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FILED

JUL 23 2014

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NOT FOR PUBLICATION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 Nos. CC-13-1303-DKiTa

) CC-13-1426-DKiTa

IDA MANASARYAN, )

) Bk. No. 12-17095-MT

Debtor. )

______________________________)

SERGEY KORCHINSKY, )

)

Appellant, )

)

v. )

)

SKYLINE VISTA EQUITIES, LLC; )

BANK OF AMERICA, N.A.; IDA )

MANASARYAN; CORI B. JONES, )

)

Appellees. )

______________________________)

In re: ) BAP No. CC-13-1411-DKiTa

) 

SERGEY KORCHINSKY, ) Bk. No. 12-17169-AA

) 

Debtor. )

______________________________)

SERGEY KORCHINSKY, )

)

Appellant, )

)

v. )

)

SKYLINE VISTA EQUITIES, LLC; )

BANK OF AMERICA, N.A.; )

CORI B. JONES, )

)

Appellees. )

______________________________)

In re: ) BAP No. CC-13-1427-DKiTa

) 

RUZANNA MANASARYAN, ) Bk. No. 12-13444-MT

) 

Debtor. )

______________________________)

FILED

JUL 23 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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SERGEY KORCHINSKY, )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

SKYLINE VISTA EQUITIES, LLC; )

BANK OF AMERICA, N.A.; )

CORI B. JONES, )

)

Appellees. )

______________________________)

Argued and Submitted on June 26, 2014

at Pasadena, California

Filed - July 23, 2014

Appeals from the United States Bankruptcy Court

for the Central District of California

Honorable Maureen A. Tighe and Honorable Alan M. Ahart, 

Bankruptcy Judges, Presiding

 

Appearances: Mohammad Azhar Asadi, of Law Offices of M. Azhar

Asadi & Associates APC, argued for Appellant

Sergey Korchinsky; Leslie M. Werlin argued for

Appellees Bank of America, N.A. and ReconTrust

Company, N.A.; William Fitch argued for Appellee

Skyline Vista Equities, LLC.

 

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

Facing a foreclosure sale of real property he owned,

Appellant filed a bankruptcy case in the name of an alias; 

failed to inform the secured creditor of his pending bankruptcy

case; and transferred, postpetition, fractional interests in the

real property to two other individuals with pending bankruptcy

cases. After the foreclosure sale took place, the secured

creditor was notified of the bankruptcy of one of the transferees

1 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.

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of an interest in the real property. The purchaser at the

foreclosure sale sought and obtained in that bankruptcy case an

in rem order granting relief from the automatic stay as to any

and all bankruptcy cases pending that involved the real property. 

Appellant thereafter asserted in state court proceedings

that the foreclosure sale was void, having been conducted in

violation of the automatic stay in his bankruptcy case. The

Appellant filed a motion to reopen the bankruptcy case in which

the in rem order had been entered in order to seek relief from

the order. When the bankruptcy court denied the motion to

reopen, Appellant filed the first appeal.

The secured creditor then filed a motion for relief from the

automatic stay in the bankruptcy case of the Appellant and each

individual allegedly holding an interest in the real property

based upon Appellant’s postpetition transfers. The bankruptcy

court granted in rem relief in all cases, and annulled the

automatic stay in each case. Appellant appealed all three of

those orders. 

For the reasons stated in this Memorandum, we AFFIRM in all

four appeals.

I. FACTUAL BACKGROUND

On October 24, 2005, Sergey Korchinsky (“Sergey”) obtained a

loan in the amount of $920,000, evidenced by a promissory note

(“Note”) secured by a deed of trust (“Trust Deed”) on real

property ("Property") in Granada Hills, California. Countrywide

Home Loans, Inc. (“Countrywide”) was the lender. On

September 16, 2011, Countrywide assigned the Trust Deed to The

Bank of New York Mellon fka The Bank of New York, as Trustee for

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the Certificateholders of CWALT, Inc., Alternative Loan Trust

2005-71, Mortgage Pass-Through Certificates, Series 2005-71. The

assignment was recorded on October 13, 2011. ReconTrust

Company, N.A. (“ReconTrust”), was the trustee under the Trust

Deed, and Bank of America, N.A. (“BofA”) (hereinafter, ReconTrust

and BofA are collectively referred to as the “Bank”) is the

servicer on the Note.

Beginning in August 2008, Sergey defaulted on the Note. On

February 17, 2012, the Bank served a notice of default, recorded

on February 22, 2012, advising that Sergey was $262,346.06 in

default and that the Bank had elected to sell the Property if the

default was not cured. On July 23, 2012, the Bank served a

notice of sale, recorded on July 25, 2012, stating that the Bank

intended to conduct an auction (“Trustee’s Sale”) of the Property

on August 17, 2012. 

