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FILED

MAR 21 2017

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-16-1185-FCTa

)

MARISELA DANGCIL, ) Bk. No. 8:10-bk-15994-TA

)

Debtor. )

_____________________________ )

)

MARISELA DANGCIL, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

JPMORGAN CHASE BANK, N.A., )

)

Appellee. )

______________________________)

Submitted Without Argument

on February 23, 2017**

Filed – March 21, 2017

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Theodor C. Albert, Bankruptcy Judge, Presiding

 

Appearances: Appellant Marisela Dangcil, pro se, on brief; John

M. Sorich of PIB Law on brief for Appellee

JPMorgan Chase Bank, N.A.

 

* 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.

** By order entered on January 9, 2017, a motions panel

determined that this appeal was suitable for submission on the

briefs and record without oral argument pursuant to Federal Rule

of Bankruptcy Procedure 8019.
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Before: FARIS, CLEMENT,*** and TAYLOR, Bankruptcy Judges.

INTRODUCTION

Debtor Marisela Dangcil appeals from the bankruptcy court’s

order granting creditor JPMorgan Chase Bank, N.A.’s (“Chase”)

motion for relief from the automatic stay under §§ 362(d)(1), (2)

and (4).1 The court correctly determined that Chase lacked

adequate protection under § 362(d)(1) and, to that extent, we

AFFIRM. But to the extent the court granted the motion under

§ 362(d)(4), we REVERSE the order.

FACTUAL BACKGROUND

A. Prepetition events

Ms. Dangcil and her then-romantic partner, Victor Chavez,

purchased a residential property in Brea, California (“Property”)

in March 2006. Ms. Dangcil and Mr. Chavez both executed the deed

of trust in favor of Countrywide Home Loans, Inc.

(“Countrywide”), but only Mr. Chavez obtained a mortgage loan and

executed the promissory note and associated documents. The

original principal amount of the loan was $841,790.

In April 2006, Mr. Chavez conveyed the Property to

Ms. Dangcil in her capacity as trustee for a family trust.

At some point thereafter, Chase acquired the promissory note

*** The Honorable Fredrick E. Clement, United States

Bankruptcy Judge for the Eastern District of California, sitting

by designation.

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.

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and deed of trust.2 

Ms. Dangcil and Mr. Chavez jointly made the mortgage loan

payments. Sometime prior to November 2010, Ms. Dangcil or

Mr. Chavez3 sought to refinance the mortgage loan on the

Property. Ms. Dangcil claimed that she reached an agreement with

Chase to refinance the mortgage loan; however, Chase denied that

the parties ever entered into a loan modification agreement. 

There is no signed loan modification agreement in the record.4

Ms. Dangcil and Mr. Chavez ended their romantic relationship

in December 2010. Mr. Chavez claimed that Ms. Dangcil and her

family forced him off the Property in March 2011.

B. Ms. Dangcil’s bankruptcy cases

Ms. Dangcil filed a chapter 13 petition in May 2010. She

listed $968,688.63 in liabilities and $694,000 in assets. She

failed to include the Property in her bankruptcy schedules or

statement of financial affairs. 

The inclusion of $1.1 million of debt related to the

2 On or around May 9, 2013, Countrywide assigned the deed of

trust to Chase. The record does not reflect when Chase acquired

the promissory note and associated documents.

3 Although the loan modification documents were addressed to

Mr. Chavez, he claimed that he did not request or desire a loan

modification for the Property. He said that his signature was

forged on certain documents concerning Ms. Dangcil’s attempts to

modify the mortgage loan. Ms. Dangcil says that, as an ex-lover

of hers, Mr. Chavez is an unreliable witness.

4 A January 2011 unexecuted loan modification agreement

provided that the current unpaid principal balance was

$906,369.59. With the addition of interest, escrow, and other

fees, the adjusted unpaid principal balance was to be

$1,085,936.12. A November 2010 unexecuted loan modification

agreement similarly provided for a new balance of $1,081,622.15.

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Property made her ineligible for chapter 13 relief, so she sought

to convert her case to one under chapter 11. The bankruptcy

court granted her motion to convert. During the chapter 11

proceedings, Ms. Dangcil once again claimed that the Property was

owned by a family trust. 

In August 2011, Ms. Dangcil filed a motion to dismiss her

case. The court denied the motion and instead converted her case

to one under chapter 7.

