

Property, by anyone other than the Trustee, is a violation of the automatic 

stay. . . .” The Order of Possession also required anyone occupying the 

Property to “immediately vacate the Property upon the posting of this 

Order to the exterior of the Property.”

To facilitate enforcement of the Order of Possession, the bankruptcy 

court issued its March 8, 2022 writ of assistance, which directed the U.S. 

Marshals Service (“USMS”) to assist Hoskins in recovering exclusive 

possession of the Property. Among other things, the writ of assistance 

directed USMS to “secure the Property while the Trustee and/or her agents 

change the locks . . . at the Property. . . .” Hoskins caused the writ of 

assistance, which included the Order of Possession, to be posted on the 

Property on March 10, 2022, and mailed to Farina.

The day Hoskins posted the Order of Possession and writ of 

assistance, Farina moved to stay the Order of Possession. In her motion,

she admitted receipt of both the writ of assistance and the accompanying 

Order of Possession. Farina stated that her minor children and elderly 

parents lived in the house as their primary residence. She also stated that 

she suffered from a visual disability, that the Property was equipped to 

accommodate her disability, and that moving into a new place would be 
6

dangerous for her.

3

The next day, on March 11, 2022, Hoskins filed an ex parte contempt 

motion because the occupants had not vacated the Property after posting of 

the Order of Possession and the writ of assistance. Hoskins pointed to 

multiple inconsistencies between Farina’s statements in her stay motion, 

Farina’s statements in other court filings, and facts that were established 

from other sources. According to Hoskins, the evident falsity of Farina’s 

representations in support of her stay motion demonstrated the 

contumacious nature of her refusal to immediately vacate the Property.4

A few days later, on March 14, 2022, the court held a hearing on 

several pending matters, which were largely unrelated to possession of the 

Property. Farina appeared and argued at this hearing. The court also 

briefly addressed Hoskins’ contempt motion but declined to rule on it. The 

court opined that if the Napa County Sheriff enforced Hoskins’ right to 

possession, finding Farina in contempt would not be needed. Counsel for 

the trustee then represented that Hoskins and her representatives were

having trouble getting the Sheriff’s assistance in enforcing Hoskins’ right to 

possession. The court suggested that counsel could prepare a new order 

3 There does not appear to be any order on the stay motion. Hoskins later 

represented that this attempt to stay the Order of Possession “did not succeed.” Farina 

has not disputed this point, and the court’s subsequent rulings are consistent with an 

implicit denial of the stay motion.

4 On March 13, 2022, Farina appealed the Order of Possession. But the BAP later 

dismissed this appeal for lack of prosecution on November 8, 2022. See Farina v. Hoskins 

(In re Farina), BAP No. NC-22-1058 (9th Cir. BAP dismissed Nov. 8, 2022).
7

specifically directing the Sheriff to execute the order for possession. In 

furtherance of that suggestion, on that same day, the court entered an 

amended Order of Possession and a new writ of assistance specifically 

directing the Sheriff to assist Hoskins in securing exclusive possession of 

the Property.

Before Hoskins could obtain the assistance of the Sheriff, she

recovered exclusive possession on March 24, 2022, when the USMS posted 

the original writ of assistance on the Property (for a second time) and 

waited while Hoskins caused the locks on the Property to be changed.

D. Hoskins files the adversary proceeding to deny Farina’s discharge.

On April 15, 2022, Hoskins filed a complaint objecting to Farina 

receiving a discharge under § 727(a)(2), (4), and (6). The only claim relevant 

to this appeal is her claim under § 727(a)(6). She alleged that Farina refused 

to obey the Order of Possession by not immediately vacating the Property 

upon her receipt of the order when it was posted on March 10, 2022. In her 

pro se answer, Farina generally denied the complaint’s allegations.

In June 2022, Hoskins moved for partial summary judgment. The 

motion only sought summary judgment on the claim under § 727(a)(6). 

Hoskins argued that the following facts were undisputed and 

demonstrated that Farina intentionally and willfully refused to vacate the 

Property after entry of the Order of Possession and the original writ of 

assistance:

• She falsely claimed in her stay motion that her minor children were 
8

living with her at the Property.

• She also falsely claimed that both of her elderly parents lived with 

her at the Property, and that removing her mother from the Property 

might kill her because she was suffering from grave illness.

• She also falsely claimed that the Property was specially outfitted for 

her visual impairment disability. 

