Gens v. Kaelin

Filing 3

ORDER DENYING 1 APPLICATION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Beth Labson Freeman on 6/23/2017. (blflc1S, COURT STAFF) (Filed on 6/23/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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LAURA A. GENS,
Appellant,

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ORDER DENYING APPLICATION FOR
TEMPORARY RESTRAINING ORDER

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v.

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DORIS KAELIN,

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United States District Court
Northern District of California

Case No. 17-cv-03601-BLF

Appellee.

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On June 19, 2017, Debtor Laura Gens, proceeding pro se, filed a Notice of Appeal from

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two orders of the bankruptcy court: Order Granting Trustee’s Motions to (1) Sell Real Property

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and Pay Fees, Costs, Taxes, and Commissions, Other than the Lien of Wells Fargo, and (2) Sell

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Free and Clear of Claims, Liens, and Interests; and Order Granting Trustee’s Motion to Expunge,

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or, Alternatively, Sell Real Property Free and Clear of Lis Pendens. See Notice of Appeal, ECF 1-

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1. Debtor also filed an application for temporary restraining order (“TRO”) pending appeal. See

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Application for TRO, ECF 1-5. The appeal and TRO application initially were referred to the

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Bankruptcy Appellate Panel (“BAP”). See Notice of Referral to Bankruptcy Appellate Panel, ECF

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1-4. On June 21, 2017, the Chapter 7 Trustee filed a Statement of Election to Have Appeal Heard

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by District Court. See Statement of Election, ECF 1-3. The appeal and TRO application were

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transferred to the District Court and assigned to the undersigned on June 22, 2017. See Notice of

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Transfer of Appeal to District Court, ECF 1.

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Debtor’s TRO application states that she will suffer “immediate and concrete irreparable

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harm” if a TRO does not issue. She does not state expressly that a sale of her home has been

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scheduled, but the Court infers as much from the nature of her request and her statement that

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“[a]bsent a stay pending appeal, Laura Gens will lose her home.” TRO Application at 3, ECF 1-5.

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Debtor makes a statement of likelihood of success on the merits, unsupported by evidence or legal

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authority. She nonetheless requests immediate issuance of a TRO to give her time to file a

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lengthier motion for relief. She states that “[t]here are further issues Debtor and Appellant wishes

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to present with more time and on such oral and documentary evidence as may be presented at the

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hearing on the motion such as pursuant to Federal Rule of Bankruptcy Procedure 8007.” Id.

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Federal Rule of Bankruptcy Procedure 8007 (formerly Rule 8005) governs requests for

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stay or injunctive relief pending appeal. That rule provides in relevant part as follows:

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“Ordinarily, a party must move first in the bankruptcy court for the following relief: (A) a stay of

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a judgment, order, or decree of the bankruptcy court pending appeal; . . . (C) an order suspending,
modifying, restoring, or granting an injunction while an appeal is pending.” Fed. R. Bankr. P.

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United States District Court
Northern District of California

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8007(a)(1) (emphasis added). If a party moves for such relief in district court, “[t]he motion must:

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(A) show that moving first in the bankruptcy court would be impracticable; or (B) if a motion was

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made in the bankruptcy court, either state that the court has not yet ruled on the motion, or state

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that the court has ruled and set out any reasons given for the ruling.” Fed. R. Bankr. P.

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8007(b)(2).

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Debtor has not complied with Rule 8007. She does not state that she first sought injunctive

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relief or a stay in the bankruptcy court, nor does it appear from the record that she did. The Court

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notes that one of the two orders which Debtor appeals, the order granting the Trustee’s motions to

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sell the real property, was subject to a statutory fourteen-day stay under Federal Rule of

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Bankruptcy Procedure 6004(h) (“An order authorizing the use, sale, or lease of property other than

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cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court

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orders otherwise.”). The bankruptcy court denied the Trustee’s request to waive the Rule 6004(h)

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stay, noting that “[t]he purpose of this rule is to provide sufficient time for an objecting party to

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request a stay pending appeal before the order can be implemented.” Bankruptcy Court Order

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issued June 8, 2017 at 19, ECF 1-2. Debtor thus could have sought a stay in the bankruptcy court

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at any time during that fourteen-day window. She offers no explanation for her failure to do so, or

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for her delay in filing the present appeal and TRO application.

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A failure to seek emergency relief in the bankruptcy court is “a critical defect.” In re
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Rivera, No. 5:15-CV-04402-EJD, 2015 WL 6847973, at *2 (N.D. Cal. Nov. 9, 2015) (denying

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motion for stay where applicant had not complied with Rule 8007). “The reason for requiring that

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the initial application be made to the Bankruptcy Court is obvious. . . . [t]he reviewing court

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should have the benefit of the learning of the lower court, which is more familiar with the parties,

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facts and legal issues.” Id. (quotation marks and citation omitted). The Ninth Circuit Bankruptcy

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Appellate Panel has referred to the requirement as “a rule of practicality and propriety.” In re

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Wymer, 5 B.R. 802, 807 (B.A.P. 9th Cir. 1980) (discussing predecessor to Rule 8007). In Wymer

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the Court went on to state that “[a]ccordingly, appellate courts are reluctant to entertain a request

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for stay unless it is demonstrated that the trial judge is unavailable or that the request was denied

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United States District Court
Northern District of California

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by the trial judge.” Id.
Accordingly, Debtor’s TRO application is DENIED WITHOUT PREJUDICE.

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Dated: June 23, 2017
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BETH LABSON FREEMAN
United States District Judge

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