ARMANDO NATERA

1 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA [2] FRESNO DIVISION [3] 4 In re ) Case No. 17-14112-B-13 ) [5] ARMANDO NATERA, ) DCN: FW-3 ) 6 ) Debtor. ) 7 ) [8] 9 RULING ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT 10 Armando Natera (“Debtor”) moves for partial summary 11 judgment for an order: (1) granting this motion for summary 12 judgment; (2) finding the bankruptcy petition was filed at 13 1:59:28 p.m. on October 25, 2017; (3) finding the automatic stay 14 went into immediate effect; (4) finding the foreclosure sale of 15 real property located at 2430 E. Orrland Avenue, Pixley, CA 16 93256 (“Property”) conducted by Parker Foreclosure Services, LLC 17 (“Parker Foreclosure”), was in violation of the stay; 18 (5) finding the recording of the Trustee’s Deed Upon Sale 19 (“Trustee’s Deed”) in favor of Richard Barnes (“Barnes”) was a 20 knowing and willful violation of the stay; (6) finding Barnes’ 21 conveyance to the Michael Scott Lincicum and Mitzi Lincicum 22 (collectively, the “Lincicums”) was a knowing and willful 23 violation of the stay; (7) finding because the original 24 foreclosure sale was void, all acts and conveyances subsequent 25 to the foreclosure sale are void; and (8) denying the motion to 26 retroactively annul the automatic stay (TAT-2). Doc. #115. 27 Debtor submitted a statement of undisputed facts pursuant to 28 /// 1 Local Rule of Practice (“LBR”) 7056-1(a) in support of this 2 motion. 3 Roger S. and Sandra L. Ward (collectively, the “Wards”) 4 timely opposed and submitted their responses to the statement of 5 undisputed facts. Docs. ##121-22. However, in responding to 6 Debtor’s statement of undisputed facts, the Wards included new 7 facts numbered 9 through 19 that are purported to be the 8 undisputed material facts submitted by Debtor, to which the 9 Wards, in response, do not dispute. Doc. #122. These alleged 10 undisputed facts were not submitted by Debtor as indicated and 11 were erroneously attributed to Debtor by the Wards. Accordingly, 12 the court will STRIKE the Wards’ “undisputed facts” numbered 9 13 through 19 as an insufficient defense, or redundant, immaterial, 14 impertinent, or scandalous under Fed. R. Civ. P. (“Civ. Rule”) [15] 12(f), as incorporated by Fed. R. Bankr. P. (“Rule”) 7012. 16 Debtor replied. Doc. #144. 17 This motion for summary judgment was originally set for 18 hearing on October 27, 2021, on 42 days’ notice as required by 19 LBR 7056-1 and in conformance with Rule 7056 and Civ. Rule 56. 20 Doc. #116. Because the pleadings were not settled in the 21 parties’ related adversary proceeding, this matter was continued 22 to November 17, 2021, continued to February 9, 2022, then 23 continued to March 30, 2022, continued again to May 25, 2022, 24 continued a fifth time to July 27, 2022, and most recently was 25 continued to September 28, 2022. Docs. ##126-27; ##147-48; #151; 26 #165; #167; #193; #195; #205; #207; #213; #216. During the most 27 recent continuance, the court ordered that Debtor may augment 28 the record not later than August 31, 2022, any party file and 1 serve written opposition not later than September 14, 2022, and 2 any reply shall be filed and served not later than September 21, 3 2022. Doc. #216. 4 On August 31, 2022, Debtor submitted on his previously 5 filed motion, supporting documents, and reply brief, and 6 indicated that he will not otherwise be augmenting the record. 7 Doc. #225. 8 At the September 28, 2022, hearing, the court took the 9 matter under submission. Doc. #237. 10 Debtor and the Wards both request the court take judicial 11 notice of certain documents filed in this case and Debtor’s 12 related adversary proceeding, Adv. Proc. No. 20-01035. Docs. 13 #118; #121. The court may take judicial notice of all documents 14 and other pleadings filed in this bankruptcy case, in the 15 related adversary proceeding, filings in other court [16] proceedings, and public records. Fed. R. Evid. 201; Bank of Am., [17] N.A. v. CD-04, Inc. (In re Owner Mgmt. Serv., LLC), 530 B.R. 18 711, 717 (Bankr. C.D. Cal. 2015). The court takes judicial 19 notice of the requested documents, as well as the pleadings 