### ORDERED PUBLISHED

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: CENSO, LLC , Debtor

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OPINION CENSO, LLC , Appell ant , v. NEWREZ, LL C, dba Shellp o int Mortgage Servicing; BANK OF AMERICA, N.A.; FEDERAL NATIONAL MORTGAGE ASSOCIATION , Appellee s

. Appeal from the United States Bankruptc y Court for the District of Nevada Mike K. Nakagawa , Bankruptcy Judge, Presiding

APPEARANCES: Christopher P. B urke argued for app ellant; Natalie L. Wins low of Akerman LLP argue d for appellee s NewRez, LLC and Federal National Mortgage Association ; Ramir M. Hernandez of Wright, Finlay & Zak, LLP a ppeared for appellee Bank of Ame rica, N.A.

Before: LAFF ER T Y, TAYLOR a nd FARIS , Ban kruptcy Judges. 

# FILED

APR 5 2022
SUSAN M. SPRAUL, CLERK U.S . BKCY. APP. PANEL OF THE NI NTH CIRCUIT2 LAFFERTY, B ankruptcy Judge:

I N T R ODUCT ION
Cha pter 11 1 debtor Censo, LLC ( “Censo ”) filed an adversary proceeding against appellees NewRez, LLC dba Shellpoint Mortgage
Se rvi cing ( “Shellpoint ”), Bank of Am erica ( “BANA ”), and Fe d e ra l National
M ort gage Association ( “Fanni e Mae ”) , seeking a declaration that the deed
of trust encumbering Censo ’ s proper ty was invalid due to errors in the
document

. Shellpoint, joi ned by BANA and Fannie Mae, moved to dismiss the complaint under C ivil R u l e 12( b)( 6), applicable via Rule 7012

. The motion asserted that the claims in the adversary proceeding were barred by claim preclusion b ased on an order entered in litigation in the United States
District Court finding th at Censo ’ s predecessor

- in

- interest h ad ta ken title to
the prop erty s ubject to Fannie Mae ’ s senior lien. The bankruptcy court agreed . I t also found that the all eged defects in the deed of trust were not legally sufficient to invalidate the document under Nevada law , but i t declined to grant l ea ve to amend because of i ts cla im preclus ion finding

. On appeal, Censo argues for the first time that the district court ’s
order , wh ich was entered post

- petition, is void as a vio lation of the automatic stay. We disagree and AFFIRM

.

1 Unl es s s p ec i fied ot her w ise, a ll cha pte r a nd secti on re f e rences are to the B ankr up tc y C ode, 1 1 U .S.C. §§ 10 1

– 1 532

. “ Rul e ” referen ce s are the Federal Rules of Bankrup tc y Procedure, and a l l “ Civil Rule ” refe renc es are to the F ederal Rules of Civil Procedure.3 FAC TS 2
A. Pre

- Petition E v en ts
In December 2009, Ja mes Pe n gilly borr owed $414,000 from
B ANA

. He execu ted a promissory note secured by a deed o f trust i n favor
of B A NA encumbering a condominium u nit located on Allert o n Park D r ive in Las Vegas, Nevada (the “Property”). The loan is c ur rently owned by Fannie Mae and serviced by Shellpoint ; Shellpoin t is the assignee of the
deed of trust

. In 2013, Mr. Pengi l ly d efaulted o n his homeowners association (“HOA”) assessm ent s, a nd the HOA ini tiated foreclosu re proceedings. Ke Aloha Holding s , L LC (“KAH”) purchased the property at the forec los ure sale in December 201 3 and tran sferred the Property to Ke Aloha Holdings Series II, LLC (“KAH II”) a year later. KAH II transferred the Property to Censo in J anuary 2019. KAH, KAH II, and Censo are al l ma n a ged by
Melani Schulte.
In the meantime, in 201 4 , Mr. Pengilly sued the H OA board
members , KAH, and others in state court , seeking to quiet title to the Property and to obtain declaratory relief that the foreclosure sale was

2 Whe re necessary , we ha ve exercised ou r di scretion t o take judicial n oti ce of the docket s an d i maged pape rs file d in d ebt or ’ s b an kr uptcy case , the related adversa r y proceeding , and D is trict C ourt C as e N o . 2: 14

