In re: Estavan Capital LLC ( 2015 )


Menu:
  •                                                             FILED
                                                                 DEC 01 2015
                                                             SUSAN M. SPRAUL, CLERK
     1                         NOT FOR PUBLICATION             U.S. BKCY. APP. PANEL
                                                               OF THE NINTH CIRCUIT
     2
     3                   UNITED STATES BANKRUPTCY APPELLATE PANEL
     4                             OF THE NINTH CIRCUIT
     5   In re:                        )      BAP No.     CC-15-1084-KiKuF
                                       )
     6   ESTAVAN CAPITAL LLC,          )      Bk. No.     14-17882-RK
                                       )
     7                  Debtor.        )
                                       )
     8                                 )
         ESTAVAN CAPITAL LLC,          )
     9                                 )
                        Appellant,     )
    10                                 )
         v.                            )      M E M O R A N D U M1
    11                                 )
         U.S. BANK NATIONAL            )
    12   ASSOCIATION, Trustee for      )
         Lehman XS Trust,              )
    13   Series 2007-15N,              )
                                       )
    14                  Appellee.      )
         ______________________________)
    15
                        Argued and Submitted on October 22, 2015,
    16                          at Los Angeles, California
    17                           Filed - December 1, 2015
    18               Appeal from the United States Bankruptcy Court
                         for the Central District of California
    19
                  Honorable Robert N. Kwan, Bankruptcy Judge, Presiding
    20
    21   Appearances:     Stanley D. Bowman argued for appellant Estavan
                          Capital LLC; Leslie Marie Klott of the Law Offices
    22                    of Les Zieve argued for appellee U.S. Bank National
                          Association, as Trustee for Lehman XS Trust, Series
    23                    2007-15N.
    24
         Before:     KIRSCHER, KURTZ and FARIS, Bankruptcy Judges.
    25
    26
              1
                This disposition is not appropriate for publication.
    27   Although it may be cited for whatever persuasive value it may have
         (see Fed. R. App. P. 32.1), it has no precedential value. See 9th
    28   Cir. BAP Rule 8024-1.
     1        Chapter 7 debtor Estavan Capital LLC appeals an order
     2   granting the motion of U.S. Bank National Association, as Trustee
     3   for Lehman XS Trust, for annulment of the automatic stay under
     4   § 362(d)(1)2 and in rem relief under § 362(d)(4).   We AFFIRM.
     5               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY3
     6        Estavan is a Wyoming limited liability company that was
     7   formed for estate purposes and Nevine Carmelle is its managing
     8   member.    In 2005, Carmelle transferred her property located at
     9   52 Via Brida, Rancho Santa Margarita, California (“Property”) to
    10   Estavan.   Two years later, Estavan transferred the Property back
    11   to Carmelle so that she could use it as collateral for a $600,000
    12   loan from Ocwen.
    13        At some point, U.S. Bank acquired the loan from Ocwen and
    14   held a first lien position on the Property based on a note secured
    15   by a deed of trust.   The servicer/trustee for the debt was Sage
    16   Point Lender Services, LLC.   On or about August 10, 2012, Carmelle
    17   transferred title to the Property back to Estavan by Grant Deed.
    18        Carmelle testified that she lived at the Property on and off
    19
    20
              2
                Unless otherwise indicated, all chapter and section
    21   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
         “Rule” references are to the Federal Rules of Bankruptcy
    22   Procedure.
    23        3
                The parties failed to include in the record on appeal some
         of the relevant documents; we have exercised our discretion to
    24   reach the merits of the appeal by independently reviewing the
         bankruptcy court’s electronic docket and the imaged documents
    25   attached thereto. See O’Rourke v. Seaboard Sur. Co. (In re E.R.
         Fegert, Inc.), 
    887 F.2d 955
    , 957-58 (9th Cir. 1988); Atwood v.
    26   Chase Manhattan Mortg. Co. (In re Atwood), 
    293 B.R. 227
    , 233 n.9
         (9th Cir. BAP 2003). Under Rule 201, Fed. R. Evid., courts may
    27   take judicial notice of undisputed matters of public record,
         including documents on file in federal or state courts. Harris v.
    28   City of Orange, 
    682 F.3d 1126
    , 1131-32 (9th Cir. 2012).
    
