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FILED

DEC 02 2016

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NOT FOR PUBLICATION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. EC-16-1015-KuMaJu

)

ROBERTO LARA RAMIREZ, ) Bk. No. 15-26710

)

Debtor. )

______________________________)

)

ROBERTO LARA RAMIREZ, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

NATIONSTAR MORTGAGE LLC, )

)

Appellee. )

______________________________)

Argued and Submitted on October 20, 2016

at Sacramento, California

Filed – December 2, 2016

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Ronald H. Sargis, Chief Bankruptcy Judge, Presiding

 

Appearances: Appellant Roberto Lara Ramirez, pro se, on brief;

Matthew Bryan Learned of McCarthy & Holthus, LLP

argued for appellee Nationstar Mortgage LLC.

 

Before: KURTZ, MARTIN** and JURY, Bankruptcy Judges.

*This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.

**Hon. Brenda K. Martin, United States Bankruptcy Judge for

the District of Arizona, sitting by designation.
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INTRODUCTION

Chapter 131 debtor Roberto Lara Ramirez appeals from an

order granting relief from stay to Nationstar Mortgage LLC. The

bankruptcy court granted Nationstar retroactive relief from the

stay, which effectively validated Nationstar’s postpetition

foreclosure sale. The sale was held one day after the

commencement of Ramirez’s latest bankruptcy case. The bankruptcy

court also granted Nationstar prospective, in rem relief under

§ 362(d)(4).

All of the relief granted was based, at least in part, on a

clearly erroneous finding of fact. Among other things, the

bankruptcy court found that Ramirez engaged in a series of

transfers in a deliberate attempt to interfere with Nationstar’s

foreclosure efforts. But there were no allegations or evidence

of any such transfers anywhere in the record.

As a result, we must VACATE the bankruptcy court's order

granting Nationstar relief from the automatic stay, and we must

REMAND for further proceedings.

FACTS2

Ramirez commenced the underlying chapter 13 bankruptcy case

1Unless 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 “Local Rule” references are to

the Local Bankruptcy Rules for the Eastern District of

California.

2Many of the facts set forth herein are drawn from the

bankruptcy court’s written rulings. Ramirez has not challenged

on appeal the accuracy of these facts, many of which are

procedural in nature and are supported by the history of

Ramirez’s bankruptcy filings.

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on August 25, 2015. This was not Ramirez’s first bankruptcy

case. In fact, he had filed four others in the past few years,

as follows:

(1) In December 2011, Ramirez filed a chapter 13 case. That

case was dismissed in July 2013 for failure to cure defaults

in plan payments and failure to file and seek confirmation

of a modified plan to address the plan defaults.

(2) In April 2014, Ramirez filed, pro se, a chapter 7 case. 

That case was dismissed in May 2014 based on Ramirez’s

failure to file many of the documents required under

§ 521(a).

(3) In June 2014, Ramirez filed, pro se, another chapter 7 case. 

Ramirez received his discharge, and the case was closed in

October 2014. Additionally, Nationstar sought and received

relief from the automatic stay to proceed with a nonjudicial

foreclosure against Ramirez’s residence.

(4) In December 2014, Ramirez filed, pro se, another chapter 13

case. That case was dismissed in June 2015 for failure to

cure defaults in plan payments and failure to file and seek

confirmation of a modified plan after the bankruptcy court

denied confirmation of his initial chapter 13 plan. The

record from this chapter 13 case also reflects Ramirez's

failure to attend his § 341 meeting of creditors, his

failure to complete all of the required chapter 13 documents 

– including his initial chapter 13 plan – and his failure to

disclose his multiple prior bankruptcy cases. 

