NOT FOR PUBLICATION
STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW
ROBERT KWAN, Bankruptcy Judge.
Plaintiff The Bank of New York Mellon FKA The Bank of New York As Trustee For the Certificateholders of the CWABS, Inc., Asset-Backed Certificates, Series 2006-7 ("Plaintiff") submits the following Separate Statement of Uncontroverted Facts in Support of its Motion for Summary Judgment under Fed. R. Civ. P. 56, made applicable under Fed. R. Bankr. P. 7056. Having reviewed the supplemental papers submitted by Plaintiff, the court determines that further oral argument is not necessary, dispenses with it, vacates the continued hearing on the motion scheduled for August 15, 2017, grants the motion, and adopts this statement of uncontroverted facts and conclusions of law as modified herein.
With respect to their motion for summary adjudication, Plaintiff seeks summary judgment or adjudication of the following issues:
Part A: Statement of uncontroverted facts
Part B: Conclusions of law
1. The Complaint is requesting relief from the automatic stay under 11 U.S.C. §362(d)(1) and §362(d)(4). The Complaint is also requesting declaratory relief under 11 U.S.C. §362(d)(4), pursuant to §105(a), to be binding on all (1) past, (2) present and (3) future bankruptcy filings for a period of two (2) years after the date of the entry of the order if the Movant records the judgment in the real estate records unless a party in interest moves for relief from such judgment based on changes circumstances or for good cause shown, after notice and a hearing.
2. Plaintiff has moved for summary judgment. The court must grant summary judgment that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(a), made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056.
3. The Plaintiff is entitled to relief for cause under 11 U.S.C. §362(d)(1) and (d)(4). The Plaintiff has provided sufficient evidence to support the argument that the filing of the petition in this bankruptcy case was part as a scheme intended to delay, hinder, or defraud the Plaintiff.
4. Relief under 11 U.S.C. §362(d)(4) is appropriate in this case because as of the time when the scheme was implemented by a transfer of the subject property to the debtor in an existing bankruptcy case, the debtor's filing of the petition became part of a scheme by transferor or those behind the transfer to delay, hinder, or defraud creditors. 11 U.S.C. §362(d)(4); see also, In re Dorsey, 476 B.R. 261, 266-270 (Bankr. C.D. Cal. 2012). The following elements necessary to obtain in rem relief under Section 362(d)(4) are present in this case:
a. Filing of the petition was part of a scheme to delay, hinder, or defraud creditors that involve either:
i. Transfer of all or part ownership of, or interest in, such real property without the consent of the secured creditor or court approval; or
ii. Multiple bankruptcy filings affecting such real property.
5. Relief under 11 U.S.C. §362(d)(4) is appropriate in this case because as of the time when the scheme was implemented, the debtor's "filing of the petition was part of a scheme [by transferor] to delay, hinder, or defraud creditors." 11 U.S.C. §362(d)(4); see also, In re Dorsey, 476 B.R. at 266-270. The elements necessary to obtain in rem relief under Section 362(d)(4) are present in this case.
6. The original borrower, and the Defendant's business name (or dba) of Pax America Development, are part of an extensive bad faith bankruptcy scheme intended to delay, hinder, and defraud Movant. The scheme involves transfers of interest in the real property, including to the Defendant, and multiple bankruptcy case filings to invoke the automatic stay in those cases.
7. Plaintiff is requesting declaratory relief in reference to the subject property to terminate the automatic stay as to all past, present and future bankruptcy proceedings. A declaratory judgment is appropriate when it will "terminate the controversy" giving rise to the proceeding and it involves an issue of law on undisputed or relatively undisputed facts. The "controversy" must necessarily be "of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 S.Ct. 688, 699 (1936). A declaratory judgment is warranted in this case as the facts are uncontroverted and a judgment would terminate the controversy.
8. "Declaratory relief is an equitable remedy distinctive in that it allows adjudication of rights and obligations on disputes regardless of whether claims for damages or injunction have arisen. `In effect, it brings to the present a litigable controversy, which otherwise might only be tried in the future'." In re Singh, 457 B.R. 790, 798 (Bankr. E.D. Cal. 2011), citing and quoting, Societe de Conditionnement en Aluminum v. Hunter Engineering Co., 655 F.2d 938, 943 (9
9. A declaratory judgment would allow the Movant to proceed with its nonbankruptcy state law foreclosure action without additional delay related to the ongoing scheme designed to stop the Movant from taking any action against the subject property.