The Trustee’s Sale was held as scheduled on August 17, 2012,

at which time the Property was sold to Skyline Vista Equities,

LLC (“Skyline”). The Trustee’s Deed Upon Sale was recorded on

September 4, 2012.

The Tale of Three Bankruptcy Cases: A Pattern is

Established2

The notice of the Trustee’s Sale set off a series of events

2 We exercised our discretion to review the bankruptcy

court's electronic docket and pleadings on record therein for the

three bankruptcy cases included in the factual discussion below. 

See O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),

887 F.2d 955, 957–58 (9th Cir. 1989); Atwood v. Chase Manhattan

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

2003).

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which culminated in the orders currently on appeal. 

Sergey filed a chapter 133 bankruptcy petition (“Sergey

Bankruptcy Case”) on August 9, 2012. Notably, the petition was

in the name of Sergey Sahakyan. Only the petition was filed. 

The mailing matrix included two creditors: BAC Home Loans

Servicing, LP with a post office box address, and “DWP,” also

with a post office box address. Neither address included an

individual officer or agent. Sergey used an address other than

the Property address as his mailing address for purposes of the

Sergey Bankruptcy Case.

On August 9, 2012, the Bankruptcy Clerk entered an order

directing Sergey to file, inter alia, his bankruptcy schedules,

Statement of Financial Affairs, and Chapter 13 Plan

(collectively, “Bankruptcy Documents”) not later than August 23,

2012. Sergey filed his Bankruptcy Documents on August 22, 2012,

but they were completely devoid of any information. All

provisions either were marked “N/A” or left blank entirely. 

On August 16, 2012, postpetition, a grant deed (“Grant

Deed”) was executed4 with respect to the Property which purported

to transfer a fractional interest in the Property from Sergey to

3 Unless otherwise indicated, 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. The local rules of the Bankruptcy

Court for the Central District of California are referred to as

“LBRs.” The Federal Rules of Civil Procedure are referred to as

“Civil Rules.”

4 The use of the passive voice to describe this act is

intentional in light of Sergey’s later assertions that the Grant

Deed is a forgery.

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Sergey, Ida Manasaryan (“Ida”), and Ruzanna Manasaryan

(“Ruzanna”). The Grant Deed was recorded on August 17, 2012, the

date set for the Trustee’s Sale. 

At the time the Grant Deed was executed and recorded,

Ruzanna was a debtor in a pending chapter 7 case (“Ruzanna

Bankruptcy Case”). The Ruzanna Bankruptcy Case had been filed as

a chapter 13 case on April 12, 2012, but was converted to

chapter 7 on May 2, 2012, on Ruzanna’s motion. In her Bankruptcy

Documents filed on May 12, 2012, Ruzanna listed only real

property located on Cumpston Street in Los Angeles (“Ruzanna

Residence”).5

The Ruzanna Bankruptcy Case ultimately was dismissed on

November 26, 2012, after Ruzanna repeatedly failed to appear at

her § 341(a) Meeting of Creditors. Although Ruzanna amended her

Bankruptcy Documents on August 10, 2012, she never added the

Property as an asset in which she claimed an interest.

At the time the Grant Deed was executed and recorded, Ida

also was a debtor in a pending chapter 7 case (“Ida Bankruptcy

5 On June 27, 2012, Ruzanna filed a motion to vacate an

order granting relief from the automatic stay as to the Ruzanna

Residence that had been entered in the alleged unrelated

chapter 13 case of Federico J. Tribel. In her motion to vacate,

Ruzanna stated that unknown to her, and by use of her forged

signature, a portion of the Ruzanna Residence had been deeded to

Mr. Tribel. The lender (“Ruzanna Lender”) on the Ruzanna

Residence had obtained an in rem order (“Ruzanna In Rem Order”)

granting relief from the automatic stay as to the Ruzanna

Residence. The Ruzanna Lender thereafter noticed a new

foreclosure sale for April 12, 2012. Ruzanna purportedly learned

of the Ruzanna In Rem Order after the purchaser at the public

auction of the Ruzanna Residence initiated an unlawful detainer

action against Ruzanna in state court.