In light of Ramirez’s prior bankruptcy filings and pursuant

to § 362(c)(3)(A), the automatic stay in the underlying

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bankruptcy case was due to automatically expire with respect to

the debtor as of September 24, 2015 – 30 days after the filing of

Ramirez’s latest bankruptcy petition. Ramirez filed three

motions requesting that the court extend the automatic stay. The

bankruptcy court denied the first motion to extend based on its

finding that Ramirez had not rebutted the presumption of bad

faith arising pursuant to § 362(c)(3)(C). Based on Ramirez’s own

admissions, the bankruptcy court in essence found that Ramirez

had filed his latest bankruptcy case not for any legitimate

bankruptcy purpose but rather to delay Nationstar’s scheduled

foreclosure sale in the hopes that he could persuade Nationstar

to agree to a new loan modification.3

The bankruptcy court denied the second two motions to extend

because they were untimely and because Ramirez still had not

rebutted the bad faith presumption.

In December 2015, Nationstar filed its motion for relief

from stay. In the motion, Nationstar requested both retroactive

and prospective relief. More specifically, Nationstar explained

that, to enforce its rights as a secured creditor, a foreclosure

sale of Ramirez’s residence had occurred on August 26, 2015, the

day after Ramirez had filed his latest bankruptcy petition. 

Nationstar sought retroactive relief from the stay – also known

as annulment of the stay – to validate its postpetition

foreclosure sale. Nationstar also sought prospective relief from

the automatic stay pursuant to § 362(d)(4), claiming that

3Nationstar and Ramirez already had entered into a prior

loan modification agreement in 2010.

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Ramirez’s history of serial bankruptcy filings reflected a scheme

by Ramirez to delay Nationstar from exercising its rights as a

secured creditor.

In support of its request for retroactive relief, Nationstar

submitted evidence indicating that it was unaware of Ramirez’s

August 25, 2015 bankruptcy filing at the time it conducted the

August 26, 2015 foreclosure sale. Nationstar further asserted

that it had been attempting to foreclose on Ramirez’s residence

since 2011, citing a 2011 notice of default and a 2011 notice of

sale, which referenced a sale date of December 14, 2011. 

Nationstar pointed out that Ramirez’s first chapter 13 filing,

commenced on December 2, 2011, prevented the foreclosure sale

from occurring as scheduled. Nationstar also pointed out that it

caused to be published another notice of sale in 2014 referencing

a sale date of December 3, 2014, and that Ramirez’s December 2,

2014 bankruptcy filing prevented that 2014 foreclosure sale from

occurring.

In his opposition, Ramirez claimed that he immediately gave

Nationstar and its counsel notice of his latest bankruptcy filing

but that Nationstar ignored the notices and proceeded with the

foreclosure sale despite its knowledge of the automatic stay. 

According to Ramirez, these facts by themselves were sufficient

to justify denial of retroactive relief.

As for prospective relief under § 362(d)(4), Ramirez argued

that Nationstar attempted to justify the granting of this relief

based solely on his serial bankruptcy filings. According to

Ramirez, multiple bankruptcy filings, alone, cannot support a

finding of a scheme to hinder, delay or defraud for purposes of

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§ 362(d)(4). Appellant also asked for an evidentiary hearing so

he could present evidence of the notice he gave to Nationstar on

August 25, 2015.

At the hearing on the relief from stay motion, the

bankruptcy court ruled that Nationstar was entitled to the

retroactive and prospective relief requested in its motion. On

the issue of stay annulment, the bankruptcy court stated that it

had considered the totality of the circumstances and had weighed

the factors identified in Nat'l Envtl. Waste Corp. v. City of

Riverside (In re Nat'l Envtl. Waste Corp.), 129 F.3d 1052, 1055

(9th Cir. 1997); and in Fjeldsted v. Lien (In re Fjeldsted),

293 B.R. 12, 25 (9th Cir. BAP 2003). The bankruptcy court

concluded that the factors militated in favor of annulment. 

At the time the bankruptcy court announced its ruling at the

hearing, Ramirez renewed his request for an evidentiary hearing

on the notice issue, but the bankruptcy court denied that

request, stating that the notice issue was beyond the scope of

the motion and beyond the scope of the court’s reasoning for 

granting the motion, including retroactive relief.