10. The original borrower and/or the Defendant's business name (or dba) will continue to use tactics to further delay the Movant from taking action against the property unless a bankruptcy court order stops this ongoing abuse of the bankruptcy system.
11. Ordinary stay relief provided for under the plain language of 11 U.S.C. §362(d)(4) was previously granted in prior related bankrup0tcy cases but is not alone sufficient in this case.
12. Pursuant to 11 U.S.C. § 362(d)(4), the order is not effective as to the cases that are utilized by the parties before the date of the order. Therefore, the parties may "hijack" or utilize any case filed by Pax America Development, Unimae or any other purported party in interest before the date of the order and the Movant would be forced to request relief in each prior case before taking any action.
13. The Court may grant retroactive relief annulling the automatic stay as permitted for "cause" under §362(d)(1). In re Fjeldsted, 293 B.R. 12, 21 (9th Cir. BAP 2003), citing, In re Schwartz, 954 F.2d 569, 572-573 (9
14. Based on the uncontroverted facts presented in this case, extraordinary equitable relief is warranted in order to allow the Movant to proceed against the property and preserve the integrity of the Bankruptcy Court and bankruptcy process.
15. Pursuant to 11 U.S.C. §105(a), this Court has the authority to grant extraordinary relief. Section 105(a) expressly states that the court may issue any order or judgment that is necessary or appropriate to carry out the provisions of this title . . . or to prevent an abuse of process." (emphasis added) 11 U.S.C. §105(a).
16. The Court has the authority to issue a ruling that is enforceable in other bankruptcy courts. The ruling of one bankruptcy court regarding the scope of the automatic stay may be binding in a case pending before a different bankruptcy court. In re Palmdale Hills Property, LLC, 423 B.R. 655 (9
17. The facts in this case warrant "extraordinary action" to prevent an abuse of the bankruptcy process. The original borrower and/or defendants are intentionally using the bankruptcy courts to delay the Movant's efforts to foreclose.
18. This Court may declare a blanket relief order and provide extraordinary prospective and retroactive relief on any and all prior, pending or future bankruptcy proceedings pursuant to 11 U.S.C. §105(a) and §362(d). Extraordinary equitable relief is appropriate in this case as to the subject property because this bankruptcy case is the lowest-numbered case of the bankruptcy cases of debtors to whom the subject property has been transferred. The transfer of the subject property to the debtor in this bankruptcy case was made after the filing of the bankruptcy petition in this case, indicating that the transferor intended to hinder, delay or defraud the secured lender by use of the automatic stay in an existing bankruptcy case. The pattern of multiple unauthorized transfers of the subject property made to other parties (i.e. without lender's consent), including debtors in bankruptcy and debtors with business names used by multiple parties filing for bankruptcy indicates an intent to hinder, delay or defraud the secured lender, and this case is good as any other of the filed bankruptcy cases to grant the requested extraordinary equitable relief to prevent an abuse of the bankruptcy process. There is no point in having the secured lender seek relief from stay in each and every bankruptcy case to be able to enforce its nonbankruptcy law rights in light of this scheme to hinder, delay or defraud the lender by using the automatic stays in numerous bankruptcy cases to thwart the lender from exercising its legal rights. This scheme was apparently at the instigation of the borrower, who also filed his own bankruptcy case, in which the automatic stay also arose, and the only reasonable explanation for the multiple transfers of the subject property were to hinder, delay or defraud the secured lender, apparently at the borrower's behest, and this scheme is an abuse of the bankruptcy process.
19. Based on the above statement of uncontroverted facts, Plaintiff has met the burden of demonstrating as the party moving for summary judgment that there is no genuine issue of material fact, and based on these conclusions of law, Plaintiff has shown that it is entitled to judgment as a matter of law, and therefore, Plaintiff's motion for summary judgment will be granted.
IT IS SO ORDERED.