On May 30, 2014, the chapter 7 trustee filed a notice of his

intention to abandon the Property. He said that there was no

realizable equity in the Property for the benefit of the estate. 

The trustee filed his final report on January 27, 2015, which

assigned the Property an estimated net value of $0.

C. Motion for relief from stay

On March 30, 2016, Chase filed its motion for relief from

the automatic stay (“Motion”). It sought relief under

§ 362(d)(1) because its interest in the Property was not

adequately protected and the bankruptcy case was filed in bad

faith; under § 362(d)(2)(A) because Ms. Dangcil had no equity in

the Property and the Property was not necessary to an effective

reorganization; and under § 362(d)(4) because the bankruptcy

filing was a part of a scheme to delay, hinder, or defraud

creditors.

Chase represented that its claim totaled $1,286,606.10,

which included $906,369.59 in principal, $268,862.61 in interest,

and $111,373.90 in advances. It also stated that Ms. Dangcil had

not made the past ninety-four payments over eight years for a

total arrearage of $488,660.46. It estimated that, based on a

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Zillow.com internet valuation, the fair market value of the

Property was $531,018. As such, it asserted that the “equity

cushion” in the Property was $0 and that Ms. Dangcil’s equity in

the Property was also $0.

As to the § 362(d)(4) claim, Chase attached the declaration

of Mr. Chavez and stated that he (the borrower) did not apply for

a loan modification and did not desire a loan modification. 

Chase had received a loan modification application on behalf of

Mr. Chavez, but Mr. Chavez said that he did not sign or agree to

the documents.

 At the hearing on the Motion, the bankruptcy court stated

that “[t]his is not decided on the merits but on burdens of

proof.” It said that Chase had failed to carry its burden,

because the Zillow.com valuation was not admissible evidence.

Ms. Dangcil argued that Chase had agreed to modify the

mortgage loan agreement. However, the court said it was not

concerned with the purported loan modification but was only

focused on whether there was equity in the Property for the

estate. The court also asked Ms. Dangcil whether she had

segregated any mortgage payments that she had not made over the

past eight years; she answered that she had not.

Following the hearing, Chase filed supplemental evidence in

support of the Motion. It submitted two valuations of the

Property: $760,000 (according to a Residential Broker Price

Opinion) and $892,000 (according to the Orange County TreasurerTax Collector).

The bankruptcy court held a second hearing on the Motion. 

Referencing Chase’s supplemental evidence, the court told

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Ms. Dangcil that the Property was overencumbered and that she had

not made mortgage payments in a long time. Ms. Dangcil insisted,

“I requested them to refinance the property, to give me a

modification and they have not. So I don’t have any defense at

all.” The court summarily granted the Motion.

In its June 14, 2016 order (“Order”), the court checked the

boxes indicating that it granted the Motion under §§ 362(d)(1),

(2) and (4). However, it did not check any of the boxes to

specify the basis for granting the Motion under § 362(d)(4).

Ms. Dangcil timely appealed the Order.

JURISDICTION

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

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

§ 158.

ISSUES

(1) Whether the bankruptcy court denied Ms. Dangcil due

process.

(2) Whether the bankruptcy court erred in granting Chase

relief from the automatic stay. 

STANDARDS OF REVIEW

“Whether an appellant’s due process rights were violated is

a question of law we review de novo.” DeLuca v. Seare

(In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014) (citation

omitted); see HSBC Bank USA, Nat’l Ass’n v. Blendheim

(In re Blendheim), 803 F.3d 477, 497 (9th Cir. 2015) (“Whether

adequate notice has been given for the purposes of due process is

a mixed question of law and fact that we review de novo.”).

We review for an abuse of discretion the bankruptcy court’s

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decision to grant relief from the automatic stay under § 362(d). 

Kronemyer v. Am. Contractors Indem. Co. (In re Kronemyer),

405 B.R. 915, 919 (9th Cir. BAP 2009) (citation omitted). 

Additionally, “[w]e review de novo contentions that present an

issue of law regarding stay relief.” Id.

“De novo review requires that we consider a matter anew, as

if no decision had been made previously.” Francis v. Wallace

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

omitted).

We apply a two-part test to determine whether the bankruptcy

court abused its discretion. United States v. Hinkson, 585 F.3d

1247, 1261–62 (9th Cir. 2009) (en banc). First, we consider de

novo whether the bankruptcy court applied the correct legal

standard to the relief requested. Id. Then, we review the

bankruptcy court’s factual findings for clear error. Id. at

1262. We must affirm the bankruptcy court’s factual findings

unless we conclude that they are illogical, implausible, or

without support in inferences that may be drawn from the facts in

the record. Id.