- cv
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- RFB

- NJK

. S ee O'Rourke v. Seaboard Surety Co. (In re E.R . Fegert, Inc.) , 887 F.2 d 955, 957

- 58 (9th Cir. 1989) (appellate court may t ake judicial notice of bankruptcy r ecords) ; United States ex rel

. Rob inson Rancheria Citiz ens Coun cil v. Born eo, Inc. , 971 F.2d 244, 248 ( 9 th Cir. 1992 ) (appellate court may take j udicial notice of procee dings in other state or federal courts if those4 unlawful . KAH filed a n an s w er , counterclaims against Mr. Pengilly, a nd

cross
- claims against Mr. Pengilly and Amanda M. Pengilly , as trustees of
the James W. Pengilly Trust, BANA, the Inter nal Revenue Service , and Green Tree Servicing, LLC ( “ Gree n Tree ” ) , which at that time was the

s er vicer of the note and the beneficiar y under the deed of trust . The cross

claims were for quiet title and declaratory relief th at the HOA sale

ext inguis hed the deed of trust

. Aft er t he ca se was removed to the Uni ted
States District Court for the D istrict of Nevada, Green Tree f iled an answer
to K AH ’ s cross
- complaint and a count erclaim against K AH for qui et title
and decl aratory relief that i ts lien was not affected by the forecl os ure. In May 2019, Dit ech Finan cial LLC f/k/a Green Tree Servicing, LLC ( “ Dit e ch ” ) moved for summary ju dg ment on its counterclaims.
B. Bank rup tcy events Censo filed a chapter 11 petition in October 2019. S hortly thereafter , the district court entered an order granting Dit ech ’ s motion for summary judgme nt, de clar ing that KAH had take n t itle to the Property subject to
Fannie Mae’s senior lien ( “ the “ DC Order ” ).
In July 2020 , the bankruptcy court granted in part Shellpoint ’ s motion
for relief from s tay to enforce it s rights under its deed of trust

. While th at
moti on was pending, Ce nso fi led an adversary p roce eding against Shellpoint , B ANA , and F annie Mae

. In its amended complaint, Censo

proc eedings have a direct relation to m atters at issue ).5 sought di sallo w anc e o f Shellpoin t ’ s se c ured claim based on errors in the
deed of trust

. The rel evant allegations of th e amen ded complaint (as clarifi e d by the
exhibits t o t he complaint ) 3 are summarized as fol lows:
1. K AH purchased the Property in December 2013 at a n HOA
foreclo s ur e sale . Me la ni Sc h ulte was a principal of bo th K AH
and Censo. O n Dece mber 31, 2014, K AH transfer red title to
K AH II

. Censo is t h e current ow ner of the Property.
2. In October 2019 , in a qu iet title action brought by Mr

. Pengi lly , the United Stat e s Distri ct Court ente r ed a n order finding that
K AH was the owner of the Property subject to a deed of trust
h eld by Fannie Mae.
3. The deed of t ru st om its language regarding the HOA , West
Charleston Lofts . The deed of trust also cont ain s an incorrect
ad d ress : the street numb er is listed as 1141 , while t he cor rect
number is 11 411. A reasonable inspect ion would not p r operly
reference the P roperty b e c a use i t is missing material langua ge and has the wrong physical a ddress.

3 The exhibits a re c opies of the DC O rder and severa l re corded documents affecting the Property . The bankruptcy court properly considered those exhi bit s in making its ruling without treating the motion t o dismiss as a motion for summary j udgment , based on its conclusion t hat th e exhibits were integral to an d ex plicitly relied on in the complaint , and no party objected to the ir authenticity or admissi b ility

. S ee Parks Sch. o f Bus. , Inc. v

. Symington , 5 1 F.3d 1480, 1484 ( 9 th Cir. 1995)

.6 4. Because of thes e i ssues, the deed o f trust is unperf ected , and Shellpoint ’ s claim is u nsecur ed.
5. Shellpoint has not substantiated that i t is a real pa r ty

- in

- interest
with re spect to t he Prop erty. Shellpoint moved to d ismiss the amend ed complaint un der Civil Rule 12(b)(6)

