Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

In re Ben W. ALLUSTIARTE and Linda M. Allustiarte, Debtors.Ben W. ALLUSTIARTE and Linda M. Allustiarte, Debtors-Appellants,v.RUDNICK ESTATE TRUST, Trustee, Trustees-Appellees.

Nos. 89-15324, 89-16163.

United States Court of Appeals, Ninth Circuit.

Submitted April 26, 1990.

Before TANG, NELSON AND O'SCANNLAIN, Circuit Judges.


Benjamin W. and Linda M. Allustiarte, debtors in a proceeding under Chapter XII of the now repealed Bankruptcy Act of 1898, appeal from two district court decisions in this consolidated appeal. First, they appeal the district court's dismissal of their appeal from a bankruptcy court order allowing the trustee to sell two ranches from the Allustiartes' bankruptcy estate. The second appeal arises from the district court's dismissal of an appeal from the bankruptcy court's extension of its prior order allowing the sale. We have jurisdiction pursuant to 28 U.S.C. § 1291 and former 11 U.S.C. § 47(a). We affirm.

Because the property at issue in both of these appeals has already been sold, the district court dismissed the Allustiartes' appeals on the ground that the case was moot. The Allustiartes argue on appeal that a case under Chapter XII of the Act cannot become moot. This argument lacks merit.

When an appellant fails to obtain a stay from a bankruptcy court's order permitting sale of her assets and the assets are sold while the appeal is pending, the appeal becomes moot. In re Onouli-Kona Land Co., 846 F.2d 1170, 1171 (9th Cir. 1988). Because the properties at issue in the instant appeal have been sold and no evidence appears in the record to show bad faith on the part of the purchasers, the appeals are moot. See id. at 1173.

The Allustiartes contend that the bankruptcy court lacked jurisdiction to extend its original order to allow the sale after the Allustiartes had filed their notice of appeal from the original order. However, even assuming that the bankruptcy court lacked jurisdiction to enter its amended order, the trustee's sale of the property pursuant to that order renders the issue moot. See Christian Science Reading Room Jointly Maintained v. City and County of San Francisco, 784 F.2d 1010, 1017 (9th Cir. 1986).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4


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