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Meshkatai v. Fidelity Express Network

December 16, 2008

IN RE: ANITA KRAMER MESHKATAI, DEBTOR/APPELLANT,
v.
FIDELITY EXPRESS NETWORK, INC.; AND FIDELITY NATIONAL FINANCIAL, INC., APPELLEES.



ORDER

Appellant Anita Meshkatai appeals from an order dismissing her chapter 11 bankruptcy case. Dkt. #7. Appellant's husband, Farid Meshkatai, has joined the appeal. Dkt. #9. Appellees Fidelity Express Network, Inc. and Fidelity National Financial, Inc. have elected not to file a response. Dkt. #13. For reasons stated below, the Court will affirm the order of dismissal.*fn1

I. Background

WWAS Holdings, Pty, Ltd. ("WWAS") sought to foreclose on a deed of trust against the Meshkatais' primary residence located in Paradise Valley, Arizona. Dkt. #7 at 5. The foreclosure proceedings were automatically stayed on August 31, 2007, when Mr. Meshkatai filed a chapter 11 bankruptcy petition. No. 2:07-bk-04382-RJH, Dkt. #1. The petition was dismissed on September 7, 2007. Id., Dkt. #11.

One month later, Appellant filed a chapter 11 bankruptcy petition. No. 2:07-bk-05071-JMM, Dkt. #1. WWAS filed a motion to lift the automatic stay. Id., Dkt. ##44. United States Bankruptcy Judge James Marlar granted the motion on April 9, 2008. Id., Dkt. ##119-20.

Appellees, who have a $13 million judgment against the Meshkatais (see id., Dkt. #44, Ex A at 3), filed a motion to dismiss the bankruptcy case for cause. Id., Dkt. #137. Judge Marlar issued an order granting the motion on May 6, 2008. Id., Dkt. #147. The order contains the following provision:

If the Debtor and/or her husband, Farid Meshkatai, file any future petition for relief under any chapter of title 11 of the United States Code, then:

(i) the venue for the filing of such petition shall be the United States Bankruptcy Court for the District of Arizona; (ii) if the petition is filed in any other district, then the venue of such case shall be transferred to the United States Bankruptcy Court for the District of Arizona; and (iii) without further Order, the Clerk of the United States Bankruptcy Court for the District of Arizona immediately shall assign such case to the Honorable James M. Marlar for all proceedings.

Id. ¶ 2. The Meshkatais challenge this provision. Dkt. #155; No. CV-08-1155, Dkt. ##7, 9.

II. Standard of Review

Under 11 U.S.C. § 105(a), bankruptcy courts "may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [title 11]." See In re Hessinger & Assocs., 192 B.R. 211, 216 (N.D. Cal. 1996). In ruling that future bankruptcy filings by the Meshkatais are to be assigned to him, Judge Marlar presumably relied on the equitable power granted him under § 105(a). See Dkt. #7 at 4. Courts "review final rulings on § 105(a) injunctions for an abuse of discretion." In re First Alliance Mortgage, 264 B.R. 634, 644 (C.D. Cal. 2001); see In re Reinertson, 241 B.R. 451, 454 (9th Cir. BAP 1999). "'A court abuses its discretion when it bases its decision on an erroneous conclusion of ...


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