927 F. 2d 608 - Beach Road Development Corporation Beach Road Development Corporation v. E McReynolds E
927 F2d 608 Beach Road Development Corporation Beach Road Development Corporation v. E McReynolds E
927 F.2d 608
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
In re BEACH ROAD DEVELOPMENT CORPORATION, Debtor.
BEACH ROAD DEVELOPMENT CORPORATION, Appellant,
v.
James E. McREYNOLDS, Loutisha E. McReynolds, Appellees.
No. 88-6176.
United States Court of Appeals, Ninth Circuit.
Submitted Mar. 1, 1991.*
Decided March 5, 1991.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel James W. Meyers, Chief Bankruptcy Judge, BAP. No. CC-87-1957; and Robert C. Jones, Bankruptcy Judge, Presiding.
B.A.P.
DISMISSED AS MOOT.
Before FLETCHER, PREGERSON and TROTT, Circuit Judges.
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MEMORANDUM**
Beach Road Development Corp. ("Beach") appeals the Bankruptcy Appellate Panel's ("BAP") order denying Beach's motion to vacate the BAP's earlier dismissal of its appeal for failure to prosecute. We have jurisdiction pursuant to 28 U.S.C. Sec. 158(d) and dismiss this appeal as moot. See Mann v. Alexander Dawson, Inc. (In re Mann), 907 F.2d 923, 926 (9th Cir.1990).
Beach seeks to challenge the bankruptcy court's order lifting the automatic stay provision of 11 U.S.C. Sec. 362. Appellees, James E. and Loutisha E. McReynolds, contend that this appeal is moot because Beach did not obtain a stay of the bankruptcy court's order lifting the automatic stay and the property was sold at the foreclosure sale. The McReynolds' contention has merit.
When a debtor fails to obtain a stay from the bankruptcy court's order permitting the sale of the debtor's assets and the assets are sold while the appeal is pending, the appeal is generally moot. See In re Mann, 907 F.2d at 926; Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona), 846 F.2d 1170, 1171-73 (9th Cir.1988); Sun Valley Ranches, Inc. v. Equitable Life Assurance Soc'y (In re Sun Valley Ranches), 823 F.2d 1373, 1374-75 (9th Cir.1987). In Mann, we held that there are two situations in which failure to obtain a stay will not render an appeal moot: (1) if the real property is sold to a creditor subject to the right of redemption or reinstatement, and (2) if state law would otherwise permit the transaction to be set aside. 907 F.2d at 926.
Here, Beach was unable to obtain a stay of the foreclosure proceedings pending this appeal. See Fed.R.Bankr. 8005. At the foreclosure sale, the McReynolds, creditors of Beach, acquired the property. Beach's right to reinstatement under California law, however, had expired prior to the sale, and Beach has not offered any state law provision that would allow the transaction to be otherwise set aside. Accordingly, we find that this appeal is moot.1 See Mann, 907 F.2d at 926-27.
DISMISSED AS MOOT.
The panel unanimously finds that this case is suitable for disposition without oral argument. Fed.R.App.P 34(a); 9th Cir.R. 34-4. Accordingly, Beach's motion for oral argument is denied
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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
The McReynolds requests sanctions against Beach for bringing this appeal. This court has discretion to impose damages against litigants as a sanction for bringing a frivolous appeal. See Fed.R.App.P. 38; 28 U.S.C. Sec. 1912; Wilcox, 848 F.2d at 1008-09 ($1,500 sanction imposed on litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted)
Because Beach's appeal is moot, we do not reach the merits of their appeal. Accordingly, we decline to impose sanctions.