                                                              FILED
                                                               OCT 02 2013
 1                                                         SUSAN M. SPRAUL, CLERK
                                                             U.S. BKCY. APP. PANEL
 2                                                           OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                             ) BAP No. NC-12-1470 PaDJu
                                        )
 6   MOHAMED S. ALAKOZAI, and           ) Bk. No. 12-43746-WJL
     DEBRA ANN ALAKOZAI,                )
 7                                      )
                    Debtors.            )
 8   ___________________________________)
                                        )
 9   DEBRA A. ALAKOZAI,                 )
                                        )
10                  Appellant,          )
                                        ) O P I N I O N
11   v.                                 )
                                        )
12   CITIZENS EQUITY FIRST CREDIT       )
     UNION,                             )
13                                      )
                    Appellee.           )
14                                      )
     ___________________________________)
15
16                      Submitted Without Oral Argument1
17                          Filed - October 2, 2013
                                 _____________
18
                Appeal from the United States Bankruptcy Court
19                  for the Northern District of California
20       Honorable William J. Lafferty, Bankruptcy Judge, Presiding
21
22   Appearances:    Phyllis Voisenat on the brief for appellant Debra
                     Ann Alakozai; James E. Burbott on the brief for
23                   appellee Citizens Equity First Credit Union.
24
25   Before:   PAPPAS, DUNN and JURY, Bankruptcy Judges.
26
27
          1
             After examining the briefs and record, in an order entered
28   July 2, 2013, the Panel unanimously determined that this appeal is
     suitable for submission without oral argument pursuant to Fed. R.
     Bankr. P. 8012. See Ninth Circuit BAP R. 8012-1.
 1   PAPPAS, Bankruptcy Judge:
 2
 3        Appellant Debra Ann Alakozai (“Mrs. Alakozai”) appeals the
 4   bankruptcy court’s order granting a motion for relief from the
 5   automatic stay filed by creditor Citizens Equity First Credit
 6   Union (“CEFCU”).   The stay relief order permitted CEFCU to
 7   continue its prosecution of an unlawful detainer action in state
 8   court to remove Mrs. Alakozai and her husband, Mohamed S. Alakozai
 9   (“Mr. Alakozai”, and collectively “the Alakozais” ), from their
10   home following a foreclosure.   We agree with the bankruptcy court
11   that an in rem order entered in a prior bankruptcy case was
12   effective as to the real property in question, and thus the
13   automatic stay did not prohibit the foreclosure, even though it
14   occurred during the pendency of a later bankruptcy case filed by
15   Mrs. Alakozai.   As a result, the bankruptcy court’s grant of stay
16   relief in favor of CEFCU in this later bankruptcy case was proper.
17   We therefore AFFIRM.
18                                   FACTS
19        Mrs. Alakozai and Mr. Alakozai, at all relevant times, were
20   spouses.   On June 22, 2005, Mr. Alakozai executed a promissory
21   note secured by a deed of trust on real property located in
22   Dublin, California (“the Property”).    The payee on the note and
23   the beneficiary of the deed of trust was Valley Credit Union,
24   CEFCU’s predecessor in interest.2   Mrs. Alakozai’s name does not
25
          2
26           The beneficiary and original lender was Valley Credit
     Union, which merged with CEFCU in May 2011. CEFCU was the
27   surviving entity and, via the merger, was assigned all of Valley
     Credit Union’s existing contractual rights and obligations.
28   Although Mrs. Alakozai raised a standing issue regarding CEFCU,
     the bankruptcy court rejected her challenge. She has not
     challenged CEFCU’s standing in this appeal.


