Unpublished Disposition, 917 F.2d 27 (9th Cir. 1990)

MEMORANDUM^* 

The district court in this diversity action granted partial summary judgment for appellees Alvin and Eugenia Wolff and Marshall and Beverly Gates on the grounds that appellant Fleet Mortgage Corporation ("Fleet") failed to comply with local court rules. We have jurisdiction under 28 U.S.C. § 1332 (1988), and we affirm.

ANALYSIS

Standard of Review

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). We review a district court's application of local rules for abuse of discretion. United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979). When the district court has applied a correct legal standard, we review a grant of attorneys' fees for abuse of discretion. Perry v. O'Donnell, 759 F.2d 702, 704 (9th Cir. 1985).

Effect of the Automatic Stay

Fleet contends the district court was barred from considering appellees' motion for partial summary judgment because the motion violated the stay in the Gates' bankruptcy case.¹  Although this argument raises interesting questions regarding the applicability of the stay to debtors and to co-debtors, and creditors' standing to assert stay violations, we conclude that, under the circumstances of this case, Fleet is not in a position to raise this argument.

We note first that, at the time the district court acted, the stay had in fact been lifted. Fleet does not contend that the district court did not have the power to consider its suit; it argues merely that the court was barred from considering its opponents' responsive motion. Since Fleet itself requested relief from the stay, we conclude this argument is not well-taken.

We also premise our conclusion on Fleet's failure to challenge the validity of appellees' motion until after the district court decided the motion against Fleet. Although Fleet based its first request for a continuance on its desire to obtain relief from the automatic stay, it waited until after requesting a second continuance before seeking relief from the stay. Fleet sought a second continuance based on its need for additional time for discovery, rather than on problems related to the stay. Fleet's third motion for a continuance referred primarily to discovery-related problems. Although, in papers accompanying its third continuance motion, Fleet did state that "title cannot be effectively cleared until the Stay is lifted," it never directly challenged the validity of the motion to which it was purportedly attempting to respond. Moreover, Fleet filed these papers a day after the stay was lifted. Finally, Fleet failed to challenge the validity of the motion during the hearing on the motion. Under these circumstances, we conclude that Fleet should not be permitted to assume such inconsistent positions before the district court and this court. See 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice, p 0.405 at 239 (2d ed. 1988).

Summary Judgment

In the Eastern District of Washington, Local Rule 7 prescribes the procedures for the court's Motion Practice. Pertinent subsections provide:

(d) Responsive memorandum. The opposing party shall, after service, ... have eleven (11) calendar days in a civil case ... within which to serve and file a responsive memorandum.

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(h) Hearing on motions.

(5) A failure to timely file a memorandum of points and authorities in support of or in opposition to any motion may be considered by the Court as consent on the part of the party failing to file such memorandum to the entry of an Order adverse to counsel in default.

Loc.Rule 7(d), (h) (5).

Rule 7(h) (5) specifically entitles the district court to consider Fleet's failure to file a responsive motion as consent to the entry of an adverse order. We upheld the application of a rule similar to Rule 7(h) (5) in United States v. Warren, 601 F.2d 471 (9th Cir. 1979), stating: "Only in rare cases will we question the exercise of discretion in connection with the application of local rules." 601 F.2d at 474. Given this limited scope of review, and Fleet's inability, despite two continuances, to present a response to appellees' motion for partial summary judgment until the day of the hearing, two and a half months after the motion was filed, we conclude that the district court did not abuse its discretion in granting partial summary judgment for appellees.

Attorneys' Fees

Fleet does not dispute that attorneys' fees are available under the Deeds of Trust and the promissory notes. It contends, however, that it should be considered the prevailing party because it is entitled to a decree of foreclosure.

In Richter v. Trimberger, 50 Wash. App. 780, 750 P.2d 1279 (1988), the court found that where a party "did not achieve anything at trial that had not been offered to him prior to trial," he could not be seen as the "prevailing party" for purposes of obtaining attorneys' fees. The district court in this case correctly noted: "It is clear from the record that the thrust of the plaintiff's actions was to pursue these deficiencies, as the defendants have conceded from the beginning that title to these properties should be quieted in the plaintiff's favor." The rationale of Richter applies here, as appellees' have never contested Fleet's ability to foreclose nonjudicially. We affirm the district court's grant of fees to appellees and award them fees for this appeal pursuant to the parties' contracts.

AFFIRMED.