Toromanova v. Wilmington Savings Fund Society, FSB et al, No. 2:2019cv01575 - Document 43 (D. Nev. 2020)
Court Description: ORDER Granting 35 Wilmington's Motion to Dismiss and Affirming Bankruptcy Court. Signed by Judge Andrew P. Gordon on 7/27/2020. (Copies have been distributed pursuant to the NEF - MR)
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Toromanova v. Wilmington Savings Fund Society, FSB et al Doc. 43 Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 1 of 7 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DIMITRITZA H. TOROMANOVA, 4 Appellant 5 v. Case No.: 2:19-cv-01575-APG Order Granting (1) Wilmington’s Motion to Dismiss and (2) Affirming Bankruptcy Court 6 WILMINGTON SAVINGS FUND SOCIETY, FSB, et al., 7 Appellees 8 9 [ECF Nos. 1, 35] Pro se appellant Dimitritza Toromanova appeals Bankruptcy Judge August Landis’s 10 orders (1) granting appellee Wilmington Savings Fund Society, FSB relief from the automatic 11 stay on Toromanova’s property at 8160 Finch Feather Street in Las Vegas and (2) granting 12 appellee U.S. Bank National Association retroactive relief from the automatic stay on 13 Toromanova’s property at 1708 Cordoba Lane in Las Vegas.1 Toromanova argues that Judge 14 Landis improperly considered hearsay evidence and otherwise abused his discretion in granting 15 the relief. Wilmington moves to dismiss the appeal, arguing that I have no jurisdiction because 16 the appeal is mooted by the sale of the 8160 Finch Feather Street property. I agree 17 Toromanova’s appeal is moot insofar as it implicates that property. And I affirm Judge Landis’s 18 orders relating to U.S. Bank’s interest in the 1708 Cordoba Lane property because Toromanova 19 did not object below to U.S. Bank’s use of alleged hearsay and Judge Landis did not abuse his 20 discretion in granting retroactive relief from the automatic stay. 21 22 1 Toromanova appeals Judge Landis’s order denying her relief from his order granting U.S. Bank retroactive relief from the automatic stay, but her brief addresses the order granting U.S. Bank 23 relief from the automatic stay. ECF Nos. 13; 22-2 at 226-27. I do not draw a distinction between Judge Landis’s orders. Dockets.Justia.com Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 2 of 7 1 I. 2 BACKGROUND Toromanova filed the bankruptcy petition underlying this appeal under 11 U.S.C. Chapter 3 13 on August 27, 2018. ECF No. 22-2 at 1-11. The petition was her fourth since 2010. Id. at 3. 4 Two of the prior petitions were dismissed for failure to file information, as was the petition 5 underlying this suit. Id. at 12-13, 145-46. Under the Bankruptcy Code, the filing of a voluntary 6 bankruptcy petition triggers an automatic stay of acts against property belonging to the estate 7 “until such property is no longer part of the estate.” 11 U.S.C. §§ 362(a), (c)(1). In a hearing on 8 U.S. Bank’s motion for retroactive relief from the stay on 1708 Cordoba Lane, Toromanova 9 conceded that she filed the two prior petitions “to stall or stay foreclosure cases.” Id. at 146. 10 11 A. U.S. Bank and 1708 Cordoba Lane In 2003, Toromanova executed (1) a deed of trust secured by the property at 1708 12 Cordoba Lane and (2) a note that is presently endorsed in blank. Id. at 34-56, 58-62. Following 13 several other assignments, Nationstar Mortgage, LLC assigned its interest in the deed of trust to 14 U.S. Bank, in its capacity as trustee for the RMAC Trust, Series 2016-CTT. Id. at 64-65, 67-68, 15 70-71, 73-74, 88-89. A notice of default and a foreclosure mediation program certificate were 16 recorded in 2017 and 2018, respectively. Id. at 76-83, 85-86. Later, a notice of trustee’s sale was 17 recorded setting a public auction for the property for August 27th, 2018 at 10:00 a.m.. Id. at 9118 93. Toromanova filed the underlying bankruptcy petition that same day at 9:15 a.m. Id. at 1. 19 The sale proceeded and U.S. Bank purchased the property. Id. at 29. Bankruptcy Judge Laurel 20 Babero dismissed Toromanova’s petition for failure to file information on October 12, 2018. Id. 21 at 12. 