. S hellp oint argued t hat : (1) th e rel ief sought by Censo was barred by claim preclu sion , 4 based on th e DC Order ; and (2 ) the d efe cts in
the d eed of trust did not inva l id ate it. BANA and Fannie Mae joined in the
motion to dismiss

. Censo file d an oppo sition in which it contended that Shellpoint had
not established all the e lements of claim preclusion . Specifically, it argued
th a t th e parti es were not the same because Di t ec h , not Shell point, was the
servicer at the time of the fore clos ure sale. It also argued t hat the claims
were dif ferent because the district court actio n did not determine wh ether
Shell point ’ s claim should be allowed. Censo also alle ged that it could not
ha ve brou ght its claims in the district cour t action b ecause the deed of trust
at issue was not disclosed until Ap ril 2019, just before the motion for

su mmary judgment was fil ed in that action. Censo further asserted that th e

erro r s i n the deed of trust w e re materia l. Fina lly, Censo argued that
Shel lpoint w as not a real party

- in

- interest because it had not filed a claim

4 Although the parties use the ter m “ res jud ic ata, ” we will u se the term “ cl aim preclusio n , ” as encour aged by t he Supreme Court

. Robi v. Five Platters, Inc. , 838 F.2d 3 1 8 , 321 n. 2 ( 9 th Cir. 1988) (citi ng Migra v. War ren C ity Sch

. Dist. Bd. of Educ. , 465 U. S. 75, 77 n. 1 (1984) )

.7 or substantiated that it was the rea l party

- in

- interest with respect to the Property

. After a hearing , the bankruptc y court entered its o r de r granting the motion to dismiss, finding that the elements for claim preclusion were present . The court als o f ound that the comp laint fa iled to allege a sufficient lega l or factual ba sis for conclu ding that the defects in the deed of trust

w ere s uffi ci e nt to render it i nvalid. B ecause it found that Censo ’ s claims were barred by claim preclusion , it denied leav e to amend as futile. Censo
tim ely appealed. J URIS D ICTI ON
The ba nkru ptcy court h a d ju r isdicti o n un de r 28 U.S.C. § § 13 34 and
157 (b)(2 ) ( K )

. W e h a ve ju risd ic tion u nder 28 U.S .C. § 158.
I SSUE S
Is the DC Order void as a violation of the automatic stay ?
D id the bankruptcy court abuse its dis cretion in d enying leave to
amend?
S TA N DA RD S OF R EVI EW
We review de novo the bankr uptcy court ’ s gra nt o f a Civil R ul e 12(b)(6) moti on to dismiss. Movsesian v. Vict oria Versicherung AG , 670 F.3d 1067, 1071 (9th Cir. 2012) (en banc)

. The s cope or applicability of the
automatic s tay unde r § 362 is also reviewed de novo

. Lehman Com

. Paper,
Inc. v. Palmdale Hills Prop., L L C ( In re Palmdale Hills Prop., LLC ) , 423 B.R. 655, 663 ( 9th Cir. BAP 2009), aff ’ d , 654 F.3d 868 (9th Cir. 2011)

. Under de novo8 review, we loo k at t he matter anew, as if it had not be e n he ard befo r e , and
as i f no decision ha d been rende red previou sly, g ivi n g no deference to the bankruptcy cou rt ’ s determina tion s. Freeman v. Dir ecTV, In c. , 457 F.3d 1001, 1004 (9t h Ci r

. 2006).
We r eview the bankruptcy c ourt ’ s dis missal of a complaint withou t
leave to a mend for abuse of discretio n. Tracht Gut, LLC v. L.A. C n t y

. T

reasurer & Tax Collec tor (I n re Tracht Gut, LLC) , 836 F.3d 1146, 1150 (9th Cir

. 2016) . A bankruptcy c ourt abuses its discretion if it applies the wrong lega l

stan dard , m isapplies the correct legal standard, or makes f actua l findings

t hat a re illogical, i mp lausible, or witho ut support in inferences that may be
drawn from the facts in the record. U nited States v. Hinkson , 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
DISC U SS I O N
A. Standard u nder C ivil Rule 12(b)(6)
Under Civil Rule 12(b)( 6), a ppl icable in b a nk ruptcy by Rul e 701 2,
dismissal i s proper if a complain t fails to allege “enough facts to sta te a claim to relief that is plausible on its face.” Bell A tl. C orp. v. T womb ly , 550
U.S. 54 4 , 570 ( 2007 ) . While detailed factual allegations are n ot req uired,

m e re label s and co nclu sions or a for mulaic re citation of the elements of a
cause of ac tion are not enough. Ashcroft v. I qbal , 556 U.S. 662, 678 (200 9 )