20 filed in this bankruptcy case, and Debtor’s adversary 21 proceeding, but not the truth or falsity of such documents as [22] related to findings of fact. In re Harmony Holdings, LLC, 393 23 B.R. 409, 412-15 (Bankr. D.S.C. 2008). [24] 25 FACTS 26 Debtor filed chapter 13 bankruptcy on October 25, 2017. The 27 time the petition was filed is in dispute. The petition contains 28 two timestamps: 1:59:28 p.m. in red ink, and 2:00 p.m. in 1 smaller black ink. Doc. #1. At 2:00 p.m. on that same day, 2 Parker Foreclosure conducted a foreclosure sale of Property. [3] Docs. #119, Exs. A, D; #122; #123, Ex. A. Barnes was the 4 prevailing bidder. 5 After the petition was filed, Debtor’s representative, 6 Sylvia Gutierrez, spoke by telephone with Donald Parker, Parker 7 Foreclosure’s owner, at 2:03 p.m. and informed him of the [8] bankruptcy.1 Docs. #119, Ex. B; #122; #123, Ex. A. Since the sale 9 was scheduled for 2:00 p.m., the sale had already occurred by 10 the time Debtor’s counsel’s office contacted Parker Foreclosure. [11] Id. 12 The following day, Parker Foreclosure executed a Trustee’s [13] Deed in favor of Barnes. Doc. #119, Ex. H to Ex. C. Parker 14 Foreclosure recorded the Trustee’s Deed on October 30, 2017, in 15 the Official Records for Tulare County as Document No. 201716 0066663 after receiving an email from the Vice President of the 17 title company stating that it was a legal sale and that the 18 bankruptcy did not, as a matter of law, prevent the recording of [19] the Trustee’s Deed.2 Doc. #119, Ex. H to Ex. C. 20 Parker Foreclosure informed Barnes of the bankruptcy via 21 facsimile on November 28, 2017 and advised him to obtain a 22 bankruptcy attorney to seek relief from the automatic stay. [23] 24 1 There is a dispute as to whether Donald Parker “refused to take [the case] number, insisting that he should have been notified before 8:00 a.m. on 25 the morning of the sale.” Doc. #122. Ms. Gutierrez claims that she offered to email Mr. Parker the case number, but that he refused to provide an email 26 address. Doc. #119, Ex. B. Barnes claims that Ms. Gutierrez was supposed to send Parker Foreclosure a fax, but no fax was received. Doc. #123, Ex. A. 27 2 The Wards claim that Parker Foreclosure recorded the Trustee’s Deed 28 w ri et ch eo iu vt i n“ gn o at ni c ee m ao if l t fh re o mb a tn hk er u tp it tc ly e” cb oe mc pa au ns ye si tt a tw ia ns g r te hc ao tr d ie td wo an sl y a a lf et ge ar l sale that could go forward. Docs. #122; #123, Ex. A. [1] Doc. #119, Ex. I to Ex. D. Though Barnes “held off for quite 2 some time” from proceeding with the eviction until the case had 3 been dismissed, he did not seek relief from the automatic stay 4 because he believed the sale was legal, allowing him to proceed [5] with recording the Trustee’s Deed. Id., Ex. D; Ex. J to Ex. D; [6] Docs. #122; #123, Ex. A. 7 On January 3, 2018, Debtor’s bankruptcy case was dismissed 8 for failure to timely pay filing fee installment payments. 9 Doc. #36. 10 Thereafter, Barnes conveyed the Property to the Lincicums [11] by Grant Deed executed March 27, 2018 and recorded in Tulare [12] County on April 11, 2018. Doc. #119, Ex. I to Ex. E. The [13] Lincicums in turn conveyed the Property to the Wards by Grant [14] Deed executed June 14, 2018 and recorded in Tulare County on [15] June 21, 2018. Id., Ex. J to Ex. E. Barnes claims that neither 16 the Lincicums nor the Wards knew of the bankruptcy prior to 17 Debtor’s filing of the adversary proceeding. Docs. #122; #123, [18] Ex. A. 19 Debtor reopened this bankruptcy case on June 5, 2020. 20 Doc. #50. In response to the Wards’ motion to annul the 21 automatic stay, Debtor filed this motion for summary judgment. 