In re: Marisela Dangcil

FILED MAR 21 2017 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-16-1185-FCTa ) 6 MARISELA DANGCIL, ) Bk. No. 8:10-bk-15994-TA ) 7 Debtor. ) _____________________________ ) 8 ) MARISELA DANGCIL, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) JPMORGAN CHASE BANK, N.A., ) 12 ) Appellee. ) 13 ______________________________) 14 Submitted Without Argument on February 23, 2017** [15] Filed – March 21, 2017 [16] Appeal from the United States Bankruptcy Court 17 for the Central District of California 18 Honorable Theodor C. Albert, Bankruptcy Judge, Presiding [19] Appearances: Appellant Marisela Dangcil, pro se, on brief; John 20 M. Sorich of PIB Law on brief for Appellee JPMorgan Chase Bank, N.A. [23] * This disposition is not appropriate for publication. 24 Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 25 9th Cir. BAP Rule 8024-1. 26 ** By order entered on January 9, 2017, a motions panel 27 determined that this appeal was suitable for submission on the briefs and record without oral argument pursuant to Federal Rule 28 of Bankruptcy Procedure 8019. 1 Before: FARIS, CLEMENT,*** and TAYLOR, Bankruptcy Judges. 2 INTRODUCTION 3 Debtor Marisela Dangcil appeals from the bankruptcy court’s 4 order granting creditor JPMorgan Chase Bank, N.A.’s (“Chase”) 5 motion for relief from the automatic stay under §§ 362(d)(1), (2) 6 and (4).1 The court correctly determined that Chase lacked 7 adequate protection under § 362(d)(1) and, to that extent, we 8 AFFIRM. But to the extent the court granted the motion under 9 § 362(d)(4), we REVERSE the order. 10 FACTUAL BACKGROUND 11 A. Prepetition events 12 Ms. Dangcil and her then-romantic partner, Victor Chavez, 13 purchased a residential property in Brea, California (“Property”) 14 in March 2006. Ms. Dangcil and Mr. Chavez both executed the deed 15 of trust in favor of Countrywide Home Loans, Inc. 16 (“Countrywide”), but only Mr. Chavez obtained a mortgage loan and 17 executed the promissory note and associated documents. The 18 original principal amount of the loan was $841,790. 19 In April 2006, Mr. Chavez conveyed the Property to 20 Ms. Dangcil in her capacity as trustee for a family trust. 21 At some point thereafter, Chase acquired the promissory note [23] *** The Honorable Fredrick E. Clement, United States 24 Bankruptcy Judge for the Eastern District of California, sitting by designation. [1] 26 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532 , 27 all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal 28 Rules of Civil Procedure. [2] 1 and deed of trust.2 2 Ms. Dangcil and Mr. Chavez jointly made the mortgage loan 3 payments. Sometime prior to November 2010, Ms. Dangcil or 4 Mr. Chavez3 sought to refinance the mortgage loan on the 5 Property. Ms. Dangcil claimed that she reached an agreement with 6 Chase to refinance the mortgage loan; however, Chase denied that 7 the parties ever entered into a loan modification agreement. 8 There is no signed loan modification agreement in the record.4 9 Ms. Dangcil and Mr. Chavez ended their romantic relationship 10 in December 2010. Mr. Chavez claimed that Ms. Dangcil and her 11 family forced him off the Property in March 2011. 12 B. Ms. Dangcil’s bankruptcy cases 13 Ms. Dangcil filed a chapter 13 petition in May 2010. She 14 listed $968,688.63 in liabilities and $694,000 in assets. She 15 failed to include the Property in her bankruptcy schedules or 16 statement of financial affairs. 17 The inclusion of $1.1 million of debt related to the [2] 19 On or around May 9, 2013, Countrywide assigned the deed of trust to Chase. The record does not reflect when Chase acquired 20 the promissory note and associated documents. 21 3 Although the loan modification documents were addressed to 22 Mr. Chavez, he claimed that he did not request or desire a loan modification for the Property. He said that his signature was 23 forged on certain documents concerning Ms. Dangcil’s attempts to modify the mortgage loan. Ms. Dangcil says that, as an ex-lover 24 of hers, Mr. Chavez is an unreliable witness. 