Farina opposed the summary judgment motion on July 24, 2022. She 

contended that she never authorized anyone to file the underlying

bankruptcy case on her behalf. She further maintained: (1) there was never 

a prior determination that she had no right to possession; (2) the 

bankruptcy court had not previously found her in contempt or ruled that 

she had violated the automatic stay; (3) she needed more time and 

opportunity to retain counsel and to be heard in the adversary proceeding

(she did not explain why she needed additional time, or why counsel who 

was representing her in the main case was not representing her in the 

adversary proceeding); (4) Hoskins’ assertion that she “has not been in her 

home [the Property] . . . since November 2021” was inaccurate; (5) it was 

Alam who removed his share of the furniture in 2020, and she removed the 

remainder in October 2021 due to flooding; and (6) her absence from the 

Property was due to a combination of factors—holiday vacationing, caring 

for her sick mother in another county, and being locked out by the state 

court receiver.

More pertinent to the § 727(a)(6) claim, Farina argued that Hoskins’ 
9

proof of service of the Order of Possession and the original writ of 

assistance was insufficient to demonstrate that she was properly served.

But Farina ignored the fact that in her March 10, 2022 motion for stay, she 

admitted receiving these documents. In fact, she had attached copies of 

them to her motion.

Farina made only one other relevant argument. She asserted that 

Hoskins failed to present sufficient evidence to establish that her alleged 

violation of the Order of Possession was something other than 

“inadvertence, mistake, or inability to comply.” As she reasoned, 

“[c]onstruing the evidence in the light most favorable to Debtor, there is [a]

reasonable basis from which the finder of fact could conclude that Debtor’s 

failure to comply with the order was inadvertent, by mistake, or that she 

had an inability to comply.” Farina made no attempt to specifically explain 

how her conduct after receipt of the Order of Possession qualified as 

mistake or inadvertence. Nor did she specifically allege or explain that she 

was unable to comply with the Order of Possession. Moreover, she failed to 

submit any declaration or other evidence in support of her arguments.

The bankruptcy court held a hearing on the summary judgment 

motion. Farina did not appear. The court concluded that Hoskins had 

presented sufficient evidence to carry her summary judgment burden to 

establish that Farina’s failure to immediately comply with the Order of 

Possession was willful and intentional. It noted that Farina had not 

presented any controverting evidence and rejected all of Farina’s 
10

arguments as irrelevant or factually unsupported.

Hoskins voluntarily dismissed her claims for relief other than her 

§ 727(a)(6) claim. The court then entered judgment on the § 727(a)(6) claim.

Farina timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 

157(b)(2)(J). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Whether the bankruptcy court committed reversible error when it 

granted summary judgment on Hoskins’ § 727(a)(6) claim for relief.

STANDARD OF REVIEW

We review summary judgments de novo. Italiane v. Jeffrey Catanzarite 

Family Ltd. P’ship (In re Italiane), 632 B.R. 662, 670 (9th Cir. BAP 2021), aff'd, 

2022 WL 17412881 (9th Cir. Dec. 5, 2022). When we review a matter de 

novo, we give no deference to the bankruptcy court’s decision. Francis v. 

Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).

DISCUSSION

A. Summary judgment standards.

Under Civil Rule 56(a), made applicable in adversary proceedings by 

Rule 7056, summary judgment should be granted when “there is no 

genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” A factual issue is genuine when there is 

sufficient evidence for a reasonable trier of fact to find in favor of the 
11

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);

Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001). And an issue 

is material when it could affect the outcome of the case under the 

controlling substantive law. Anderson, 477 U.S. at 248; Far Out Prods., Inc.,

247 F.3d at 992.

The moving party bears the initial burden of demonstrating an 

absence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57. If 

the movant meets this burden by presenting sufficient uncontroverted facts

to demonstrate its entitlement to relief, the burden then shifts to the 

responding party to establish that there is a specific and genuine issue of 

material fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 n.3 (1986); 

Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 707 (9th Cir. 2008). 

The nonmovant “may not rely on denials in the pleadings but must 

produce specific evidence, through affidavits or admissible discovery 

material, to show that the dispute exists.” In re Barboza, 545 F.3d at 707 

(quoting Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991)). 

“Even in cases where elusive concepts such as motive or intent are at issue, 

summary judgment may be appropriate if the non-moving party rests 

merely upon conclusory allegations, improbable inferences, and 

unsupported speculation.” Gertsch v. Johnson & Johnson, Fin. Corp. (In re 

Gertsch), 237 B.R. 160, 165 (9th Cir. BAP 1999) (quoting Medina–Munoz v. 

R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).

In deciding whether a genuine factual issue exists, the court must 
12

draw all reasonable inferences in favor of the non-moving party. Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). But the court 

only is required to do so when the responding party contradicts otherwise 

undisputed facts with specific evidence submitted in opposition to the 

motion. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990). In other 

words, if a motion for summary judgment is adequately supported and the 

responding party does not come forward with specific evidence showing a 

genuine factual issue for trial, summary judgment should be granted. See

id.

