1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 In re: Case No.: 3:21-cv-01842-BEN-AGS

ENRIQUE V. GREENBERG,

12

ORDER GRANTING APPELLEE’S

Appellant, 13 MOTION TO DISMISS APPEAL v. 14 [ECF No. 3]

CHAMPION MORTGAGE COMPANY,

15 Appellee. 16 17 18 Appellant Enrique V. Greenberg appealed the decision of federal bankruptcy case 19 19-00878-MM11. ECF No. 3. Before this Court is Appellee Champion Mortgage 20 Company’s motion to dismiss. Because this Court finds Appellant’s appeal moot, the 21 Court GRANTS Appellee’s motion. 22 I. JUDICIAL NOTICE 23 Federal Rule of Evidence 201 allows a court to take judicial notice of adjudicative 24 facts which are “either (1) generally known within the territorial jurisdiction of the trial 25 court or (2) capable of accurate and ready determination by resort to sources whose 26 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Judicial notice can 27 include “facts that are a matter of public record.” Lee v. City of Los Angeles, 250 F. 3d 28 668, 689 (9th Cir. 2001). 1 Appellee moves this Court to take judicial notice of seven exhibits. Exhibits A-F 2 are briefs and orders from Appellant’s bankruptcy case. Exhibit G is the “Full 3 Reconveyance of Deed of Trust” recorded in the County of Riverside Recorder’s Office. 4 The Court finds the proposed exhibits are matters of public record or part of the record in 5 this case. Accordingly, the Court takes judicial notice of Exhibits A-G offered in 6 Appellee’s Request for Judicial Notice. ECF No. 4. 7 II. BACKGROUND 8 Appellant filed a voluntary petition for relief under Chapter 11 of the United States 9 Bankruptcy Code in United States Bankruptcy Court for the Southern District of 10 California in 2019. ECF No. 4, Ex. A. Appellee, who had a beneficial interest in a deed 11 of trust that secured the Appellant’s real property at 31400 Via Eduardo, Temecula, CA 12 92592, filed a claim against Appellant’s bankruptcy estate. Id. Appellant objected to 13 Appellee’s claim, but the Bankruptcy Court overruled the objection in March of 2020. 14 Id., Ex. B. In May of 2020, Appellee moved to dismiss Appellant’s Chapter 11 case on 15 the grounds it was filed in bad faith, that Appellant did not have a Chapter 11 plan, and 16 that there were no legitimate bankruptcy purposes to prosecute the bankruptcy case. The 17 Bankruptcy Court granted the motion to dismiss in July 2020. 18 Appellant appealed the dismissal to this Court, which affirmed in part and vacated 19 and remanded in part. The District Court vacated the claim objection order to the extent 20 it determined Appellee had standing to file the proof of claim and remanded to the 21 Bankruptcy Court for further proceedings. Id., Ex. E. Following an evidentiary hearing, 22 the Bankruptcy Court entered an order overruling Appellant’s objections and concluded 23 that Appellee was the holder of the note with standing to file a proof of claim in 24 Appellant’s bankruptcy proceeding. Id., Ex. F. 25 On October 11, 2021, Appellee received funds to pay off the loan secured by the 26 deed of trust. Appellee duly executed a full reconveyance of the deed of trust and 27 submitted this to the county recorder’s office. Id., Ex. G. On October 29, 2021, 28 Appellant filed his notice of appeal to this Court. 1 III. DISCUSSION 2 The case or controversy requirement of Article III restricts federal court 3 jurisdiction to “disputes capable of judicial resolution.” U.S. Parole Comm'n v. 4 Geraghty, 445 U.S. 388 (1980). A case becomes moot, and incapable of judicial 5 resolution, “when the issues presented are no longer ‘live’ or the parties lack a legally 6 cognizable interest in the outcome.” See Powell v. McCormack, 395 U.S. 486, 496 7 (1969). “Generally, when a party settles all of his personal claims before appeal, an 8 appeals court must dismiss the appeal as moot unless that party retains a personal stake in 9 the case that satisfies the requirements of Article III.” Smith v. T-Mobile 10 USA Inc., 570 F.3d 1119, 1122 (9th Cir. 2009). “That “personal stake” must be 11 “concrete” and “financial,” . . . Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 12 1021 (9th Cir. 2012). “Where mootness results from settlement, the losing party has 13 voluntarily forfeited his legal remedy by the ordinary process of appeal or certiorari . . .” 14 U.S. Bancorp Mortg. Co. v. Bonner Mall Partn., 513 U.S. 18, 18 (1994). “Bankruptcy's 15 mootness rule ‘developed from the general rule that the occurrence of events which 16 prevent an appellate court from granting effective relief renders an appeal moot, and the 17 particular need for finality in orders regarding stays in bankruptcy.’” In re Onouli–Kona 18 Land Co., 846 F.2d 1170, 1172 (9th Cir.1988) (citing Algeran, Inc. v. Advance Ross 19 Corp., 759 F.2d 1421, 1424 (9th Cir.1985)). 20 Here, there is no relief this Court can grant to Appellant. Appellant has paid the 21 balance of the loan owed on the subject property and Appellee, following execution of 22 the full reconveyance of the deed of trust, no longer has a claim against Appellant’s 23 bankruptcy estate. Appellant’s appeal is based on his argument that Appellee is not the 24 rightful holder of the note in dispute. However, following Appellant’s voluntary 25 repayment of the debt secured by the note and subsequent reconveyance, there is no 26 dispute between these parties. 27 Appellant argues his settlement payment of the subject property was not voluntary 28 and in response to a “NOTICE OF TRUSTEE’S SALE” note posted on the garage door | ||of his property. Opp’n, ECF No. 7 at 4. Appellant claims that as a result, any settlement 2 || payment is “an in terrorem settlement.” Jd. Appellant had options, though, if he did not 3 || want to fully settle the outstanding obligation on the subject property. Particularly, 4 || Appellant could have sought a stay on any sale pending appeal to this Court or sought an 5 injunction to enjoin any foreclosure sale. He did neither. Instead, Appellant fulfilled his 6 || outstanding financial obligations and Appellee duly released its claim on Appellant’s 7 ||estate. Based on the nature of Appellant’s appeal, there is nothing for this Court to 8 ||adjudicate. Accordingly, the appeal is dismissed as moot. 9 IT IS SO ORDERED. . 10 Dated: May 23, 2022 11 ype

HON. ROGER T. BENITE

12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28