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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.

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1222-KiPaH

)

JOSEPH ANTHONY ORTOLA, ) Bk. No. 10-34218-MJ

)

Debtor. )

______________________________)

)

JOSEPH ANTHONY ORTOLA, )

)

Appellant, )

) 

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

)

DEYANIRA ORTOLA; ROD )

DANIELSON, Chapter 13 Trustee,)

)

Appellee. )

______________________________)

Argued and Submitted on November 17, 2011

at Pasadena, California

Filed - December 16, 2011

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Meredith A. Jury, Bankruptcy Judge, Presiding _____________________________________

Appearances: Elizabeth A. Larocque, Esq. of Goe & Forsythe, LLP

argued for appellant, Joseph A. Ortola; 

John F. Mansour, Esq. of the Mansour Law Group

argued for appellee, Deyanira Ortola.

_____________________________________

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

FILED

DEC 16 2011

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2 Unless otherwise indicated, all chapter, section and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. 

The Federal Rules of Civil Procedure will be referred to as

“FRCP.”

3 Section 521(e)(2)(A)(i) provides in relevant part: 

 (A) The debtor shall provide--

 (i) not later than 7 days before the date first set

for the first meeting of creditors, to the trustee a copy of

the Federal income tax return required under applicable law

. . . for the most recent tax year ending immediately before

the commencement of the case and for which a Federal income

tax return was filed.

 - 2 -

Appellant, chapter 132 debtor Dr. Joseph Ortola (“Ortola”),

appeals a bankruptcy court order granting a motion for relief

from the automatic stay pursuant to § 362(c)(3)(A) (“Stay Relief

Order”) filed by Ortola’s former spouse, appellee Deyanira Ortola

(“Deyanira”). We AFFIRM. However, the order contains an error,

which counsel for Deyanira acknowledged at oral argument. The

order suggests that the stay in Ortola’s second chapter 13 case

expired on July 30, 2010 - the date he filed the petition. This

is incorrect. The stay did not expire until 30 days after the

filing date - August 29, 2010.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ortola filed his first chapter 13 bankruptcy case on May 19,

2010. The chapter 13 trustee moved to dismiss for Ortola’s

failure to provide a copy of his 2009 tax return as required

under § 521(e)(2)(A)(I).3 At a June 30, 2010 hearing on the

matter, Ortola’s counsel stated that he had advised Ortola to

provide the tax return to the trustee prior to the § 341

creditor’s meeting, and he was unsure why Ortola had not
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complied. The court denied Ortola’s request for a 10-day

extension and dismissed the case without prejudice. An order

dismissing Ortola’s first bankruptcy case was entered on July 6,

2010.

Ortola filed his second chapter 13 bankruptcy case on

July 30, 2010. On October 12, 2010, Deyanira moved to confirm

termination of the automatic stay under § 362(c)(3) or,

alternatively, that no stay was in effect under §

362(c)(4)(A)(ii)(“Stay Relief Motion”). Deyanira sought stay

relief to proceed in state court with pending dissolution

proceedings commenced in 2001. According to Deyanira’s moving

papers, Ortola had filed for divorce in 2001. The case was

bifurcated as to marital status and division of property in 2003,

and judgment for termination of the marriage was entered at that

time. Deyanira contended the stay should be terminated to allow

the state court to determine her interest in their community

property. She further contended the automatic stay terminated as

to Ortola and his estate 30 days after he filed his second

chapter 13 case because his first case had been dismissed on

July 6, 2010.

Ortola opposed the motion, contending that Deyanira was not

entitled to relief because she had failed to show why his prior

bankruptcy case had been dismissed. Ortola further contended

that Deyanira had not shown “cause” for a determination of her

interests in what was undividable community property - the

building in which Ortola operated his dental practice. In his

supporting declaration, Ortola stated that he had dismissed his

first chapter 13 case because he did not yet have all the
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4

 Because Deyanira untimely filed her reply brief just one

day prior to the hearing, the bankruptcy court reviewed it but

did not consider it on the merits.

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required documents. 

In her reply, Deyanira explained that Ortola had failed to

comply with prior state court orders ordering the sale of their

community property, which were issued to satisfy Ortola’s

domestic support obligations. According to Deyanira, the state

court was prepared to issue a ruling granting her exclusive right

to sell certain real properties at a July 23, 2010 hearing in the

dissolution proceeding, but the matter was continued to September

10, 2010. She asserted that Ortola filed his second chapter 13

case on July 30 to circumvent entry of the state court orders. 