                                          -2-
     1   between 1997 and 2014.   In June 2014, a tenant moved in with
     2   Carmelle.   Estavan made the loan payments on the Property from
     3   2005 until sometime in 2012, when Estavan defaulted on the loan
     4   payments and the lender began refusing to accept payments.      While
     5   not in the record, the parties referenced both a notice of default
     6   as well as a notice of a trustee’s sale.   Estavan filed a
     7   voluntary chapter 7 petition on August 21, 2013.   “Ocwen loan
     8   services LLC” was the only creditor listed on the creditor matrix.
     9   That case was dismissed on September 11, 2013, for Estavan’s
    10   failure to file all the documents required under Rules 1007 and
    11   3015(b).    Estavan was barred from filing another bankruptcy
    12   petition for 180 days.
    13        On April 24, 2014, Estavan’s attorney of record, Stanley
    14   Bowman (“Bowman”) electronically filed another voluntary chapter 7
    15   petition on behalf of Estavan.   Just prior to filing the petition,
    16   Bowman had his assistant telephone Sage Point to advise Sage Point
    17   of Estavan’s imminent chapter 7 bankruptcy filing.   Bowman and
    18   Carmelle stood by the assistant’s desk when the assistant
    19   allegedly telephoned Sage Point.
    20        Estavan’s April 24, 2014, petition was signed by Carmelle as
    21   Estavan’s authorized manager, declaring under penalty of perjury
    22   that the information provided in the petition was true and
    23   correct.    After receiving a bankruptcy case number, Bowman had his
    24   assistant again telephone Sage Point on April 24, 2014, but the
    25   assistant was put on hold and the call was eventually
    26   disconnected.
    27        Bowman’s assistant then sent an email to Sage Point at an
    28   email address allegedly obtained during the assistant’s first
    
                                          -3-
     1   telephone call to Sage Point.    The email included Estavan’s name
     2   and chapter 7 bankruptcy case number, but it did not include a
     3   “TS number,”4 did not list Carmelle’s name and did not list the
     4   address of the Property.    Bowman did not receive a reply to the
     5   email.    Sage Point’s default assistant Stephanie Vasquez
     6   (“Vasquez”) testified that she did not receive the email from
     7   Bowman’s assistant and could not find it in Sage Point’s system
     8   and further testified that Sage Point would not have given out her
     9   email address but instead would have given a borrower Sage Point’s
    10   fax number.
    11        The creditor matrix filed with the petition lists three
    12   creditors, including Sage Point with an address of “400 Exchange
    13   Suite [blank]5, Irvine, CA 92602[,]” and the original lender,
    14   “Ocwen loan services LLC, PO box 780, Waterloo,, LA 50704.”6    On
    15   April 27, 2014, a notice of commencement of case was mailed to
    16   creditors, setting forth deadlines and warnings against violating
    17   the automatic stay.    The notice was sent to Sage Point at “400
    18   Exchange Suite [blank], Irvine, CA 92602-1340,” and was sent to
    19   Ocwen at the address in Louisiana.     Sage Point’s attorney, Ryan
    20   Paul Spitalnick, who oversees and manages Sage Point’s day-to-day
    21   operations, testified that Sage Point’s address is 400 Exchange,
    22   Suite #110, Irvine, CA 92602, that Sage Point’s name is not on the
    23
    24
              4
                During oral argument, counsel explained that a “TS number”
    25   is the trustee’s notice of sale number.
    26        5
                  There is no suite number listed.
    27        6
                The zip code 50704 pertains to Waterloo, Iowa, the
         abbreviation for which is “IA.” “LA” is the abbreviation for the
    28   State of Louisiana.
    
