Gens v. Kaelin

Filing 9

ORDER DENYING 8 APPELLANT'S MOTION FOR RECONSIDERATION OF ORDER DENYING STAY PENDING APPEAL. Signed by Judge Beth Labson Freeman on 7/19/2017.(blflc1S, COURT STAFF) (Filed on 7/19/2017)

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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,

Case No. 17-cv-03616-BLF

Appellant,

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v.

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DORIS KAELIN,
Appellee.

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ORDER DENYING APPELLANT’S
MOTION FOR RECONSIDERATION
OF ORDER DENYING STAY PENDING
APPEAL
[Re: ECF 8]

United States District Court
Northern District of California

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On July 14, 2017, Appellant Timothy Gens filed an “Ex Parte Emergency Application for

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a Temporary Restraining Order Pending Appeal of Orders Authorizing and Confirming Sale of

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Appellant’s Residence Free and Clear of Lis Pendens,” which the Court construed as a motion for

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stay pending appeal of the bankruptcy court’s Order Granting Trustee’s Motions to (1) Sell Real

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Property and Pay Fees, Costs, Taxes, and Commissions, Other than the Lien of Wells Fargo, and

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(2) Sell Free and Clear of Claims, Liens, and Interests (“Sale Order”). See Stay Motion, ECF 4.

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The Court denied that motion on July 18, 2017. See Order Denying Motion for Stay Pending

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Appeal, ECF 7.

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On July 19, Appellant filed a “Revised Ex Parte Emergency Application for a Temporary

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Restraining Order Pending Appeal of Orders Authorizing and Confirming Sale of Appellant’s

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Residence Free and Clear of Lis Pendens,” which the Court construes as a motion for

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reconsideration. See Motion for Reconsideration, ECF 8. The motion for reconsideration is

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DENIED for the reasons discussed below.

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In order to obtain reconsideration of an interlocutory order, the moving party “must

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specifically show reasonable diligence in bringing the motion” and also must show one of the

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following: (1) “a material difference in fact or law exists from that which was presented to the

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Court before entry of the interlocutory order for which reconsideration is sought”; (2) “[t]he

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emergence of new material facts or a change of law occurring after the time of such order”; or

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(3) “[a] manifest failure by the Court to consider material facts or dispositive legal arguments

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which were presented to the Court before such interlocutory order.” Civ. L.R. 7-9(a), (b).

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Appellant has not identified any material difference in fact or law as required under the

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first prong, or the emergence of new material facts or a change of law as required under the second

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prong. Appellant does appear to argue that the Court failed to consider material facts or

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dispositive legal arguments as required under the third prong. The Court addresses those

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arguments below.

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Appellant asserts that the Court denied his Stay Motion because of his failure to analyze
the abuse of discretion standard. Motion for Reconsideration at 2, ECF 8. Appellant’s failure to

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United States District Court
Northern District of California

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analyze the correct legal standard was not the basis for the Court’s ruling. To the contrary, the

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Court set forth the applicable abuse of discretion standard, explaining that the Court reviews the

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bankruptcy court’s conclusions of law de novo and its factual findings for clear error. See Order

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Denying Motion for Stay Pending Appeal at 3, ECF 7. The Court expressly determined that the

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bankruptcy court applied the correct legal standards and did not commit clear error in its factual

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findings. See id. at 3-5. Importantly here, the Court concluded that the bankruptcy court made a

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factual finding that Appellant’s stay motion filed in the bankruptcy court was a rehash of

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arguments previously made and rejected; the bankruptcy court’s factual finding was supported by

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the record and thus was not clearly erroneous; and the bankruptcy court’s factual finding provided

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a sufficient legal basis for the bankruptcy court’s determination that Appellant had not established

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a likelihood of success on the merits. See id. at 5. The Court’s ruling was based on those

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substantive determinations and not on the procedural deficiencies in Appellant’s Stay Motion.

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Appellant has not presented any factual or legal basis for reconsideration of the substantive

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determinations upon which the Court’s denial of his Stay Motion was based.

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Appellant’s motion for reconsideration is DENIED.
Dated: July 19, 2017
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BETH LABSON FREEMAN
United States District Judge
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