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In re Pajarillo

United States District Court, D. Nevada

March 18, 2014

In re: Fidel Pajarillo, Debtor.
v.
JP Morgan Chase Bank, N.A., et al. Appellees. Fidel Pajarillo, Appellant,

MEMORANDUM & OPINION

GLORIA M. NAVARRO, Chief Judge.

Fidel Pajarillo ("Pajarillo" or "Appellant") appeals the March 7, 2013, order of Judge Bruce Markell of the United States Bankruptcy Court for the District of Nevada ("the bankruptcy court") denying his motion to reopen his Chapter 13 bankruptcy case, In re: Pajarillo, No. 2:11-bk-28697-BAM ("the underlying case"). (Notice of Appeal, ECF No. 1-5.)

I. PROCEDURAL HISTORY

On April 22, 2013, Pajarillo's appeal was docketed before this Court as a result of an Election to Transfer (ECF No. 1-14) filed by Appellees JPMorgan Chase Bank, N.A., and California Reconveyance Company pursuant to 28 U.S.C. § 158(c)(1), Rule 8001(e)(1) of the Federal Rules of Bankruptcy Procedure, and Rule 8001(e)-1 of the Local Rules for the United States Bankruptcy Appellate Panel of the Ninth Circuit ("the BAP"). See 28 U.S.C. § 158(c)(1); Fed.R.Bankr.P. 8001(e)(1); 9th Cir. BAP R. 8001(e)-1.

On May 16, 2013, the bankruptcy court clerk transmitted a certificate of record[1] to this Court, indicating that the record was complete for the purposes of appeal[2]. (Certificate of Readiness, ECF No. 5.) On March 7, 2014, the bankruptcy court clerk transmitted the complete record on appeal (ECF No. 21)[3] upon request of the Court[4]. On March 18, 2014, the Court held a hearing for this appeal, at which Pajarillo and counsel for Appellees JPMorgan Chase Bank, N.A. and California Reconveyance Company appeared. (Mins. of Proceedings, ECF No. 23.)

A. Bankruptcy Court Proceedings

In the underlying case, Pajarillo filed a Chapter 13 petition in December 2011; and he filed a related adversary complaint in March 2012.[5] In May 2012, Pajarillo's Chapter 13 petition was dismissed for failure to make plan payments; and Pajarillo's adversary complaint was dismissed in orders dated September and October 2012. The adversary action was closed in October 2012. The underlying case was then closed in November 2012, and the trustee was discharged. On January 25, 2013, Pajarillo filed a motion to reopen the underlying case. At a hearing on February 28, 2013, Judge Markell denied Pajarillo's motion in a bench ruling. The order for Judge Markell's ruling was then prepared pursuant to Local Rule 9021 by counsel for JPMorgan Chase Bank, N.A., and California Reconveyance Company. Judge Markell signed the order, and it was entered in the docket on March 7, 2013.

In his March 7, 2013, order denying Pajarillo's motion to reopen the underlying case, Judge Markell included a recitation of the relevant procedural history. ( See R. at 3.) Judge Markell explained that, in the underlying case, Pajarillo had "filed a Chapter 13 voluntary petition on December 5, 2011, which was dismissed on May 17, 2012 for multiple reasons include [sic] failure to make plan payments." ( Id. )

Judge Markell also discussed Pajarillo's related adversary proceeding, No. 2:12-bk-01049-BAM ("the adversary proceeding") for which Pajarillo had "filed an adversary complaint... on March 6, 2012, which was dismissed by Court orders dated September 14, 2012... and October 22, 2012." ( Id. ) Referring to those two adversary proceeding orders, Judge Markell explained that "[i]n its September 14, 2012 order, the Court stated that there is no longer any reason for the Court to keep jurisdiction over [the adversary proceeding] as Debtor's underlying bankruptcy has been dismissed, '" and that "[i]n its October 22, 2012 order, the court [sic] noted that dismissal [of the adversary proceeding] was necessary because, among other reasons, [Pajarillo] failed to demonstrate service of process on the defendants and failed to appear at multiple scheduling conferences." ( Id. )

Judge Markell then recited the procedural history for Pajarillo's motion to reopen the underlying case, explaining that Pajarillo "filed a document entitled Plaintiff's Motion to Reopen Case - FRBP 5010 (Motion to Reopen') on January 25, 2013 (Dkt. 60) which was fully briefed and set for hearing on February 28, 2013." ( Id. ) Judge Markell explained that Pajarillo appeared at the February 28, 2013, hearing "in proper person, " along with counsel for "defendants JPMorgan Chase Bank, N.A. and California Reconveyance Company, " and that "the Court entertained and considered oral argument from the parties." ( Id. ) Judge Markell summarized his findings as stated at the hearing:

after reviewing the Motion to Reopen and related filings, and considering oral argument of the parties, the Court found that [Pajarillo] had not demonstrated necessary grounds for reopening this bankruptcy case (case no. BK-11-28697-bam) or the related adversary action (case no. 12-01049-bam)

( Id. )

In conclusion, Judge Markell ordered "that for good cause shown, and the reasons stated herein and on the record, the Court hereby denies Plaintiff's Motion to Reopen and Case Nos. BK-11-28697-bam and 12-01049-bam shall remain CLOSED." ( Id. )

The last page of the order consists of a signed certification by counsel for JPMorgan Chase Bank, N.A., and California Reconveyance Company pursuant to Rule 9021(c) of the Local Rules of Bankruptcy Practice of the United States District Court for the District of Nevada[6]. ( Id. at 4.) The certification indicates that Pajarillo communicated his disapproval to counsel for JPMorgan Chase Bank, N.A., and California Reconveyance Company[7]. ( Id. )

Pajarillo filed his Notice of Appeal on March 19, 2013. (R. at 2.)

B. Appellate Proceedings Before the BAP

On March 22, 2013, the BAP entered a Notice of Deficient Notice of Appeal indicating that Pajarillo's notice of appeal had been received and was deficient for failure to comply with Rule 8001(a) of the Federal Rules of Bankruptcy Procedure. (ECF No. 1-6.) On the same day, the BAP entered its Briefing Order (ECF No. 1-8) and Opening Letter (ECF No. 1-9), explaining the governing rules and procedures for an appeal, and requested a status report from the bankruptcy court as to whether the record on appeal was complete (ECF No. 1-10).

On April 3, 2013, the bankruptcy court clerk submitted its Status Report to the BAP, indicating that the record had not been forwarded because no designation of record or statement of issues had been filed before the bankruptcy court. (ECF No. 1-11.) The same day, the BAP entered a Notice of Deficient Appeal and Impending Dismissal warning Pajarillo that he failed to file a Designation of Record or Statement of Issues pursuant to Rule 8006 of the Federal Rules of Bankruptcy Procedure. (ECF No. 1-12.) The BAP warned Pajarillo that his appeal may be dismissed for lack of prosecution unless he provided an adequate legal explanation as to why it should not be dismissed, and a statement as to when he filed the missing items in the bankruptcy court. ( Id. )

On April 17, 2013, Appellees JPMorgan Chase Bank, N.A., and California Reconveyance Company filed their Election to Transfer the appeal to this Court, noting that although Pajarillo had filed an Amended Notice of Appeal in the bankruptcy court docket, he had failed to address the issues noted by the BAP in its Notice of Deficient Appeal and Impending Dismissal. (ECF No. 1-14.) The following day, ...


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