22 Less than a month later, U.S. Bank moved to reopen the bankruptcy case to allow it to 23 move for retroactive relief from the automatic stay. Id. at 258. Judge Landis reopened the case 2 Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 3 of 7 1 and granted U.S. Bank’s motion for retroactive relief. Id. at 106-07. Toromanova moved for 2 relief from the order, but Judge Landis denied her motion. Id. at 226-27, 262, 268. Toromanova 3 now appeals that order. ECF No. 4. 4 B. Wilmington and 8160 Finch Feather Street 5 In 2004, Toromanova executed (1) a deed of trust secured by the property at 8160 Finch 6 Feather Street and (2) a note that is presently endorsed in blank. ECF No. 18-1 at 30-47. 7 Following several other assignments, MTGLQ Investors, L.P. assigned its interest in the deed of 8 trust to Wilmington, in its capacity as trustee of Matawin Ventures Trust Series 2018-3. Id. at 9 100-107. By July 2019, Toromanova had missed 10 payments after filing her bankruptcy 10 petition, so Wilmington moved for relief from the automatic stay to enforce its rights with 11 respect to the property. Id. at 76-79. After a hearing, Judge Landis granted Wilmington’s 12 motion. Id. at 118-120, 126-150. Toromanova now appeals that order. ECF No. 1. 13 After Toromanova filed this appeal, a notice of trustee’s sale was recorded on January 16, 14 2020 setting a public auction for the property for February 18, 2020. ECF No. 35-1 at 17. 15 Toromanova filed another bankruptcy petition on February 17, 2020. Id. at 25. The sale 16 proceeded, and the property was sold at auction. Id. at 27-28. Judge Landis granted 17 Wilmington’s motion for relief from the automatic stay in Toromanova’s new bankruptcy case, 18 and Toromanova did not appeal. Id. at 30-33. 19 II. DISCUSSION 20 A. Wilmington’s Motion to Dismiss [ECF No. 35] 21 Wilmington argues that the appeal is moot because Judge Landis granted Wilmington 22 relief from the automatic stay to sell the property at 8160 Finch Feather Street, the property was 23 then sold, and Toromanova failed to appeal. Toromanova responds by asserting that the court 3 Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 4 of 7 1 has exclusive jurisdiction over real property and attaching an affidavit from a private investigator 2 regarding purported irregularities with the deed of trust and note. 3 I have jurisdiction over appeals from bankruptcy courts. 28 U.S.C. § 158(a). However, I 4 do not have jurisdiction over moot appeals, and I must dismiss them. I.R.S. v. Pattullo (In re 5 Pattullo), 271 F.3d 898, 901 (9th Cir. 2001). A case is moot “[i]f an event occurs while a case is 6 pending on appeal that makes it impossible for the court to grant any effectual relief whatever to 7 a prevailing party . . . .” Id. (quotation omitted). 8 Here, Judge Landis granted Wilmington’s motion for relief from the automatic stay in the 9 underlying bankruptcy case. Toromanova filed a new bankruptcy petition on the eve of the sale, 10 but the sale proceeded and the property was sold. Judge Landis subsequently granted 11 Wilmington’s motion for relief from the stay in that new case. Because Toromanova failed to 12 appeal, that order is now final. That final order confirmed that the property is no longer part of 13 the estate in this case, so I would not be able to grant Toromanova effective relief by reinstating 14 the automatic stay should she prevail on appeal. As a result, Toromanova’s appeal is moot with 15 regard to 8160 Finch Feather Street and I thus lack jurisdiction over it. 16 Toromanova asserts that I have jurisdiction under 28 U.S.C. § 1334(e). But I do not have 17 jurisdiction over moot appeals. Toromanova’s arguments and affidavit regarding the note and 18 deed of trust are irrelevant to this motion, as Judge Landis’s subsequent order validated the sale. 19 So I grant Wilmington’s motion and dismiss Toromanova’s appeal of Judge Landis’s order 20 granting Wilmington relief from the automatic stay.2 21 / / / / 22 2 23 If the appeal were not mooted by the subsequent sale of the property and Judge Landis’s order granting retroactive relief, I would find that Judge Landis’s order in this case was not an abuse of discretion because U.S. Bank demonstrated cause for relief. 