                                      -2-
 1   appear in the deed of trust; however the payments on the secured
 2   debt were made from community property funds.   It is undisputed
 3   that, as a result of the payments, Mrs. Alakozai acquired a
 4   community property interest in the Property.
 5        When Mr. Alakozai defaulted on the note payments, the credit
 6   union caused a default notice to be recorded, and a trustee’s sale
 7   was scheduled.   Following this default, the Alakozais filed
 8   several bankruptcy cases, all in the Northern District of
 9   California.
10        On December 4, 2008, Mr. Alakozai filed a chapter 133
11   petition commencing Case No. 08-47190 (the “First Case”).    No plan
12   was confirmed, and this case was dismissed on May 28, 2009.
13        On January 9, 2010, Mr. Alakozai and Mrs. Alakozai filed a
14   joint chapter 7 petition commencing Case No. 10-40236 (the “Second
15   Case”).   The Alakozais received a discharge in the Second Case on
16   April 9, 2010.
17        On April 16, 2010, the Alakozais filed a chapter 13 petition,
18   Case No. 10-44319 (the “Third Case”).   Again, no plan was
19   confirmed, and that case was dismissed on September 22, 2010.
20        On November 15, 2010, Mr. Alakozai filed yet another chapter
21   13 petition initiating Case No. 10-73176 (the “Fourth Case”).   In
22   that case, on December 28, 2010, the credit union filed an “In Rem
23   Motion for Relief from the Automatic Stay” in which it sought
24   relief from the stay to foreclose the deed of trust on the
25   Property under § 362(d)(4).   The motion was ultimately granted on
26   January 26, 2011, and in the order, the bankruptcy court specified
27
          3
28           Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
     “Rule” references are to the Federal Rules of Bankruptcy
     Procedure.

                                     -3-
 1   that the order was binding on Mr. Alakozai, and as to the
 2   Property, for 180 days from the date of entry of the order (the
 3   “In Rem Order”).    The In Rem Order was not appealed.   On February
 4   22, 2011, the bankruptcy court dismissed the Fourth Case.
 5   Approximately one month later, the In Rem Order was recorded in
 6   the Alameda County Recorder’s Office.
 7           On July 20, 2011, Mrs. Alakozai filed yet another chapter 13
 8   petition commencing Case No. 11-47681 (the “Fifth Case”).     Later
 9   that same day, a trustee’s sale to foreclose the deed of trust
10   occurred at which CEFCU purchased the Property.    The Fifth Case
11   was dismissed by the bankruptcy court the following month without
12   confirming a plan.    When the Alakozais did not vacate the
13   Property, CEFCU initiated an unlawful detainer action against them
14   in California state court on September 16, 2011.
15           The Alakozais filed the joint chapter 13 case from which this
16   appeal arises, Case No. 12-43746 (the “Sixth Case”), on April 27,
17   2012.    Because the unlawful detainer action was pending at the
18   time of the filing of the Sixth Case, on May 9, 2012, CEFCU filed
19   a stay relief motion seeking to continue prosecution of the state
20   court action to recover possession of the Property.      Mrs. Alakozai
21   not only opposed the motion, but also commenced an adversary
22   proceeding for declaratory and injunctive relief, as well as
23   cancellation of the deed from the trustee’s sale of the Property.
24   In connection with the stay relief motion, the bankruptcy court
25   requested briefing regarding whether CEFCU had violated the
26   automatic stay when the Property was sold at the trustee’s sale
27   occurring during the pendency of the Fifth Case.    The issue was
28   briefed by both parties, and during the hearing on the stay relief


                                       -4-
 1   motion held on August 22, 2012, the bankruptcy court considered
 2   the status of the In Rem Order in the Fourth Case.     Ultimately,
 3   the bankruptcy court decided to grant the stay relief motion
 4   allowing CEFCU to continue with the unlawful detainer action in
 5   state court.    An order was entered on August 27, 2012 (the “Stay
 6   Relief Order”).
 7           Mrs. Alakozai, only, filed a timely appeal on September 10,
 8   2012.
 9                                 JURISDICTION
10           The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
11   and 157(b)(2)(G).    We have jurisdiction under 28 U.S.C. § 158.
12                               ISSUE ON APPEAL
13           Whether the bankruptcy court abused its discretion when it
14   granted stay relief to CEFCU to continue the unlawful detainer
15   action in state court against the Alakozais.
16                              STANDARD OF REVIEW
17           We review an order granting relief from stay for abuse of
18   discretion.    Edwards v. Wells Fargo Bank, N.A. (In re Edwards),
19   454 B.R. 100, 104 (9th Cir. BAP 2011); Veal v. Am. Home Mortg.
20   Servicing, Inc. (In re Veal), 450 B.R. 897, 915 (9th Cir. BAP
21   2011).    This standard has two parts.   First, we consider whether
22   the bankruptcy court applied the correct legal standard; and
23   second, we must decide whether those factual findings supporting
24   the legal analysis were clearly erroneous.      In re Edwards, 454
25   B.R. at 104 (citing United States v. Hinkson, 585 F.3d 1247, 1261-
26   62 (9th Cir. 2009) (en banc)).
27   //
28   //


