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In Re Teresa Jean Moore, Debtor v. Deutsche Bank National Trust Company; Pnc Bank National

November 17, 2011

IN RE TERESA JEAN MOORE, DEBTOR,
THERESA JEAN MOORE, PLAINTIFF-APPELLANT,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY; PNC BANK NATIONAL ASSOCIATION; AOAO THE WINDSOR; AND DEPARTMENT OF TAXATION, STATE OF HAWAII, DEFENDANTS-APPELLEES, AND RICHARD A YANAGI; AND OFFICE OF THE U.S. TRUSTEE, DEFENDANTS-TRUSTEES.



(Bankruptcy Case No. 10-00771)

The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER: (1) GRANTING APPELLEES' MOTIONS TO DISMISS AND (2) VACATING THE HEARING

Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS Appellee Deutsche Bank and Appellee PNC's (collectively "Appellees") Motions to Dismiss (Docs. ## 7, 9.) Appellant's appeal is hereby DISMISSED. The Hearing on this matter, currently set for November 18, 2011, is hereby VACATED.

BACKGROUND

On March 18, 2010, Appellant Teresa Jean Moore ("Appellant") filed a voluntary Chapter 13 petition in the United States Bankruptcy Court for the District of Hawaii. (Bk. No. 10-00771, Doc. # 1.) The bankruptcy court issued four orders relevant to the instant appeal:

1. Order Granting Motion for Relief from Automatic Stay (RE: PNC Bank, NA) filed on October 7, 2010 ("PNC Relief Order"). (Bk. No. 10-00771, Doc. # 119.)

2. Order Granting Motion for Relief from Automatic Stay (Deutsche Bank National Trust Company) ("DB Relief Order") filed on January 21, 2011. (Bk. No. 10-00771, Doc. # 251.)

3. Order Converting Chapter 13 Case to Chapter 7 Case filed on March 29, 2011 ("Conversion Order"). (Bk. No. 10-00771, Doc. # 302.)

4. Order Denying Debtor's Motion to Dismiss Chapter 7 Case filed on June 14, 2011 ("Motion to Dismiss Order"). (Bk. No. 10-00771, Doc. # 329.)

On June 15, 2011, Appellant filed a Notice of Appeal to this Court. (Doc. # 1-1.) Attached to the Notice of Appeal were these four orders. (Id. at 3--20.) On August 24, 2011, United States Magistrate Judge Barry M. Kurren issued an electronic order establishing a briefing schedule for the appeal. (Doc. # 6.)

On September 1, 2011, Appellee Deutsche Bank National Trust Company ("Deutsche Bank") filed its Motion to Dismiss Debtor's Appeal. ("DB Mot., Doc. # 7.) On September 7, 2011, PNC Bank, National Association ("PNC") filed its Motion to Dismiss Appeal. ("PNC Mot.," Doc. # 9.) On September 19, 2011, this Court issued an order vacating the briefing schedule for the appeal pending resolution of the Motions to Dismiss. (See Doc. # 20.) On November 3, 2011, Appellant filed an Opposition to the Motions to Dismiss.*fn1 ("Opp'n," Doc. # 22.) On November 10, 2011, Appellee Deutsche Bank filed a Reply. ("DB Reply," Doc. # 23.)

STANDARD OF REVIEW

A district court applies the same standard of review applied by an appellate court in reviewing a bankruptcy appeal. In re JTS Corp, 617 F.3d 1102, 1109 (9th Cir. 2010). "The court reviews the bankruptcy court's findings of fact under the clearly erroneous standard and its conclusions of law de novo." In re Kimura, 969 F.2d 806, 810 (9th Cir. 1992); see also In re JTS Corp, 617 F.3d at 1109 ("The bankruptcy court's findings of fact are reviewed for clear error, while its conclusions of law are reviewed de novo." (quotations omitted)); In re Marquam Inv. Corp., 942 F.2d 1462, 1465 (9th Cir. 1991) ("We review the bankruptcy court's findings of fact under the clearly erroneous standard and its conclusions of law de novo."); In re Guadarrama, 284 B.R. 463, 468 (C.D. Cal. 2002) ("When reviewing a decision of a bankruptcy court, a district court functions as an appellate court and applies the standards of review generally applied in federal courts of appeal. The district court must accept the bankruptcy court's findings of fact unless ...


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