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Case”). The Ida Bankrupcy Case had been filed as a chapter 13

case on August 7, 2012. Similar to Mr. Korchinsky, Ida filed

only the petition on that date. Her mailing matrix included the

identical creditors as did Mr. Korchinsky’s: BAC Home Loans

Servicing, LP with a post office box address, and “DWP,” also

with a post office box address. Neither address included an

individual officer or agent. Ida ultimately filed her Bankruptcy

Documents on August 22, 2012, but they also were completely

devoid of any information. All provisions either were marked

“N/A” or left blank entirely. Ida listed no interest in real

property in her schedules.6

On September 10, 2012, the United States Trustee (“UST”)

filed a motion to dismiss the Ida Bankruptcy Case for abuse. The

UST Motion asserted that the Ida Bankruptcy Case had not been

filed for any legitimate purpose. The UST cited to the grant

deed transferring the Granada Hills Property to Ida for the

apparent purpose of stopping foreclosure proceedings. The UST

cited to yet another grant deed transferring real property from

6 A relief from stay motion (“Wilshire Motion”) was brought

by Wilshire Finance Partners, Inc. (“Wilshire”) alleging that on

August 3, 2012, shortly before Wilshire’s August 9, 2012

scheduled foreclosure sale on real property in Granada Hills,

California (“Granada Hills Property”), and four days before the

Ida Bankruptcy Case was filed, a grant deed was recorded

transferring the Granada Hills Property from Wilshire’s borrower,

Geghetsik Nersisyan, to Ida. Ida responded to the Wilshire

Motion, asserting that she had more than 35% equity in the

Granada Hills Property. To her response she attached “Sale

Escrow Instructions” dated August 2, 2012, reflecting a proposed

sale from Geghetsik Nersisyan to a third party buyer, Hovhannes

Yesayan.

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Maria Trinidad Figueroa to Ms. Figueroa and Ida as joint tenants,

also in an apparent effort to stop a pending foreclosure sale of

Ms. Figueroa’s property. Following a hearing on the UST’s

motion, on October 18, 2012, the bankruptcy court entered an

order dismissing the Ida Bankruptcy Case with a one year bar to

refiling.

The Property, Foreclosure Proceedings, and Annulment of the

Automatic Stay

Although Sergey filed the Sergey Bankruptcy Case on

August 9, 2012, he did not notify the Bank of the pending case.7

The Trustee’s Sale of the Property was held as scheduled on

August 17, 2012, and the Property was sold to Skyline.8 A

Trustee’s Deed Upon Sale was recorded in due course on

September 4, 2012. 

On September 26, 2012, Skyline filed a motion for relief

from stay (“Skyline Motion”) in the Ida Bankruptcy Case, alleging

it was entitled to relief pursuant to § 362(d)(1) based on Ida’s

bad faith and pursuant to § 362(d)(4) on the basis that the

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

creditors. 

Sergey was served with the Skyline Motion at the Property

address and via telephonic notice.9 Ida appeared and opposed the

7 The Bank contends it first received notice of the Sergey

Bankruptcy Case on September 7, 2012.

8 It appears that the Bank received notice of the Ida

Bankruptcy Case thereafter on or about August 27, 2012.

9 Two days after the Skyline Motion was filed, Sergey

continue...

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Skyline Motion, asserting that the Bank was aware of the active

Ida Bankruptcy Case at the time of the Trustee’s Sale such that

it should be rescinded. 

On October 18, 2012, the bankruptcy court entered an order

(“Skyline Order”) granting the Skyline Motion, annulling the

automatic stay retroactively to the date the Ida Bankruptcy Case

was filed, and extending the annulment of the stay to be binding

and effective as against any other “currently pending bankruptcy

cases” based on the bankruptcy court’s finding that the filing of

the Ida Bankruptcy Case was “part of a scheme to delay, hinder,

or defraud creditors that involved . . . transfer of all or part

ownership of, or other interest in, the Property without the

consent of the secured creditor or court approval.” The Skyline

Order was served on Sergey at the Property address. Neither Ida

nor Sergey appealed the Skyline Order.

Sergey On the Offensive

In January 2013, Sergey filed a state court complaint

against the Bank alleging that the Trustee’s Sale should be

deemed void, because it was conducted in violation of the

9...continue

amended the petition in his bankruptcy case to add Sergey

Korchinsky as an “aka” for the debtor Sergey Sahakyan (Sergey

Bankruptcy Case docket no. 17); he also filed an amended

statement of his social security number (Sergey Bankruptcy Case

docket no. 16). These amendments made it clear that until

September 28, 2012, there was nothing in the Sergey Bankruptcy

Case that would have put either the Bank or Skyline on notice

that Sergey had a pending bankruptcy case.

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automatic stay in the Sergey Bankruptcy Case.10 Sergey asserted

that the Grant Deed by which an interest in the Property was

transferred to Ida was a forgery, with the consequence that the

Skyline Order could not apply to provide annulment of the

automatic stay in the Sergey Bankruptcy Case.