                                       -5-
 1                                 DISCUSSION
 2   A.   In rem stay relief.
 3         A broad stay automatically arises upon the filing of a
 4   bankruptcy petition.   § 362(a).    That stay prohibits, inter alia,
 5   the commencement or continuation of legal actions against a debtor
 6   which arose prepetition, § 362(a)(1); any act to enforce a lien
 7   against property of the debtor or a bankruptcy estate,
 8   § 362(a)(4), (5); as well as most any other activities to enforce
 9   or collect a prebankruptcy claim against the debtor.    Gruntz v.
10   Cnty of L.A. (In re Gruntz), 202 F.3d 1074, 1081-82 (9th Cir.
11   2000).   Ordinarily, the automatic stay remains in effect until the
12   bankruptcy case is closed, dismissed, or a discharge is granted.
13   § 362(c)(2); Ung v. Boni (In re Boni), 240 B.R. 381, 384 (9th Cir.
14   BAP 1999).
15         Actions taken by creditors in violation of the automatic stay
16   are void.    Griffin v. Wardrobe (In re Wardrobe), 559 F.3d 932, 934
17   (9th Cir. 2009); Schwartz v. United States (In re Schwartz), 954
18   F.2d 569, 571 (9th Cir. 1992).     However, on request of a party,
19   following notice and a hearing, the automatic stay may be
20   terminated, annulled, modified or conditioned by the bankruptcy
21   court.   § 362(d).
22         Occasionally, debtors have resorted to filing tactical,
23   serial bankruptcy cases to prevent creditors from enforcing liens
24   against their property.    In 2005, Congress fashioned special
25   relief for creditors when § 362(d)(4) was added to the Bankruptcy
26   Code under BAPCPA.   That provision permits the bankruptcy court to
27   grant so-called “in rem” relief from the automatic stay to the
28   creditor to address schemes using bankruptcy to thwart legitimate


                                        -6-
 1   foreclosure efforts through one or more transfers of interest in
 2   real property or, as was apparently the situation here, multiple
 3   bankruptcy filings affecting the subject in rem property.   The
 4   text of § 362(d)(4), in effect when the bankruptcy court entered
 5   that order in this case, stated:
 6        (d) On request of a party in interest and after notice
          and a hearing, the court shall grant relief from the
 7        stay . . . such as by terminating, annulling, modifying,
          or conditioning such stay — . . .
 8
               (4)with respect to a stay of an act against real
 9             property under subsection (a), by a creditor whose claim
               is secured by an interest in such real property, if the
10             court finds that the filing of the petition was part of
               a scheme to delay, hinder, or defraud creditors that
11             involved either--
12                  (A) transfer of all or part ownership of, or
                    other interest in, such real property without
13                  the consent of the secured creditor or court
                    approval; or
14
                   (B) multiple bankruptcy filings affecting such
15                 real property.
16       If recorded in compliance with applicable State laws
         governing notices of interests or liens in real property, an
17       order entered under paragraph (4) shall be binding in any
         other case under this title purporting to affect such real
18       property filed not later than 2 years after the date of the
         entry of such order by the court, except that a debtor in a
19       subsequent case under this title may move for relief from
         such order based upon changed circumstances or for good cause
20       shown, after notice and a hearing.
21 § 362(d)(4).
22       As can be seen from the language of the statute, a creditor
23 seeking relief from the stay in a bankruptcy case pursuant to
24 § 362(d)(4) must prove that (1) the debtor engaged in a scheme,
25 (2) to delay, hinder or defraud the creditor, and (3) which
26 involved either the transfer of property without the creditor’s
27 consent or court approval or multiple filings.    In re Lee, 467
28 B.R. 906, 920 (6th Cir. BAP 2012).     If proven, the bankruptcy


