Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1989)

MEMORANDUM^** 

California First Bank ("CFB") appeals from two orders of the Bankruptcy Appellate Panel ("BAP"). The BAP's first order denied CFB's motion for rehearing on the granting of partial summary judgment in favor of another lien creditor. The BAP's second order denied CFB's motion for order to dismiss appeal, to reverse or vacate judgment, and remand with directions to dismiss for mootness. We decline to review the BAP's first order for lack of jurisdiction. We affirm the BAP's second order.

FACTS AND PROCEEDINGS

On July 24, 1986, CMSH-Mohanna Joint Venture, a lien creditor of Chapter 11 debtor James R. Orosco ("Orosco"), commenced an adversary proceeding in bankruptcy court to obtain declaratory relief as to the validity, priority, and extent of all liens and encumbrances against certain property owned by Orosco. CFB and Robert and Julia Griffin ("Griffins") were among the named defendants.

On February 13, 1987, the Griffins moved for partial summary judgment. They sought a determination of the validity of their security interest in the property in question, pursuant to a second deed of trust recorded on December 5, 1984, and requested a priority date as of the date of recordation. They also sought a determination that the reconveyance of their trust deed to Orosco was void ab initio due to alleged forgery on the part of Orosco. Through the alleged forgery, Orosco further encumbered the property in question by executing a new deed of trust to CFB.

On August 27, 1987, the bankruptcy court granted the Griffins' motion and held the reconveyance invalid. On September 30, 1988, the BAP affirmed the bankruptcy court's decision. On October 11, 1988, CFB filed a motion for rehearing.

On January 25, 1989, while the motion for rehearing was pending, CFB filed a motion for order to dismiss appeal, to reverse or vacate judgment, and remand with directions to dismiss for mootness. CFB noted that on October 24, 1988, the lien creditor secured by a first deed of trust held a nonjudicial foreclosure sale and purchased the property through a credit bid. As a result of the sale, junior liens, including those of CFB and the Griffins, were extinguished.

On February 13, 1989, the BAP denied CFB's motion for rehearing on the September 1988 summary judgment. On April 5, 1989, the BAP denied CFB's motion to dismiss the September 1988 decision as moot. On April 28, 1989, CFB filed a notice of appeal in this Court, seeking review of both the February 1989 order denying the motion for rehearing and the April 1989 order denying the motion to dismiss for mootness.

ANALYSIS

1. Jurisdiction of the Appeal from the February 13, 1989 Order

CFB's notice of appeal was timely only as to the April 1989 denial of the motion to dismiss, but untimely as to the February 1989 denial of the motion for rehearing. See Fed. R. App. P. 4(a) (1). The time for CFB to appeal the February 13, 1989 denial of rehearing expired on March 15, 1989. CFB did not request an extension of time to appeal pursuant to Fed. R. App. P. 4(a) (5). Although the BAP was entertaining CFB's second motion at the time when CFB could have acted to preserve its right to appeal the first motion, CFB was not misled by any judicial action as to the proper appeal deadline and so the first motion does not fall within the "unique circumstances" doctrine. See Fiester v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986). Therefore, we have jurisdiction to review only the April 1989 order and no jurisdiction to address the merits of the February 13, 1989 denial of rehearing on the summary judgment. See National Bank v. Donovan (In re Donovan), 871 F.2d 807, 808 (9th Cir. 1989).

CFB contends that the September 30, 1988 summary judgment should be vacated for mootness. It claims that the decision, which determined the relative priority of CFB and the Griffins' lien interests, has become advisory since both interests were extinguished by the senior lienholder's foreclosure sale.

The September 30, 1988 summary judgment is not moot. The Griffins have alleged that the summary judgment will affect their pending action for damages against the senior lienholder in Solano County Superior Court. They have alleged that the measure of damages will be determined by the degree to which their lien status was damaged by the conduct of the senior lienholder and the defendants in that action. CFB also notes that the summary judgment could affect further litigation on the priority issue in "another action between [itself and the Griffins] pending in the Solano County Superior Court." Since the summary judgment appears to have an "immediate legal significance" to the state litigation that is actually in progress, we find that the judgment is not moot. See Spacek v. Tabatabay (In re Universal Farming Indus.), 873 F.2d 1332, 1334 (9th Cir. 1989); 13A Wright, Miller & Cooper, Federal Practice and Procedure Sec. 3533.2, at 247 (1984) (collateral consequences of judgment may forestall mootness of case); see also Allard v. DeLorean, 884 F.2d 464, 466-67 n. 1 (9th Cir. 1989) (collateral consequence too remote to forestall mootness of appeal) (emphasis added).

The BAP's April 1989 order is AFFIRMED.