Unpublished Disposition, 900 F.2d 262 (9th Cir. 1990)
Annotate this CaseNo. 89-55093.
United States Court of Appeals, Ninth Circuit.
Before GOODWIN, Chief Judge, TANG, Circuit Judge, and ALFREDO C. MARQUEZ, District Judge.*
MEMORANDUM**
Emanuel M. and Margaret B. Comora appeal the Bankruptcy Appellate Panel's dismissal of their appeal as moot. The Radells obtained a judgment against the Comoras in a California state court action. The Comoras filed, separately, for bankruptcy, but on the Radells' motion, the bankruptcy court lifted the automatic stay. The Comoras appealed the lifting of the stay but did not obtain a stay of the lifting order pending appeal. The Radells proceeded to sell two real properties they jointly owned with the Comoras and applied the proceeds to the judgment they had against the Comoras. Because the Comoras had not asserted that they had a right of redemption in the properties, the Bankruptcy Appellate Panel found the appeal moot.
The Comoras now argue that they have a right of redemption in the properties because they are still in the process of appealing the original state court judgment and because, they contend, they may redeem their properties if they file an action within six months of the date the California Supreme Court rules. We find no merit in this argument.
Generally, the sale of collateral following the removal of the automatic stay renders the appeal moot. See In re Onouli-Kona Land Co., 846 F.2d 1170, 1172 (9th Cir. 1988); In re Suchy, 786 F.2d 900, 902 (9th Cir. 1985); Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir. 1985). There is a limited exception to the general rule where the buyer is a party to the bankruptcy proceedings and the debtor-property owner retains a right of redemption. See Onouli-Kona Land Co., 846 F.2d at 1172-73; In re Sun Valley Ranches, Inc., 823 F.2d 1373, 1375 (9th Cir. 1987); In re Worcester, 811 F.2d 1224, 1228 (9th Cir. 1987).
The Comoras reason that their case is distinguishable from Onouli-Kona Land Co., which found a bankruptcy appeal moot and noted that the debtor property owners had no right of redemption under Hawaii law. See id. at 1173. They argue that they have redemption rights under California law. See Cal.Civ.Proc.Code Sec. 701.680(b), (c). We disagree.
Subsection 701.680(b) entitles a party to money damages in the event a judgment is reversed on appeal.1 It does not provide for redemption of the property at issue. See Cal.Civ.Proc.Code Sec. 701.680(b). Subsection (c) does provide for some redemption rights in the event of sale irregularities that a party contests within six months of the sale. See Cal.Civ.Proc.Code Sec. 701.680(c). But the Comoras do not argue either that there were irregularities in the sale2 or that they contested the sale within the statutorily prescribed period. The Comoras have not, therefore, established the subject-to-redemption exception to the mootness rule.3
AFFIRMED.
Hon. Alfredo C. Marquez, United States District Judge for the District of Arizona, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Section 701.680 states:
(a) Except as provided in paragraph (1) of subdivision (c), a sale of property pursuant to this article is absolute and may not be set aside for any reason.
(b) If the judgment is reversed, vacated, or otherwise set aside, the judgment debtor may recover from the judgment creditor the proceeds of a sale pursuant to the judgment with interest at the rate on money judgments to the extent the proceeds were applied to the satisfaction of the judgment.
(c) If the sale was improper because of irregularities in the proceedings, because the property sold was not subject to execution, or for any other reason:
(1) The judgment debtor, or the judgment debtor's successor in interest, may commence an action within six months after the date of sale to set aside the sale if the purchaser at the sale is the judgment creditor. Subject to paragraph (2), if the sale is set aside, the judgment of the judgment creditor is revived to reflect the amount that was satisfied from the proceeds of the sale and the judgment creditor is entitled to interest on the amount of the judgment as so revived as if the sale had not been made.
(2) the judgment debtor, or the judgment debtor's successor in interest, may recover damages caused by the impropriety. If damages are recovered against the judgment creditor, they shall be offset against the judgment to the extent the judgment is not satisfied. If damages are recovered against the levying officer, they shall be applied to the judgment to the extent the judgment is not satisfied.
(d) For the purposes of subdivision (c), the purchaser of the property at the sale is not a successor in interest.
Cal.Civ.Proc.Code Sec. 701.680.
The Comoras in the reply brief may be arguing an irregularity by contending that their interest should have been sold as personal rather than real property because they owned as partners. We need not address a new issue raised for the first time on appeal in a reply brief. Moreover, the Comoras do not contend they challenged the irregularity within the six-month period the statute prescribes
If the Comoras suggest that the mootness rule does not apply in a state whose laws recognize any redemption rights, we reject the suggestion
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