Sergey thereafter filed a motion (“Sergey Motion”) in the

bankruptcy court on March 29, 2013, to reopen the Ida Bankruptcy

Case for the purpose of vacating the Skyline Order based on the

same assertions. The Bank and Skyline both opposed the Sergey

Motion. On June 19, 2013, the bankruptcy court entered its order

(“Sergey Order”) denying all relief requested in the Sergey

Motion, based on the available avenue for relief in the pending

state court litigation. In ruling on the Sergey Motion, but not

dispositive to its ruling, the bankruptcy court expressly

rejected Sergey’s contentions that he had not been served either

10 The Bank alleges that this was Sergey’s second attempt

to get relief in the state court. On October 29, 2012, Sergey

filed a state court complaint (Case No. PC053965), seeking, inter

alia, a determination that the Trustee’s Sale was void because it

was conducted in violation of the automatic stay in the Sergey

Bankruptcy Case. Case No. PC053965 apparently was dismissed

after Sergey failed to pay the filing fee. 

In a Supplemental Declaration filed July 23, 2013, in

response to the Bank RFS Motion, Sergey contends that although he

is the named plaintiff in Case No. PC053965, he did not file that

case. He asserts that he did not know about the existence of

Skyline on the date it was filed, October 29, 2012, nor did he

know of any transfer of the Property. He contends he learned of

the Trustee’s Sale on or about December 5, 2012, when one of his

tenants informed him of an approaching lockout. 

Sergey further asserts that when he received the file in

Skyline’s pending unlawful detainer action on January 22, 2013,

he learned that someone had filed an answer in his name.

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with the Skyline Motion or the Skyline Order.11 Sergey timely

appealed the Sergey Order on June 28, 2013, and it is pending

before the Panel as BAP No. CC-13-1303.

Thereafter, on July 12, 2013, the Bank filed two motions

each in the Sergey Bankruptcy Case, the Ida Bankruptcy Case, and

the Ruzanna Bankruptcy Case. The first motion sought to reopen

the cases; these motions were granted on July 22, 2013. The

second motion (“Bank RFS Motions”) sought annulment of the

automatic stay based on bad faith, annulment of automatic stay

pursuant to § 362(d)(4), and a “comfort order” to the effect that

the Trustee’s Sale was not void as a result of the annulment of

the automatic stay. The Bank asserted that the relief was

necessary because Sergey continued to assert in state court

proceedings that the Trustee’s Sale was void. Sergey opposed the

Bank RFS Motions.

The bankruptcy court entered an order (“Bank RFS Order”) in

each of the three cases granting the Bank RFS Motions.12 At the

11 “[Sergey] argues that he had no knowledge of the

[Skyline Motion or the Skyline Order] until January 22, 2013,

when [Sergey] received the Unlawful Detainer Complaint. . . . 

The Court finds this argument to be unpersuasive. On September

26, 2012, [Sergey] was served with the [Skyline Motion], wherein

Skyline made clear it was requesting both a finding under

§ 362(d)(4) and extraordinary relief. The [Skyline] Order was

entered on November 21, 2012. [Sergey] was again served with the

[Skyline Order], which clearly showed what relief the Court had

granted to Skyline. Again, there was no objection to the form of

order by [Sergey] under [LBR] 9021-1(3)(B).” See Sergey Order at

2:23-28.

12 The Bank RFS Order in the Sergey Bankruptcy Case was

entered on August 16, 2013, by Judge Alan M. Ahart, the case

continue...

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August 7, 2013 hearing on the Bank RFS Motions in the Ida

Bankruptcy Case and the Ruzanna Bankruptcy Case, the bankruptcy

court stated its intent to docket its Tentative Ruling as its

findings of fact and conclusions of law in connection with its

decision to grant the Bank RFS Motions. The Tentative Ruling was

docketed October 15, 2013. 

In the Tentative Ruling, the bankruptcy court affirmatively

found that the elements required to grant relief under

§ 362(d)(4) were present, i.e., that the bankruptcy cases of

Sergey, Ida, and Ruzanna were part of a scheme to hinder, delay

or defraud creditors that included transfers of the Property and

multiple bankruptcy filings. The bankruptcy court also

considered issues relating to good faith and prejudice to the

parties and ruled that annulment of the stay was warranted.

Sergey timely appealed each of the Bank RFS Orders.13

12...continue

judge for the Sergey Bankruptcy Case. The Bank RFS Orders in the

Ida Bankruptcy Case and the Ruzanna Bankruptcy Case were entered

on August 23, 2013, by Judge Maureen Tighe, the case judge for

the Ida Bankruptcy Case and the Ruzanna Bankruptcy Case.

13 Each Bank RFS Order contained the following “additional”

relief beyond relief pursuant to § 362(d)(4) and annulment:

Separate and independent from the relief provided

above, the Court hereby confirms that (i) pursuant to

11 U.S.C. §§ 105(a) and 362(j), the [Skyline Order]

annulled the stay in this debtor’s bankruptcy case

retroactive to the date of the bankruptcy petition and

(ii) that pursuant to the [Skyline Order], the stay in

this debtor’s bankruptcy case does not affect

postpetition acts by the Movants with respect to the

Property, except to the extent that an appellate court

continue...

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II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C.

