Varela v. Wells Fargo Bank, N.A.

Filing 14

OPINION Dismissing Bankruptcy Appeal as moot. Signed by Judge Andrew P. Gordon on 2/1/2017. (Copies have been distributed pursuant to the NEF, cc: USBC - JM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 IN RE TIM VARELA, SR. 5 TIM VARELA, SR., 6 Appellant, 7 Case No. 2:16-cv-01035-APG OPINION v. 8 WELLS FARGO BANK, N.A., 9 Appellee. 10 11 Appellant/debtor Tim Varela, Sr. appeals the bankruptcy court’s order denying his motion 12 to stay foreclosure pending resolution of his appeal in Varela v. Wells Fargo, 2:15-cv-02497- 13 GMN. ECF No. 1. Varela contends the bankruptcy judge, Bruce Beesley, formerly represented 14 appellee Wells Fargo Bank, N.A. in relation to the same property at dispute in this case when 15 Judge Beesely was still in private practice. Varela contends that Judge Beesley erred by denying 16 Varela’s motion to stay pending appeal when he had previously granted that motion. Varela also 17 argues Judge Beesley lacked jurisdiction to enter the denial order because an appeal had been 18 filed. 19 Wells Fargo responds that because the property has been sold at a foreclosure sale, this 20 appeal is moot. Wells Fargo also argues the bankruptcy court properly denied a stay pending 21 appeal because Varela was unlikely to succeed on the merits of the appeal. Additionally, Wells 22 Fargo asserts that the bankruptcy court properly corrected a clerical error because the court 23 erroneously had entered an order granting the motion to stay when in fact that motion had been 24 denied. Wells Fargo asserts the bankruptcy court had jurisdiction to correct the error because no 25 appeal of the order denying the motion to stay had been filed. Finally, Wells Fargo argues Judge 26 Beesley was not required to recuse because he was not an attorney in the current matter in 27 controversy. 28 A bankruptcy appeal becomes moot when the court cannot fashion effective relief. Focus 1 2 Media, Inc. v. Nat'l Broad. Co., Inc., 378 F.3d 916, 922 (9th Cir. 2004). The “classic example” of 3 constitutional mootness in a bankruptcy appeal “is a case in which the debtor has failed to seek a 4 stay of foreclosure and the debtor’s property has been sold. The transfer to a third party precludes 5 meaningful relief.” Baker & Drake, Inc. v. Pub. Serv. Comm’n, 35 F.3d 1348, 1351 (9th Cir. 6 1994). 7 8 9 10 11 Here, the property has been sold, so Varela’s motion to stay foreclosure is moot. I cannot afford effective relief because I cannot stay a foreclosure that has already taken place. IT IS THEREFORE ORDERED that this bankruptcy appeal is dismissed as moot. The clerk of court shall close this case. DATED this 1st day of February, 2017. 12 13 14 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 of 2

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