. B. Federal clai m preclusion standards
C laim precl usion prohibit s lawsuits o n any claims that were raised o r

c ould have been raised in a prior action. Stewart v. U.S. Bancorp , 297 F.3d9 953, 956 (9th Ci r. 2002) . Claim preclu sion under federal law app lies when
there i s “(1 ) an identity of claims; (2) a fina l judgment on the merits; and (3) identity o r privity bet w ee n parties.” Id. ( citation omitted). In the bankruptc y court, Censo argued that the fi rst an d third elements were not met, bu t it did not dispute that the DC O rde r was final and on the merits.
O n a ppeal, Censo h as abandoned its arguments wit h respect to t he first
and third elements and focus es solely on its new argument, that the entry
of the DC O rder violated the aut omatic stay because it was entered pos t

pet ition and involved property of the estat e. Thus , Censo argues, the
second element is not met beca u se the DC O rder is void. Ordinarily, federal appellate courts will not consider issues not
p roperly raised in the trial court s. In re E.R. Fegert, Inc. , 887 F.2d at 957 . We may, how ever, cons ider an issue raised for the fir st time on appeal if

“ (1) there ar e ‘ exceptional circum stances ’ why the iss ue was not raised in

t he trial co urt , (2) the new issue arises wh ile t he appeal is pending because
of a c hange in the l aw, or (3) the issue presented is purely one of law and the op posing party will suffer no pre j ud ice as a result of the failure to raise

t he issue in the trial court.” Fra nchise Tax Bd. v. Roberts (In re Robe rts) , 175 B.R. 339, 345 (9th Cir. B AP 1994) ( quot ing United States v. Carlson , 900 F.2d 1346, 1349 (9th Cir. 19 90)). The question of whether t h e DC Order was void

as a stay violation is a purely legal issue

. Shellp o int argues that it is
p rejudiced bec ause it was deprived of the opportu nity to move for
retroactive relief from stay, but it has addressed the issue in its briefing,10 and even if we we r e to conclude that the stay was violated, Shellpoint
could seek retroactive reli ef on ce this appeal is final

. 5
C. E ntry of the DC Order did not violate the automatic sta y. Ce n so argu es , with virtually no analysis, that the DC O rd er v iol ated §§ 362(a)(1 ), (a ) (3 ), (a)(4) , and (a)(5) as the c ont inuation of a n action against the debtor, an act to exercise control over estate pr operty, or an act to create, perfect, or enforce a lien against p roperty of the esta te or property of
the debtor. W e disagree

.

“ The aut o ma tic stay serves the debtor ’ s interests by protecting the estate from dismemberment, and it also benefits creditors a s a group by preventing individual credi tors fro m pursuing their own interests to the
detriment of the oth ers. ” City of Chicago v. Fulton , 1 41 S. Ct. 585, 589 (2021)

. T o that end, the stay p rotects the status quo by prohibiting certain acts affecting propert y of the debtor or the estate

. See i d

. at 590

.

5 Shellpoin t asserts several the ories u nder which i t contends Censo is barre d from
ra i sing the stay violation issue on appeal because it was no t r aise d in the ba nkruptcy court. But the doctrin es ass erted by Shellpoint ( judicial est op pe l, waiver, law of the case, rati fication, and invit ed error ) have no app licability in th e automatic stay c o ntext. See M orris v. Peralta (I n re Pera lta ) , 317 B.R. 38 1, 389 ( 9th Cir. B AP 2004) (because the automatic stay is effective against the world, r eg ar dless of notice, acts in violati on of the stay are au tomati cally void ab initio (citing S chwartz v. United States (In re Schwartz) , 954 F.2d 569, 5 72

– 74 (9th Cir. 1 992 ) ) ) ; s ee also Ostano Co mmerzanstalt v. Telew ide Sys., Inc. , 790 F.2d 206, 207 (2d Cir