                                          -4-
     1   door of its suite,7 that it has no separate mailbox, and that Sage
     2   Point’s mail must be delivered to the front desk inside
     3   Suite #110.
     4        In its chapter 7 petition, Estavan lists its street address
     5   as “700 N. Pacific Coast Hwy, Suite 202A, Redondo Beach, CA
     6   90277,” which is the same address listed for Bowman.    Estavan did
     7   not list its prior bankruptcy case on the petition, instead
     8   stating “None” where required to disclose all prior bankruptcy
     9   cases filed within the last 8 years.8
    10        Estavan filed its schedules on May 8, 2014, listing the
    11   Property as its sole asset.    Estavan listed the current value of
    12   Estavan’s interest in the Property as $456,000 and the amount of
    13   secured claim thereon as $0.00.    Estavan did not file schedules I
    14   and J and disclosed no income or expenses on its statement of
    15   financial affairs.
    16        Estavan’s Schedule D listed two creditors holding secured
    17   claims:    Sage Point at an address of 400 Exchange, Suite [blank],
    18   Irvine, CA 92602; and SBS Lien Services.    Both secured claims were
    19   listed at $0 and no detail was provided as to the nature of the
    20   lien or value of the property subject to the lien.     Ocwen was
    21   listed on Schedule F as a creditor holding an unsecured
    22   nonpriority claim in the amount of $0.00.    U.S. Bank was not
    23
    24        7
                  The door to Suite 110 says “Trustee” on it.
    25        8
                Notice of Estavan’s prior bankruptcy was entered on the
         bankruptcy court’s docket on April 25, 2014. Carmelle had also
    26   previously filed an individual chapter 13 bankruptcy case in 2009
         under the name “Nezine Tadrous.” That case was converted to a
    27   chapter 7 bankruptcy shortly after it was filed. Bowman was
         Carmelle’s attorney of record in her 2009 bankruptcy and was
    28   Estavan’s attorney of record in its 2013 bankruptcy.
    
                                           -5-
     1   listed as a creditor on Estavan’s schedules.
     2        On May 23, 2014, twenty nine days after Estavan filed its
     3   second chapter 7 bankruptcy petition, Sage Point, as foreclosure
     4   trustee, conducted a foreclosure sale of the Property.      Following
     5   the foreclosure sale, a trustee’s deed was recorded on June 3,
     6   2014, in which Sage Point conveyed title of the Property to
     7   U.S. Bank.   On June 18, 2014, U.S. Bank served a notice to quit
     8   addressed to “Nevine Carmelle and all unknown occupants” of the
     9   Property.    On July 15, 2014, U.S. Bank initiated an unlawful
    10   detainer action in the state superior court of California against
    11   “Nevine Carmelle, and Does 1 through 5.”
    12        Thereafter, on August 22, 2014, U.S. Bank filed a motion
    13   seeking relief from the automatic stay.    The motion explains that
    14   U.S. Bank acquired title to the Property by foreclosure sale
    15   after Estavan’s second bankruptcy petition was filed and recorded
    16   the deed as provided under state law, but before U.S. Bank knew of
    17   the filing of the bankruptcy petition.    Estavan opposed
    18   U.S. Bank’s motion.
    19        On September 29, 2014, at the case trustee’s request,
    20   Estavan’s chapter 7 case was dismissed for its failure to appear
    21   at a continued § 341 meeting of creditors.9    The order dismissing
    22   the case vacated the stay and provided that pending motions were
    23   moot and dismissed.   However, in that order of dismissal, the
    24   bankruptcy court retained jurisdiction on all issues under § 362.
    25
              9
                Carmelle testified that neither she nor any of the other
    26   members of Estavan attended the first meeting of creditors because
         one of the members was in surgery on that date. Carmelle attended
    27   the next meeting of creditors, but did not attend the continued
         meeting of creditors because the foreclosure sale had already
    28   occurred by that time.
    