Deyanira asked the bankruptcy court to take judicial notice of

her recently-filed adversary proceeding against Ortola that

sought to have these and other debts declared nondischargeable.4

 

At a hearing on December 1, 2010, the bankruptcy court

denied the Stay Relief Motion without prejudice. Without

controlling Ninth Circuit authority on the matter, the court

reasoned that under In re Jumpp, a case from the First Circuit

BAP, the automatic stay under § 362(c)(3)(A) terminated only as

to the debtor and debtor’s property, not property of the estate. 

The court concluded that the issues Deyanira raised in her

motion, which were the same issues raised in her adversary

complaint, would be better addressed by the bankruptcy court. 

The court further noted that any orders entered by the state

court after July 30, 2010, violated the automatic stay and were

void. No order was ever entered on the Stay Relief Motion.
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Deyanira subsequently filed a motion seeking to dismiss

Ortola’s second bankruptcy case for exceeding debt limitations

under § 109(e). A hearing on that matter was held on

February 28, 2011. After discussing the pending matters in the

dissolution proceeding, the bankruptcy court inquired:

COURT: Did you get the stay continued in this case . . .

Mr. Chien? 

. . . .

MR. CHIEN: There’s no -- this was addressed at the

previous hearing, your Honor. There is an automatic stay

with respect to the court.

COURT: No there isn’t. The recent Resnick [sic] case,

BAP case, which I will follow, said there is no automatic

stay as to the estate, or the debtor in the second case,

unless it has been extended within 30 days of the filing.

So there is no automatic stay, which means that the state

court probably didn’t violate anything when it had a

hearing on September the 10th. 

. . . .

COUNSEL FOR DEYANIRA: I filed a motion to carve out

relief from stay. Your Honor ruled that there was a stay

in place at that time. 

COURT: Yeah. That was before the Resnick [sic] case came

down. I’ve had to change my precedent.

. . . . 

COURT: [I]f there’s an order out there by which I deny

the request for relief from automatic stay, I would sua

sponte, based on the now new, precedential law -- or I

recognize it as precedent anyway from the BAP, I would

sign an amended order that would make it clear to the

family court they could proceed. I think -- I mean, I

think the law compels me to do that. So, somebody can

send me an order on that. 

Hr’g Tr. (Feb. 28, 2011) 15:10-11, 15:25-16:10, 18:14-19,

25:15-22.

On March 16, 2011, the bankruptcy court entered the Stay

Relief Order under § 362(c)(3)(A), effectively reversing its
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5

 This appeal may be moot. Ortola did not seek a stay

pending appeal and, according to the parties at oral argument,

the property at issue was sold to a bona fide third-party

purchaser on October 3, 2011. Nonetheless, neither party

contended this matter was moot and neither party filed any

(continued...)

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December 1, 2010 ruling denying the Stay Relief Motion. 

According to the Stay Relief Order, any actions or orders issued

by the state court after July 30, 2010, were determined not void

or a violation of the automatic stay.

Ortola, appearing pro se, moved to reconsider the Stay

Relief Order on March 28, 2011, thus tolling the appeal time. 

See Rule 8002(b). Deyanira opposed the motion. On April 20,

2011, Ortola filed a proposed motion to continue the stay under

§ 362(c)(3)(B). The bankruptcy court denied both motions at a

hearing on April 25, 2011. The court reasoned that even if it

had not raised its own motion to reconsider its ruling denying

the Stay Relief Motion, it would have granted such a motion had

anyone filed one after Reswick. 

Although no order had yet been entered on the motion to

reconsider, Ortola filed his notice of appeal on May 6, 2011,

seeking to appeal the Stay Relief Order and the “order” denying

his motion to reconsider. Subsequently, on June 2, 2011, the

bankruptcy court entered an order denying the motion to

reconsider, thus curing Ortola’s ineffective appeal of the Stay

Relief Order. See Rule 8002(b). 

II. JURISDICTION

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

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

§ 158.5
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5(...continued)

documentation confirming the sale. Therefore, we proceed to

address the merits of this appeal.

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III. ISSUES

1. Did the bankruptcy court abuse its discretion when it

reversed its prior ruling and granted the Stay Relief Motion

under § 362(c)(3)(A)?

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

motion to reconsider? 