DISCUSSION

A. We will consider Ms. Dangcil’s appeal despite her deficient

briefs and excerpts of record.

Chase requests that we strike Ms. Dangcil’s opening brief

and dismiss this appeal because her excerpts of record and brief

do not comply with the applicable rules.

Chase’s points are well taken. Ms. Dangcil’s excerpts of

record include only six documents, at least two of which do not

appear to have been presented to the bankruptcy court. She fails

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to provide a complete record on appeal and did not include the

transcripts of the hearings until the BAP clerk’s office told her

to do so. Moreover, she does not provide citations to the record

supporting many of her arguments; additionally, she does not cite

any legal authority for her arguments regarding § 362(d).

Nevertheless, while many aspects of Ms. Dangcil’s appellate

briefs and record are deficient, Ms. Dangcil is proceeding pro se

in this appeal, so we will construe her arguments liberally. See

Kashani v. Fulton (In re Kashani), 190 B.R. 875, 883 (9th Cir.

BAP 1995). We will also review the excerpts of record provided

by Chase and will exercise our discretion to review the

bankruptcy court’s docket. See Woods & Erickson, LLP v. Leonard

(In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008). 

However, we will not consider evidence and argument not

first presented to the bankruptcy court, including Ms. Dangcil’s

Exhibits D and E. See Oyama v. Sheehan (In re Sheehan), 253 F.3d

507, 512 n.5 (9th Cir. 2001) (“Evidence that was not before the

lower court will not generally be considered on appeal”);

Kirschner v. Uniden Corp. of Am., 842 F.2d 1074, 1077–78 (9th

Cir. 1988) (papers not filed or admitted into evidence by trial

court prior to judgment on appeal were not part of the record on

appeal and thus stricken). 

B. Despite Chase’s failure to serve Ms. Dangcil properly, the

bankruptcy court did not deny Ms. Dangcil due process.

Ms. Dangcil contends that the court denied her due process

because Chase failed to serve her with its Motion and

supplemental valuation, and, as a result, she was not able to

adequately respond to Chase’s arguments. Although we agree that

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Chase repeatedly ignored the applicable service rules, we

disagree that the court denied her due process.

Generally speaking, a party must receive sufficient notice

of any adverse action and the opportunity to be heard. See

Tennant v. Rojas (In re Tennant), 318 B.R. 860, 870 (9th Cir. BAP

2004). According to the United States Supreme Court: 

An elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the

pendency of the action and to afford them an

opportunity to present their objections. The notice

must be of such nature as reasonably to convey the

required information . . . and it must afford a

reasonable time for those interested to make their

appearance.

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)

(citations omitted).

Section 362(d) provides that, “[o]n request of a party in

interest and after notice and a hearing, the court shall grant

relief from the stay” in certain circumstances. Section 102(1)

defines the phrase “after notice and a hearing”: 

(1) “after notice and a hearing”, or a similar phrase -

(A) means after such notice as is appropriate in

the particular circumstances, and such opportunity

for a hearing as is appropriate in the particular

circumstances; but

(B) authorizes an act without an actual hearing if

such notice is given properly and if -

(i) such a hearing is not requested timely by

a party in interest; or

(ii) there is insufficient time for a hearing

to be commenced before such act must be done,

and the court authorizes such act[.]

“[T]he concept of notice and a hearing is flexible and

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depends on what is appropriate in the particular circumstance.” 

In re Tennant, 318 B.R. at 870 (citing Great Pac. Money Markets,

Inc. v. Krueger (In re Krueger), 88 B.R. 238, 241 (9th Cir. BAP

1988)).

Ms. Dangcil argues that because Chase did not serve her with

the Motion or supplemental valuation, the Order was a “default”

in Chase’s favor. She argues that, had Chase done its duty to

perform title history searches,5 it would have known that she was

on title to the Property and should have been served with the

Motion under Civil Rule 4(e)(2)(A).6

We agree that Chase did not properly serve the Motion on

Ms. Dangcil. 

Local Bankruptcy Rule 4001-1(c)(1)(C)(i) requires service of

a motion for relief from stay on both the debtor and her

attorney. Chase does not deny that it failed to serve

Ms. Dangcil with the Motion, reply, and supplemental valuation. 