. 19 86) ( debtor may neither unilater ally waive nor limit t he scope of t he aut omatic stay ). But see Parker v. S a unders ( In re Bakersfield Westar, Inc. ) , 226 B.R . 227, 231 n. 8 ( 9 th Cir. BAP 1998) ( declining to consider debtors’ argument that a fraudulent transfe r complaint filed by the chapter 7 trustee in their corporate case violated the stay in their personal bankruptcy case because the argument was not raised in the bankruptcy court ).11 1. The District Court ’ s grant of summary judgment on Ditech ’ s counterclaims did not violat e § 362 (a)(1) because those counterclaims were in substance a defense to KAH ’ s cross claims , which were simultaneously dismissed

. Section 3 62(a)( 1) provi de s that the filing of a bankruptcy petition operates as a stay of
the commencement or continuatio n, i n cl ud ing the issua nce or employment of process, of a j udicial, administrative, or o ther actio n or proceeding against th e debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against th e de b to r that arose be fore the commence ment of the case un der this title [.] The plain language of this provision indicate s that the stay appli e s only to actio ns against the debtor

. See also In re Palmdale Hills Pro p., LLC , 423 B.R. at 663

- 64 (auto matic s tay i na ppl icable to la wsuits initiated by the
debtor , and a defend ant in an action brought by the debtor may defend
itself in that action without viola tin g the automatic stay ) ; Gordon v.
Whitm ore ( In re Merrick ) , 175 B.R. 333, 336

- 3 8 ( 9 th Cir. BAP 1994) ( s tay i s inapplicable to post

- petition defensive action in a pre
- petit ion suit brought by the debtor, citing cases)

. The case s holding that a creditor ’ s defense of claims brought by a
debtor do not violate the au tomatic stay typ ically involve facially defensive

a ctions such a s moving for summary judgment of dismissal of a complaint filed by a debtor. S e e, e.g., In re Merrick , 175 B.R. at 334

. On the other hand,
the commencement or continuation of a creditor ’ s counter claim for affirmative relief will generally be c onstrued as a stay violation. See Eisinger12 v. Way (In re Way) , 229 B.R. 11, 14 ( 9 th Cir. BAP 1998) ( because a

count erclaim is an independent cause of action, relief from stay must b e sought t o continue its prosecution ). The analysis is more complicated i n mul tiple par ty/mult iple claim litigation . In such litigation , “ wh o filed the complaint is not dispositive of whether the case involves an action or proceeding against the debtor. ” Parker v. Bain , 68 F. 3d 1131, 1137 (9th Cir. 1995)

. Instead, t he claims an d parties “ must be di saggregated so that particular claims, counterclaims, cros s claims and third

- party claims are
treated i ndependently when determining which of th eir respective proceedings are subject to the bankruptcy stay. ” Id. (quoting Maritime Elec.
C o. v. United Jersey Bank , 959 F.2d 1194, 1204

- 06 (3d Cir. 1992) ). We must
anal yze “ whe ther, at its inceptio n, the claim was ‘ against the debtor ’ ; one must not look at who most recently prev ailed at any subsequent point [.] ”
In re Mid

- City Parking, Inc. , 3 32 B.R. 798, 806

- 07 ( Bankr. N.D. Ill. 200 5).
K AH ’ s cross
- claim s against Ditech sought a declaration that title to the Property was vested in K AH free and clear of al l liens and
encumbrances and that “ counterdefendants , ” including Ditech , ha d no estate, ri gh t, title, or i ntere st in the Property. It was K AH , not Dit ec h, wh ich
ini t ia lly s ought a determination of the validity of Ditech ’s interest i n the Property. Ditech ’ s counterclaims sou ght to quiet titl e and for a declaration
that it w as the holder of a fir st position deed of t rust on the Property as
ag ainst all other claimants , including K AH

. Th ose counter claim s w ere the mirror image of KAH ’ s claims against Ditech ; as such, Ditech ’ s motion for13 summary judgment sought resolution of the identical issues raise d in
KAH ’s c ross
- clai ms. U nde r a common sense interpretation of the D C
Or der, Dit ech ’ s counterclaims w ere in sub sta nce a defens e to K AH ’ s assertion that Ditech had no interest in the Property

