Varela v. Wells Fargo Bank, N.A.
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
IN RE TIM VARELA, SR.
TIM VARELA, SR.,
Case No. 2:16-cv-01035-APG
WELLS FARGO BANK, N.A.,
Appellant/debtor Tim Varela, Sr. appeals the bankruptcy court’s order denying his motion
to stay foreclosure pending resolution of his appeal in Varela v. Wells Fargo, 2:15-cv-02497-
GMN. ECF No. 1. Varela contends the bankruptcy judge, Bruce Beesley, formerly represented
appellee Wells Fargo Bank, N.A. in relation to the same property at dispute in this case when
Judge Beesely was still in private practice. Varela contends that Judge Beesley erred by denying
Varela’s motion to stay pending appeal when he had previously granted that motion. Varela also
argues Judge Beesley lacked jurisdiction to enter the denial order because an appeal had been
Wells Fargo responds that because the property has been sold at a foreclosure sale, this
appeal is moot. Wells Fargo also argues the bankruptcy court properly denied a stay pending
appeal because Varela was unlikely to succeed on the merits of the appeal. Additionally, Wells
Fargo asserts that the bankruptcy court properly corrected a clerical error because the court
erroneously had entered an order granting the motion to stay when in fact that motion had been
denied. Wells Fargo asserts the bankruptcy court had jurisdiction to correct the error because no
appeal of the order denying the motion to stay had been filed. Finally, Wells Fargo argues Judge
Beesley was not required to recuse because he was not an attorney in the current matter in
A bankruptcy appeal becomes moot when the court cannot fashion effective relief. Focus
Media, Inc. v. Nat'l Broad. Co., Inc., 378 F.3d 916, 922 (9th Cir. 2004). The “classic example” of
constitutional mootness in a bankruptcy appeal “is a case in which the debtor has failed to seek a
stay of foreclosure and the debtor’s property has been sold. The transfer to a third party precludes
meaningful relief.” Baker & Drake, Inc. v. Pub. Serv. Comm’n, 35 F.3d 1348, 1351 (9th Cir.
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.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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