B. Analysis.

We begin by identifying the limited scope of Farina’s arguments on 

appeal. Farina contends that Hoskins failed to prove that she acted 

willfully or intentionally in violating the Order of Possession. She 

maintains that there is a genuine dispute whether her conduct from March

10, 2022, until Hoskins recovered exclusive possession of the Property on 

March 24, 2022, was something more than a mistake, inadvertence, or an 

inability to comply.

Section 727(a)(6)(A) provides in relevant part that the bankruptcy

court must grant a discharge unless “the debtor has refused, in the case . . .

to obey any lawful order of the court. . . .” A failure or refusal to comply 

with a bankruptcy court order is only actionable under § 727(a)(6)(A) when 

the debtors: “(1) were aware of the order and (2) willfully or intentionally 

refused to obey the order (i.e., something more than a mere failure to obey 
13

the order through inadvertence, mistake or inability to comply).” Ebuehi v.

U.S. Tr. (In re Ebuehi), 2022 WL 703911, at *7 (9th Cir. BAP Mar. 8, 2022)

(quoting Vaughan v. Weinstein (In re Vaughan), 2016 WL 878308, at *7 (9th 

Cir. BAP Feb. 29, 2016)); see also Schwarzkopf v. Goodrich (In re Michaels), 2009 

WL 7809926, at *5 (9th Cir. BAP Feb. 27, 2009) (applying same standard in 

revocation of discharge action).

Farina has abandoned any attempt to claim that she was unaware of 

the Order of Possession. She obviously knew of the order when she filed 

her motion seeking to stay that order on March 10, 2022.

As for willfulness, Hoskins presented evidence in support of the 

motion for summary judgment to demonstrate that Farina knowingly 

relied on demonstrably false statements as part of her effort to stay the 

Order of Possession. Hoskins referenced the declaration from the father of 

Farina’s children to establish that they lived with him in Florida and not 

with Farina as she had stated. As to Farina’s ill mother, which Farina also 

raised, Hoskins noted that counsel for Farina later admitted that Farina had 

not resided in the home during the holidays in late 2021 or immediately 

thereafter because, ”debtor stayed with her mother who is battling stage 

four cancer in San Mateo County.” (Emphasis added.) Finally, Hoskins 

noted that the vacant nature of the Property wholly belied Farina’s 

statement that it had been specially equipped for a visual disability. Rather, 

the photos of the Property previously submitted demonstrated that there 

were no special modifications made to the Property. Hoskins’ evidence 
14

sufficiently established that Farina willfully and intentionally chose not to 

comply with the Order of Possession but rather sought to remain in 

possession of the Property under false pretenses.

In her opposition to the motion for summary judgment, Farina never 

disputed these specific facts raised by Hoskins. Indeed, she did not address 

them at all. Rather, she simply stated that Hoskins had not proven that she 

willfully or intentionally refused to comply with the Order of Possession. 

Farina did not submit or reference any declarations, affidavits, or other 

evidence to support her opposition. She, therefore, failed to provide any 

specific facts to establish a genuine dispute existed as to Hoskins’ assertion

that her failure to immediately vacate the Property was willful and 

intentional. See Civil Rule 56(c)(1); Far Out Prods., Inc., 247 F.3d at 997. She 

never even offered any explanation why she was unable to immediately 

comply with the Order of Possession. She thus failed to meet her summary 

judgment burden to demonstrate the existence of a genuine factual dispute 

that needed to be tried. See, e.g., Sfadia v. Dongkuk Int'l, Inc. (In re Sfadia), 

2007 WL 7540987, at *13 (9th Cir. BAP Sept. 5, 2007); Stasz v. Gonzales (In re 

Stasz), 2007 WL 7370101 (9th Cir. BAP Aug. 9, 2007), appeal dismissed, 348 F. 

App’x 234 (9th Cir. 2009).

In sum, the Order of Possession required Farina to immediately 

vacate the Property. Farina was aware of the Order of Possession and her 

obligation to vacate the day it was posted. She failed to comply, as Hoskins 

did not recover exclusive possession of the Property until March 24, 2022.
15

Hoskins produced evidence that Farina knowingly sought to avoid her 

obligation to immediately vacate the Property on false grounds, thereby 

meeting her burden to prove that Farina willfully or intentionally failed to 

comply with the Order of Possession. Because Farina failed to controvert 

Hoskins’ evidence, there was no genuine dispute that Farina willfully and 

intentionally failed to immediately vacate the Property. Thus, Hoskins was 

entitled to summary judgment, and the bankruptcy court did not commit 

reversible error by granting summary judgment on Hoskins’ § 727(a)(6) 

claim.

CONCLUSION

For the reasons set forth above, we AFFIRM.