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 2018-06

Stephen Opperwall v. Bank of America ( 2018 )


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  •                            NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEPHEN G. OPPERWALL,                            No.   16-17144
Plaintiff-Appellant,               D.C. No. 3:16-cv-00106-JST
v.
MEMORANDUM*
BANK OF AMERICA, N.A.,
Defendant-Appellee.
STEPHEN G. OPPERWALL,                            No.   16-17178
Plaintiff-Appellant,               D.C. No. 3:16-cv-00134-JST
v.
BANK OF AMERICA, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted June 11, 2018**
San Francisco, California
Before: SILER,*** PAEZ, and IKUTA, Circuit Judges.
Plaintiff-appellant Stephen Opperwall appeals the district court’s order
affirming the bankruptcy court and denying Opperwall’s motion to compel
discovery as moot.
There is a close nexus between Opperwall’s Chapter 13 plan, which
“assumes” that Opperwall and Bank of America will enter into a loan modification
agreement prior to confirmation, and Opperwall’s first amended complaint, which
alleges that the parties have entered into such a loan modification. Because
Opperwall’s complaint is “related to” a case under title 11, see
    28 U.S.C. § 1334
    (b); In re Wilshire Courtyard,
    729 F.3d 1279
    , 1287 (9th Cir. 2013), the
district court had subject matter jurisdiction over his case at the time it entered final
judgment, see Estate of Bishop By & Through Bishop v. Bechtel Power Corp.,
    905 F.2d 1272
    , 1275 (9th Cir. 1990). We therefore reject Opperwall’s challenge to the
denial of his motion to remand.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2
The bankruptcy court did not abuse its discretion in denying both
Opperwall’s motion for leave to amend his complaint and his motion to compel
discovery responses. See Ebner v. Fresh, Inc.,
    838 F.3d 958
    , 963 (9th Cir. 2016);
Hallett v. Morgan,
    296 F.3d 732
    , 751 (9th Cir. 2002). Opperwall waived any
challenge to the bankruptcy court’s determination that the Chapter 13 plan has
preclusive effect on all issues that he could have raised before confirmation,
including the existence and scope of a loan modification agreement; see United
States v. Kama,
    394 F.3d 1236
    , 1238 (9th Cir. 2005). Amending the first amended
complaint to allege that the parties entered into the loan modification agreement
post-petition rather than pre-petition would not change the res judicata effect of the
plan confirmation. See In re Pardee,
    193 F.3d 1083
    , 1087 (9th Cir. 1999). For the
same reason, the bankruptcy court’s denial of Opperwall’s motion to compel
discovery responses did not prejudice him, as the motion was rendered moot by the
bankruptcy court’s decision to dismiss the case.1 See Hallett,
    296 F.3d at 751
    .
AFFIRMED
1
We deny Opperwall’s motion for judicial notice.
3