Brugnara Properties VI. v. Brugnara et al

Filing 32

ORDER TO FILE BRIEFING AND VACATING HEARING [re (29 in 3:18-cv-02787-WHA) MOTION to Consolidate Cases, (6 in 3:18-cv-02823-WHA) MOTION to Dismiss filed by Paul Greenfield, (60 in 3:18-cv-02822-WHA) MOTION to Consolidate and Dismiss Appeals filed by Paul Greenfield]. Signed by Judge William Alsup on 12/10/2018. (whasec, COURT STAFF) (Filed on 12/11/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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In re:

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For the Northern District of California

United States District Court

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BRUGNARA PROPERTIES VI

No. C 18-02787 WHA
No. C 18-02822 WHA

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Debtor.
/

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BRUGNARA PROPERTIES VI,

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KAY BRUGNARA, et al.,
Appellees.
/
KAY BRUGNARA,

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ORDER TO FILE BRIEFING
AND VACATING HEARING

v.

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No. C 18-03440 WHA

Appellant,

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No. C 18-02823 WHA

Appellant,
v.
OFFICE OF THE U.S. TRUSTEE/SF and
JANINA M. HOSKINS, Chapter 7 trustee,
Appellees.
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This order concerns the cluster of appeals challenging the bankruptcy court’s conversion

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of the case from a Chapter 11 to a Chapter 7 in the In re Brugnara Properties VI proceedings.

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Appellants have failed to file any briefing in support of their appeals. Mr. Paul Greenfield, a

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secured creditor and proposed intervenor, now moves to, inter alia, dismiss the appeals.

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This order follows full briefing.

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Pursuant to Local Rule 7-1(b), this order finds the motions suitable for submission

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without oral argument and hereby VACATES the hearing scheduled for December 13. For the

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reasons explained below, appellants are ordered to file their opening briefs on appeal by

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DECEMBER 21 AT NOON and creditor Greenfield’s motions are DENIED AS MOOT.*

the instant appeals concern only the bankruptcy court’s conversion of the case from a Chapter 11

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to a Chapter 7 and that the IRS and FTB tax liens and nominee status of the debtor did not have

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any impact on the bankruptcy court’s decision to convert. That argument was not supported by

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For the Northern District of California

On June 7, during the hearing on the motion for an emergency stay, appellees argued that

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United States District Court

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the record. The subsequent order from the bench (memorialized in the June 7 written order)

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stayed the sale of the family residence pending the bankruptcy court’s ruling on whether or not

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Brugnara Properties VI (the home owner) is a nominee and/or alter ego of Luke Brugnara (the

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delinquent taxpayer) (Case No. 18-02787 Dkt. Nos. 26 at 5–9, 37–41; 21).

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Creditor Greenfield moves to consolidate the appeals related to the bankruptcy court’s

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denial of the motion to reconsider conversion (Case Nos. 18-02787, 02822, 02823, and 03440)

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and to dismiss them for failure to file any briefing (Case Nos. 18-02787, 18-02822), lack of

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prosecution, failure to follow court orders (Case No. 18-03440), and lack of jurisdiction (Case

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No. 18-02823) (Case No. 18-02822, Dkt. No. 60). Creditor Greenfield also renews his motion to

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vacate the stay (Case No. 18-02822, Dkt. No. 62).

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An appellant must file the record on appeal and a statement of the issues to be presented.

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FRBP 8009(a). Trustee Janina M. Hoskins submitted the audio recording from the bankruptcy

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court’s hearing on the Trustee’s Report Under Bankruptcy Code § 1106(a)(5) and

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Recommendation to Convert Case to a Case Under Chapter 7 of the Bankruptcy Code on

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June 11 (Case No. 18-02787, Dkt. No. 24-2). Given the close relationship of the appeals, a

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* The following motions are DENIED AS MOOT: Case No. 18-02787, Dkt. No. 29; 18-02822, Dkt.
Nos. 60, 62, 66; 18-2823, Dkt. No. 6; and 18-3440, Dkt. No. 3.

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single submission will suffice. (Appellants, however, are ORDERED to file a written transcript of

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the bankruptcy court’s hearing as well.)

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The failure to brief is another matter.

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Appellants’ failure to take any required step other than the timely filing of a notice of

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appeal is grounds for dismissal of their appeals. FRBP 8003(a)(2). Dismissal, however, would

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be premature at this stage. See Greco v. Stubenburg, 859 F.2d 1401 (9th Cir. 1988) (alternative

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measures to dismissal must first be considered). Nonetheless, the lackadaisical pace of these

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appeals is at an end.

Greenfield, all appellants in the above cases are hereby ordered to file their initial briefs on

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For the Northern District of California

Before reaching the merits of the appeals or the standing of the parties and creditor

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United States District Court

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appeal by December 21 at noon. All briefing should include a section on each appellant’s

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standing and clarify this court’s jurisdiction to review the issue(s) raised. Failure to comply or

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address these issues in good faith may result in dismissal of the appeals.

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Creditor Greenfield also renews his motion to vacate the stay, and the Chapter 7 trustee

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of the Brugnara Properties VI estate joins, requesting that the stay should be lifted effective

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January 31, subject to the debtor seeking a further stay (Case No. 18-02822, Dkt. Nos. 62, 65).

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That request is DENIED without prejudice, as it presumes the bankruptcy court will issue its

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ruling on the same day as the evidentiary hearing.

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In sum, all appellants in the above listed cases shall file their briefs on appeal by

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DECEMBER 21 AT NOON. Failure to comply may result in the dismissal of the appeals.

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The audio recording of the bankruptcy court proceedings must be supplemented with a written

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transcript. The December 13 hearing is VACATED. The stay issued on June 7 remains in effect

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pending the bankruptcy court’s ruling. In no event shall this order be used to continue the

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January 2019 hearing before the bankruptcy court.

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IT IS SO ORDERED.

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Dated: December 10, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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