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FILED

OCT 22 2013

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-12-1418-TaPaKi

)

NANCY EUW-JONG SITANGGANG, ) Bk. No. RS 12-20905-MH

)

Debtor. ) Adv. No. RS 12-01168-MH

______________________________)

)

NANCY EUW-JONG SITANGGANG, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

NATHAN THOMAS MCINTYRE, dba )

McIntyre Law Group, ISAOA; )

CLIFFHAVEN MAINTENANCE )

CORPORATION, )

)

Appellees. ) )

Submitted Without Oral Argument**

on June 18, 2013 

Filed - October 22, 2013

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Mark D. Houle, Bankruptcy Judge, Presiding Appearances: Appellant Nancy Euw-Jong Sittanggang, pro se, on

brief; David Brian Lally, Esq. on brief, for

Appellee Cliffhaven Maintenance Corporation 

Before: TAYLOR, PAPPAS, and KIRSCHER, Bankruptcy Judges.

FILED

OCT 22 2013

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

* 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.

** In an order entered on February 1, 2013, the Panel

determined that this matter was suitable for disposition without

oral argument. Fed. R. Bankr. P. 8012; 9th Cir. BAP Rule 8012-1.

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INTRODUCTION

Appellant Nancy Euw-Jong Sitanggang ("Sitanggang") appeals

the bankruptcy court’s sua sponte dismissal of her adversary

proceeding and denial of her motion for reconsideration. The

adversary proceeding primarily involves Sitanggang’s battle to

avoid foreclosure by her homeowners association. It also

includes a request for damages based on alleged Fair Debt

Collection Procedures Act violations (“FDCPA Claims”). 

After the filing of the appeal, the homeowners association

completed a foreclosure, and the applicable redemption period

ran. As a result, the foreclosure related claims are moot, and

we DISMISS the appeal as to such claims. 

Prior to the filing of the appeal, the bankruptcy court

dismissed and closed Sitanggang's chapter 13 case. We conclude,

however, that neither bankruptcy case dismissal and closure nor

the foreclosure moot this appeal with respect to the FDCPA

Claims. We, therefore, determine that the bankruptcy court did

not abuse its discretion when it declined to retain jurisdiction

of the FDCPA Claims and ordered dismissal and, thus, AFFIRM.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

Sitanggang owned a home in Corona, California (the

“Property”) when she filed a chapter 13 petition on May 2, 2012. 

Sitanggang is a repeat filer, and this filing followed almost

immediately on the heels of the dismissal of a prior bankruptcy

1 We exercised our discretion to review documents on

electronic docket no. 12-01168-MH to assist us in ascertaining

the relevant facts and procedural history. O'Rourke v. Seaboard

Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 958 (9th Cir.

1989).

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case. 

On May 14, 2012, she initiated an adversary proceeding

against her homeowner's association, Cliffhaven Maintenance

Corporation (“Cliffhaven”), and its attorney, Nathan Thomas

McIntyre, ("McIntyre" and, collectively, “Defendants”). In her

complaint, Sitanggang alleged two causes of action, the FDCPA

Claims and a request for declaratory relief related to the

Property (the “Property Claim”). Under the Property Claim,

Sitanggang sought a determination that the Defendants2 had no

security interest in the Property and, thus, no right to complete

a foreclosure. In her prayer for relief, she requested an

injunction. Under the FDCPA Claims, Sitanggang sought damages

based on multiple alleged violations of the FDCPA by both

Defendants. 

Sitanggang did not timely file schedules, statements, and a

chapter 13 plan. As a result, the bankruptcy court dismissed her

case on May 23, 2012, nine days after she filed her adversary

proceeding. The Defendants did not answer timely in the

adversary proceeding. On the same date, Sittanggang obtained

entry of default, and they tardily answered.

Dismissal of the Adversary

The bankruptcy court held a status conference in the

adversary proceeding well after dismissal of the bankruptcy case. 

While it acknowledged that both sides requested determinations

2

 The complaint is internally inconsistent with respect to

the parties against whom Sitanggang seeks the various forms of

relief.