The various proofs of service confirm that Ms. Dangcil, who at

the time was proceeding pro se, did not directly receive copies

of those documents. Rather, it appears that Chase sent those

documents only to attorneys who had previously represented

5 She claims that a title insurer may be held liable for the

damages it causes by breaching its duty to examine title history

records. There is no indication in the record that Chase is a

title insurer.

6 Ms. Dangcil selectively references service under Civil

Rule 4(e)(2)(A), which provides that service may be accomplished

by “delivering a copy of the summons and of the complaint to the

individual personally[.]” But in a bankruptcy case, Rule 7004(b)

provides that service may be made by first class mail postage

prepaid to an individual’s home or business.

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Ms. Dangcil or who represented her only for a limited purpose. 

Chase’s task was not unreasonably difficult: it did not need to

serve her personally. But it utterly failed to even mail her a

copy of its filings. Particularly when dealing with a pro se

litigant, a party should ensure that the pro se litigant has

notice of its legal actions. Chase failed in this respect.

Nevertheless, we find no reversible error. 

First, Ms. Dangcil did not raise the due process issue

before the bankruptcy court or otherwise object to the notice or

hearing afforded by the court. As such, she has waived this

issue. See Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 543

(9th Cir. 2016) (“[g]enerally, an appellate court will not hear

an issue raised for the first time on appeal”); Ezra v. Seror

(In re Ezra), 537 B.R. 924, 932 (9th Cir. BAP 2015) (“Ordinarily,

federal appellate courts will not consider issues not properly

raised in the trial courts.”). A debtor’s failure to raise due

process challenges before the bankruptcy court waives such claims

on appeal. See Zamos v. Zamos (In re Zamos), 300 F. App’x 451,

452 (9th Cir. 2008) (“Jerome has waived his contention that his

due process rights were violated by Patricia’s delay in bringing

suit to collect delinquent support payments, as he did not raise

it below.”).

Ms. Dangcil says that she raised this argument in her

opposition to the Motion. She admits that she did not “check the

box for lack of service[,]” but claims that she “was representing

herself and may not have understood she needed to make the

argument. Or, perhaps, it was simply a clerical error and [she]

just missed checking the appropriate form box.” In addition to

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this equivocal argument, she argues that she raised this issue

before the bankruptcy court because Chase argued in its reply

that her opposition was untimely. But she admitted that she

actually received the Motion and never told the court that she

was not afforded notice or the opportunity to be heard. In other

words, she failed to present the due process argument to the

bankruptcy court, and we will not consider it for the first time

on appeal.

Second, despite Chase’s failure to serve Ms. Dangcil, she

had actual notice of the Motion, responded to the Motion in

detail, and appeared and argued at both hearings. Ms. Dangcil

claimed that she received the Motion five days after it was

filed, which was twenty-two days before the hearing. Despite the

delay, she had adequate notice. She also had ample opportunity

to present her arguments and be heard, and she availed herself of

that opportunity. Thus, Ms. Dangcil was not deprived of either

notice or an opportunity to be heard.

Third, even in cases where a bankruptcy court errs by

failing to provide adequate notice and hearing, the debtor must

show prejudice from the procedural deficiencies. See Rosson v.

Fitzgerald (In re Rosson), 545 F.3d 764, 776-77 (9th Cir. 2008)

(“Because there is no reason to think that, given appropriate

notice and a hearing, Rosson would have said anything that could

have made a difference, Rosson was not prejudiced by any

procedural deficiency.”). In Rosson, the Ninth Circuit held that

the debtor was deprived of a meaningful opportunity to be heard;

nevertheless, because he could “show no prejudice arising from

the defective process afforded him[,]” the bankruptcy court

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properly converted the case to chapter 7. Id. (citations

omitted); see City Equities Anaheim, Ltd. v. Lincoln Plaza Dev.

Co. (In re City Equities Anaheim, Ltd.), 22 F.3d 954, 959 (9th

Cir. 1994) (rejecting a due process claim for lack of prejudice

where debtor could not show that different or additional

arguments would have been presented if the bankruptcy court had

timely approved petition for new counsel).

Ms. Dangcil fails to explain what more she would have said

if she had received timely service of the Motion and supplemental

appraisal. Her inability to give us any persuasive, substantive

argument against the Order on appeal proves that she could not

have made any such argument before the bankruptcy court even if

she had been given more notice. We fail to see how Ms. Dangcil

“would have said anything that could have made a difference.” 

