Fu v. Yan et al

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-1-	MEMO RE MOTION TO ALTER OR AMEND
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
DEMAS WAI YAN,
Debtor.
TONY FU,
Plaintiff,
vs.
DEMAS YAN and
CHEUK TIN YAN,
Defendants.
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Case No. 04-33526 TEC
Chapter 7
Adv. Proc. No. 08-3166 TC
MEMORANDUM RE PLAINTIFF’S MOTION FOR RELIEF FROM ORDER
Upon due consideration, and for the reasons stated below, the
court denies Plaintiff’s Motion for Relief from Order for lack of
jurisdiction to amend the order entered by the court on June 15,
2009. 	This memorandum shall constitute the court’s findings of
fact and conclusions of law.
FACTS
On February 26, 2009, the court entered judgment on the
pleadings in this action (the Judgment). 	The Judgment enjoined
Signed and Filed: March 02, 2010
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
March 03, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 08-03166 Doc# 54 Filed: 03/02/10 Entered: 03/03/10 13:31:30 Page 1 of 4

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-2-	MEMO RE MOTION TO ALTER OR AMEND
Defendants from prosecuting prepetition claims, because such claims
belonged to the estate and could only be prosecuted by the trustee,
absent abandonment to Debtor.
On March 9, 2009, Defendants filed Motions to Reconsider the
Judgment. 	On April 3, 2009, the court held a hearing on the Motion
to Reconsider the Judgment, and took the matter under submission.
On June 15, 2009, the court entered an Order re the Motions to
Reconsider (the Order). 	The Order abandoned all prepetition causes
of action to Debtor on the grounds that the estate had sufficient
funds to pay all claims in full, and that the trustee stipulated to
abandonment of such claims. 	Plaintiff timely appealed the Order.
On January 19, 2010, Plaintiff filed a Motion for Relief from
the Order (the Motion). 	The Motion seeks to set aside the Order on
the grounds that Defendant Demas Yan lied when he told the court
that Defendants had only one pending state-court lawsuit against
Plaintiff.
LAW
The court lacks jurisdiction to set aside the Order, because
Plaintiff filed a timely appeal of the Order. 	Sherman v. S.E.C.
(In re Sherman), 491 F.3d 948, 967 (9th Cir. 2007) (citation
omitted).
The court declines to seek remand of the Order from the United
States District Court, because the court would not grant the Motion
if it had jurisdiction to do so. 	Assuming what Plaintiff says is
true, this fact would not justify setting aside the Order because,
in entering the Order, this court did not rely upon on the number
of pending state-court decisions filed by Defendants against
Plaintiff. 	Rather, the court relied upon on the trustee’s consent
Case: 08-03166 Doc# 54 Filed: 03/02/10 Entered: 03/03/10 13:31:30 Page 2 of 4

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-3-	MEMO RE MOTION TO ALTER OR AMEND
to abandonment of all prepetition causes of action, and upon the
fact that this is a surplus case.
**END OF MEMORANDUM**
Case: 08-03166 Doc# 54 Filed: 03/02/10 Entered: 03/03/10 13:31:30 Page 3 of 4

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-4-	MEMO RE MOTION TO ALTER OR AMEND
Court Service List
Tony Fu
5813 Geary Boulevard
PMB 188
San Francisco, CA 94121
Demas Yan
1433 7th Avenue
San Francisco, CA 94122
Cheuk Tin Yan
1433 7th Avenue
San Francisco, CA 94122
Case: 08-03166 Doc# 54 Filed: 03/02/10 Entered: 03/03/10 13:31:30 Page 4 of 4