                                          -6-
     1        On October 27, 2014, U.S. Bank filed an amended motion to
     2   modify stay seeking relief from the automatic stay or, in the
     3   alternative, an order confirming that the stay did not apply.
     4   After repeating the allegations and requests for relief of its
     5   original motion, U.S. Bank requested annulment of the stay
     6   retroactive to the petition date in order to validate the
     7   foreclosure sale.   U.S. Bank similarly requested that its
     8   postpetition acts to enforce its remedies not be deemed a
     9   violation of the stay.   Debtor opposed U.S. Bank’s amended motion.
    10   A hearing on the amended motion was held on December 9, 2014,
    11   January 13, 2015, and February 11, 2015.
    12        On February 25, 2015, the bankruptcy court entered its
    13   memorandum decision.   After analyzing the twelve factors
    14   identified in In re Fjeldsted, 
    293 B.R. 12
    , 25 (9th Cir. BAP
    15   2003), the court concluded that relief for cause with retroactive
    16   annulment of the stay should be granted under § 362(d)(1) and that
    17   in rem relief should be granted under § 362(d)(4) “because of the
    18   multiple bankruptcy case filings affecting the Property and the
    19   petition in this case was intended to delay or hinder creditors.”
    20        The court made specific findings regarding the telephone
    21   calls allegedly made by Bowman’s assistant on April 24, 2014, the
    22   email sent to Vasquez and the mailing to Sage Point, which lacked
    23   a complete address.    The court concluded that the testimony of
    24   Bowman and Carmelle regarding the telephone calls was not credible
    25   because both Bowman and Carmelle lacked personal knowledge as to
    26   what number Bowman’s assistant dialed or with whom she spoke.      The
    27   court found it more likely than not that the email was delivered
    28   to Vasquez at Sage Point, but further found that the email did not
    
                                          -7-
     1   contain sufficient context to connect Estavan with Carmelle’s
     2   loan, which it was servicing for U.S. Bank.        As for the mail
     3   delivery of the bankruptcy notice, the court found an expert
     4   witness’s testimony credible and concluded that Sage Point likely
     5   received notice of Estavan’s bankruptcy filing, but that Estavan’s
     6   initial filings failed to provide Sage Point with notice that its
     7   enforcement actions regarding Carmelle’s loan and the Property
     8   would have been affected by Estavan’s bankruptcy filing or the
     9   automatic stay.
    10        On March 6, 2015, the court entered its order granting
    11   U.S. Bank’s amended motion for relief from stay under §§ 362(d)(1)
    12   and § 362(d)(4) and retroactively terminated and annulled the stay
    13   of § 362(a) to Estavan’s bankruptcy petition date.       Estavan timely
    14   appealed.
    15                               II. JURISDICTION
    16        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
    17   and 157(b)(2)(G).   We have jurisdiction under 28 U.S.C. § 158.
    18                                  III. ISSUE
    19        Did the bankruptcy court misapply the equitable factors
    20   articulated in In re Fjeldsted, 
    293 B.R. 12
     (9th Cir. 2003), when
    21   it granted U.S. Bank retroactive relief from the automatic stay?
    22                            IV. STANDARDS OF REVIEW
    23        Findings of fact are reviewed under the clearly erroneous
    24   standard.   Rule 8013.    A factual finding is clearly erroneous if
    25   the appellate court, after reviewing the record, has a firm and
    26   definite conviction that a mistake has been committed.       Anderson
    27   v. City of Bessemer City, N.C., 
    470 U.S. 564
    , 573 (1985).       If two
    28   views of the evidence are possible, the trial judge’s choice
    