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

§ 158.

III. ISSUES

Whether the bankruptcy court abused its discretion when it

refused to reopen the Ida Bankruptcy Case on the Sergey Motion.

Whether the bankruptcy court abused its discretion when it

exercised jurisdiction over the Bank RFS Motions while the appeal

of the Sergey Order was pending.

Whether the bankruptcy court erred in determining that the

Bank had standing to prosecute the Bank RFS Motions eighteen

months after the Trustee Sale had been conducted and the

Trustee’s Deed had been recorded to vest title in Skyline.

Whether the bankruptcy court erred when it found that the

Property was transferred to Ida and Ruzanna with intent to

hinder, delay or defraud a creditor.

Whether the bankruptcy court abused its discretion when it

annulled the automatic stay as to the Property in the Bank RFS

Orders.

IV. STANDARDS OF REVIEW

We review a bankruptcy court’s denial of a motion to reopen

a bankruptcy case for abuse of discretion. See Weiner v. Perry,

Settles & Lawson, Inc. (In re Weiner), 161 F.3d 1216, 1217 (9th

13...continue

orders otherwise. The relief provided in paragraphs 3,

4, 9, 10a and 10b herein is separate and independent

from the relief provided in the [Skyline Order].

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Cir. 1998); Lopez v. Specialty Rests., Inc. (In re Lopez),

283 B.R. 22, 26 (9th Cir. BAP 2002).

We review the bankruptcy court's application of procedural

rules and whether a particular procedure comports with due

process de novo. All Points Cap. Corp. v. Meyer (In re Meyer),

373 B.R. 84, 87 (9th Cir. BAP 2007); Beneficial Cal. Inc. v.

Villar (In re Villar), 317 B.R. 88, 92 (9th Cir. BAP 2004); see

also Berry v. U.S. Trustee (In re Sustaita), 438 B.R. 198, 207

(9th Cir. BAP 2010) (whether adequate due process notice was

given in any particular instance is a mixed question of law and

fact reviewed de novo) (citing Demos v. Brown (In re Graves),

279 B.R. 266, 270 (9th Cir. BAP 2002)).

The rule that a notice of appeal will divest a court of

jurisdiction “is not absolute.” Neary v. Padilla

(In re Padilla), 222 F.3d 1184, 1190 (9th Cir. 2000). We review

de novo whether the bankruptcy court had jurisdiction over an

issue following the filing of a notice of appeal. See Rains v.

Flinn (In re Rains), 428 F.3d 893 (9th Cir. 2005).

“Standing is a legal issue that we review de novo.” 

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

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

The decision of a bankruptcy court to grant relief from the

automatic stay under § 362(d) is reviewed for abuse of

discretion. Kronemyer, 405 B.R. at 919. This includes a

decision to grant in rem relief (First Yorkshire Holdings, Inc.

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

470 B.R. 864, 870-71 (9th Cir. BAP 2012)), and a decision to

annul the automatic stay (Gasprom, Inc. v. Fateh (In re Gasprom,

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Inc.), 500 B.R. 598, 607-08 (9th Cir. BAP 2013)).

We review the bankruptcy court's findings of fact for clear

error. In re Brooks-Hamilton, 400 B.R. 238, 245 (9th Cir. BAP

2009). Clear error exists when, on the entire evidence, the

reviewing court is left with the definite and firm conviction

that a mistake was made. Oney v. Weinberg (In re Weinberg),

410 B.R. 19, 28 (9th Cir. 2009); Hoopai v. Countrywide Home

Loans, Inc. (In re Hoopai), 369 B.R. 506, 509 (9th Cir. BAP

2007).

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

if no decision had been made previously. United States v.

Silverman, 861 F.2d 571, 576 (9th Cir.1988); B–Real, LLC v.

Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008).

A bankruptcy court abuses its discretion if it applies an

incorrect legal standard or misapplies the correct legal

standard, or its factual findings are illogical, implausible or

without support from evidence in the record. TrafficSchool.com

v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).

We may affirm the decision of the bankruptcy court on any

basis supported by the record. Shanks v. Dressel, 540 F.3d 1082,

1086 (9th Cir. 2008).

V. DISCUSSION

A. BAP No. 13-1303

In his Opening Brief on Appeal, Sergey asserts that the

bankruptcy court’s fundamental error that led to each of the four

appeals currently before the Panel was the failure to find that

the Grant Deed had been forged.

However, in entering the Sergey Order, which is the subject

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of BAP No. 13-1303, the bankruptcy court explicitly made no

findings with respect to the validity of the Grant Deed. 

