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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TIMOTHY 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-03616-BLF

Appellee.

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On June 19, 2017, Appellant Timothy Gens, proceeding pro se, filed a Notice of Appeal

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from the bankruptcy court’s Order Granting Trustee’s Motions to (1) Sell Real Property and Pay

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

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Clear of Claims, Liens, and Interests. See Notice of Appeal, ECF 1-1. Appellant also filed an

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application for temporary restraining order (“TRO”) pending appeal. See Application for TRO,

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ECF 1-5. The appeal and TRO application initially were referred to the Bankruptcy Appellate

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Panel (“BAP”). See Notice of Referral to Bankruptcy Appellate Panel, ECF 1-4. On June 21,

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2017, the Chapter 7 Trustee filed a Statement of Election to Have Appeal Heard by District Court.

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See Statement of Election, ECF 1-3. The appeal and TRO application were transferred to the

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

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Appeal to District Court, ECF 1.

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The bankruptcy court’s order which is the subject of Appellant’s appeal and TRO

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application was entered in the bankruptcy of Appellant’s wife, Laura Gens. See Bankruptcy Court

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Order issued June 8, 2017 at 19, ECF 1-2. The order grants the Trustee’s motions to sell real

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property. Id. Appellant states that he will suffer “immediate and concrete irreparable harm” if a

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TRO does not issue because he “is a co-owner of the residence with both legal and equitable

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interest beyond community property interests.” TRO Application at1- 2, ECF 1-5. He does not

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state expressly that a sale of his home has been scheduled, but the Court infers as much from the

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nature of his request and his statement that “[a]bsent a stay pending appeal, Timothy Gens will

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lose his home.” Id. at 2. Appellant makes a statement of likelihood of success on the merits,

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unsupported by evidence or legal authority. He nonetheless requests immediate issuance of a

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TRO to give him time to file a lengthier motion for relief. He states that “[t]here are further issues

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Appellant wishes to present with more time and on such oral and documentary evidence as may be

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presented at the hearing on the motion such as pursuant to Federal Rule of Bankruptcy Procedure

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8007.” Id.

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

United States District Court
Northern District of California

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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,

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modifying, restoring, or granting an injunction while an appeal is pending.” Fed. R. Bankr. P.

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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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Appellant has not complied with Rule 8007. He does not state that he first sought

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injunctive relief or a stay in the bankruptcy court, nor does it appear from the record that he did.

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The Court notes that the order on appeal, granting the Trustee’s motions to sell the real property,

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was subject to a statutory fourteen-day stay under Federal Rule of Bankruptcy Procedure 6004(h)

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(“An order authorizing the use, sale, or lease of property other than cash collateral is stayed until

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the expiration of 14 days after entry of the order, unless the court orders otherwise.”). The

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bankruptcy court denied the Trustee’s request to waive the Rule 6004(h) stay, noting that “[t]he

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purpose of this rule is to provide sufficient time for an objecting party to request a stay pending

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appeal before the order can be implemented.” Bankruptcy Court Order issued June 8, 2017 at 19,
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ECF 1-2. Appellant thus could have sought a stay in the bankruptcy court at any time during that

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fourteen-day window. He offers no explanation for his failure to do so, or for his delay in filing

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

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United States District Court
Northern District of California

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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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by the trial judge.” Id.

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Accordingly, Appellant’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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