. See Civil Rule 8(c)(2) ( “ If a party mistakenly designates a def en se as a counterclai m, or a counterclaim as a defense, the court must, i f justice requires, treat the pleading as though it were cor rectl y designated, and may impose terms for doing so. ” )

. T h ose counterclaim s never would have been filed but f or KAH bringi ng Ditech into the l i tigation by filing its cross

- complaint. And as
discussed in our analysis of § 3 62 ( a )(3), the status quo was th at Ditech ’ s
int erest was of record. Accordingly, all Ditech was doing was def ending its lien against KAH ’ s attack.
Wh en t he D i strict C ourt grante d summ ary judgment in fav or of
Ditech on its counterclaims , it simultaneously disposed of KAH ’ s cross
cla im s : [T] he Court grants summary judgment in favor of Ditech and declares that the Federal F oreclosu re Bar prevented the foreclosu re sale from extingui shing Fannie Mae ’ s interest in the p roperty . The Court finds thi s holding to be decisive as to all

c laims i n this matte r and dismisses the remaining claims as a result. Those claims included KAH ’ s cross
- claims against Ditech

. As a resu lt , the
D C Order did not violate § 362(a)( 1 ) even though it di spo sed of Ditech ’ s counterclaims against K AH

.14 Our conclusion is limited to the unique facts of this case. Here, none of the policy reasons for § 362(a ) ’ s stay of lit i ga t i on against a debtor ar e implicated. The en try of the DC Order did not dimi nish the estate , nor did it unfairly benefit one cred itor over another

. 6 Under these ci rcumstances, § 362(a) ( 1) is simply not implicated.

2. Entry of the DC Order did not violate § 362(a)(3) because it did no t change the status quo. Under § 362(a)(3) , the stay applies to “ any act to obtain possession o f
p roperty of the estate or o f property from the estate or to exer cise control
over pr operty of the est ate [.] ” Acts that simply maintain the status quo do

not v iolat e the au tomatic stay. Fulton , 141 S. C t. at 59 0

. In Fulton , the Supreme Court held that the City of Chicago d id not exercise control over property of th e estate in violat ion of the stay when it retained possession of
debtors ’ impounded vehicles p ost

- p etiti on. Id. at 5 89

- 90

. According to the
Cour t, “the language of § 362(a)(3) implies that something more than

m ere ly retaining power is required to violate the d isp uted prov ision. ” I d

. at
590. Instead, § 362(a)(3) “ prohibits affirmati ve acts th a t would d is turb the

sta tus quo of estate prop erty as of the time when the bankruptcy petition
was filed

. ” Id. Here, Shellpoin t ’ s lien existed as of the petition date , and the
DC Order simply affir med the validity of the exis ting lien . It did not affect

6 Censo ’ s schedules, which were not filed until D ecember 2019, i nclude Shel lpoint ’ s secured claim encumbe ring the Property. That claim is characterized as contingent and di sputed based not on the theory that the first position lien had been extinguished , but on “ wrong address and legal description on N ot e and D eed of T rust. ”15 KAH ’ s posses si on or control of the Property

. The DC Ord er thus did not disturb the status quo and did not viol a t e § 362(a)(3)

. 3. Entry of the DC Order did no t violate §§ 362(a)(4) or (a) (5) because it was not an act to create, perfect, or enforce a lien. Sec tions 362 (a ) ( 4) and ( a)(5) provi de that the sta y ap plies to any ac t to create, p erfect, or enforce a lien against property of the estate or prop erty of
the debtor , if the lien secure s a pre
- petition claim

. Censo offers absolutely no factual or legal basi s to conclude t hat the DC Order violated the

auto matic stay u nder thi s subsection. KAH ’ s cross
- claims initiated the dispute over the existence of t he lie n and thus cann ot be construed as an act to create, perf ect, or enforce a lien , and Ditech defended the cross
claims w ith its counterclaims

. As di s cusse d, the DC Order simu l taneou sly disposed of all cla ims in the lawsuit, includin g KAH ’ s c ross
- claims

. We
note that w hen Shellpoint wanted to enforce its deed of trust, it obtained an
order from the bankruptcy court grantin g relief from stay