The bankruptcy court’s denial of an evidentiary hearing was

made during the course of the following colloquy between the

bankruptcy court and Ramirez:

MR. RAMIREZ: Then can I show you something, that I gave

notice to the bank that I file the bankruptcy?

THE COURT: I am going to say no, because that really 

goes beyond the issue of this motion and the reason I

am granting the relief, which includes making it

retroactive.

MR. RAMIREZ: I have a document here that I sent to them

on the 25th.

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THE COURT: Okay. That is the day the foreclosure sale 

occurred. And what I am saying by this order is, there

was no automatic stay in effect on the 25th when the

foreclosure occurred.

Hr’g Tr. (Jan. 12, 2016) 8:8-18.

The bankruptcy court’s statements made in support of its

denial of the evidentiary hearing are at odds with its comments

indicating that it had reviewed and considered all of the

Fjeldsted factors. Furthermore, the bankruptcy court’s written

ruling suggests that it did consider the notice issue. The

bankruptcy court noted both Nationstar’s representation that it

was unaware of the latest bankruptcy filing and Ramirez’s failure

to present evidence to support his notice allegations.

As for prospective, in rem relief, the bankruptcy court

stated that it could grant relief under § 362(d)(4) if it found 

“a scheme to delay, hinder, or defraud creditors” involving

either: (a) a transfer of an interest in the subject real

property without creditor consent or court approval; or

(b) “multiple bankruptcy filings affecting such real property.”

11 U.S.C. § 362(d)(4).

According to the bankruptcy court, the existence of such a

scheme by Ramirez was evidenced not only by the number of

Ramirez’s prior bankruptcy filings but also by his frequent

failure to prosecute his bankruptcy cases by filing required

documents. The bankruptcy court also emphasized that Ramirez had

attempted to “hide” his prior bankruptcy cases from the court. 

Ramirez attempted this, the court explained, by filing an amended

statement of social security number in which he alleged that he

had “lost” his social security number – after he earlier had

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filed in the same case an acknowledgment of his social security

number – a number which led the court to Ramirez’s prior

bankruptcy case filings.

There was one other factor the bankruptcy court pointed to

in its ruling granting § 362(d)(4) relief. The bankruptcy court

referenced certain transfers Ramirez allegedly made to

beneficiaries who then filed bankruptcy in order to stay the

foreclosure. As the bankruptcy court put it:

Movant has provided sufficient evidence concerning a

series of bankruptcy cases being filed with respect to

the subject property. The unauthorized transfers of

interests in the subject property to beneficiaries who

then filed several bankruptcies were a deliberate

attempt as a stay to any foreclosure. The court finds

that the filing of the present petition works as part

of a scheme to delay, hinder, or defraud Movant with

respect to the Property by both the transfer of an

interest in the property and the filing of multiple

bankruptcy cases.

Civil Minutes (Jan 12, 2016) at p. 5 (emphasis added).

This portion of the bankruptcy court’s ruling is perplexing. 

Nationstar neither alleged nor submitted evidence of any such

transfers, nor have we found any evidence of such transfers

elsewhere during our independent review of the bankruptcy court’s

docket. 

On January 19, 2016, the bankruptcy court entered its order

granting Nationstar’s stay relief motion, and Ramirez timely

appealed.

On January 21, 2016, the underlying bankruptcy case was

dismissed on the chapter 13 trustee’s motion, based on a number

of deficiencies in the prosecution of Ramirez’s chapter 13 case,

which the bankruptcy court found constituted unreasonable delay

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under § 1307(c)(1).4

JURISDICTION

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

§§ 1334 and 157(b)(2)(G). An order granting or denying relief

from the automatic stay is a final and appealable order, so we

have jurisdiction under 28 U.S.C. § 158. See Benedor Corp. v.