                                    -7-
 1 court may enter an order authorizing the creditor relief from the
 2 stay that is “binding in any other case under this title
 3 purporting to affect such real property filed not later than 2
 4 years after the date of the entry of such order by the court
 5 . . . .”    For § 362(d)(4) relief to be effective, the order
 6 granting relief must be recorded “in compliance with applicable
 7 laws governing notices of interests or liens in real property.”
 8 Id.
 9       In this appeal, Mrs. Alakozai has not challenged that a
10 § 362(d)(4) stay relief order was entered by the bankruptcy court
11 in the Fourth Case, or that the In Rem Order was recorded in the
12 Alameda County Recorder’s Office in compliance with California
13 state law.
14       An order entered under § 362(d)(4) has serious implications.
15 By seeking relief under § 362(d)(4), the creditor requests
16 specific prospective protection against not only the debtor, but
17 also every non-debtor, co-owner, and subsequent owner of the
18 property.    First Yorkshire Holdings, Inc. v. Pacifica L 22, LLC.
19 (In re First Yorkshire Holdings, Inc.), 470 B.R. 864, 871 (9th
20 Cir. BAP 2012).    In BAPCPA, Congress gave “teeth” to the two-year
21 bar under § 362(d)(4) by adopting a new exception to the automatic
22 stay in § 362(b)(20) to prevent parties from filing another
23 bankruptcy case to reimpose the stay and frustrate a secured
24 creditor’s enforcement efforts:
25       (b) The filing of a petition . . . does not operate as
         a stay —
26
                (20) under subsection (a), of any act to
27              enforce any lien against or security interest
                in real property following entry of the order
28              under subsection (d)(4) as to such real
                property in any prior case under this title,

                                     -8-
 1             for a period of 2 years after the date of the
               entry of such an order, except that the
 2             debtor, in a subsequent case under this title,
               may move for relief from such order based upon
 3             changed circumstances or for other good cause
               shown, after notice and a hearing.
 4
 5 § 362(b)(20).   Under this exception to the automatic stay, then,
 6 if the bankruptcy court enters a stay relief order as to real
 7 property under § 362(d)(4), the filing of a subsequent bankruptcy
 8 case will not operate to stay the enforcement of a lien against
 9 that real property during the period that such recorded order
10 remained in effect.   In re First Yorkshire Holdings, Inc., 470
11 B.R. at 870 (“If the court’s order granting relief under
12 § 362(d)(4) is recorded in compliance with applicable state law,
13 it is binding in any other bankruptcy case filed in the next two
14 years purporting to affect the same real property.   See
15 § 362(d)(4), § 362(b)(20).”); In re Abdul Muhaimin, 343 B.R. 159,
16 169 (Bankr. D. Md. 2006) (applying §§ 362(b)(20) and (d)(4), the
17 bankruptcy court noted that an in rem stay relief order “would
18 nullify the ability of the Debtor and any other third party with
19 an interest in the property to obtain the benefits provided by the
20 automatic stay in future bankruptcy cases for a period of two
21 years.”).
22 B.   Disposition of the issues.
23       We apply this legal framework to the following undisputed
24 facts in this appeal: (1) Mr. Alakozai filed a chapter 13 petition
25 on November 15, 2010; (2) on December 28, 2010, CEFCU filed a
26 motion for relief from the automatic stay under § 362(d)(4),
27 specifically requesting in rem relief against the Property;
28 (3) after a hearing, the bankruptcy court granted the relief