25 4 A January 2011 unexecuted loan modification agreement 26 provided that the current unpaid principal balance was $906,369.59. With the addition of interest, escrow, and other 27 fees, the adjusted unpaid principal balance was to be $1,085,936.12. A November 2010 unexecuted loan modification 28 agreement similarly provided for a new balance of $1,081,622.15. [3] 1 Property made her ineligible for chapter 13 relief, so she sought 2 to convert her case to one under chapter 11. The bankruptcy 3 court granted her motion to convert. During the chapter 11 4 proceedings, Ms. Dangcil once again claimed that the Property was 5 owned by a family trust. 6 In August 2011, Ms. Dangcil filed a motion to dismiss her 7 case. The court denied the motion and instead converted her case 8 to one under chapter 7. 9 On May 30, 2014, the chapter 7 trustee filed a notice of his 10 intention to abandon the Property. He said that there was no 11 realizable equity in the Property for the benefit of the estate. 12 The trustee filed his final report on January 27, 2015, which 13 assigned the Property an estimated net value of $0. 14 C. Motion for relief from stay 15 On March 30, 2016, Chase filed its motion for relief from 16 the automatic stay (“Motion”). It sought relief under 17 § 362(d)(1) because its interest in the Property was not 18 adequately protected and the bankruptcy case was filed in bad 19 faith; under § 362(d)(2)(A) because Ms. Dangcil had no equity in 20 the Property and the Property was not necessary to an effective 21 reorganization; and under § 362(d)(4) because the bankruptcy 22 filing was a part of a scheme to delay, hinder, or defraud 23 creditors. 24 Chase represented that its claim totaled $1,286,606.10, 25 which included $906,369.59 in principal, $268,862.61 in interest, 26 and $111,373.90 in advances. It also stated that Ms. Dangcil had 27 not made the past ninety-four payments over eight years for a 28 total arrearage of $488,660.46. It estimated that, based on a [4] 1 Zillow.com internet valuation, the fair market value of the 2 Property was $531,018. As such, it asserted that the “equity 3 cushion” in the Property was $0 and that Ms. Dangcil’s equity in 4 the Property was also $0. 5 As to the § 362(d)(4) claim, Chase attached the declaration 6 of Mr. Chavez and stated that he (the borrower) did not apply for 7 a loan modification and did not desire a loan modification. 8 Chase had received a loan modification application on behalf of 9 Mr. Chavez, but Mr. Chavez said that he did not sign or agree to 10 the documents. 11 At the hearing on the Motion, the bankruptcy court stated 12 that “[t]his is not decided on the merits but on burdens of 13 proof.” It said that Chase had failed to carry its burden, 14 because the Zillow.com valuation was not admissible evidence. 15 Ms. Dangcil argued that Chase had agreed to modify the 16 mortgage loan agreement. However, the court said it was not 17 concerned with the purported loan modification but was only 18 focused on whether there was equity in the Property for the 19 estate. The court also asked Ms. Dangcil whether she had 20 segregated any mortgage payments that she had not made over the 21 past eight years; she answered that she had not. 22 Following the hearing, Chase filed supplemental evidence in 23 support of the Motion. It submitted two valuations of the 24 Property: $760,000 (according to a Residential Broker Price 25 Opinion) and $892,000 (according to the Orange County Treasurer26 Tax Collector). 27 The bankruptcy court held a second hearing on the Motion. 28 Referencing Chase’s supplemental evidence, the court told [5] 1 Ms. Dangcil that the Property was overencumbered and that she had 2 not made mortgage payments in a long time. Ms. Dangcil insisted, 3 “I requested them to refinance the property, to give me a 4 modification and they have not. So I don’t have any defense at 5 all.” The court summarily granted the Motion. 6 In its June 14, 2016 order (“Order”), the court checked the 7 boxes indicating that it granted the Motion under §§ 362(d)(1), 8 (2) and (4). However, it did not check any of the boxes to 9 specify the basis for granting the Motion under § 362(d)(4). 10 Ms. Dangcil timely appealed the Order. 11 JURISDICTION 12 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 13 §§ 1334 and 157(b)(2)(G). We have jurisdiction under 28 U.S.C. 14 § 158. 15 ISSUES 16 (1) Whether the bankruptcy court denied Ms. Dangcil due 17 process. 