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based on alleged procedural defects,3 it declined to consider

these issues as it also declined to exercise jurisdiction over

the adversary proceeding. The bankruptcy court based this

decision on the prior dismissal of the bankruptcy case, the fact

that the complaint contained only non-bankruptcy claims, and the

fact that the adversary proceeding had just commenced such that

discovery had not started. The bankruptcy court concluded that

the “efficiencies of all parties are best served by having this

heard either in state court or a federal district court.” Hr’g

Tr. (July 25, 2012) at 3:14-15. The bankruptcy court, therefore,

dismissed the complaint without prejudice.

Motion for Reconsideration

On August 1, 2012, Sitanggang filed a motion for

reconsideration under Rule 9024 and Civil Rule 60(b)(3). She

argued only that the bankruptcy court erroneously based dismissal

on McIntyre’s false representation that she filed the adversary

proceeding after the dismissal of the underlying bankruptcy case. 

The bankruptcy court ruled without a hearing and entered both an

Order Denying Motion for Reconsideration (“Initial

Reconsideration Order”) and an Amended Order Denying Motion for

Reconsideration (“Amended Reconsideration Order”).4 In the

3 Sitanggang argued that she did not receive service of the

Defendants’ untimely answer. McIntyre erroneously argued that

she filed her adversary proceeding after dismissal of the

bankruptcy case. In so doing, he apparently confused the current

case with the previous case where a dismissal order also issued.

4 The Initial Reconsideration Order erroneously recited that

the alleged misrepresentation took place at a hearing on

Defendants’ motion to dismiss. The Amended Reconsideration Order

correctly recites that the alleged misrepresentation took place

at the status conference.

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Amended Reconsideration Order, the bankruptcy court explained

that McIntyre's misstatement was not a basis for its decision. 

The bankruptcy court held that Sitanggang did not “allege

sufficient grounds to warrant reconsideration pursuant to

rule 60(b) of the Federal Rules of Civil Procedure.” Adv. Pro.

dkt. #40 at 2:13-15. Sitanggang filed a timely Notice of Appeal.

JURISDICTION

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

§§ 1334 and 157(b)(1). Subject to the mootness discussion below,

we have jurisdiction under 28 U.S.C. § 158. 

Mootness

We have an independent duty to determine whether an appeal

is moot within the meaning of Article III’s case or controversy

requirement. See United States v. Golden Valley Elec. Ass’n,

689 F.3d 1108, 1112 (9th Cir. 2012); Hunt v. Imperial Merch.

Servs., Inc., 560 F.3d 1137, 1141 (9th Cir. 2009). As an

appellate court, our jurisdiction is limited to actual cases and

controversies. Motor Vehicle Cas. Co. v. Thorpe Insulation Co.

(In re Thorpe Insulation Co.), 671 F.3d 980, 990 (9th Cir. 2012)

(citing U.S. Const. art. III, § 2, cl. 2.). “The test for

mootness of an appeal is whether the appellate court can give the

appellant any effective relief in the event that it decides the

matter on the merits in his favor. If it can grant such relief,

the matter is not moot.” Id. (internal quotation and citations

omitted.)

Prior to conclusion of this appeal the bankruptcy court

dismissed the underlying bankruptcy case and closed it. Case

dismissal and closure did not automatically divest the bankruptcy

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court of jurisdiction over the adversary proceeding. See

Carraher v. Morgan Elecs. (In re Carraher), 971 F.2d 327, 328

(9th Cir. 1992). Reversal could result in relief notwithstanding

dismissal and closure. Therefore, dismissal and closure of the

bankruptcy case did not moot this appeal.

Thereafter, Cliffhaven completed a nonjudicial foreclosure

sale of the Property and formally requested dismissal of the

appeal. Under California Code of Civil Procedure § 1367.4(c)(4),

the nonjudicial foreclosure by a homeowners association to

collect a debt for delinquent assessment is subject to a right of

redemption for a 90-day period after the sale. This Panel, thus,

issued an order requiring that the parties respond by May 20,

2013 regarding whether Sitanggang redeemed the Property. She did

not. 

The Property Claim seeks to stop the foreclosure via the

request for injunction and based on allegations that Cliffhaven

had no security interest and no right to foreclose. These claims

do not survive foreclosure and the end of the redemption period. 

If we reverse, the bankruptcy court cannot provide relief. Thus,

as to these claims, the appeal is moot, we lack jurisdiction, and

dismissal of the appeal as to the Property Claim is required.