See In re Rosson, 545 F.3d at 777.

Therefore, although Chase neglected to serve Ms. Dangcil

with any of the relevant filings, the bankruptcy court did not

deprive Ms. Dangcil of due process.

C. The bankruptcy court did not abuse its discretion in

granting Chase relief from the automatic stay.

1. The court correctly granted stay relief “for cause.”

Ms. Dangcil argues that she had ample equity in the Property

and that Chase was adequately protected. She also argues that

the Property would have had an ample equity cushion if Chase had

not dishonored a loan modification agreement. We disagree on

both counts.

Sections 362(d) provides, in relevant part:

(d) On request of a party in interest and after notice

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and a hearing, the court shall grant relief from the

stay provided under subsection (a) of this section,

such as by terminating, annulling, modifying, or

conditioning such stay -

(1) for cause, including the lack of adequate

protection of an interest in property of such

party in interest;

(2) with respect to a stay of an act against

property under subsection (a) of this section,

if -

(A) the debtor does not have an equity in

such property; and

(B) such property is not necessary to an

effective reorganization[.]

§§ 362(d)(1), (2).

Section 362(d)(1) allows the bankruptcy court to grant a

creditor relief from the automatic stay “for cause.” “Because

there is no clear definition of what constitutes ‘cause,’

discretionary relief from the stay must be determined on a case

by case basis.” MacDonald v. MacDonald (In re MacDonald),

755 F.2d 715, 717 (9th Cir. 1985). The lack of adequate

protection is one of many types of “cause” warranting relief

under § 362(d)(1). Ellis v. Parr (In re Ellis), 60 B.R. 432, 435

(9th Cir. BAP 1985). 

“[T]he party seeking relief must first establish a prima

facie case that ‘cause’ exists for relief under § 362(d)(1). 

Once a prima facie case has been established, the burden shifts

to the debtor to show that relief from the stay is unwarranted. 

If the movant fails to meet its initial burden to demonstrate

cause, relief from the automatic stay should be denied.” 

Lapierre v. Advanced Med. Spa Inc. (In re Advanced Med. Spa

Inc.), No. BAP EC-16-1087, 2016 WL 6958130, at *4 (9th Cir. BAP

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Nov. 28, 2016); see § 362(g) (the party requesting relief has the

burden of proof regarding equity in the property, but the party

opposing relief has the burden of proof on all other issues). 

In the present case, the bankruptcy court held that, due to

lack of equity in the Property, Chase was not adequately

protected. Ms. Dangcil argues on appeal that there was

sufficient equity in the Property to protect Chase. She

calculated the amount of equity by subtracting the original

principal loan amount of $841,790 from Chase’s valuation. She

claims that she had as much as $50,000 in equity, which is at

least 5.6 percent of the value of the Property. 

Ms. Dangcil did not tell the bankruptcy court that she had

equity in the Property or that Chase was adequately protected.7

Rather, she only argued that Chase did not meet its burden

regarding the valuation and that Chase had agreed to a loan

modification. We will not consider arguments that she did not

raise below. See Yamada, 825 F.3d at 543; Ezra, 537 B.R. at 932. 

Nevertheless, even if we address the substance of her argument,

she is simply wrong.

Ms. Dangcil’s argument rests on the assertion that Chase’s

7 Ms. Dangcil concedes that she did not raise these

arguments below but instead argues that she could not have made

these arguments to the bankruptcy court because Chase did not

provide the valuation until after the initial hearing and “she

did not have a real chance to respond in writing or object to

Appellee’s valuation argument in the trial court.” Although

Chase does not deny that it failed to serve Ms. Dangcil with the

supplemental valuation, she had an opportunity to challenge the

valuation and argue that she had equity in the Property at the

second hearing but failed to do so. She also could have sought

reconsideration by the bankruptcy court but neglected to do so.

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loan balance was $841,790. This is the original principal amount

of the loan. Ms. Dangcil’s argument ignores the undisputed fact

that, because she had not made any payments on the loan for about

eight years, the loan balance had grown to $1,286,606.10 due to

the accrual of interest and other charges. Using the undisputed

current loan balance proves that there was no “equity cushion” to

provide adequate protection to Chase.