“[W]hether [Sergey] is successful in prosecuting his Complaint to

Void the Trustee Sale of the . . . Property is outside the scope

of the [Skyline Order].” Because the validity of the Grant Deed

could be litigated in the state court proceedings, the bankruptcy

court determined that reopening the Ida case to vacate the

Skyline Order was not necessary.14

Sergey’s Opening Brief further asserts that the bankruptcy

court incorrectly found that Sergey had been served with the

Skyline Motion and the Skyline Order. Implicit in the bankruptcy

court’s findings is a determination that the notice provided to

Sergey satisfied due process requirements. We agree. The record

on appeal reflects that Sergey was served with the Skyline Motion

14 Generally, “the reopening of a closed bankruptcy case is

a ministerial act that functions primarily to enable the file to

be managed by the clerk as an active matter and that, by itself,

lacks independent legal significance and determines nothing with

respect to the merits of the case.” Menk v. Lapaglia

(In re Menk), 241 B.R. 896, 913 (9th Cir. BAP 1999) (citations

omitted). A motion to reopen implicates a narrow range of

administrative issues, such as, for example, whether further

estate administration is necessary, whether a trustee should be

appointed, and whether another filing fee is required. Id. at

916–17. This Panel has previously ruled that it is not

appropriate in proceedings on a motion to reopen to make

substantive determinations on claims for relief. Id.

In this appeal, however, Sergey does not assert that the

bankruptcy court erred in denying his motion to reopen on the

ground that extraneous issues intruded in the court's decision to

deny the motion. We therefore deem this issue to have been

waived by Sergey. See, e.g., Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 919 (9th Cir. 2001) (generally, issues not

“specifically and distinctly argued” in a party's opening brief

are deemed waived).

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and the Skyline Order in the Ida Bankruptcy Case at the Property

address. Even assuming that the short notice period between the

service and the October 3, 2012 hearing might raise due process

issues, Sergey took no prompt action to address allegedly

improper notice once he had been served with the Skyline Order. 

The Sergey Motion was not filed until March 2013, well after the

appeals period had run in the case, and only after Sergey had

been served with an unlawful detainer action in state court. In

addition, Sergey complains that Skyline filed no motion in his

bankruptcy case. However, Sergey filed the Sergey Bankruptcy

Case in a name unknown to the Bank and with an incorrect social

security number. Skyline had no way of knowing about the Sergey

Bankruptcy Case. The matrix information in the Sergey

Bankruptcy Case did not afford the Bank an opportunity to discern

the filing and its potential application to its creditor

interests. This record suggests Sergey went to great lengths to

keep the Bank from learning of the Sergey Bankruptcy Case. Had

Sergey been forthcoming about his own bankruptcy case

information, he likely would have received better, or at least

additional or different, notice. Under the circumstances, we

cannot say that the bankruptcy court erred when it determined

that service on Sergey at the Property address did not deprive

Sergey of his due process rights in connection with the Skyline

Motion and Order.

On this record, the Sergey Motion appears to have been

nothing more than an attempt to attack the Skyline Order

collaterally. Thus, we are satisfied that the bankruptcy court

did not abuse its discretion when it denied Sergey’s motion to

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reopen the Ida Bankruptcy Case. Having denied Sergey’s motion to

reopen, the bankruptcy court did not need to reach Sergey’s

motion to vacate the Skyline Order.

B. BAP Nos. 13-1411, 13-1426 and 13-1427.

1. The Pendency of BAP No. 13-1303 Did Not Divest the

Bankruptcy Court of Jurisdiction Over the Bank RFS Motions.

Sergey asserts on appeal that the pendency of the appeal of

the Sergey Order, BAP No. 13-1303, divested the bankruptcy court

of jurisdiction over “related matters.” 

However, a valid notice of appeal does not completely divest

the trial court of jurisdiction in the underlying case; the trial

court retains jurisdiction over any part of the case not affected

by the notice of appeal. “When a proper notice of appeal has

been timely filed, the general rule is that jurisdiction over any

matters involved in the appeal is immediately transferred . . .

[to the appellate court].” See Matter of Thorp, 655 F.2d 997,

998 (9th Cir. 1991). See also Petrol Stops NW v. Cont’l Oil Co.,

647 F.2d 1005, 1010 (9th Cir. 1991)(generally, the filing of a

notice of appeal divests a trial court of jurisdiction only over

matters involved in the appeal). Orders from contested matters

that adjudicate discrete disputes do not divest the bankruptcy

court of jurisdiction generally.

Sergey argues that because the issues on appeal in BAP

No. 13-1303 are exactly the same issues underlying the Bank

RFS Motions, i.e., whether the bankruptcy court should have

granted in rem relief from the automatic stay as to the Property,

the bankruptcy court erred when it exercised jurisdiction over

the Bank RFS Motions and entered the Bank RFS Orders in the three

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bankruptcy cases. 

