In re: MARK E. STUART v. City of Scottsdale

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARK E. STUART,
Debtor,
------------------------------
MARK E. STUART,
Appellant,
v.
CITY OF SCOTTSDALE; RUSSELL
BROWN, Chapter 13 Trustee; CITY OF
SCOTTSDALE ATTORNEY’S OFFICE,
Appellees.
No. 21-60063
BAP No. 21-1063
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Faris, Lafferty III, and Spraker, Bankruptcy Judges, Presiding
Submitted August 7, 2023 **
San Francisco, California
FILED
AUG 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

Before: WALLACE, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Mark Stuart appeals pro se from the judgment of the Bankruptcy Appellate
Panel (BAP) affirming the bankruptcy court’s order denying his motion for
sanctions against the City of Scottsdale (Scottsdale) for a purported violation of the
11 U.S.C. § 362(a) automatic stay. We review de novo, 1 and we affirm.
Scottsdale’s conduct — promptly requesting a stay of the pre-petition writ of
garnishment proceedings but refusing to request or agree to dismissal of the writ —
complied with the relevant automatic stay provisions. See 11 U.S.C.
§ 362(a)(1)–(3), (6). The Supreme Court has explained that an entity does not
violate 11 U.S.C. § 362(a)(3) or exercise control over a bankrupt estate’s property
merely “by retaining possession of a debtor’s property after a bankruptcy petition
is filed.” City of Chicago v. Fulton, __ U.S. __, __, 141 S. Ct. 585, 589, 208 L. Ed.
2d 384 (2021). That reasoning applies with more force here: Scottsdale was not
even in possession of Stuart’s property and thus had no obligation to act
affirmatively to facilitate his access to that property. See id. at __, 141 S. Ct. at
590; see also Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 21, 116 S. Ct. 286,
290, 133 L. Ed. 2d 258 (1995). Likewise, Scottsdale’s conduct did not amount to a
1 Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010); Eskanos
& Adler, P.C. v. Leetien, 309 F.3d 1210, 1213 (9th Cir. 2002).
2

-- 2 of 3 --

“continuation” of the writ of garnishment proceedings, 2 an “enforcement” of an
earlier judgment,3 or an “act to collect, assess, or recover a claim against” Stuart. 4
The writ proceedings were stayed, and it is undisputed that Scottsdale took no
action during the stay to obtain payment from Stuart or from the bank accounts
subject to the writ.
Reading 11 U.S.C. § 362(a) as inapplicable in these circumstances is a
“rational, common-sense result,” notwithstanding Stuart’s contrary preference.
Ariz. State Bd. for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1008 (9th
Cir. 2006).
AFFIRMED.
2 11 U.S.C. § 362(a)(1); see Eskanos, 309 F.3d at 1214–15.
3 11 U.S.C. § 362(a)(2).
4 Id. § 362(a)(6); see Morgan Guar. Tr. Co. of N.Y. v. Am. Sav. & Loan
Ass’n, 804 F.2d 1487, 1491 (9th Cir. 1986).
3

-- 3 of 3 --