Beverlyann Lee v. Nationstar Mortgage, LLC ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 19 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: BEVERLYANN LEE, No. 20-60016
Debtor, BAP No. 19-1140
------------------------------
MEMORANDUM*
BEVERLYANN LEE,
Appellant,
v.
NATIONSTAR MORTGAGE, LLC, DBA
Champion Mortgage Company; WAYNE
GODARE, Chapter 13 Trustee,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Faris, Brand, and Spraker, Bankruptcy Judges, Presiding
Submitted March 17, 2021**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
Chapter 131 debtor Beverlyann Lee appeals pro se from an order of the
Bankruptcy Appellate Panel (BAP) affirming the summary judgment order of the
bankruptcy court in her adversary proceeding against creditor Nationstar
Mortgage, LLC (Nationstar). We have jurisdiction pursuant to 28 U.S.C.
§ 158(d)(1), and we affirm.2
First, the BAP correctly decided that the bankruptcy court did not abuse its
discretion by considering the loan agreement. See In re Sisk, 962 F.3d 1133, 1141
(9th Cir. 2020). The document was signed by both Lee and a lender representative,
and there is no requirement that the signatures be legible. There was no abuse of
discretion. See United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009)
(en banc).
Second, the BAP correctly determined that partial summary judgment was
appropriate with regard to Nationstar’s payment of the 2010–2015 property taxes
that Lee had failed to pay. See Boyajian v. New Falls Corp. (In re Boyajian), 564
F.3d 1088, 1090 (9th Cir. 2009). Lee’s assertion that the loan documents did not
require her to pay taxes in a timely manner is an unreasonable interpretation of
1
11 U.S.C. Ch. 13.
2
We grant Lee’s motion (9th. Cir. Dkt. 27) to file an amended informal
reply brief.
2
their plain language. See Flores v. Am. Seafoods Co., 335 F.3d 904, 910 (9th Cir.
2003); Staffordshire Invs., Inc. v. Cal-W. Reconveyance Corp., 149 P.3d 150, 154
(Or. Ct. App. 2006); see also Or. Rev. Stat. § 86.050. Neither the loan documents
nor the Department of Housing and Urban Development regulation proffered by
Lee precluded Nationstar from paying the property taxes in order to protect its
security interest when Lee failed to do so. Nationstar was entitled to protect its
security interest, and Lee’s implication that Nationstar’s payments essentially
amounted to a gift is entirely unreasonable.
Third, the BAP was correct that summary judgment was inappropriate as to
the accounting issues raised by Lee—namely, whether Nationstar accurately
charged interest and credited some of her payments. Lee was not entitled to
summary judgment because she failed to show an absence of disputed questions of
fact and law. See Fed. R. Bankr. P. 7056; Fed. R. Civ. P. 56(a); see also
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
Finally, Lee’s belated challenge to the validity of the debt to Nationstar for
the first time on appeal from the summary judgment order is improper; the issue is
waived. See Moldo v. Matsco, Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039,
1045 n.3 (9th Cir. 2001). Her references to constitutional standing are misplaced
3
because Nationstar is not a plaintiff. See U.S. Const. art. III, § 2; Spokeo, Inc. v.
Robins, __ U.S. __, __, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016).
AFFIRMED.
4