Conejo Enters., Inc. (In re Conejo Enters., Inc.), 96 F.3d 346,

351 (9th Cir. 1996).

ISSUES

1. Did the bankruptcy court abuse its discretion when it

granted Nationstar relief under § 362(d)(4)?

2. Did the bankruptcy court abuse its discretion when it 

annulled the stay in order to retroactively validate

Nationstar’s foreclosure sale?

STANDARDS OF REVIEW

We review the bankruptcy court’s relief from stay order for

an abuse of discretion. Id.; First Yorkshire Holdings, Inc. v.

Pacifica L 22, LLC (In re First Yorkshire Holdings, Inc.),

470 B.R. 864, 868 (9th Cir. BAP 2012); In re Fjeldsted, 293 B.R.

at 18.

A bankruptcy court abuses its discretion if it applies an

incorrect legal standard or if its factual findings are

4Even though Ramirez did not appeal the dismissal order,

this appeal is not moot. The order on appeal provided for

annulment of the stay and for in rem relief from the stay for a

period of two years from the date of entry of the bankruptcy

court’s relief from stay order. If Ramirez were to prevail on

appeal, we could grant him meaningful relief from both the

retroactive and prospective effects of the bankruptcy court’s

relief from stay order.

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illogical, implausible or not supported by the record. United

States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)

(en banc).

DISCUSSION

On appeal, Ramirez, pro se, asserts the same arguments he

asserted in the bankruptcy court. First, he claims there was

insufficient evidence to support the bankruptcy court’s grant of

prospective, in rem relief under § 362(d)(4). And second, he

claims the bankruptcy court should not have annulled the stay

because he gave notice of his bankruptcy filing to Nationstar on

the day the foreclosure occurred. We will address each of these

claims in turn. 

1. Section 362(d)(4)

Under § 362(d)(4), the bankruptcy court may grant a secured

creditor prospective, “in rem” relief from the automatic stay if

the debtor has engaged in a scheme to delay, hinder or defraud

creditors through multiple bankruptcy filings. In re First

Yorkshire Holdings, Inc., 470 B.R. at 870. A properly entered

and recorded § 362(d)(4) order prevents – for a period of two

years – any subsequent bankruptcy filing by anyone with an

interest in the subject property from operating as a stay of lien

enforcement against the property. § 362(b)(20); In re First

Yorkshire Holdings, Inc., 470 B.R. at 871.

The broad scope of this exception to the automatic stay

potentially can have grave consequences for debtors seeking

temporary relief from foreclosure activity. Alakozai v. Citizens

Equity First Credit Union (In re Alakozai), 499 B.R. 698, 703

(9th Cir. BAP 2013). Congress determined that this drastic form

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of relief was necessary in order to deter schemes by the

occasional debtor who filed serial bankruptcies and/or made a

series of property transfers for the purpose of interfering with

legitimate foreclosure efforts. Id. at 702; In re First

Yorkshire Holdings, Inc., 470 B.R. at 870.

In order to grant § 362(d)(4) relief, a bankruptcy court

must find: “(1) the debtor engaged in a scheme, (2) to delay,

hinder or defraud the creditor, and (3) which involved either the

transfer of property without the creditor's consent or court

approval or multiple filings.” In re Alakozai, 499 B.R. at 703.

Here, the bankruptcy court articulated the correct legal

standard, made ample findings, and cited sufficient evidence to

support most of those findings. In essence, the bankruptcy court

determined from Ramirez’s multiple bankruptcy cases and from the

way Ramirez conducted himself in those bankruptcy cases that

Ramirez had improperly utilized those cases to interfere with

Nationstar’s foreclosure efforts. The bankruptcy court’s

findings in support of this determination were not clearly

erroneous – they were logical, plausible and supported by the

record.