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 1 requested in the motion in an order entered on January 27, 2011;
 2 (4) the In Rem Order was not appealed and is, therefore, final;
 3 (5) on March 25, 2011, the In Rem Order was recorded in the
 4 Alameda County Recorder’s Office; (6) on July 20, 2011, Mrs.
 5 Alakozai filed a chapter 13 petition; and (7) later the same day,
 6 the deed of trust on the Property was foreclosed, and CEFCU
 7 purchased the Property, at the trustee’s sale.   Based on these
 8 facts, we confidently conclude that, because of the bankruptcy
 9 court’s In Rem Order, the automatic stay arising when Mrs.
10 Alakozai filed her chapter 13 petition on July 20, 2011 did not
11 prohibit the trustee’s sale conducted later that same day.    §
12 362(b)(20), (d)(4).
13      Mrs. Alakozai’s sole argument in this appeal is that the
14 bankruptcy court in the Sixth Case erred by granting CEFCU relief
15 from the stay to continue the unlawful detainer action because the
16 foreclosure occurring during the Fifth Case was a stay violation,
17 and therefore, void.   Mrs. Alakozai contends that the In Rem Order
18 was invalid because the bankruptcy court in the Fourth Case
19 allegedly failed to make the necessary findings of fact to support
20 stay relief under § 362(d)(4).   But this argument comes way too
21 late to carry any weight.
22      Mrs. Alakozai’s challenge to the adequacy of the factual
23 findings made by the bankruptcy court to support its entry of the
24 In Rem Order in the Fourth Case amounts to a collateral attack on
25 a final order of a federal court.   An order granting relief from
26 stay is a final order.   Samson v. W. Capital Partners, LLC (In re
27 Blixseth), 684 F.3d 865, 866 n.1 (9th Cir. 2012) (“The grant or
28 denial of a motion for relief from the automatic stay is a final

                                    -10-
 1 order.”).   There was no appeal of the In Rem Order, and its
 2 finality was therefore not subject to challenge.    A final order of
 3 a federal court may not be collaterally attacked.   Watts v.
 4 Pinckney, 752 F.2d 406, 410 (9th Cir. 1985) (“res judicata bars a
 5 collateral attack on a final judgment”); Heritage Pac. Fin., LLC
 6 v. Machuca (In re Machuca), 483 B.R. 726, 733 (9th Cir. BAP 2012);
 7 Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721,
 8 731 (9th Cir. BAP 2008).   Mrs. Alakozai cannot now assault the
 9 legitimacy of the In Rem Order as a final order.
10      Mrs. Alakozai points out that she was not a debtor in her
11 husband’s bankruptcy case in which the In Rem Order was granted
12 and entered.    Along these lines, the parties expend considerable
13 effort in their briefing discussing Mrs. Alakozai’s “privity” to
14 her husband for purposes of enforcing the In Rem Order.   However,
15 such a debate is of no moment to the operation of § 362(d)(4) and
16 § 362(b)(20).   An order entered under § 362(d)(4) binds any party
17 asserting an interest in the affected property, including every
18 non-debtor, co-owner, and subsequent owner of the property.    In re
19 First Yorkshire Holdings, Inc., 470 B.R. at 871.    Under the Code,
20 stay relief granted under § 362(d)(4) is effective as to anyone
21 holding any interest in the Property, whether or not they are in
22 privity with the debtor.   Moreover, under § 362(b)(20), the
23 automatic stay in a subsequent bankruptcy case simply does not
24 operate to prohibit a creditor from taking action to enforce a
25 lien that is the subject of a § 362(d)(4) order.    In other words,
26 Mrs. Alakozai was bound by the terms of the In Rem Order even
27 though she was not a debtor in the Fourth Case, and the automatic
28 stay arising from the filing of the Fifth Case did not invalidate

                                    -11-
 1 the trustee’s sale of the Property.    As a result, the sale was
 2 valid, and the bankruptcy court properly concluded that CEFCU was
 3 entitled to stay relief in the Sixth Case to continue with the
 4 unlawful detainer action.
 5                             CONCLUSION
 6      We conclude that the bankruptcy court did not abuse its
 7 discretion in granting relief from stay to CEFCU to continue the
 8 unlawful detainer action as to the Property.   The order of the
 9 bankruptcy court is AFFIRMED.
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