22 Doc. #115. [23] 24 DISCUSSION 25 I. Summary Judgment Standard 26 Under Civ. Rule 56(a), summary judgment should be granted 27 only if the movant shows that there is no genuine dispute as to 28 any material fact and that the movant is entitled to judgment as 1 a matter of law. When considering a motion for summary judgment, 2 facts must be viewed in the light most favorable to the 3 nonmoving party only if there is a “genuine” dispute as to those [4] facts. Civ. Rule 56(c); Scott v. Harris, 550 U.S. 372, 380 , 127 5 S. Ct. 1769 , 1776 (2007). “[T]he mere existence of some alleged 6 factual dispute between the parties will not defeat an otherwise 7 properly supported motion for summary judgment; the requirement [8] is that there be no genuine issue of material fact.” Anderson v. [9] Liberty Lobby, Inc., 477 U.S. 242, 247-48 , 106 S. Ct. 2505 , 10 2509-10 (1986). When opposing parties tell two different 11 stories, one of which is blatantly contradicted by the record, 12 that no reasonable jury could believe, a court should not adopt 13 that version of the facts for the purposes of ruling on a motion [14] for summary judgment. Scott, 550 U.S. at 380 . 15 “Where the record taken as a whole could not lead a 16 rational trier of fact to find for the nonmoving party, there is [17] no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. [18] Zenith Radio Corp., 475 U.S. 574, 587 , 106 S. Ct. 1348 (1986). 19 “As to materiality, the substantive law will identify which 20 facts are material. Only disputes over facts that might affect 21 the outcome of the suit under the governing law will properly [22] preclude the entry of summary judgment.” Anderson, 477 U.S. at 23 248, 106 S. Ct. at 2510 . “[W]hile the materiality determination 24 rests on the substantive law, it is the substantive law’s 25 identification of which facts are critical and which facts are [26] irrelevant that governs.” Ibid. 27 The movant may not argue that its evidence is the most 28 persuasive or “explain away” evidence unfavorable to its 1 defenses; rather, it must show that there are no material facts 2 in dispute, or which can be reasonably resolved by a fact [3] finder. Anderson, Id., at 250-51, 2511 ; Davis v. Team Elec. Co., [4] 520 F.3d 1080, 1089 (9th Cir. 2008) (“Summary judgment is not [5] appropriate” if a reasonable jury could find in the plaintiff’s 6 favor.) (emphasis added). The Supreme Court has cautioned that 7 summary judgment should be denied in a case where there is 8 reason to believe the better course would be to proceed to a [9] full trial. Anderson, 477 U.S. at 250 . 10 As the movant, the burden of proof is on Debtor. The court 11 must draw all reasonable inferences in the light most favorable 12 to the non-moving party, and therefore in favor of denying [13] summary judgment. Anderson, 477 U.S. at 255 , 106 S. Ct. at 2513 - 14 14. Further, the non-moving party’s evidence is to be believed, 15 and all justifiable inferences are to be drawn in its favor. [16] Hutchins v. TNT/Reddaway Truck Line, Inc., 939 F. Supp. 721 , 723 [17] (N.D. Cal. 1996). 18 If a summary judgment motion is properly submitted, the 19 burden shifts to the opposing party to rebut with a showing that [20] there is a genuine issue of material fact. Henderson v. City of [21] Simi Valley, 305 F.3d 1052, 1055-56 (9th Cir. 2002). “The 22 nonmoving party ‘may not rely on denials in the pleadings but 23 must produce specific evidence . . . to show that the dispute [24] exists.’” Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 25 702, 707 (9th Cir. 2008), quoting Bhan v. NME Hosps., Inc., 929 26 F.2d 1404 , 1409 (9th Cir. 1991). 27 Ultimately, the court must grant summary judgment if the 28 movant shows that the record, taken as a whole, could not lead a 1 rational trier of fact to find for the nonmoving party as to any 2 fact that might affect the outcome of the suit under the 3 governing law, and the nonmovant does not meet their burden of 4 proof to refute the movant’s claims. 5 Under Civ. Rule 56(g), if the court does not grant all the 6 relief requested, the court may enter an order stating any 7 material fact not genuinely in dispute and treat that fact as 8 established in the case. Debtor here asks the court to treat as 9 established several facts. As will be seen, these facts are both 10 material and genuinely in dispute. [11] 12 II. Material Facts are in Dispute 13 Debtor filed bankruptcy on October 25, 2017, but the 14 petition has two timestamps on it: the 1:59:28 p.m. in red ink 15 and 2:00 p.m. in black ink. Wayne Blackwelder, the Clerk of the 16 Bankruptcy Court, has declared that the red ink