Additionally, we have previously held that “a debtor’s

persistent failure to make payments, standing alone, may

constitute adequate cause for relief from the stay.” Aguilar v.

Ocwen Loan Servicing, LLC (In re Aguilar), BAP No.

CC–14–1071–PaTaKu, 2014 WL 6981285, at *4 (9th Cir. BAP Dec. 10,

2014), aff’d, --- F. App’x ----, 2017 WL 393763 (9th Cir.

Jan. 30, 2017) (citing In re Ellis, 60 B.R. at 435; Price v. Del.

State Police Fed. Credit Union (In re Price), 370 F.3d 362, 373

(3d Cir. 2004) (“A persistent failure to make monthly payments

under loan documents can constitute cause for granting relief

from the automatic stay.”)). The bankruptcy court noted that

Ms. Dangcil had not made any mortgage loan payments for eight

years, which totaled ninety-four missed payments and a deficiency

of $488,660.46. Ms. Dangcil’s admitted failure to make any

mortgage loan payments (or segregate mortgage payments) in eight

years further established cause to grant relief from stay under

§ 362(b)(1).

Accordingly, the court did not abuse its discretion in

granting relief from the automatic stay pursuant to § 362(d)(1). 

Given our discussion above, we need not consider the court’s

other bases for granting the Motion.

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2. The purported loan modification is irrelevant and does

not preclude stay relief.

Ms. Dangcil focuses largely on her efforts to obtain a loan

modification, insisting that the “loan modification is valid, and

Appellee has dishonored it to date.” She contends that she was

“entitled to” the modification, and, had Chase honored the loan

modification, she would have equity in the Property. She also

claims that Chase acted in bad faith when it refused her offers

of payment under the loan modification agreement. We reject

these arguments.

There is no evidence in the record that Chase agreed to any

loan modification. Under California law, “[i]n order for a

contract to form, there must be a meeting of the minds with an

intent to be bound by a legally enforceable agreement.” Chaganti

v. I2 Phone Int’l, Inc., 635 F. Supp. 2d 1065, 1071 (N.D. Cal.

2007), aff’d, 313 F. App’x 54 (9th Cir. 2009) (citation omitted). 

“An offer must clearly articulate the terms of the agreement and

the acceptance must be absolute, unqualified and a mirror image

of the offer.” Id. (citations omitted)

Ms. Dangcil failed to present either the bankruptcy court or

this Panel with an executed loan modification agreement or proof

of Chase’s assent to an agreement. Rather, she only provides us

with e-mails (not presented to the bankruptcy court) that show

that a representative for Chase or Countrywide forwarded a draft

of a loan modification agreement. She claims that the superior

court assumed that the parties were going to enter into a loan

modification agreement, but this is not supported by competent

evidence, nor does it prove that there was an enforceable

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agreement.

Further, even if the agreement were binding on Chase,

Ms. Dangcil still would not have any equity in the Property. 

According to the unexecuted loan modification agreements, the

loan modification would not have reduced the loan balance;

rather, it would have added the delinquent interest to the

principal sum of the loan. Thus, the principal amount owed would

have increased from the original principal amount of $841,970 to

$1,085,936.12 (based on the January 2011 unexecuted agreement),

or $1,081,622.15 (based on the November 2010 unexecuted

agreement). She is patently wrong that the loan modification

would result in a $50,000 equity cushion in the Property. 

3. The record does not support stay relief under

§ 362(d)(4).

Ms. Dangcil contends that the court erred in granting the

Motion based on § 362(d)(4). The Order identified § 362(d)(4) as

a basis for the court’s ruling but the court’s oral ruling made

clear that it was solely focused on the issue of equity in the

Property under §§ 362(d)(1) and (2).

We agree that the inclusion of § 362(d)(4) in the Order is

probably an oversight by the court, based on its comments at the

hearings and its failure to identify the basis for granting

relief under § 362(d)(4). Accordingly, we reverse the Order only

to the extent it includes § 362(d)(4) as a basis for granting the

Motion.

CONCLUSION

For the reasons set forth above, the bankruptcy court did

not deny Ms. Dangcil due process, despite Chase’s failure to

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serve her. The court also did not abuse its discretion in

granting Chase relief from the automatic stay. Therefore, we

AFFIRM IN PART the bankruptcy court’s decision to grant relief

from stay under § 362(d)(1) and REVERSE IN PART the Order as to

stay relief under § 362(d)(4) only.

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