Foreclosure and the termination of the redemption period,

however, did not impact our ability to consider the FDCPA Claims

which seek damages. We, therefore, conclude that the appeal is

not moot as to the FDCPA Claims.

ISSUES

1. Did the bankruptcy court abuse its discretion by sua sponte

dismissing the adversary proceeding?

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2. Did the bankruptcy court abuse its discretion by denying the

motion for reconsideration?

STANDARD OF REVIEW

We review a bankruptcy court's decision not to exercise

jurisdiction over an adversary proceeding following the dismissal

of the underlying bankruptcy case for an abuse of discretion. 

Davis v. C.G. Courington (In re Davis), 177 B.R. 907, 910 (9th

Cir. BAP 1995). Likewise, we review the bankruptcy court’s sua

sponte dismissal of an action for an abuse of discretion. Snell

v. Cleveland, Inc., 316 F.3d 822, 825 (9th Cir. 2002). And, the

denial of a motion for reconsideration is also reviewed for abuse

of discretion. Ta Chong Bank Ltd. v. Hitachi High Techs. Am.,

Inc., 610 F.3d 1063, 1066 (9th Cir. 2010). 

Under the abuse of discretion standard, we apply a two-part

test. First, we consider de novo whether the bankruptcy court

identified the correct law to consider in light of the relief

requested. United States v. Hinkson, 585 F.3d 1247, 1262

(2009)(en banc). Second, we review the bankruptcy court’s

factual findings, and its application of those findings to the

relevant law, to determine whether they were either

“(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in

inferences that may be drawn from the facts in the record.’” Id.

(quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

577 (1985)).

DISCUSSION

In addressing the issues raised in Sitanggang’s appellate

brief, we are aware of our duty to interpret her brief liberally

and to ensure that her substantive contentions are not deemed

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waived simply as a result of her failure to comply with mere

technical procedural requirements or her inability to state her

contentions using formal legal terminology. See Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). And,

in keeping with this duty, we conclude that her arguments

challenging the Dismissal Order all boil down to a single

assertion: that sua sponte dismissal was not fair to her under

the circumstances of the case. Based on our mootness

determination above, we consider this argument only in connection

with the FDCPA Claims.

Retention of jurisdiction

The Ninth Circuit recognizes the general rule that “the

dismissal or closing of a bankruptcy case should result in the

dismissal of related proceedings.” See In re Carraher, 971 F.2d

at 328. Notwithstanding this general rule, the Bankruptcy Code

does not mandate dismissal. See 11 U.S.C. § 349; In re Carraher,

971 F.2d at 328; Linkway Inv. Co., Inc. v. Olsen (Casamont Inv.,

Ltd.), 196 B.R. 517, 525 (9th Cir. BAP 1996)(“Discretion is given

the bankruptcy court to retain jurisdiction when judicial

economy, fairness, convenience and comity favor retention”). 

Here, the bankruptcy court exercised its discretion to

decline retention of jurisdiction because the complaint contained

only non-bankruptcy claims, discovery had not commenced, and the

bankruptcy court concluded that it would be more efficient for

the claims to proceed in another court. The bankruptcy court

verbally dismissed the adversary proceeding without prejudice and

allowed Sitanggang to pursue her claims in another court

immediately. In the exercise of its discretion not to retain

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jurisdiction, the bankruptcy court appropriately considered the

correct factors. See id. And, we conclude that the bankruptcy

court’s finding that it would be more efficient and otherwise

appropriate for Sitanggang to pursue her claims in another forum

is not illogical or implausible and is firmly based on inferences

from the record. 

On appeal, Sitanggang argues first that the bankruptcy court

should not have dismissed the adversary proceeding in reliance on

McIntyre’s false statement that she filed the adversary

proceeding after dismissal of her bankruptcy case. The

bankruptcy court made clear repeatedly, however, that it did not

rely on McIntyre's assertion when determining that dismissal was

appropriate. This argument does not support reversal.

She also argues that dismissal was inappropriate where she

obtained entry of default against both Defendants and contends

that the bankruptcy court should have stricken the late-filed

answer sua sponte. The record evidences the bankruptcy court's

awareness that the Defendants answered on the default entry date,

and at the status conference the Defendants expressed their

intent to seek default set aside. Further, default prove-up must

follow the ministerial entry of default. In short, Sitanggang's

progress in the case was not significant, and the bankruptcy

court did not err when it implicitly balanced default entry

against the obstacles to judgment, default or otherwise, and the

lack of any discovery or other progress towards resolution on the

merits and concluded that dismissal without prejudice was

appropriate. 