On the other hand, we don’t know what to make of the

bankruptcy court’s additional findings that Ramirez engaged in a

series of unauthorized transfers of his residence and that these

transfers were part of his scheme to hinder, delay or defraud

Nationstar. There were no allegations or evidence in the record

reflecting such transfers, so the bankruptcy court’s transferrelated findings were clearly erroneous. 

Nor are we convinced that the transfer-related findings were

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harmless error. We simply don’t know for sure whether, in the

absence of the transfer-related findings, the bankruptcy court

still would have inferred Ramirez’s scheme to hinder, delay or

defraud Nationstar from the remaining findings. On the record

presented, such an inference would not have been unreasonable;

even so, such an inference was not inevitable.

Under these circumstances, we must vacate the bankruptcy

court’s grant of § 362(d)(4) relief and remand for a new

determination of this issue.

2. Stay Annulment

Actions taken in violation of the automatic stay are void.

In re Nat'l Envtl. Waste Corp., 129 F.3d at 1054. However, under

§ 362(d)(1), the bankruptcy court may “annul” the stay in order

to retroactively validate actions that otherwise would be void as

stay violations. Id. (citing Schwartz v. United States

(In re Schwartz), 954 F.2d 569, 572 (9th Cir. 1992)).

In deciding whether "cause" exists to annul the stay, the

bankruptcy court must examine the circumstances of the particular

case and balance the equities. In re Nat'l Envtl. Waste Corp.,

129 F.3d at 1055; In re Fjeldsted, 293 B.R. at 24. Two factors

that have been considered critical in many cases are: 

(1) whether the creditor was aware of the bankruptcy petition and

automatic stay and (2) whether the debtor engaged in unreasonable

or inequitable conduct. In re Nat'l Envtl. Waste Corp., 129 F.3d

at 1055. But these factors are not always determinative. Id.

Each case presents its own unique circumstances that must be

evaluated on a case by case basis. Id.

We have identified several other factors that can be

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relevant in deciding whether to annul the stay:

1. Number of filings;

2. Whether, in a repeat filing case, the circumstances

indicate an intention to delay and hinder creditors;

3. A weighing of the extent of prejudice to creditors

or third parties if the stay relief is not made

retroactive, including whether harm exists to a bona

fide purchaser;

4. The Debtor's overall good faith (totality of

circumstances test);

5. Whether creditors knew of stay but nonetheless took

action, thus compounding the problem;

6. Whether the debtor has complied, and is otherwise

complying, with the Bankruptcy Code and Rules;

7. The relative ease of restoring parties to the status

quo ante;

8. The costs of annulment to debtors and creditors;

9. How quickly creditors moved for annulment, or how

quickly debtors moved to set aside the sale or

violative conduct;

10. Whether, after learning of the bankruptcy,

creditors proceeded to take steps in continued

violation of the stay, or whether they moved

expeditiously to gain relief;

11. Whether annulment of the stay will cause

irreparable injury to the debtor;

12. Whether stay relief will promote judicial economy

or other efficiencies.

In re Fjeldsted, 293 B.R. at 25 (citations omitted). Here, the

bankruptcy court stated that it had reviewed all of these factors

and had considered the totality of the circumstances. At the

same time, the bankruptcy court’s ruling and its hearing comments

suggest that it relied heavily on Ramirez’s scheme to hinder,

delay or defraud Nationstar in finding cause to annul the stay. 

This is why the bankruptcy court, in finding cause, referenced

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its findings regarding Ramirez’s “transparently purposeful”

conduct in “prejudicing” Nationstar’s foreclosure efforts and

also stated that the underlying bankruptcy case was part of

Ramirez’s “scheme to prejudice” Nationstar.

As we explained above, the bankruptcy court’s clearly

erroneous transfer-related findings fatally infected the court’s

inference of a scheme to hinder, delay or defraud Nationstar. 

Because the existence of this scheme was a critical factor in the

bankruptcy court’s determination of cause to annul the stay, we

must VACATE the bankruptcy court’s grant of retroactive stay

relief and must REMAND for a new determination of this issue.

