Avram Perry v. Key Auto Recovery ( 2018 )


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  •                              NOT FOR PUBLICATION                         FILED
    UNITED STATES COURT OF APPEALS                       AUG 20 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    In re: AVRAM MOSHE PERRY.                       No.    17-55518
    ______________________________
    D.C. No. 2:15-cv-09899-FMO
    AVRAM MOSHE PERRY,
    Appellant,                      MEMORANDUM*
    v.
    KEY AUTO RECOVERY,
    Appellee.
    In re: AVRAM MOSHE PERRY.                       Nos. 17-55519, 17-55520
    ______________________________
    D.C. Nos.    2:15-cv-07155-FMO
    AVRAM MOSHE PERRY,                                           2:15-cv-09440-FMO
    Appellant,
    v.
    JP MORGAN CHASE BANK N.A.; KEY
    AUTO RECOVERY,
    Appellees.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    Appeals from the United States District Court
    for the Central District of California
    Fernando M. Olguin, District Judge, Presiding
    Submitted August 15, 2018**
    Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
    In these consolidated appeals, Chapter 7 debtor Avram Moshe Perry appeals
    pro se from the district court’s judgment affirming the bankruptcy court’s summary
    judgments, and affirming in part and reversing in part the bankruptcy court’s
    judgment dismissing Perry’s adversary proceeding complaint. We have
    jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court’s
    decision in an appeal from the bankruptcy court, and apply the same standard of
    review the district court applied to the bankruptcy court’s decision. Northbay
    Wellness Grp., Inc. v. Beyries, 
    789 F.3d 956
    , 959 (9th Cir. 2015). We may affirm
    on any ground supported by the record. Trimble v. City of Santa Rosa, 
    49 F.3d 583
    , 584 (9th Cir. 1995). We affirm.
    In appeal no. 17-55518, the bankruptcy court properly granted summary
    judgment to Key Auto Recovery, because Perry failed to raise a genuine dispute of
    material fact as to whether Key had possession of the vehicle after Perry filed his
    **
    The panel unanimously concludes these cases are suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    2                                   17-55518
    bankruptcy petition. See Gruntz v. City of Los Angeles (In re Gruntz), 
    202 F.3d 1074
    , 1081 (9th Cir. 2000) (en banc) (“The automatic stay is self-executing,
    effective upon the filing of the bankruptcy petition.”).
    In appeal no. 17-55519, dismissal of Perry’s adversary proceeding complaint
    (No. 15-ap-1129) was not an abuse of discretion because Perry already had a
    pending action against Key Auto and JPMorgan Chase alleging injury in
    connection with the 2009 repossession of Perry’s vehicle. See Adams v. Cal. Dep’t
    of Health Servs., 
    487 F.3d 684
    , 688-89 (9th Cir. 2007) (plaintiffs generally have no
    right to maintain two separate actions involving the same subject matter at the
    same time in the same court and against the same defendant), overruled on other
    grounds by Taylor v. Sturell, 
    553 U.S. 880
    , 904 (2008).
    In appeal no. 17-55520, the bankruptcy court properly granted summary
    judgment to JPMorgan Chase, because Perry did not have standing to pursue his
    claims. See Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 
    764 F.3d 1168
    ,
    1177 (9th Cir. 2014) (debtor failed to allege plausible injury under 11 U.S.C.
    § 362(k) where debtor lacked authority to possess or control asset).
    We do not consider matters not specifically and distinctly raised and argued
    in the opening brief, or matters raised for the first time on appeal. See Padgett v.
    Wright, 
    587 F.3d 983
    , 985 n. 2 (9th Cir. 2009).
    3                                    17-55518
    Perry’s requests that this court review prior orders of the bankruptcy court,
    order disqualification of the bankruptcy judge, sanction appellees’ attorneys,
    reinstate federal claims, enter judgment in Perry’s favor, and take judicial notice,
    set forth in his opening and reply briefs, are denied.
    Appellee JPMorgan Chase’s request to declare Perry a vexatious litigant, set
    forth in its answering brief, is denied.
    Perry’s motions for oral argument (Docket Entry No. 7 in Appeal No. 17-
    55518; Docket Entry No. 5 in Appeal No. 17-55519; Docket Entry No. 8 in Appeal
    No. 17-55520) are denied.
    AFFIRMED.
    4                                     17-55518