IV. STANDARDS OF REVIEW

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

error and its conclusions of law de novo. Hoopai v. Countrywide

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

2007). 

We review a bankruptcy court’s order granting relief from

the automatic stay for an abuse of discretion. Arneson v.

Farmers Ins. Exch. (In re Arneson), 282 B.R. 883, 887 (9th Cir.

BAP 2002). Denial of a motion to amend or alter judgment under

FRCP 59(e) or for relief from judgment under FRCP 60(b) is also

reviewed for an abuse of discretion. Dixon v. Wallowa Cty.,

336 F.3d 1013, 1022 (9th Cir. 2003). To determine whether the

bankruptcy court abused its discretion, we conduct a two-step

inquiry: (1) we review de novo whether the bankruptcy court

“identified the correct legal rule to apply to the relief

requested” and (2) if it did, whether the bankruptcy court's

application of the legal standard was illogical, implausible or

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

in the record.” United States v. Hinkson, 585 F.3d 1247, 1261-62
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6

 A substantial excuse for a failure to timely provide a

required document may defeat the presumption of bad faith under

§ 362(c)(3)(C)(i)(II)(aa). However, inadvertence or negligence

by the debtor (as opposed to debtor’s counsel) does not qualify

as a substantial excuse. Id.

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(9th Cir. 2009)(en banc).

V. DISCUSSION

A. The bankruptcy court did not abuse its discretion in

granting the Stay Relief Motion under § 362(c)(3)(A). 

Ortola first contends that § 362(c)(3)(A) is inapplicable

because Deyanira failed to carry her burden to prove why his

first chapter 13 case was dismissed - i.e., that he filed it in

“bad faith.” Contrary to Ortola’s belief, no such requirement

for moving parties exists under § 362(c)(3)(A). The only time a

“good faith/bad faith” determination comes into play is when a

party in interest timely moves for a continuation of the

automatic stay in compliance with § 362(c)(3)(B), and these

statutes apply to the second case filed, not the first. No such

motion occurred here. Even if it had, Ortola’s second chapter 13

case was presumptively filed in bad faith because, by his own

admission and his attorney’s statement, Ortola’s first case was

dismissed for his failure to timely provide the trustee with a

copy of his 2009 tax return. See § 362(c)(3)(C)(i)(II)(aa).6

Despite Ortola’s argument to the contrary, § 362(c)(3)(A)

applies because he filed a second bankruptcy case within less

than one year from when his first bankruptcy case had been

dismissed for failing to comply with § 521(e)(2)(A)(I), and no

order had been timely entered to continue the stay under §

362(c)(3)(B). Section 362(c)(3)(A) provides:
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7

 In re Reswick is on appeal with the Ninth Circuit (case

no. 11-60014). On November 16, 2011, the parties in In re

(continued...)

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(3) if a single or joint case is filed by or against

debtor who is an individual in a case under chapter 7,

11, or 13, and if a single or joint case of the debtor

was pending within the preceding 1-year period but was

dismissed, other than a case refiled under a chapter

other than chapter 7 after dismissal under section

707(b) -

(A) the stay under subsection (a) with respect to any

action taken with respect to a debt or property

securing such debt or with respect to any lease shall

terminate with respect to the debtor on the 30th day

after the filing of the later case . . . .” (emphasis

added).

Since this provision was added to the Bankruptcy Code as

part of the Bankruptcy Abuse Prevention and Consumer Protection

Act of 2005 (“BAPCPA”), courts have been divided on whether the

phrase “with respect to the debtor” means that on the 30th day

after the petition date the automatic stay terminates only with

respect to the debtor and the debtor’s property, or whether that

also includes property of the estate. The parties agreed that

the subject community property was property of the estate. 

In its initial decision to deny Deyanira’s motion for relief

from stay on December 1, 2010, the bankruptcy court,

acknowledging the lack of any Ninth Circuit precedent on this

issue, relied upon Jumpp v. Chase Home Finance, LLC (In re

Jumpp), 356 B.R. 789 (1st Cir. BAP 2006), which adopted the

majority view that the stay terminates only with the respect to

the debtor and the debtor’s property. On February 4, 2011, the

Panel issued Reswick v. Reswick (In re Reswick), 446 B.R. 362,

373 (9th Cir. BAP 2011),7 which adopted the minority view,
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7(...continued)

Reswick notified the court of a pending settlement. As a result,

the appeal has been stayed until December 30, 2011.