3. Denial of Ramirez’s Request to Present Evidence on Notice

Issue

There is one other issue we need to address. It concerns

Ramirez’s request in his opposition for an opportunity to present

evidence on whether Nationstar had knowledge of the automatic

stay at the time it conducted its foreclosure sale. Ramirez

renewed this request at the relief from stay hearing, at which

point the bankruptcy court denied the request.

Ramirez did not even remotely comply with the requirements

for obtaining an evidentiary hearing set forth in Local Rules

9014-1(f)(1)(B)5 and 9014-1(g)(3).6 We already have upheld a

5Local Rule 9014-1(f)(1)(B) provides in relevant part:

The opposition shall specify whether the responding

party consents to the Court’s resolution of disputed

material factual issues pursuant to Fed. R. Civ.

P. 43(c) as made applicable by Fed. R. Bankr. P. 9017. 

If the responding party does not so consent, the

(continued...)

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prior version of the Local Rules, which contained similar

requirements. See Tyner v. Nicholson (In re Nicholson), 435 B.R.

622, 635–36 (9th Cir. BAP 2010), partially abrogated on other

grounds by, Law v. Siegel, 134 S.Ct. 1188, 1196–98 (2014). In

addition, Ramirez failed to include with his opposition papers

any evidence that would have laid a foundation for a disputed

factual issue regarding Nationstar’s knowledge of the stay. This

absence of evidence in Ramirez’s opposition also violated Local

Rule 9014-1(f)(1)(B). 

On the other hand, in denying Ramirez’s request to present

evidence at the relief from stay hearing, the bankruptcy court

did not invoke its Local Rules as the basis for the denial. 

Instead, in denying the request, the bankruptcy court suggested

that the notice issue was largely irrelevant. This comment by

5(...continued)

opposition shall include a separate statement

identifying each disputed material factual issue. The

separate statement shall enumerate discretely each of

the disputed material factual issues and cite the

particular portions of the record demonstrating that a

factual issue is both material and in dispute. Failure

to file the separate statement shall be construed as

consent to resolution of the motion and all disputed

material factual issues pursuant to Fed. R. Civ.

P. 43(c).

6Local Rule 9014-1(g)(3) provides:

An opposition and/or reply to a motion shall state

whether a party consents to the use of affidavits in

accordance with Fed. R. Civ. P. 43(c). Any party that

fails to file the separate statement of disputed

material facts as required by LBR 9014-1 will thereby

consent to proceed on the basis of the written record

without live testimony.

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the bankruptcy court is difficult to reconcile with the

bankruptcy court’s statement that, in determining whether to

annul the stay, it was considering the totality of the

circumstances as well as the Fjeldsted factors. The comment is

even harder to reconcile with the notion that the creditor’s

knowledge of the stay often is one of the most critical factors

in determining whether to annul the stay. See In re Nat'l Envtl.

Waste Corp., 129 F.3d at 1055. 

In any event, because we are remanding on other grounds, we

need not resolve this conundrum. On remand, the bankruptcy court

should clarify the grounds it is relying upon to support its

denial of Ramirez’s request to present evidence on the notice

issue. Alternately, the bankruptcy court has the option on

remand to exercise its discretion to reopen the record and permit

the presentation of evidence.7

CONCLUSION

For the reasons set forth above, we VACATE the bankruptcy

court’s order granting Nationstar relief from the automatic stay,

and we REMAND for further proceedings.

7Also on remand, the bankruptcy court should note that, if

it grants retroactive stay relief and validates Nationstar’s

foreclosure sale, it no longer would be necessary or correct to

additionally grant Nationstar relief under § 362(d)(4), because

Nationstar no longer would be “a creditor whose claim is secured

by an interest in the property in question.” See Ellis v. Yu

(In re Ellis), 523 B.R. 673, 679-80 (9th Cir. BAP 2014).

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