Sergey is mistaken. The primary issue on appeal in BAP

No. 13-1303 is whether the Ida Bankruptcy Case should have been

reopened for the purpose of vacating the Skyline Order. Although

the Sergey Order includes a provision denying Sergey’s requested

relief from the Skyline Order as it applied to him, the

bankruptcy court did not reach the underlying issue, ruling

instead that the issue of the validity of the Grant Deed could be

raised in state court proceedings. Further, even if Sergey could

possibly be successful through BAP No. 13-1303 in obtaining

relief from the Skyline Order, the Bank, as a separate holder of

a secured interest in the Property at the time each of the

bankruptcy cases was filed, had its own right to seek relief from

the automatic stay, including retroactive relief and relief in

rem. Stated differently, the Bank RFS Motions addressed the

Bank’s rights vis-à-vis the Property. The Sergey Order on appeal

at most touched upon Skyline’s rights vis-à-vis the Property from

the date it was entered.

2. The Bank Had Standing to Prosecute the RFS Motions.

Sergey next asserts that the Bank had no standing to

prosecute the Bank RFS Motions, filed in July 2013, where the

Bank’s Trustee Sale on August 17, 2012, and the recording of the

Trustee’s Deed in favor of Skyline divested the Bank of any

interest in the Property. This argument is specious on its face.

The purpose of the Bank RFS Motions was specifically to address

the issue of whether the Bank could have conducted the Trustee

Sale in August 2012 in the first instance. Resolution of this

issue necessarily involved adjudication of the Bank’s rights with

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respect to its secured interest in the Property and the impact of

a bankruptcy filing(s) on the exercise of the Bank’s rights. 

Further, the Bank RFS Motions were filed in response to Sergey’s

assertions in the state court proceedings that the Trustee Sale

violated the automatic stay in the Sergey Bankruptcy Case. 

In the case of a party seeking relief from the automatic

stay to foreclose an interest in real property, we have held that

a moving party must establish it had some interest in the

underlying note, either as a holder or as a person entitled to

enforce the note. See Veal v. Am. Home Mortg. Serv., Inc.

(In re Veal), 450 B.R. 897, 910-13 (9th Cir. BAP 2011). While

the Bank ostensibly no longer held any interest in the Property

when it filed the Bank RFS Motions in light of the Trustee’s Deed

recorded in favor of Skyline, two other factors are significant

in this analysis. First, the Bank was seeking such relief

specifically in response to Sergey’s assertion in the state court

that the Bank had no right to conduct the Trustee Sale in the

absence of relief from the automatic stay in the Sergey

Bankruptcy Case. The logical extension of Sergey’s argument is

that the Bank must still be the holder of the Note or the person

entitled to enforce the Note. Second, the Bank was seeking an

order with respect to the automatic stay that would establish its

rights prior to the Trustee’s Sale, a time at which it clearly

had standing. 

Relying on Kronemyer v. Am. Contractors Indem. Co.

(In re Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP 2009), and

First Fed. Bank v. Robbins (In re Robbins), 310 B.R. 626, 631

(9th Cir. BAP 2004), the bankruptcy court ruled that the Bank was

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a “party in interest” with a colorable claim sufficient to confer

standing. We agree.

3. The Bankruptcy Court’s Finding That the Property Was

Transferred With Intent to Hinder, Delay or Defraud a

Creditor Was Not Clearly Erroneous.

Section 362(d)(4) authorized the bankruptcy court to grant

in rem relief as to the Property, provided that appropriate

findings were made. Section 362(d)(4) provides:

On request of a party in interest and after notice 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 –

 . . .

(4) with respect to a stay of an act against real

property under subsection (a), by a creditor whose

claim is secured by an interest in such real property,

if the court finds that the filing of the petition was

part of a scheme to delay, hinder, or defraud creditors

that involved either --

(A) transfer of all or part ownership of, or other

interest in, such real property without the consent of

the secured creditor or court approval; or

(B) multiple bankruptcy filings affecting such real

property.

In In re First Yorkshire Holdings, Inc., 470 B.R. 864, 870

(9th Cir. BAP 2012), this Panel articulated the elements a

bankruptcy court must find present in order to grant in rem

relief as to property: a debtor’s bankruptcy filing must have

been part of a scheme; the purpose of the scheme must have been

to delay, hinder, or defraud creditors; and the scheme must have

involved either (a) the transfer of some interest in the real

property without the secured creditor’s consent or court

approval, or (b) multiple bankruptcy filings. The bankruptcy

court affirmatively found each element present in this case.

We observe again that in his Opening Brief on Appeal, Sergey

asserts that the bankruptcy court’s fundamental error that led to

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each of the four appeals currently before the Panel was the

failure to find that the Grant Deed had been forged. Sergey

asserts that because the Grant Deed was fraudulent as to him, in

rem relief was not available under the express terms of the

statute. He contends that any transfer of an interest in the

Property was void, such that the bankruptcy court’s

§ 362(d)(4)(A) finding was clearly erroneous. Further, because

the Grant Deed was ineffective to transfer an interest in the

Property to Ida and Ruzanna, the Property only was affected by

the filing of the Sergey Bankruptcy Case.