                                            -8-
     1   between them cannot be clearly erroneous.   Id. at 574.   A trial
     2   court’s finding that a witness is not credible is entitled to
     3   special deference.   Allen v. Iranon, 
    283 F.3d 1070
    , 1078 n.8 (9th
     4   Cir. 2002); Anderson, 470 U.S. at 573; In re Fjeldsted, 
    293 B.R. 5
       at 18 (“The reviewing court must give due regard to the
     6   opportunity of the bankruptcy court to judge the credibility of
     7   the witnesses.”)
     8        A decision to lift the automatic stay for cause under
     9   § 362(d) is reviewed for an abuse of discretion.   Groshong v. Sapp
    10   (In re Mila, Inc.), 
    423 B.R. 537
    , 542 (9th Cir. BAP 2010);
    11   In re Leisure Corp., 
    234 B.R. 916
    , 920 (9th Cir. BAP 1999); Mataya
    12   v. Kissinger (In re Kissinger), 
    72 F.3d 107
    , 108-09 (9th Cir.
    13   1995). A bankruptcy court's decision to grant retroactive relief
    14   from the automatic stay is reviewed for an abuse of discretion.
    15   In re Fjeldsted, 293 B.R. at 18.   A bankruptcy court abuses its
    16   discretion if it applies the wrong legal standard, misapplies the
    17   correct legal standard, or if its factual findings are illogical,
    18   implausible, or without support in inferences that may be drawn
    19   from the facts in the record.   In re First Yorkshire Holdings,
    20   Inc., 
    470 B.R. 864
    , 868 (9th Cir. BAP 2012) (citing United States
    21   v. Hinkson, 
    585 F.3d 1247
    , 1262 (9th Cir.2009) (en banc)); see
    22   also TrafficSchool.com, Inc. v. Edriver Inc., 
    653 F.3d 820
    , 832
    23   (9th Cir. 2011).
    24                              V. DISCUSSION
    25        In its statement of issues, Estavan contends three issues
    26   exist on appeal:
    27        “1.   Did the Trial Court err in granting Motion for Relief
    28   From Stay under 11 U.S.C. § 362(d)(1)?
    
                                         -9-
     1        2.   Did the Trial Court err in granting Motion for Relief
     2   From Stay under 11 U.S.C. § 362(d)(4)?
     3        3.   Did the Trial Court err in annulling Debtor’s automatic
     4   stay retroactive to the bankruptcy petition date?”
     5        Estavan’s brief restates the issue as: “Did the Court abused
     6   [sic] its discretion in granting Respondent’s motion requesting
     7   retroactive annulment of the automatic stay Debtor obtained upon
     8   the filing of its Chapter 7 bankruptcy?”   Estavan’s brief on
     9   appeal does not specifically address §§ 362(d)(1) or (4).    We
    10   therefore consider the first two issues raised in Estavan’s
    11   statement of issues abandoned.   See City of Emeryville v.
    12   Robinson, 
    621 F.3d 1251
    , 1261 (9th Cir. 2010) (appellate courts in
    13   this circuit “will not review issues which are not argued
    14   specifically and distinctly in a party’s opening brief”); Branam
    15   v. Crowder (In re Branam), 
    226 B.R. 45
    , 55 (9th Cir. BAP 1998),
    16   aff’d, 
    205 F.3d 1350
     (9th Cir. 1999) (an issue not adequately
    17   addressed by appellant in his opening brief is deemed abandoned).
    18   Estavan instead complains that the bankruptcy court erred because
    19   it kept a scorecard rather than balancing the equities.
    20        As a threshold matter, the burden of proof under § 362(d) on
    21   the issue of the debtor’s equity in property rests with the moving
    22   party, while the party opposing such relief has the burden of
    23   proof on all other issues.   § 362(g).   Although Estavan alleged in
    24   its opposition to U.S. Bank’s amended motion that equity existed
    25   in the Property, equity was never an issue.   Carmelle testified
    26   that the loan debt was approximately $600,000 and Estavan listed
    27   the current value of the Property as $456,000 on its Schedule A.
    28   The record establishes that Estavan had no equity in the Property.
    