18 (2) Whether the bankruptcy court erred in granting Chase 19 relief from the automatic stay. 20 STANDARDS OF REVIEW 21 “Whether an appellant’s due process rights were violated is 22 a question of law we review de novo.” DeLuca v. Seare 23 (In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014) (citation 24 omitted); see HSBC Bank USA, Nat’l Ass’n v. Blendheim 25 (In re Blendheim), 803 F.3d 477, 497 (9th Cir. 2015) (“Whether 26 adequate notice has been given for the purposes of due process is 27 a mixed question of law and fact that we review de novo.”). 28 We review for an abuse of discretion the bankruptcy court’s [6] 1 decision to grant relief from the automatic stay under § 362(d). 2 Kronemyer v. Am. Contractors Indem. Co. (In re Kronemyer), [3] 405 B.R. 915, 919 (9th Cir. BAP 2009) (citation omitted). 4 Additionally, “[w]e review de novo contentions that present an 5 issue of law regarding stay relief.” Id. 6 “De novo review requires that we consider a matter anew, as 7 if no decision had been made previously.” Francis v. Wallace 8 (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014) (citations 9 omitted). 10 We apply a two-part test to determine whether the bankruptcy 11 court abused its discretion. United States v. Hinkson, 585 F.3d 12 1247, 1261–62 (9th Cir. 2009) (en banc). First, we consider de 13 novo whether the bankruptcy court applied the correct legal 14 standard to the relief requested. Id. Then, we review the 15 bankruptcy court’s factual findings for clear error. Id. at 16 1262. We must affirm the bankruptcy court’s factual findings 17 unless we conclude that they are illogical, implausible, or 18 without support in inferences that may be drawn from the facts in 19 the record. Id. 20 DISCUSSION 21 A. We will consider Ms. Dangcil’s appeal despite her deficient briefs and excerpts of record. [22] 23 Chase requests that we strike Ms. Dangcil’s opening brief 24 and dismiss this appeal because her excerpts of record and brief 25 do not comply with the applicable rules. 26 Chase’s points are well taken. Ms. Dangcil’s excerpts of 27 record include only six documents, at least two of which do not 28 appear to have been presented to the bankruptcy court. She fails [7] 1 to provide a complete record on appeal and did not include the 2 transcripts of the hearings until the BAP clerk’s office told her 3 to do so. Moreover, she does not provide citations to the record 4 supporting many of her arguments; additionally, she does not cite 5 any legal authority for her arguments regarding § 362(d). 6 Nevertheless, while many aspects of Ms. Dangcil’s appellate 7 briefs and record are deficient, Ms. Dangcil is proceeding pro se 8 in this appeal, so we will construe her arguments liberally. See 9 Kashani v. Fulton (In re Kashani), 190 B.R. 875, 883 (9th Cir. 10 BAP 1995). We will also review the excerpts of record provided 11 by Chase and will exercise our discretion to review the 12 bankruptcy court’s docket. See Woods & Erickson, LLP v. Leonard 13 (In re AVI, Inc.), 389 B.R. 721 , 725 n.2 (9th Cir. BAP 2008). 14 However, we will not consider evidence and argument not 15 first presented to the bankruptcy court, including Ms. Dangcil’s 16 Exhibits D and E. See Oyama v. Sheehan (In re Sheehan), 253 F.3d 17 507, 512 n.5 (9th Cir. 2001) (“Evidence that was not before the 18 lower court will not generally be considered on appeal”); 19 Kirschner v. Uniden Corp. of Am., 842 F.2d 1074 , 1077–78 (9th 20 Cir. 1988) (papers not filed or admitted into evidence by trial 21 court prior to judgment on appeal were not part of the record on 22 appeal and thus stricken). 23 B. Despite Chase’s failure to serve Ms. Dangcil properly, the bankruptcy court did not deny Ms. Dangcil due process. [24] 25 Ms. Dangcil contends that the court denied her due process 26 because Chase failed to serve her with its Motion and 27 supplemental valuation, and, as a result, she was not able to 28 adequately respond to Chase’s arguments. Although we agree that [8] 1 Chase repeatedly ignored the applicable service rules, we 2 disagree that the court denied her due process. 