Whitney v. Pacific Thomas Corporation et al

Filing 25

ORDER DENYING APPELLANT'S MOTIONS FOR LEAVE TO FILE SUR-REPLY AND FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. Signed by Judge Maxine M. Chesney on January 7, 2015. (mmclc1, COURT STAFF) (Filed on 1/7/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C-14-4083 MMC

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In re

Bankruptcy Case No. 14-54232 MEH

For the Northern District of California

United States District Court

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PACIFIC THOMAS CORPORATION, dba
THOMAS CAPITAL, dba SAFE STORAGE,
Debtor

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/

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ORDER DENYING APPELLANT’S
MOTIONS FOR LEAVE TO FILE SURREPLY AND FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION

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By order filed December 17, 2014, the Court granted appellee Kyle Everett’s (“the
Trustee”) Motion to Dismiss Appeal as Moot, and dismissed the above-titled bankruptcy
appeal. Before the Court are two motions filed by appellant Randall Whitney: (1) Motion
for Leave to File Sur-Reply to Reply Brief, filed December 17, 2014;1 and (2) Motion for
Leave to File a Motion for Reconsideration, filed December 24, 2014. Having read and
considered appellant’s motions, the Court rules as follows.
In its order of dismissal, the Court found that, to the extent the appeal challenged an
order granting the Trustee’s motion to sell certain real property owned by the bankruptcy
estate, the appeal was moot under the “absolute mootness rule,” which rule applies where
an appellant does not obtain a stay of an order approving a sale to a good faith purchaser
and the sale has closed. See Paulman v. Gateway Venture Partners III, L.P. (In re
Filtercorp, Inc.), 163 F.3d 570, 576-77 (9th Cir. 1998) (affirming as moot dismissal of
appeal from order approving sale, where appellant did not obtain stay prior to sale closing

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The motion was electronically filed after the Court granted the motion to dismiss.

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and where bankruptcy court was “not clearly erroneous” in finding buyer constituted

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“purchaser in good faith”).2

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In both of the above-referenced motions, appellant requests the Court consider new

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arguments and evidence pertaining to the circumstances of the Trustee’s sale of the real

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property at issue. Assuming, arguendo, such new arguments and evidence may be

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considered at this stage of the proceedings, the Court finds appellant’s additional showing

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insufficient to warrant reconsideration of the dismissal.

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First, appellant fails to argue, let alone show, the purchaser did not act in good faith,
and fails to show the sale did not close. Although appellant contends the newly offered

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evidence supports a finding that the Trustee caused the City of Oakland to provide

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incorrect title information to the purchaser, such contention, even if accepted, does not

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warrant reconsideration. As the Court explained in its order of dismissal, even if the

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purchaser might in the future seek to rescind the completed sale, the instant appeal

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nonetheless is moot.

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Second, appellant, citing In re Onouli-Kona Land Co., 846 F.2d 1170 (9th Cir. 1988),

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asserts an exception to the mootness rule applies. The exception identified in Onouli-

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Kona, however, is inapplicable to the instant appeal, as it applies only “where real property

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is sold to a creditor who is a party to the appeal.” See id. at 1172 (internal quotation and

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citation omitted). Here, there is no showing the purchaser is a creditor of the bankruptcy

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estate, and, in any event, the purchaser is not a party to the instant appeal.

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Accordingly, appellant’s motions are hereby DENIED.

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IT IS SO ORDERED.

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Dated: January 7, 2015
MAXINE M. CHESNEY
United States District Judge

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The Court also found that, to the extent the appeal challenged an order granting the
Trustee’s motion for approval to abandon certain other real property owned by the estate,
the appeal was moot, given the subject property was sold by a lienholder at a foreclosure
sale, resulting in the estate’s no longer having any interest to abandon.
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