Summary
noting that the trustee's abandonment of its interest in the lawsuit, relinquishing it to the plaintiff, "may constitute the estate's ratification of the debtor's actions, permitting the debtor to cure the standing problem so long as the debtor had made an 'understandable mistake' by proceeding in his own name, as opposed to some sort of strategic manipulation"
Summary of this case from Degamo v. Bank of Am.Opinion
Argued and Submitted December 10, 2004.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Deborah L. Raymond, Law Office of Deborah L. Raymond, Solana Beach, CA, for Plaintiff-Appellant.
George G. Weickhardt, Esq., Ropers Majeski Kohn & Bentley, San Francisco, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of California, Rudi M. Brewster, District Judge, Presiding. D.C. No. CV-02-00760-RMB/CGA.
Before B. FLETCHER, HAWKINS, and PAEZ, Circuit Judges.
Judge Hawkins was drawn to replace Judge Noonan. He has read the briefs, the petition for rehearing and rehearing en banc and the response to the petition. He has also reviewed the record and listened to the oral arguments of December 10, 2004 via this court's Intranet.
Page 193.
ORDER
The Memorandum disposition filed December 27, 2004 is withdrawn. The Petition for Rehearing is granted without further oral argument. A new Memorandum disposition will be filed contemporaneously with this Order.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Appellant Michael Cullen filed for bankruptcy while his district court action was pending. Upon the filing of the petition, the lawsuit became property of the bankruptcy estate, and Cullen thus lacked standing to continue as a plaintiff, both at the time the district court entered its order and at the time he filed a notice of appeal to this court. Turner v. Cook, 362 F.3d 1219, 1225-26 (9th Cir.2004).
However, the trustee in this case eventually abandoned its interest in the lawsuit, relinquishing it to Cullen. We have previously suggested that such an action may constitute the estate's ratification of the debtor's actions, permitting the debtor to cure the standing problem so long as the debtor had made an "understandable mistake" by proceeding in his own name, as opposed to some sort of strategic manipulation. See Dunmore v. United States (In re Dunmore), 358 F.3d 1107, 1112-13 (9th Cir.2004). Accordingly, as in Dunmore, we remand to the district court for appropriate factual findings on this standing issue. Id. at 1113.
REMANDED.