Opinion
21-55913
10-20-2022
In the Matter of: SAMUEL MICHAEL SABER, Debtor, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for BCAP Trust LLC 2007AA2 Mortgage PassThrough Certificates Series 2007AA2, Appellee. SAMUEL MICHAEL SABER, DBA AMC Services, Appellant,
NOT FOR PUBLICATION
Submitted October 18, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the Central District of California No. 2:21-cv-02241-PA Percy Anderson, District Judge, Presiding
Before: O'SCANNLAIN, WATFORD, and HURWITZ, Circuit Judges.
MEMORANDUM
Samuel Saber appeals the bankruptcy court's denial of his counsel's motion to withdraw and its grant of relief from the automatic stay to Deutsche Bank. We review both decisions for abuse of discretion. In re Conejo Enters., Inc., 96 F.3d 346, 351 (9th Cir. 1996); see United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. To determine whether counsel should be allowed to withdraw, courts consider "(1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case." Williams v. Cnty. of Fresno, 562 F.Supp.3d 1032, 1035 (E.D. Cal. 2021) (cleaned up). "Unless good cause is shown and the ends of justice require, no substitution or withdrawal will be allowed that will cause unreasonable delay in prosecution of the case or proceeding to completion." Bankr. C.D. Cal. R. 2091-1(e)(2).
The bankruptcy court reasonably found that "less than a week before an evidentiary hearing [is] not an appropriate time to withdraw." Granting the motion would have inevitably resulted in postponement of the hearing while Saber acquired new counsel. Unlike the case on which Saber relies, McNally v. Commonwealth Fin. Sys., Inc., No. 12-CV-2770-IEG (MDD), 2013 WL 685364 (S.D. Cal. Feb. 25, 2013), the motion to withdraw was not filed while this proceeding was in an "early stage," id. at *1, but rather less than a week before an evidentiary hearing on a motion that had been pending for months.
2. Relief from an automatic stay may be granted upon a showing that the debtor lacks equity in secured property. 11 U.S.C. § 362(d)(2). The Bank's appraisal valued the secured property at $4.75 million, and it was uncontested that the cost of the sale would be approximately $190,000. It was also uncontested that Saber owed $4,717,368.49 on the note. Because the loan amount and estimated cost of sale exceeded the secured property's value, the Bank made a prima facie case that Saber lacked equity.
Saber failed to rebut the Bank's prima facie case. See Truebro, Inc. v. Plumberex Specialty Prods., Inc. (In re Plumberex), 311 B.R. 551, 557 (Bankr. C.D. Cal. 2004); Duvar Apt., Inc. v. Fed. Deposit Ins. Co. (In re Duvar Apt., Inc.), 205 B.R. 196, 200 (B.A.P. 9th Cir. 1996). Saber's counsel did not introduce any exhibits or witnesses nor cross-examine the Bank's appraiser but argued only that the appraisal was not accurate because it was "from last August." Saber also presented no evidence of appreciation, and the Bank's appraiser was present and prepared to testify that none had occurred. Saber's appraiser was not available for crossexamination, and the bankruptcy court did not err by striking his declaration as hearsay. Fed.R.Bankr.P. 9017; Fed.R.Evid. 801, 802.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).