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holding that § 362(c)(3)(A) terminates the automatic stay in its

entirety - including property of the estate - on the 30th day

after the petition date. 

On February 28, 2011, at the hearing on Deyanira’s § 109(e)

motion, the issue regarding the stay was raised. The bankruptcy

court recognized the BAP’s decision in In re Reswick and decided

to reverse its prior ruling denying the Stay Relief Motion and

grant it under § 362(c)(3)(A). Ortola contends the court erred

in applying In re Reswick retroactively because it unfairly, and

without notice, denied him the right to pursue continuing the

stay under § 362(c)(3)(B). For the reasons stated below, we

disagree. 

As courts of equity, bankruptcy courts have broad discretion

under FRCP 59(e) and 60(b), made applicable here by Rules 9023

and 9024, to sua sponte reconsider, vacate, or modify past orders

so long as no intervening rights have become vested in reliance

on the order. Meyer v. Lenox (In re Lenox), 902 F.2d 737, 739–40

(9th Cir. 1990). No party’s intervening rights became vested in

relying on the bankruptcy court’s initial decision to deny the

Stay Relief Motion because the decision was not a final order.

FRCP 59(e) refers to “judgments.” “Judgment” is defined in FRCP

54(a) as “a decree and any order from which an appeal lies.” In

other words - a judgment is a “final” order. FRCP 60(b) also

refers to relief from “final” orders. All that exists in this

case is the docket entry which states: “Hearing Held - [Stay
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8

 Local Rule 58-6 of the Central District of California

dictates that a notation in the civil docket of entry of a

memorandum of decision, an opinion of the court, or a minute

order of the clerk, does not constitute entry of judgment unless

specifically ordered by the judge. This rule does not exist in

the Central District’s Local Bankruptcy Rules; however, under

LBR 1001-1(e)(1), a matter not specifically covered by the Local

Bankruptcy Rules may be determined by parallel reference or

analogy to the District Court Rules.

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Relief Motion] denied without prejudice.” Even under local rule,

this mere docket entry does not constitute entry of a judgment or

final order.8

Accordingly, the bankruptcy court’s ruling denying the Stay

Relief Motion never became a final order. As such, the court had

inherent power to modify, alter, or vacate it. United States v.

Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000)(authority of

district courts to reconsider their own orders before they become

final absent some contrary rule or statute allows them to correct

decisions based on shifting precedent). The bankruptcy court was

free to recognize the holding of In re Reswick and reverse its

prior ruling denying the Stay Relief Motion. 

We reject Ortola’s argument that the court’s application of

In re Reswick unfairly denied him the right to pursue continuing

the stay under § 362(c)(3)(B). Any motion under § 362(c)(3)(B)

must have been filed, heard, and ruled upon before expiration of

the 30-day period. In this case, that date was August 29, 2010. 

Ortola’s proposed motion to continue the stay, filed on April 20,

2011, was grossly untimely. Even if Ortola had timely sought to

continue the stay under § 362(c)(3)(B) and it was granted, the

bankruptcy court made it clear at the hearing on Ortola’s motion

to reconsider that it would have lifted the stay if a motion had
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9

 We also reject Ortola’s argument that § 362(c)(3)(A) does

not apply because his first case was “closed” not “dismissed.” 

This argument defies common sense. Furthermore, Ortola admitted

in his declaration in support of his opposition to the Stay

Relief Motion that he “dismissed” his first chapter 13 case.

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been filed after In re Reswick. Thus, the result is the same -

no stay exists as to the subject property.9

 

B. Ortola waived his appeal of the reconsideration order.

Even though in his notice of appeal Ortola appealed the

order denying his motion to reconsider, he failed to provide any

argument on the issue in his brief. An appellate court in this

circuit “will not review issues which are not argued specifically

and distinctly in a party’s opening brief.” City of Emeryville

v. Robinson, 621 F.3d 1251, 1261 (9th Cir. 2010). Even if we did

review the matter, we see no abuse of discretion by the

bankruptcy court in denying it. 

VI. CONCLUSION

We conclude that the bankruptcy court did not abuse its

discretion in reversing its prior ruling denying the Stay Relief

Motion and granting it under § 362(c)(3)(A). Accordingly, we

AFFIRM, but we REMAND for a corrected order reflecting the stay

termination date of August 29, 2010.