Tuesday, July 1, 2014

Foreclosure sale 5 minutes prior to filing bankruptcy withstands motion for summary judgment - 9th Cir. BAP Affirms - 2014 - Unpublished

Debtor filed his Chapter 13 case at 10:11 a.m. and the Bank foreclosed upon the Debtor's real property at 10:06 a.m.  Despite the time differential, the Debtor contended that the sale took place after the filing.  Unfortunately for the Debtor, he was unable to produce any evidence to reflect a different time of the foreclosure sale.  The Debtor submitted inadmissible evidence to support his position that the sale took place after the filing.  The BAP went through the burden of proof of the parties on a motion for summary judgment and its standard of review.  The Court affirmed.

The Debtor also appealed the denial of its motion to reconsider the order.  The BAP citied to Duarte v. Bardales 526 F.3d. 563, 567 (9th Cir. 2008) for the proposition that:

In order to justify relief under Rule 9023, the movant must show: “(a) newly discovered evidence,
(b) the court committed clear error or made an initial decision that was manifestly unjust, or (c) an intervening change in controlling law.” Id. (citing Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008)).

The BK Court determined that it was not duly discovered evidence because the Debtor should have exercised reasonable diligence in obtaining the testimony about a potential issue as to the time of the sale.

The BAP Affirmed.

Query - Why didn't he file the day before?

Wackerman v. BofA et al

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