Sophie H. Ng

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MEMORANDUM RE MOTION
FOR STAY PENDING APPEAL
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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
SOPHIE H. NG,
aka SOPHIE HA NG,
aka SOO HA NG,
aka SOPHIE HA NG LUM,
Debtor.
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Case No. 06-30904 TC
Chapter 11
MEMORANDUM RE MOTION FOR STAY PENDING APPEAL
The court held a hearing on November 29, 2007 on the motion of
Patricia Hewlett for a stay pending appeal of this court’s
September 28, 2007 order requiring her to turn over possession of
the real property known as 1385 Clay Street, San Francisco,
California (the Property). 	Jeffrey L. Fillerup appeared for the
chapter 11 trustee, Janina M. Elder (Trustee). 	James Attridge
appeared for Ms. Hewlett. 	Upon due consideration, and for the
reasons stated on the record and set forth below, the motion is
denied.
FACTS
This court entered an order on August 17, 2007 authorizing
Trustee to sell the Property free and clear of certain interests of
Signed and Filed: December 13, 2007
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
December 13, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-30904 Doc# 296 Filed: 12/13/07 Entered: 12/13/07 14:33:45 Page 1 of
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MEMORANDUM RE MOTION
FOR STAY PENDING APPEAL
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Hewlett, with her interests to attach to the proceeds of sale,
pursuant to section 363(f) of the Bankruptcy Code. 	Hewlett did not
timely appeal from that order. 	On September 28, 2007, this court
authorized Trustee to sell the Property free and clear of all
interests of Hewlett to A.J. Batt for $4,680,000. 	Hewlett did not
timely appeal that order. 	On September 28, 2007, the court also
ordered Hewlett to turn over the Property to Trustee to facilitate
the closing of the Sale. 	Hewlett did not timely appeal this order.
On November 2, 2007, the court modified the turnover order to bar
Hewlett’s brother, Javier Rivera, from the Property. 	It is with
respect to this November 2nd order that Hewlett filed a timely
notice of appeal and seeks a stay pending appeal. 	It is undisputed
that the sale to Mr. Batt closed before the November 29th hearing
re stay pending appeal.
DISCUSSION
I decline to grant a stay pending appeal for the following
reasons.
First, Hewlett has not shown a likelihood of prevailing on the
merits of the appeal. 	She argues that she did not receive adequate
notice of the September 28th hearing on Trustee’s turnover motion,
but does not set forth before this court a persuasive opposition to
the motion even at this date. 	The order authorizing sale of the
Property free and clear of all of Hewlett’s interests under section
363(f) extinguished all of her interests in the Property as of the
sale closing, including any rights under section 365(h). 	See
Precision Industries, Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d
537 (7th Cir. 2003).
Case: 06-30904 Doc# 296 Filed: 12/13/07 Entered: 12/13/07 14:33:45 Page 2 of
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1 Fillerup Declaration Re Noncompliance with Order by P.
Hewlett, Case No. 06-30904, Docket No. 167, ¶¶ 6-9.
2 Fillerup Decl. Re Non-Appearance by P. Hewlett, Case No. 06-
30904, Docket No. 191, ¶¶2-5; Supplemental Fillerup Decl. ISO
Motion to Compel, Adv. Proc. No. 07-3071, Docket No. 32, ¶¶5-6.
3 Fillerup Decl. ISO Motion to Compel, ¶5.
MEMORANDUM RE MOTION
FOR STAY PENDING APPEAL
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Second, the appeal of the turnover order is very likely moot.
The orders allowing sale of the Property free and clear of
Hewlett’s interests are final. 	These orders were sufficient to
eliminate her leasehold and possessory interest in the Property.
Mr. Batt now holds secure title to the Property free and clear of
all interests of Hewlett. 	In these circumstances, no effective
remedy is available. 	The turnover order was an interim remedy only
(to remove Hewlett from the Property pending the closing of the
sale to Mr. Batt). 	Upon the closing of the sale free and clear,
Hewlett ceased to have any interest in the Property. 	Vacating the
interim remedy would still leave her without any right to be on the
Property at this time.
Third, a stay pending appeal is inappropriate, because Hewlett
has not done equity herself. 	She failed to produce the lease
agreements re the Property when ordered to do so. 1 	She failed to
appear for her properly-noticed deposition, and did not produce
documents in response to document requests. 2 	After later appearing
at the deposition, Hewlett agreed to produce all documents the
court ordered her to produce, but then refused to do so. 3 	After
entry of the orders terminating all of Hewlett’s interests in the
Property and enjoining her from entering the Property, Hewlett
repeatedly entered the Property, failed to return the keys to the
Property, and apparently subleased an apartment unit in the
Case: 06-30904 Doc# 296 Filed: 12/13/07 Entered: 12/13/07 14:33:45 Page 3 of
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4 Fillerup Decl. In Support of Motion to Amend Order re
Turnover, Docket No. 243, ¶¶ 7-15.
5 Supplemental Fillerup Decl. ISO Motion to Compel, Adv. Proc.
No. 07-3071, Docket No. 32, ¶8.
MEMORANDUM RE MOTION
FOR STAY PENDING APPEAL
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Property to her brother for $495 a month. 4 	Hewlett also did not
comply with this court’s order to file and serve on Trustee a
declaration accounting for income and expenses received by Hewlett
while she had possession of the Property. 5
**END OF MEMORANDUM**
Case: 06-30904 Doc# 296 Filed: 12/13/07 Entered: 12/13/07 14:33:45 Page 4 of
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Court Service List
Jeffrey Fillerup, Esq.
Luce, Forward, Hamilton and Scripps
121 Spear Street, Suite 200
San Francisco, CA 94105
James Attridge, Esq.
Scopelitis, Garvin, Light and Hanson
1390 Market Street, Suite 1204
San Francisco, CA 94102-5306
Case: 06-30904 Doc# 296 Filed: 12/13/07 Entered: 12/13/07 14:33:45 Page 5 of
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