The bankruptcy court considered and rejected Sergey’s

evidence that the Grant Deed was forged and that Sergey had no

knowledge of its execution or recording. We must accept the

bankruptcy court's findings of fact unless we have a definite and

firm conviction that a mistake has been committed. Oney v.

Weinberg (In re Weinberg), 410 B.R. at 28; Hoopai v. Countrywide

Home Loans, Inc. (In re Hoopai), 369 B.R. at 509. We have no

such conviction with respect to these appeals. The record on

appeal adequately supports the bankruptcy court’s findings. In

particular, the pattern of the Sergey, Ida, and Ruzanna

bankruptcy filings, Sergey’s filing of the Sergey Bankruptcy Case

in a manner patently designed to preclude the Bank from learning

of the filing in order to protect its rights, Ida’s opposition to

the Skyline Motion suggesting she claimed an interest in the

Property, and the Amended Involuntary Petition filed in the

Bankruptcy Court for the District of Nevada which establishes

that creditors of Sergey believed he also used the names of Ida

and Ruzanna, all support the bankruptcy court’s findings that

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Sergey engaged in a course of conduct designed solely to protect

the Property from foreclosure.

Because the record supports the bankruptcy court’s findings

that the elements of § 362(d)(4) were established, the bankruptcy

court did not abuse its discretion when it granted the Bank in

rem relief in the Sergey, Ida, and Ruzanna bankruptcy cases.

4. The Bankruptcy Court Did Not Abuse Its Discretion When

It Granted Retroactive Relief to the Bank.

Section 362(d) expressly authorizes a bankruptcy court to

terminate, annul, modify, or condition the automatic stay in a

bankruptcy case. Here, the bankruptcy court annulled the stay.

The use of the word “annulling” means that such relief

from the stay may operate retroactively. This would

validate actions taken by a party at a time when the

party was unaware of the stay. 

3 COLLIER ON BANKRUPTCY ¶ 362.07[1] (Alan N. Resnick and Henry J.

Sommer eds., 16th ed. 2013).

In Fjeldsted v. Lien (In re Fjeldsted), 293 B.R. 12, 25 (9th

Cir BAP 2003), this Panel identified factors that a bankruptcy

court should consider when deciding whether to annul the

automatic 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 the circumstances);

(5) whether the creditor knew of the 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 the parties to the status

quo ante; (8) the costs of annulment to the debtor and

to the creditor; (9) how quickly the creditor moved for

annulment, or how quickly the debtor moved to set aside

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the sale or violative conduct; (10) whether, after

learning of the bankruptcy, the creditor proceeded to

take steps in continued violation of the stay, or

whether the creditor moved expeditiously to gain

relief; (11) whether annulment of the stay will cause

irreparable injury to the debtor; and (12) whether stay

relief will promote judicial economy or other

efficiencies. 

The bankruptcy court determined, based upon the indicia of a

scheme to hinder, delay or defraud present in each bankruptcy

case, that annulment of the stay was appropriate. The bankruptcy

court further found that neither Sergey, Ida nor Ruzanna “made

anything more than a sham attempt to actually pursue

reorganization and discharge in good faith.” In deciding the

issue, the bankruptcy court noted the prejudice that otherwise

would result to the Bank and Skyline, particularly where Sergey

was actively seeking relief in the state court proceedings to set

aside the Trustee’s Sale as void.

In light of the bankruptcy court’s findings, supported by

evidence, that Sergey engaged in a scheme to delay, hinder or

defraud the Bank, and that the Bank and Skyline were being

prejudiced by Sergey’s actions going forward, we find no abuse of

discretion in the bankruptcy court’s annulment of the automatic

stay as to the Property as a means of correcting, or more

accurately, validating, the legal record regarding the transfer

of ownership of the Property to Skyline as a consequence of the

Trustee’s Sale.

VI. CONCLUSION

BAP No. 13-1303. The bankruptcy court did not abuse its

discretion when it declined to reopen the Ida Bankruptcy Case.

BAP Nos. 13-1411, 13-1426, 13-1427. The filing of BAP No.

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13-1303 did not divest the bankruptcy court of jurisdiction to

consider the Bank RFS Motions. The Bank did not lose standing to

prosecute the Bank RFS Motions post-foreclosure where Sergey

asserted that the foreclosure itself was void. On the record

before it, the bankruptcy court did not abuse its discretion when

it granted the Bank RFS Motions, including when it annulled the

automatic stay as to the Property and when it granted in rem

relief. 

We affirm the orders of the bankruptcy court in each of the

pending appeals.

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