Unpublished Disposition, 927 F.2d 612 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 612 (9th Cir. 1989)

In re Ray WISHMAN and April Wishman, Debtors.Ray WISHMAN and April Wishman, Plaintiffs-Appellants,v.FIRST NATIONAL BANK OF GERALDINE, Defendant-Appellee.

No. 90-35319.

United States Court of Appeals, Ninth Circuit.

Submitted Mar. 1, 1991.* Decided March 5, 1991.

Appeal from the United States District Court for the District of Montana, No. CV-89-179-PGH; Paul G. Hatfield, District Judge, Presiding.

D. Mont.


Before FLETCHER, PREGERSON and TROTT, Circuit Judges.


Ray Wishman and April Wishman appeal pro se the district court's dismissal of their appeal from the bankruptcy court's dismissal of their Chapter 13 bankruptcy petition. The district court dismissed the appeal, in part, on the ground that the appeal was moot because the property had been sold.1  We have jurisdiction pursuant to 28 U.S.C. § 158(d), and affirm.

When an appellant fails to obtain a stay from a bankruptcy court's order permitting sale of the assets, and the assets are sold while the appeal is pending, the appeal becomes moot. Mann v. Alexander Dawson Inc. (In re Mann), 907 F.2d 923, 926 (9th Cir. 1990); Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171 99th Cir. 1988). In Mann, we held that there are two situations in which failure to obtain a stay will not render an appeal moot: (1) if the real property is sold to a creditor subject to the right of redemption or reinstatement, and (2) if state law would otherwise permit the transaction to be set aside. 907 F.2d at 926.

Here, the bankruptcy court dismissed the Wishmans's Chapter 13 bankruptcy petition on July 14, 1989. This order lifted the automatic stay of 11 U.S.C. § 362(a). See 11 U.S.C. § 362(c) (1) (B). The Wishmans failed to obtain a stay of the sale of the property at issue.2  On August 11, 1989, the notice of Sheriff's Sale was posted, and on August 21, 1989 the property was sold to a bona fide non-creditor third party. The Wishmans have not cited any provision of Montana law which would allow this sale to be set aside.3  Accordingly, the district court was correct in its determination that the appeal was moot. See In re Mann, 907 F.2d at 926.



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


The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


The district court also dismissed the appeal on the ground that the notice of appeal was untimely. Because we find that the appeal is moot, we need not address this issue


Although the Wishmans filed a motion for reconsideration of the Bankruptcy Court's dismissal on July 31, 1989, they did not request a stay. On August 25, 1989, the Wishmans did request a stay pending appeal with their notice of appeal. At that point, however, the property had already been sold


The Wishmans contend that the sheriff's sale of their property was invalid because it did not conform to statutory requirements. This contention lacks merit. Montana requires that notice of the sale be posted five to ten days before sale. Mont.Code Ann. Sec. 25-13-701. Here, the record shows that the sheriff posted notice at least five days prior to the sale. Further, the Wishmans have no right of redemption or homestead exemption because this case involves the sale of personal property not real property