                                          -10-
     1   Once U.S. Bank established a prima facie case that cause existed
     2   for relief under § 362(d)(1), the burden shifted to Estavan to
     3   show that relief from the stay was not warranted.   United States
     4   v. Gould (In re Gould), 
    401 B.R. 415
    , 426 (9th Cir. BAP 2009);
     5   Duvar Apt., Inc. v. FDIC (In re Duvar Apt., Inc.), 
    205 B.R. 196
    ,
     6   200 (9th Cir. BAP 1996).
     7        Acts done in violation of the automatic stay are void, not
     8   simply voidable.   See Schwartz v. United States (In re Schwartz),
     9   
    954 F.2d 569
    , 571, 575 (9th Cir. 1992).    Section 362(d), however,
    10   authorizes annulment of the automatic stay in order to validate
    11   otherwise void acts.   Lone Star Sec. & Video, Inc. v. Gurrola
    12   (In re Gurrola), 
    328 B.R. 158
    , 172 (9th Cir. BAP 2005).
    13   Determining whether cause exists to annul the stay is a
    14   case-by-case inquiry based on a balance of the equities.    Nat’l
    15   Envtl. Waste Corp. v. City of Riverside (In re Nat’l Envtl. Waste
    16   Corp.), 
    129 F.3d 1052
    , 1055 (9th Cir. 1997), cert. denied,
    17   
    524 U.S. 952
     (1998).   In conducting this inquiry the bankruptcy
    18   court, among other factors, should consider whether the creditor
    19   knew of the bankruptcy when violating the stay and whether the
    20   debtor’s conduct was unreasonable, inequitable or prejudicial to
    21   the creditor.   Nat’l Envtl. Waste Corp., 129 F.3d at 1055.
    22         In Fjeldsted, we approved additional factors for
    23   consideration in assessing the equities.   The twelve nonexclusive
    24   factors are: (1) number of filings; (2) whether, in a repeat
    25   filing case, the circumstances indicate an intention to delay and
    26   hinder creditors; (3) a weighing of the extent of prejudice to
    27   creditors or third parties if the stay relief is not made
    28   retroactive, including whether harm exists to a bona fide
    
                                         -11-
     1   purchaser; (4) the debtor’s overall good faith (totality of
     2   circumstances test); (5) whether creditors knew of stay but
     3   nonetheless took action, thus compounding the problem; (6) whether
     4   the debtor has complied, and is otherwise complying, with the
     5   Bankruptcy Code and Rules; (7) the relative ease of restoring
     6   parties to the status quo ante; (8) the costs of annulment to
     7   debtors and creditors; (9) how quickly creditors moved for
     8   annulment, or how quickly debtor moved to set aside the sale or
     9   violative conduct; (10) whether, after learning of the bankruptcy,
    10   creditors proceeded to take steps in continued violation of the
    11   stay, or whether they moved expeditiously to gain relief;
    12   (11) whether annulment of the stay will cause irreparable injury
    13   to the debtor; and (12) whether stay relief will promote judicial
    14   economy or other efficiencies.   Fjeldsted, 293 B.R. at 25.    The
    15   Panel in Fjeldsted cautioned that the twelve factors “are merely a
    16   framework for analysis and not a scorecard,” and that “[i]n any
    17   given case, one factor may so outweigh the others as to be
    18   dispositive.”   Id.
    19        As noted earlier, Debtor argues that the bankruptcy court
    20   ignored the Panel’s caution in Fjeldsted by keeping a scorecard
    21   rather than balancing the equities.     Debtor mischaracterizes the
    22   bankruptcy court’s analysis under Fjeldsted.     When reviewing for
    23   abuse of discretion, as here, we will reverse only if we hold a
    24   “definite and firm conviction that the court below committed a
    25   clear error of judgment in the conclusion it reached upon a
    26   weighing of the relevant factors.”      Smith v. Jackson, 
    84 F.3d 27
       1213, 1221 (9th Cir. 1996).   We have no such conviction here.
    28        The bankruptcy court’s detailed findings, as set forth in its
    