3 Generally speaking, a party must receive sufficient notice 4 of any adverse action and the opportunity to be heard. See 5 Tennant v. Rojas (In re Tennant), 318 B.R. 860, 870 (9th Cir. BAP 6 2004). According to the United States Supreme Court: 7 An elementary and fundamental requirement of due process in any proceeding which is to be accorded 8 finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the 9 pendency of the action and to afford them an opportunity to present their objections. The notice 10 must be of such nature as reasonably to convey the required information . . . and it must afford a 11 reasonable time for those interested to make their appearance. [12] 13 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) 14 (citations omitted). 15 Section 362(d) provides that, “[o]n request of a party in 16 interest and after notice and a hearing, the court shall grant 17 relief from the stay” in certain circumstances. Section 102(1) 18 defines the phrase “after notice and a hearing”: 19 (1) “after notice and a hearing”, or a similar phrase - 20 (A) means after such notice as is appropriate in the particular circumstances, and such opportunity 21 for a hearing as is appropriate in the particular circumstances; but [22] (B) authorizes an act without an actual hearing if 23 such notice is given properly and if - 24 (i) such a hearing is not requested timely by a party in interest; or [25] (ii) there is insufficient time for a hearing 26 to be commenced before such act must be done, and the court authorizes such act[.] [27] 28 “[T]he concept of notice and a hearing is flexible and [9] 1 depends on what is appropriate in the particular circumstance.” 2 In re Tennant, 318 B.R. at 870 (citing Great Pac. Money Markets, 3 Inc. v. Krueger (In re Krueger), 88 B.R. 238, 241 (9th Cir. BAP 4 1988)). 5 Ms. Dangcil argues that because Chase did not serve her with 6 the Motion or supplemental valuation, the Order was a “default” 7 in Chase’s favor. She argues that, had Chase done its duty to 8 perform title history searches,5 it would have known that she was 9 on title to the Property and should have been served with the 10 Motion under Civil Rule 4(e)(2)(A).6 11 We agree that Chase did not properly serve the Motion on 12 Ms. Dangcil. 13 Local Bankruptcy Rule 4001-1(c)(1)(C)(i) requires service of 14 a motion for relief from stay on both the debtor and her 15 attorney. Chase does not deny that it failed to serve 16 Ms. Dangcil with the Motion, reply, and supplemental valuation. 17 The various proofs of service confirm that Ms. Dangcil, who at 18 the time was proceeding pro se, did not directly receive copies 19 of those documents. Rather, it appears that Chase sent those 20 documents only to attorneys who had previously represented [21] 22 5 She claims that a title insurer may be held liable for the 23 damages it causes by breaching its duty to examine title history records. There is no indication in the record that Chase is a 24 title insurer. 25 6 Ms. Dangcil selectively references service under Civil 26 Rule 4(e)(2)(A), which provides that service may be accomplished by “delivering a copy of the summons and of the complaint to the 27 individual personally[.]” But in a bankruptcy case, Rule 7004(b) provides that service may be made by first class mail postage 28 prepaid to an individual’s home or business. [10] 1 Ms. Dangcil or who represented her only for a limited purpose. 2 Chase’s task was not unreasonably difficult: it did not need to 3 serve her personally. But it utterly failed to even mail her a 4 copy of its filings. Particularly when dealing with a pro se 5 litigant, a party should ensure that the pro se litigant has 6 notice of its legal actions. Chase failed in this respect. 7 Nevertheless, we find no reversible error. 8 First, Ms. Dangcil did not raise the due process issue 9 before the bankruptcy court or otherwise object to the notice or 10 hearing afforded by the court. As such, she has waived this 11 issue. See Yamada v. Nobel Biocare Holding AG, 825 F.3d 536 , 543 12 (9th Cir. 2016) (“[g]enerally, an appellate court will not hear 13 an issue raised for the first time on appeal”); Ezra v. Seror 14 (In re Ezra), 537 B.R. 924, 932 (9th Cir. BAP 2015) (“Ordinarily, 15 federal appellate courts will not consider issues not properly 16 raised in the trial courts.”). A debtor’s failure to raise due 17 process challenges before the bankruptcy court waives such claims 18 on appeal. See Zamos v. Zamos (In re Zamos), 300 F. App’x 451 , 19 452 (9th Cir. 2008) (“Jerome has waived his contention that his 20 due process rights were violated by Patricia’s delay in bringing 21 suit to collect delinquent support payments, as he did not raise 22 it below.”). 