4 Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 5 of 7 1 B. Toromanova’s Appeal of Order Granting U.S. Bank Retroactive Relief 2 Toromanova also appeals from Judge Landis’s order granting U.S. Bank retroactive relief 3 from the automatic stay. She argues that Judge Landis admitted inadmissible hearsay evidence 4 and abused his discretion by ordering relief from the stay. U.S. Bank responds that the deed of 5 trust and note were properly admitted as self-authenticating documents and that Judge Landis did 6 not abuse his discretion because Toromanova serially files bankruptcy petitions to stay or stall 7 foreclosure proceedings. Toromanova replies that U.S. Bank served her with an “illegible” 8 response brief that was printed with two brief pages per printed page. 9 10 1. Evidentiary objection I review the bankruptcy court’s evidentiary rulings for abuse of discretion. Latman v. 11 Burdette, 366 F.3d 774, 786 (9th Cir. 2004), as amended (June 8, 2004), and abrogated on other 12 grounds by Law v. Siegel, 571 U.S. 415 (2014). However, I need not address evidentiary 13 objections that were not raised below. In re Renovizor’s, Inc., 282 F.3d 1233, 1237 n.1 (9th Cir. 14 2002). 15 Toromanova argues that the bankruptcy court admitted “inadmissible hearsay.” ECF No. 16 13 at 6. She points to a section of U.S. Bank’s motion below and appears to argue that by 17 granting the motion, Judge Landis violated the rules of evidence prohibiting hearsay and 18 requiring authentication and personal knowledge. Id. at 7-8 (citing Fed. R. Evid. 602, 802). 19 Toromanova does not analyze how, or identify where in the record, Judge Landis abused his 20 discretion. Although Toromanova raised evidentiary issues in opposition to Wilmington’s 21 motions, she did not raise any evidentiary objections in her opposition to U.S. Bank’s motion for 22 retroactive relief, her motion to vacate the order granting U.S. Bank’s motion for retroactive 23 relief, her requests for judicial notice, or the hearing conducted on the motions. ECF No. 22-2 at 5 Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 6 of 7 1 109-21, 130-55, 173-80, 186-94, 198-222. Because Toromanova’s evidentiary objection was not 2 raised below, I decline to address it. 3 4 2. Substantive objection I review “[a] decision [to] retroactively [] lift the automatic stay . . . for an abuse of 5 discretion.” In re Nat’l Envtl. Waste Corp., 129 F.3d 1052, 1054 (9th Cir. 1997). “[S]ection 362 6 gives the bankruptcy court wide latitude in crafting relief from the automatic stay, including the 7 power to grant retroactive relief from the stay.” In re Schwartz, 954 F.2d 569, 572 (9th Cir. 8 1992). A bankruptcy judge may grant relief for “cause,” but must balance the equites to 9 determine whether retroactive relief is justified. 11 U.S.C. § 362(d)(1); In re Nat’l Envtl. Waste 10 Corp., 129 F.3d at 1055. Bankruptcy judges consider a number of factors, including the number 11 of filings, whether the circumstances indicate an intention to delay or hinder creditors, and the 12 debtor’s good faith, among others. In re Fjeldsted, 293 B.R. 12, 24–25 (9th Cir. B.A.P. 2003). 13 At the hearing on U.S. Bank’s motion, Judge Landis balanced the equities to determine 14 that U.S. Bank had demonstrated cause for retroactive relief from the automatic stay. ECF No. 15 22-2 at 147-52. In making this finding, Judge Landis described Toromanova’s “habitual filings 16 designed to keep the secured creditor in this particular case from gaining access to its collateral.” 17 Id. at 151. Indeed, Toromanova conceded at the hearing that she filed previous bankruptcy 18 petitions to “stall or stay” foreclosure proceedings. Id. at 146. Judge Landis’s decision to grant 19 U.S. Bank retroactive relief from the automatic stay was not an abuse of discretion under these 20 circumstances. I therefore affirm his order. 21 / / / / 22 / / / / 23 / / / / 6 Case 2:19-cv-01575-APG Document 43 Filed 07/27/20 Page 7 of 7 1 III. CONCLUSION 2 I THEREFORE ORDER that appellee Wilmington Savings Fund Society, FSB’s motion 3 to dismiss (ECF No. 35) is GRANTED. Appellant Toromanova’s appeal is dismissed as moot 4 with respect to Wilmington. 5 I FURTHER ORDER that the bankruptcy court’s order granting U.S. Bank retroactive 6 relief from the automatic stay is AFFIRMED. 7 DATED this 27th day of July, 2020. 8 9 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 7
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