. On e of the less ons of Fulton is t ha t not every post

- petition a ct or
omission that cou l d conceivably affect propert y of the debtor or the estate is a stay v iolation. A debtor cannot simply proclaim a stay violation but

must carefully an al yze and apply the specific subsect ion of § 362(a). Cens o has utterly failed in th at rega rd. W e c onclude t hat the DC Order is not void as a violation of the automatic stay. 7

7 I n any ev ent, the bankruptcy co urt has the power t o enter an order retroactively lifting the stay if appropriate

. Fjeldsted v. Li en (In re Fjeldsted) , 293 B.R. 12, 2 1 (9th Cir. BAP 2003).16 D. C e nso has waived any argument tha t the other elements of claim preclusion were n ot me t

. Censo has abandoned its arg uments that the other elements of claim preclusion are not m et and that i t adeq uately pleaded its causes of action. Accordingly, t hose argumen ts are wa ived. Se e S mit h v. Marsh , 194 F.3d
1 045, 1052 ( 9 th Cir. 1999)

. The ba nk ruptcy court did not err in granti ng the
motion to dism iss.
E. The bankrupt c y court did not abuse its discretio n in den ying le ave to amend. Although Cens o did not request le ave to amend , th e bank ruptcy court correctly consi dered whether any amendment could c ure the
defi cie ncies of the compla int. See Cook, Perkis s & Liehe, Inc. v. N. Cal

. Collection Serv. Inc. , 911 F.2d 242, 247 (9t h Cir. 1990) ( directing that “ a [ tr ial ]

cou rt should grant l eave to amend eve n if no request to amend the pleading was made, unl es s it determines that the pl eading could not possibly be cured by the alleg ation of other fact s ” )

. Leave to amend is to be freely given. See Civil Rule 15 ; Tracht Gut,
L LC v. L.A. Cnty. Treasurer & Tax Collector (I n re Tr acht Gut, LLC ) , 503 B.R. 804, 814 ( 9 th Cir. BAP 2014), aff ’ d , 836 F.3 d 1146 ( 9 th Cir. 2016 ) . At the same
time , if the bankruptcy court determines that amend ment would be futile,
it must dismiss the comp la int with prejudice. I d. at 815.
Given th e bankrupt c y court ’ s finding that claim pre cl usion barred the requested relief, amendment would have been futile. T hus , the cour t did

no t abuse its discretion in denying leave to amend. Cens o never theless17 requests that, if the Panel d isag rees that the DC Order is vo i d , we shou l d
remand with inst ruc ti ons to permit Censo to ame nd its c omplain t

. Ce nso does not seem to gra sp t hat if the Panel finds the DC Order valid, claim preclusion applies to bar any claim th at Shell point ’ s lien is not va lid

. Censo

states that there a re claims av ailable in bankruptcy t hat could not have been brought in the district court l itigation , but exce pt for the conclus ory
statement that “ it is possible that amended cla im s are available , ” Censo articulates no plausible claim that it could assert in an amended complain t.
C O N C LUS I ON
For these reasons, the bankruptc y c ourt did n ot err i n g ranting the

m o t i o n to dismiss with out leave to amend

. W e AF FIRM. 8

8 The day before oral argumen t in this ap pe al, C e nso ’ s counsel filed a letter att aching a copy of t he Nevada Supreme C ourt ’ s rec ent decision in U. S. Bank, N.A. v. Thu nder Prop ertie s , Inc. , 503 P.3d 299 (Nev. 202 2 ) . There, the court addressed questions certified to it by the N inth Circ uit Court of A ppeals regarding wh at stat ute of l imit ations applies to a lienholder ’ s clai m for declaratory relief that its lien was not exti nguished by a n HOA forecl osure s ale. The cour t held that such a claim is governed by the four

- year statute of limit a tions of N ev ad a Revised Statutes § 11.22 0 , but t he l imitations period in that case was no t tr iggered solely by the HOA foreclosure sale. Censo suggests that, based on this authority, if the Panel agrees that the DC Order is void, Shellpoint is no t necessar ily time

- bar re d from obtaining a declara tory jud gmen t regarding the va lidity of its lien. We express n o opinion on the impact of this case.