23 Ms. Dangcil says that she raised this argument in her 24 opposition to the Motion. She admits that she did not “check the 25 box for lack of service[,]” but claims that she “was representing 26 herself and may not have understood she needed to make the 27 argument. Or, perhaps, it was simply a clerical error and [she] 28 just missed checking the appropriate form box.” In addition to [11] 1 this equivocal argument, she argues that she raised this issue 2 before the bankruptcy court because Chase argued in its reply 3 that her opposition was untimely. But she admitted that she 4 actually received the Motion and never told the court that she 5 was not afforded notice or the opportunity to be heard. In other 6 words, she failed to present the due process argument to the 7 bankruptcy court, and we will not consider it for the first time 8 on appeal. 9 Second, despite Chase’s failure to serve Ms. Dangcil, she 10 had actual notice of the Motion, responded to the Motion in 11 detail, and appeared and argued at both hearings. Ms. Dangcil 12 claimed that she received the Motion five days after it was 13 filed, which was twenty-two days before the hearing. Despite the 14 delay, she had adequate notice. She also had ample opportunity 15 to present her arguments and be heard, and she availed herself of 16 that opportunity. Thus, Ms. Dangcil was not deprived of either 17 notice or an opportunity to be heard. 18 Third, even in cases where a bankruptcy court errs by 19 failing to provide adequate notice and hearing, the debtor must 20 show prejudice from the procedural deficiencies. See Rosson v. 21 Fitzgerald (In re Rosson), 545 F.3d 764, 776-77 (9th Cir. 2008) 22 (“Because there is no reason to think that, given appropriate 23 notice and a hearing, Rosson would have said anything that could 24 have made a difference, Rosson was not prejudiced by any 25 procedural deficiency.”). In Rosson, the Ninth Circuit held that 26 the debtor was deprived of a meaningful opportunity to be heard; 27 nevertheless, because he could “show no prejudice arising from 28 the defective process afforded him[,]” the bankruptcy court [12] 1 properly converted the case to chapter 7. Id. (citations 2 omitted); see City Equities Anaheim, Ltd. v. Lincoln Plaza Dev. 3 Co. (In re City Equities Anaheim, Ltd.), 22 F.3d 954, 959 (9th 4 Cir. 1994) (rejecting a due process claim for lack of prejudice 5 where debtor could not show that different or additional 6 arguments would have been presented if the bankruptcy court had 7 timely approved petition for new counsel). 8 Ms. Dangcil fails to explain what more she would have said 9 if she had received timely service of the Motion and supplemental 10 appraisal. Her inability to give us any persuasive, substantive 11 argument against the Order on appeal proves that she could not 12 have made any such argument before the bankruptcy court even if 13 she had been given more notice. We fail to see how Ms. Dangcil 14 “would have said anything that could have made a difference.” 15 See In re Rosson, 545 F.3d at 777 . 16 Therefore, although Chase neglected to serve Ms. Dangcil 17 with any of the relevant filings, the bankruptcy court did not 18 deprive Ms. Dangcil of due process. 19 C. The bankruptcy court did not abuse its discretion in granting Chase relief from the automatic stay. [20] 21 1. The court correctly granted stay relief “for cause.” 22 Ms. Dangcil argues that she had ample equity in the Property 23 and that Chase was adequately protected. She also argues that 24 the Property would have had an ample equity cushion if Chase had 25 not dishonored a loan modification agreement. We disagree on 26 both counts. 27 Sections 362(d) provides, in relevant part: 28 (d) On request of a party in interest and after notice [13] 1 and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, 2 such as by terminating, annulling, modifying, or conditioning such stay - [3] (1) for cause, including the lack of adequate 4 protection of an interest in property of such party in interest; [5] (2) with respect to a stay of an act against 6 property under subsection (a) of this section, if - [7] (A) the debtor does not have an equity in 8 such property; and 9 (B) such property is not necessary to an effective reorganization[.] [10] 11 §§ 362(d)(1), (2). 