Greenwood et al v. OneWest Bank, FSB

Filing 11

ORDER granting 3 Motion to Dismiss for Lack of Jurisdiction; denying as moot 4 Motion to Stay. Case terminated. Signed by Chief Judge Robert C. Jones on 7/30/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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In re JERRY GREENWOOD et al.,
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Debtors.
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________________________________________ )
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JERRY GREENWOOD et al.,
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Appellants,
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vs.
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ONEWEST BANK FSB et al.,
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Appellees.
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3:13-cv-00293-RCJ
Bk. No. 09-bk-53338
Adv. No. 11-ap-05038
ORDER

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This is an appeal of the bankruptcy court’s order in an adversary proceeding granting a

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motion to cancel a lis pendens. Appellees have moved to dismiss the appeal for lack of appellate

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jurisdiction and have separately moved for a stay of all proceedings on appeal pending the

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Court’s determination of the motion to dismiss. For the reasons given herein, the Court grants

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the Motion to Dismiss (ECF No. 3) and denies the Motion to Stay (ECF No. 4) as moot.

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Jerry Greenwood, d.b.a. Greenwood Excavating and Eugenia (“Gina”) Greenwood, d.b.a.

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Greenwood Enterprises are joint Debtors in Chapter 7 bankruptcy case No. 09-bk-53338, filed on

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September 23, 2009 and currently pending before the Hon. Judge Gregg W. Zive in the

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bankruptcy court of this District. Angelique Lamberti-Clark is the U.S. Trustee. In adversary

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proceeding No. 11-ap-5038, filed on April 18, 2011, Plaintiffs Jerry and Gina Greenwood sued

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Defendant OneWest Bank, FSB (“OneWest”) to determine the validity under state law of a lien

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against their property at 1123 Jo Ln., Gardnerville, NV 89410 (the “Property”) now held by

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OneWest and to determine the availability of the lien under the bankruptcy code, alleging that the

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original lender had recorded the deed of trust in the wrong county.

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On October 15, 2012, OneWest filed a motion in the adversary proceeding for an order

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striking and cancelling a lis pendens on the Property and for sanctions against Plaintiffs’ attorney

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for bad faith. Defendant noted in the motion that Jerry Greenwood has filed the lis pendens in

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Douglas County jointly on behalf of himself and Gina Greenwood, though he had quitclaimed his

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interest in the property to Gina Greenwood the previous month. Moreover, several months prior

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to the recordation of the lis pendens, the bankruptcy court had approved a settlement agreement

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between the Trustee and Defendant stipulating, inter alia, that Defendant held a valid security

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interest in the Property. On May 21, 2013, the bankruptcy court entered its order (the “Order”).

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(See Order, May 21, 2013, ECF No. 1, at 4). The bankruptcy court determined the motion by

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ordering the motion taken off calendar, ordering Debtors/Appellants to remove the Notice of

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Filing of Lis Pendens, and warning that no discharge would be granted in the underlying Chapter

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7 bankruptcy until Debtors complied. (See id. 2). In substance, the Court appears to have granted

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the motion in part and denied it in part, ordering the lis pendens to be removed, but not granting

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sanctions.

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The Court dismisses the appeal for lack of standing. As Chapter 7 Debtors, Appellants

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have no standing to litigate any purported interests in the property of the bankruptcy estate except

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through the Trustee. 11 U.S.C. § 323(a); In re Eisen, 31 F.3d 1447, 1451 n.2 (9th Cir. 1994)

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(citing id.); Skelton v. Clements, 408 F.2d 353, 354 (9th Cir. 1969). The Trustee is joined as an

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Appellee in the present matter, plainly indicating that she has refused to pursue Appellants’

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claims.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 3) is GRANTED and
the appeal is DISMISSED for lack of jurisdiction.

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IT IS FURTHER ORDERED that the Motion to Stay (ECF No. 4) is DENIED as moot.

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IT IS SO ORDERED.

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DATED this16th day of July, 2013.
Dated this 30th day July, 2013.
Dated this 10th day of of July, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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