Martinez, In re, No. 83-5570
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before SCHROEDER and CANBY; WALTER E. HOFFMAN |
| Citation | 721 F.2d 262 |
| Decision Date | 28 November 1983 |
| Docket Number | No. 83-5570 |
| Parties | 9 Collier Bankr.Cas.2d 982, 11 Bankr.Ct.Dec. 1020, Bankr. L. Rep. P 69,508 In re Cecil Eli MARTINEZ and Helen Martinez, Debtors. DENTAL CAPITAL LEASING CORPORATION, a corporation, Plaintiff-Appellant, v. Cecil Eli MARTINEZ; Helen Martinez; James Joseph, Trustee in Bankruptcy, Defendants-Appellees. |
Page 262
Bankr. L. Rep. P 69,508
DENTAL CAPITAL LEASING CORPORATION, a corporation, Plaintiff-Appellant,
v.
Cecil Eli MARTINEZ; Helen Martinez; James Joseph, Trustee
in Bankruptcy, Defendants-Appellees.
Ninth Circuit.
Decided Nov. 28, 1983.
Page 263
James S. Poskevich, Encino, Cal., for plaintiff-appellant.
E.M. Kruse, Santa Ana, Cal., for defendants-appellees.
Cecil Eli Martinez and Helen Martinez, pro se.
James Joseph, pro se.
Appeal from the United States Bankruptcy Appellate Panel of the Ninth Circuit.
Before SCHROEDER and CANBY, Circuit Judges, and HOFFMAN, * District Judge.
WALTER E. HOFFMAN, Senior District Judge:
Dental Capital Leasing appeals from a decision of the bankruptcy appellate panel of the Ninth Circuit. The appellate panel affirmed the order of the bankruptcy court subordinating appellant's lien to the Martinez' homestead exemptions, but remanded the case for a factual determination as to whether the Martinez' homesteaded residence was held in community or joint tenancy.
Dental Capital raises two contentions on appeal: that its recorded lien was improperly postponed to the Martinez' combined federal and state homestead exemptions and that the bankruptcy judge's factual determination that Mr. Martinez had taken the state homestead exemption of $40,000 and his wife the federal one of $7,560 was clearly erroneous. Although we agree that the record is confused as to which exemption Mr. Martinez in fact elected, we conclude that we lack jurisdiction over this appeal. We therefore dismiss the appeal and direct that, on remand, the bankruptcy judge also
Page 264
determine which exemption Mr. Martinez in fact had elected. 1On December 30, 1980 Dental Capital had a judgment for $47,298.16 plus interest entered against Mr. Martinez. On January 22, 1981 Dental Capital recorded an abstract of this judgment, thus making it a lien on the Martinez residence. In August, Mr. and Mrs. Martinez filed a joint voluntary petition for relief pursuant to 11 U.S.C. Sec. 301. They were discharged in bankruptcy on November 30, 1981. Their filing for bankruptcy triggered an automatic stay of the enforcement of Dental Capital's lien on the Martinez residence. 11 U.S.C. Sec. 362(a)(4).
Shortly after the Martinez' discharge in bankruptcy, Dental Capital initiated an adversary proceeding in bankruptcy court. Dental Capital asserted that, because its lien was perfected before the Martinez' filed their declaration of homestead, the court should either lift the automatic stay against forced sale of the Martinez residence or order the trustee to sell it. According to the record, the home had a fair market value of at least $125,000, subject to federal and state tax liens of $15,000 and three deeds of trust aggregating $41,000.
On December 29, 1981 the bankruptcy court held that the lien created by Dental Capital's recording of its abstract of judgment was postponed to the amount of the homestead exemption of $40,000 for Mr. Martinez and $7560 for his wife. It also lifted the stay to allow Dental Capital to sell the house, subject to prior perfected liens and to the Martinez' combined homestead exemptions.
Dental Capital filed a timely notice of appeal to the bankruptcy appellate panel. The appellate panel affirmed the bankruptcy court's order as to the questions raised on appeal. It held that Dental Capital's lien was properly postponed to the Martinez' homestead exemptions, that any forced sale of their residence was subject to their homestead exemption and that Mr. Martinez was entitled to claim the state exemption of $40,000 and his wife the federal exemption of $7560. However, the appellate panel vacated the bankruptcy court's order and remanded the case for a determination of (1) whether the Martinez' hold their home in community or joint tenancy and (2) whether Mr. Martinez had a sufficient interest in the property to allow Dental Capital to foreclose....
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Gugliuzza v. Fed. Trade Comm'n (In re Gugliuzza), No. 15-55510
...issue raised on appeal, that order is not final, and we lack jurisdiction"); Dental Capital Leasing Corp. v. Martinez (In re Martinez) , 721 F.2d 262, 265 (9th Cir. 1983) (holding that because the § 1291 finality standards apply "to remands for factual determinations in the bankruptcy conte......
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In re Saxman, No. 01-35620.
...King v. Stanton (In re Stanton), 766 F.2d 1283, 1285-86 (9th Cir.1985); Dental Capital Leasing Corp. v. Martinez (In re Martinez), 721 F.2d 262, 265 (9th My view is that we should not accept jurisdiction in this appeal because the Supreme Court made it clear eleven years ago in Conn. Nat'l ......
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Riggsby, Matter of, No. 84-2233
...judge is the decider, and not just the recommender of decision. See In re White, 727 F.2d 884, 886 (9th Cir.1984); In re Martinez, 721 F.2d 262, 265 (9th Cir.1983); In re Glover, Inc., 697 F.2d 907, 909-10 (10th Cir.1983) (per curiam); In re Emerald Oil Co., 694 F.2d 88, 89 (5th Cir.1982) (......
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Vylene Enterprises, Inc., In re, No. 91-55087
...for factual development of issues involved in a counterclaim that was improperly dismissed by the bankruptcy court) and In re Martinez, 721 F.2d 262 (9th Cir.1983) (refusing jurisdiction when bankruptcy appellate panel remanded for factual development on form of tenancy in which debtors hel......
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Gugliuzza v. Fed. Trade Comm'n (In re Gugliuzza), No. 15-55510
...issue raised on appeal, that order is not final, and we lack jurisdiction"); Dental Capital Leasing Corp. v. Martinez (In re Martinez) , 721 F.2d 262, 265 (9th Cir. 1983) (holding that because the § 1291 finality standards apply "to remands for factual determinations in the bankruptcy conte......
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In re Saxman, No. 01-35620.
...King v. Stanton (In re Stanton), 766 F.2d 1283, 1285-86 (9th Cir.1985); Dental Capital Leasing Corp. v. Martinez (In re Martinez), 721 F.2d 262, 265 (9th My view is that we should not accept jurisdiction in this appeal because the Supreme Court made it clear eleven years ago in Conn. Nat'l ......
-
Riggsby, Matter of, No. 84-2233
...judge is the decider, and not just the recommender of decision. See In re White, 727 F.2d 884, 886 (9th Cir.1984); In re Martinez, 721 F.2d 262, 265 (9th Cir.1983); In re Glover, Inc., 697 F.2d 907, 909-10 (10th Cir.1983) (per curiam); In re Emerald Oil Co., 694 F.2d 88, 89 (5th Cir.1982) (......
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Vylene Enterprises, Inc., In re, No. 91-55087
...for factual development of issues involved in a counterclaim that was improperly dismissed by the bankruptcy court) and In re Martinez, 721 F.2d 262 (9th Cir.1983) (refusing jurisdiction when bankruptcy appellate panel remanded for factual development on form of tenancy in which debtors hel......