12 Section 362(d)(1) allows the bankruptcy court to grant a 13 creditor relief from the automatic stay “for cause.” “Because 14 there is no clear definition of what constitutes ‘cause,’ 15 discretionary relief from the stay must be determined on a case 16 by case basis.” MacDonald v. MacDonald (In re MacDonald), [17] 755 F.2d 715, 717 (9th Cir. 1985). The lack of adequate 18 protection is one of many types of “cause” warranting relief 19 under § 362(d)(1). Ellis v. Parr (In re Ellis), 60 B.R. 432 , 435 20 (9th Cir. BAP 1985). 21 “[T]he party seeking relief must first establish a prima 22 facie case that ‘cause’ exists for relief under § 362(d)(1). 23 Once a prima facie case has been established, the burden shifts 24 to the debtor to show that relief from the stay is unwarranted. 25 If the movant fails to meet its initial burden to demonstrate 26 cause, relief from the automatic stay should be denied.” 27 Lapierre v. Advanced Med. Spa Inc. (In re Advanced Med. Spa 28 Inc.), No. BAP EC-16-1087, 2016 WL 6958130 , at *4 (9th Cir. BAP [14] 1 Nov. 28, 2016); see § 362(g) (the party requesting relief has the 2 burden of proof regarding equity in the property, but the party 3 opposing relief has the burden of proof on all other issues). 4 In the present case, the bankruptcy court held that, due to 5 lack of equity in the Property, Chase was not adequately 6 protected. Ms. Dangcil argues on appeal that there was 7 sufficient equity in the Property to protect Chase. She 8 calculated the amount of equity by subtracting the original 9 principal loan amount of $841,790 from Chase’s valuation. She 10 claims that she had as much as $50,000 in equity, which is at 11 least 5.6 percent of the value of the Property. 12 Ms. Dangcil did not tell the bankruptcy court that she had 13 equity in the Property or that Chase was adequately protected.7 14 Rather, she only argued that Chase did not meet its burden 15 regarding the valuation and that Chase had agreed to a loan 16 modification. We will not consider arguments that she did not 17 raise below. See Yamada, 825 F.3d at 543 ; Ezra, 537 B.R. at 932 . 18 Nevertheless, even if we address the substance of her argument, 19 she is simply wrong. 20 Ms. Dangcil’s argument rests on the assertion that Chase’s [21] 22 7 Ms. Dangcil concedes that she did not raise these 23 arguments below but instead argues that she could not have made these arguments to the bankruptcy court because Chase did not 24 provide the valuation until after the initial hearing and “she did not have a real chance to respond in writing or object to 25 Appellee’s valuation argument in the trial court.” Although 26 Chase does not deny that it failed to serve Ms. Dangcil with the supplemental valuation, she had an opportunity to challenge the 27 valuation and argue that she had equity in the Property at the second hearing but failed to do so. She also could have sought 28 reconsideration by the bankruptcy court but neglected to do so. [15] 1 loan balance was $841,790. This is the original principal amount 2 of the loan. Ms. Dangcil’s argument ignores the undisputed fact 3 that, because she had not made any payments on the loan for about 4 eight years, the loan balance had grown to $1,286,606.10 due to 5 the accrual of interest and other charges. Using the undisputed 6 current loan balance proves that there was no “equity cushion” to 7 provide adequate protection to Chase. 8 Additionally, we have previously held that “a debtor’s 9 persistent failure to make payments, standing alone, may 10 constitute adequate cause for relief from the stay.” Aguilar v. 11 Ocwen Loan Servicing, LLC (In re Aguilar), BAP No. 12 CC–14–1071–PaTaKu, 2014 WL 6981285 , at *4 (9th Cir. BAP Dec. 10, 13 2014), aff’d, --- F. App’x ----, 2017 WL 393763 (9th Cir. 14 Jan. 30, 2017) (citing In re Ellis, 60 B.R. at 435 ; Price v. Del. 15 State Police Fed. Credit Union (In re Price), 370 F.3d 362 , 373 16 (3d Cir. 2004) (“A persistent failure to make monthly payments 17 under loan documents can constitute cause for granting relief 18 from the automatic stay.”)). The bankruptcy court noted that 19 Ms. Dangcil had not made any mortgage loan payments for eight 20 years, which totaled ninety-four missed payments and a deficiency 21 of $488,660.46. Ms. Dangcil’s admitted failure to make any 22 mortgage loan payments (or segregate mortgage payments) in eight 23 years further established cause to grant relief from stay under 24 § 362(b)(1). 