Further, the bankruptcy court had no motion before it

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seeking to strike the answer, and Sitanggang fails to present any

argument as to how the bankruptcy court erred by not sua sponte

striking the answer. Thus, we consider this portion of her

argument waived. City of Emeryville v. Robinson, 621 F.3d 1251,

1261 (9th Cir. 2010) (appellate courts in this circuit “will not

review issues which are not argued specifically and distinctly in

a party’s opening brief.”). 

Sitanggang finally contends that she should have received

leave to amend the complaint to include "bankruptcy claims." 

This argument does not support reversal. When the bankruptcy

court dismissed the complaint, Sitanggang’s bankruptcy case was

dismissed, and she, therefore, had no “bankruptcy claims” to

include in an amendment to the complaint.

The bankruptcy court correctly identified the relevant law

and its determination not to retain jurisdiction is not illogical

or implausible based on the record here; we conclude that the

bankruptcy court did not abuse its discretion when it declined to

retain jurisdiction and dismissed without prejudice.

Sua sponte dismissal

Sitanggang's stated issues on appeal emphasize that the

dismissal was “sua sponte;” however, she does not specifically or

distinctly argue that the bankruptcy court erred by making its

decision on its own motion. Given the centrality of this

argument to her statement of issues, we consider this point, but

conclude that the bankruptcy court did not abuse its discretion

by so doing.

The bankruptcy court’s decision involved assessment of its

subject matter jurisdiction. A bankruptcy court “may raise the

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question of subject matter jurisdiction, sua sponte, at any time

during the pendency of the action.” Snell v. Cleveland, Inc.,

316 F.3d 822, 826 (9th Cir. 2002); Civil Rule 12(h)(3).5 And, if

subject matter were lacking, a sua sponte decision to dismiss

would be appropriate. Although the bankruptcy court did not find

subject matter jurisdiction lacking, it decided not to retain

jurisdiction based on its well-reasoned consideration of the

state of the litigation. Based on our review of the record, and

in light of Sitanggang’s failure to specify any legal authority

or argument that the bankruptcy court abused its discretion, we

conclude that the bankruptcy court did not abuse its discretion

by ruling on a sua sponte basis.

Motion for reconsideration

Sitanggang based her motion for reconsideration on Rule 9024

and in particular Civil Rule 60(b)(3). “A ‘motion for

reconsideration’ is treated as a motion to alter or amend

judgment under Federal Rule of Civil Procedure 59(e) if it is

filed within ten days of entry of judgment. Otherwise, it is

treated as a Rule 60(b) motion for relief from a judgment or

order.” Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp.,

248 F.3d 892, 898-99 (9th Cir. 2001) (citation omitted).6 Here,

Sitanggang filed her motion for reconsideration within seven days

5 Civil Rule 12(h)(3), incorporated under Rule 7012,

provides: “Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.”

6

 Rule 9023, incorporating Civil Rule 59, was amended and

now requires a motion under Civil Rule 59(e) to be filed no later

than 14 days after entry of judgment.

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of the bankruptcy court’s oral ruling on July 25, 2012, and well

before entry of the Dismissal Order on August 31, 2012. 

Therefore, Sitanggang’s motion for reconsideration required

consideration under Civil Rule 59. The bankruptcy court,

however, reviewed the motion for reconsideration under Civil

Rule 60(b)(3) as requested by Sitanggang.

Sitanggang argued solely that the bankruptcy court

erroneously based its decision on McIntyre's erroneous statement

regarding case dismissal. The record clearly establishes that

this misstatement was not a basis for the bankruptcy court's

decision. Thus, Sitanggang failed to adequately support

reconsideration under either Rule 60 or 59, and the bankruptcy

court did not abuse its discretion by denying it. Any error

attributable to evaluation of the motion for reconsideration

under Civil Rule 60 was harmless.

CONCLUSION

For the reasons discussed above, we DISMISS the appeal as to

the Property Claim, and otherwise AFFIRM.

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