timestamp was [17] affixed by the court upon filing. Doc. #119, Ex. A. The Wards 18 dispute this contention, but it is inappropriate to weigh Mr. 19 Blackwelder’s testimony at the summary judgment stage. [20] Docs. #122; #123, Ex. A; #125. The Wards argue that until 21 receiving Mr. Blackwelder’s declaration in connection with this 22 motion, the parties had assumed that 2:00 p.m. was the actual 23 filing time. That may be true, but on the face of the petition, 24 there is a genuine factual dispute on a material issue: when was 25 the petition filed? Since the record itself contains conflicting 26 information, it cannot be said that “no reasonable jury” would 27 find one time stamp more believable than the other. 28 /// 1 The remainder of this motion relies on the timing of the 2 ||filing of the petition. Since the timing in which Debtor filed 3 bankruptcy petition is in dispute, the court is unable to: grant this motion; (2) determine what time the bankruptcy 5 |}/petition was filed; (3) determine what time the automatic stay 6 |}went into effect; (4) determine whether the foreclosure sale of 7 |}Property conducted by Parker Foreclosure was in violation of the 8 |}automatic stay;? (5) determine whether Parker Foreclosure’s 9 ||}recording of the Trustee’s Deed in favor of Barnes was a knowing 10 willful violation of the stay; (6) determine whether Barnes’ 11 |/conveyance to the Lincicums was a knowing and willful violation 12 |jof the stay; (7) determine whether the original foreclosure sale 13 void, as well as all acts and conveyances subsequent to the 14 ||foreclosure sale are void; and (8) deny the Wards’ motion to 15 ||retroactively annul the stay. [16] 17 CONCLUSION 18 Accordingly, Debtor’s motion for summary judgment will be 19 ||DENIED on all counts because the timing of the filing of the 20 |/petition is in dispute, which is a material fact. 21 Additionally, for the reasons stated above, the court will 22 ||STRIKE the Wards’ alleged undisputed facts numbered 9 through 19 23 ||filed on October 6, 2021, as docket no. 122. 24 || Dated: Oct 04, 2022 By the Court [25] a“ 27 ené Lastreto II, Judge United States Bankruptcy Court 28 > We also do not have evidence of the time that the foreclosure sale actually occurred. 1 Instructions to Clerk of Court Service List - Not Part of Order/Judgment [2] 3 The Clerk of Court is instructed to send the Order/Judgment or other court generated document transmitted herewith to the [4] parties below. The Clerk of Court will send the Order via the 5 BNC or, if checked , via the U.S. mail. [6] 7 Peter L. Fear Fear Waddell, P.C. 8 7650 North Palm Avenue, Suite 101 Fresno, CA 93711 [9] 10 Gabriel J. Waddell Fear Waddell, P.C. 11 7650 North Palm Avenue, Suite 101 12 Fresno, CA 93711 13 Peter A. Sauer Fear Waddell, P.C. [14] 7650 North Palm Avenue, Suite 101 15 Fresno, CA 93711 16 Scott Lyons 1010 W. Main St. [17] Visalia, CA 93291 [18] Armando Natera 19 560 W Pleasant Ave #49 20 Tulare, CA 93274-1873 21 Armando Natera PO Box 590 [22] Pixley, CA 93256 [23] William E. Winfield 24 Nelson Comis Kettle & Kinney LLP 300 E. Esplanade Drive, Suite 1170 [25] Oxnard, CA 93036 [26] William E. Winfield [27] 5811 Olivas Park Dr., Suite 202 28 Ventura, CA 93003 1 Richard Barnes 334 Fresh Meadows Road 2 Simi Valley, CA 93065-6817 [3] Richard Barnes 4 Trustee of the Richard Allen Barnes Trust Dated September 1, 2011 [5] 334 Fresh Meadows Road 6 Simi Valley, CA 93065-6817 7 Donald D. Parker Parker Foreclosure Services, LLC [8] 65 North Dos Caminos Avenue 9 Ventura, CA 93003 10 Zi C. Lin 11 Garrett & Tully, P.C. 225 S. Lake Avenue, Suite 1400 12 Pasadena, CA 91101 [13] Mitzi Lincicum 14 2687 Korbel Court Tulare, CA 93274-1638 [15] Michael Scott Lincicum [16] 2687 Korbel Court 17 Tulare, CA 93274-1638 [18] Thomas A. Trapani 19 1550 Parkside Drive, Suite 300 Walnut Creek, CA 94596 [20] Roger L. Ward [21] 1461 East Court Avenue 22 Pixley, CA 93256 23 Sandra S. Ward 24 1461 East Court Avenue Pixley, CA 93256 [25] Office of the United States Trustee [26] United States Courthouse 27 2500 Tulare Street, Room 1401 Fresno, CA 93721-1326 [28] 1 Michael H. Meyer PO Box 28950 2 Fresno, CA 93729-8950