25 Accordingly, the court did not abuse its discretion in 26 granting relief from the automatic stay pursuant to § 362(d)(1). 27 Given our discussion above, we need not consider the court’s 28 other bases for granting the Motion. [16] 1 2. The purported loan modification is irrelevant and does not preclude stay relief. [2] 3 Ms. Dangcil focuses largely on her efforts to obtain a loan 4 modification, insisting that the “loan modification is valid, and 5 Appellee has dishonored it to date.” She contends that she was 6 “entitled to” the modification, and, had Chase honored the loan 7 modification, she would have equity in the Property. She also 8 claims that Chase acted in bad faith when it refused her offers 9 of payment under the loan modification agreement. We reject 10 these arguments. 11 There is no evidence in the record that Chase agreed to any 12 loan modification. Under California law, “[i]n order for a 13 contract to form, there must be a meeting of the minds with an 14 intent to be bound by a legally enforceable agreement.” Chaganti 15 v. I2 Phone Int’l, Inc., 635 F. Supp. 2d 1065, 1071 (N.D. Cal. 16 2007), aff’d, 313 F. App’x 54 (9th Cir. 2009) (citation omitted). 17 “An offer must clearly articulate the terms of the agreement and 18 the acceptance must be absolute, unqualified and a mirror image 19 of the offer.” Id. (citations omitted) 20 Ms. Dangcil failed to present either the bankruptcy court or 21 this Panel with an executed loan modification agreement or proof 22 of Chase’s assent to an agreement. Rather, she only provides us 23 with e-mails (not presented to the bankruptcy court) that show 24 that a representative for Chase or Countrywide forwarded a draft 25 of a loan modification agreement. She claims that the superior 26 court assumed that the parties were going to enter into a loan 27 modification agreement, but this is not supported by competent 28 evidence, nor does it prove that there was an enforceable [17] 1 agreement. 2 Further, even if the agreement were binding on Chase, 3 Ms. Dangcil still would not have any equity in the Property. 4 According to the unexecuted loan modification agreements, the 5 loan modification would not have reduced the loan balance; 6 rather, it would have added the delinquent interest to the 7 principal sum of the loan. Thus, the principal amount owed would 8 have increased from the original principal amount of $841,970 to 9 $1,085,936.12 (based on the January 2011 unexecuted agreement), 10 or $1,081,622.15 (based on the November 2010 unexecuted 11 agreement). She is patently wrong that the loan modification 12 would result in a $50,000 equity cushion in the Property. 13 3. The record does not support stay relief under § 362(d)(4). [14] 15 Ms. Dangcil contends that the court erred in granting the 16 Motion based on § 362(d)(4). The Order identified § 362(d)(4) as 17 a basis for the court’s ruling but the court’s oral ruling made 18 clear that it was solely focused on the issue of equity in the 19 Property under §§ 362(d)(1) and (2). 20 We agree that the inclusion of § 362(d)(4) in the Order is 21 probably an oversight by the court, based on its comments at the 22 hearings and its failure to identify the basis for granting 23 relief under § 362(d)(4). Accordingly, we reverse the Order only 24 to the extent it includes § 362(d)(4) as a basis for granting the 25 Motion. 26 CONCLUSION 27 For the reasons set forth above, the bankruptcy court did 28 not deny Ms. Dangcil due process, despite Chase’s failure to [18] 1 serve her. The court also did not abuse its discretion in 2 granting Chase relief from the automatic stay. Therefore, we 3 AFFIRM IN PART the bankruptcy court’s decision to grant relief 4 from stay under § 362(d)(1) and REVERSE IN PART the Order as to 5 stay relief under § 362(d)(4) only.