Any Mountain, LTD

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1The landlord represents in his motion that the court overruled his objection. The court has no
recollection of this, nor does the docket reflect the filing of an objection. The court would certainly be
sensitive to any allegation of improper service and does not recall this issue being raised.
2The court of course checks proofs of service before granting a motion. However, the court’s
scrutiny is limited to insuring that service might be proper. The court would have no way of knowing if
the wrong party was served or an address was not correct.
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
ANY MOUNTAIN, INC., No. 04-12989
Debtor(s).
______________________________________/
Memorandum and Order on Motion for Stay Pending Appeal
_________________
In this case, the court approved the assumption and assignment of a commercial lease. No
objections had been filed. The landlord has now filed a notice of appeal, alleging that he was not served
with the motion. He has also filed a motion for a stay pending appeal which alternatively seeks
reconsideration.
It is somewhat unusual to appeal from an order based on issues which were never submitted to
the trial judge for adjudication.1 Among other things, this places the appellate court instead of the trial
court in the position of having to make a finding of fact as to whether service was proper.2 Moreover, if
notice was insufficient then the court’s order is void in any event. In re Loloee, 241 B.R. 655, 661 (9th
Cir. BAP 1999).
Entered on Docket
December 29, 2005
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 04-12989 Doc# 318 Filed: 12/29/05 Entered: 12/29/05 15:36:44 Page 1 of
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The court will of course listen to the arguments of the landlord that it was never properly served.
Therefore,
IT IS ORDERED that the court will consider the landlord’s motion for reconsideration on
January 6, 2006, at 10:00 A.M.; and
IT IS FURTHER ORDERED that the Order Authorizing Assumption and Assignment of Lease
entered on December 23, 2005, is stayed until the court has ruled on this motion.
Dated: December 29, 2005
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 04-12989 Doc# 318 Filed: 12/29/05 Entered: 12/29/05 15:36:44 Page 2 of
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