                                          -12-
     1   memorandum decision, show that the bankruptcy court thoughtfully
     2   and thoroughly considered all the Fjeldsted factors.    We will not
     3   find an abuse of discretion when a court considers all twelve
     4   factors listed in Fjeldsted when deciding to annul the stay, for
     5   the obvious reason that we meant for courts to use the twelve
     6   factors as a framework for analysis.     Fjeldsted, 293 B.R. at 25.
     7   In Gasprom, Inc. v Fateh (In re Gasprom, Inc.), 
    500 B.R. 598
    ,
     8   607-08 (9th Cir. BAP 2013), we vacated a bankruptcy court’s
     9   annulment of the stay when the court justified annulment of the
    10   stay after identifying only a single Fjeldsted factor.    We
    11   concluded the bankruptcy court abused its discretion because it
    12   “did not actually attempt to weigh anything” and thus did not
    13   utilize the appropriate legal framework “because there was no
    14   indication that it attempted to balance the equities.”
    15   In re Gasprom, 500 B.R. at 608.
    16        In the instant case, the bankruptcy court acknowledged in its
    17   memorandum decision that the factors are a framework not a
    18   scorecard.   If the court had meant to use them as a scorecard it
    19   would have stopped its analysis after its discussion of the twelve
    20   factors and decided the issue eleven to one.    However, it
    21   continued its analysis by noting that factors one, two, three,
    22   four and six were “particularly influential in its analysis” of
    23   U.S. Bank’s request for annulment.
    24        The bankruptcy court discussed all twelve Fjeldsted factors
    25   in varying detail and concluded that all, except number seven,
    26   weighed in favor of annulment.    Estavan’s brief contests each of
    27   the eleven factors in favor of annulment, but fails to persuade
    28   either individually or together that the bankruptcy court abused
    
                                           -13-
     1   its discretion.
     2        Estavan also argues:   “The filing of the bankruptcy gave the
     3   Debtor belief that the property would not be foreclosed on by the
     4   creditor” and that it “will unjustly suffer a harm in the loss of
     5   its only asset” if the stay is annulled.   These arguments reflect
     6   a misconception of bankruptcy law governing a creditor’s right to
     7   relief from the stay, Carmelle’s loan and deed of trust documents,
     8   and principles of equity.
     9        A fundamental maxim of equity jurisprudence is:    “One who
    10   seeks equity must do equity.”   Dickson, Carlson & Campillo v.
    11   Pole, 
    83 Cal. App. 4th 436
    , 445 (2000) (quoting 2 Pomeroy, Equity
    12   Jurisprudence (5th ed. 1941) § 385, pp. 51–53).   This maxim means
    13   that “a court will not grant equitable relief unless the plaintiff
    14   acknowledges or provides for the defendant’s equitable rights
    15   arising from the same subject matter.”    Miller v. Wash. Mut. Bank
    16   FA, 
    776 F. Supp. 2d 1064
    , 1070 (N.D. Cal. 2011) (quoting Pole,
    17   83 Cal. App. 4th at 445-46).
    18        Estavan does not dispute that no payments have been made to
    19   U.S. Bank since 2012, while meanwhile Debtor enjoys free use of
    20   the Property where Carmelle lives, plus income from rent paid by
    21   Carmelle’s roommate.   Estavan cannot expect equitable relief in
    22   such circumstances.
    23        The note and deed of trust are not in evidence, which weighs
    24   against Estavan, as the party with the burden of proof, but it is
    25   reasonable to assume that Estavan had the right under
    26   nonbankruptcy law to cure the default or pay off the loan in full,
    27   or attend the foreclosure sale and bid.    Estavan failed to show
    28   that it had any intent to cure the default on the note or pay it
    
                                         -14-
     1   off in full.   Another foreclosure would likely occur in due course
     2   if the stay is not annulled and, thus, annulment of the stay will
     3   not cause irreparable injury to the Debtor.
     4        In sum, we conclude that the bankruptcy court’s findings on
     5   the eleven Fjeldsted factors it analyzed were not illogical,
     6   implausible or without support from inferences that may be drawn
     7   from the record.    In re First Yorkshire Holdings, 470 B.R. at 868.
     8   The record shows that the bankruptcy court correctly applied the
     9   balancing of equities test under Fjeldsted, without affording
    10   undue weight to any one factor.    Therefore, we conclude the
    11   bankruptcy court did not abuse its discretion in finding that
    12   cause existed for retroactive annulment of the stay to validate
    13   the foreclosure sale.
    14                               VI. CONCLUSION
    15        For the foregoing reasons, we AFFIRM the decision of the
    16   bankruptcy court.
    17
    18
    19
    20
    21
    22
    23
    24
    25
    26
    27
    28
    
                                           -15-