Refuse to Yield: How One Debtor’s Rubbish Cost Him Everything

The following is a case update written by Hale Andrew Antico, Chief Counsel of Antico Law Firm, analyzing Zac Fancher v Tulare County Resource Management Agency, 2025 WL 2374720, EC-25-1038-FSC (BAP 9^th Cir, August 15, 2025), a recent case of interest:

Summary

In Zac Fancher v Tulare County, the BAP affirmed dismissal of Plaintiff’s claims, ruling that claim preclusion barred re-litigation of issues already decided in state court and that the abatement lien was valid as it attached by operation of law, regardless of recordation timing, upholding the county’s abatement actions in bankruptcy.

To view the full decision, click here.

Facts

Tulare County (“County”) cited a property owned by Zac Fancher (“Fancher”) and his parents in Springville, California in 2017 for numerous code violations. These included: infestation of vermin, rodents, or insects; accumulation of solid waste, junk, garbage, and stagnant water; deteriorated foundations, floor supports, and waterproofing; unpermitted vehicles; unapproved remodels; and general dilapidation. 

After an ignored 30-day Notice to Abate, Inspector Tromborg ruled against the Fanchers months later in June 2017. They appealed to the County Board of Supervisors, who upheld it. The Fanchers then appealed in Superior Court. The Superior Court entered judgment in favor of the county in late 2018, which the Fanchers appealed to the California Court of Appeal, which upheld the Superior Court ruling.

During this period, the county served the Fanchers with a Notice of Intent to Abate. In February 2019, it obtained an Abatement Warrant signed by a Superior Court judge. Soon thereafter, demolition crews destroyed several structures, removed six vehicles, and disposed of thousands of pounds of solid waste, at a cost of $86,772.95. 

At a 2020 public hearing about which Fancher admitted receiving notice, the Board of Supervisors reviewed the abatement costs, and confirmed the costs and ordered them placed on the tax roll as a special assessment, then ordered the county to lien the property. In 2022, the county recorded the abatement lien, and served Fancher with notice.

In 2024, Fancher filed a Chapter 7 bankruptcy, listing the county debt as an unsecured debt, and received his discharge in the no-asset case. He filed an adversary proceeding against the county pro se, intending to void the county lien with claims including failure to comply with procedural deadlines, lack of statutory jurisdiction, and challenges to the validity of the abatement lien. The county filed a motion to dismiss asserting that it did comply, and that all of Fancher’s arguments “were wrong.” Fancher did not appear at the hearing. The bankruptcy court granted the dismissal of all claims with prejudice, except for one claim about tax liability, which was dismissed without prejudice. Once again, Fancher appealed, this time to the Bankruptcy Appellate Panel (“BAP”), which found no errors and affirmed the bankruptcy court.

Reasoning

Claim Preclusion

With the Rule 12(b)(6) standard in play, Fancher must state a claim upon which relief can be granted. The BAP then started with reliance on established Ninth Circuit precedent regarding collateral attacks and claim preclusion. In short, the BAP found that Fancher could not raise claims or defenses that were or could have been asserted in a prior action. Rein v. Providian Fin. Corp., 270 F.3d 895, 902 (9th Cir. 2001), Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002); Robi v. Five Platters, Inc., 838 F.2d 318, 321-22 (9th Cir. 1988). Because the federal courts must refer to the law of the state in which the judgment was rendered, that takes us to California precedent. In California, claim preclusion is in play if the second suit involves: 1) the same cause of action; 2) between the same parties; and 3) after a final judgment on the merits. Gray v. La Salle Bank, N.A., 95 Cal.App.5th 932, 949 (2023).

The BAP ruled that Fancher was attempting to re-litigate claims and defenses already decided by the state courts, stating: “It is clear that Mr. Fancher is attempting to re-litigate claims that the County asserted in the state courts – and defenses to those claims that he asserted (or could have asserted) – and that the state courts finally decided.” Fancher v Tulare County at *11. While Fancher argued that claim preclusion does not apply because the administrative decision was void, making everything which affirms it void, the BAP called that “nonsensical,” as Fancher had  every opportunity to convince courts of that previously. Id. at *13. Having addressed the key issue, the BAP turned to Fancher’s remaining arguments.

Abatement Lien was Valid

Fancher also argued that the lien was not valid, since it was not recorded timely within 60 days of after the decision, per the California Code of Regulation (Title 25, Art 6, Sec 70). The BAP, however, observed that the statute allows counties to opt-out, which Tulare County did. The county statute which opted out has no such deadline, and merely requires that the board of supervisors place the costs on the county tax roll as a special assessment against the property, which was done with the lien at issue.

Fancher also argued that a minor discrepancy (a dropped digit) rendered the lien invalid. The BAP ruled instead that any discrepancy had no effect, as the assessment creates a statutory lien not dependent on recordation. Id. at *16, citing Cal. Rev. Tax. Code § 2187. Because the lien attaches by operation of law, it does so without any action by the county recorder’s office. It became a lien the moment it was added to the tax roll. 

Due Process

Last among Fancher’s significant claims was that the county denied him and his parents due process before the 2019 abatement. Key here is California Government Code § 28545(a), which provides that the board of supervisors shall give notice to a parcel owner notice of an abatement and a chance to appear and be heard. While Fancher conceded he had notice in 2017, he argued that is distinct from the notice required for the 2019 abatement. The BAP responded that the delay is “of his own making” because the county waited until the Superior Court mandamus proceedings were complete. Fancher v. Tulare County at *20.

Author’s Commentary

Zac Fancher v Tulare County is a case as stubborn as a rusted gate that refuses to budge. The county inspector found more than just a property in disrepair: there were vermin and insect infestations, and deteriorated foundations. Similarly, this case was built on the shakiest of legal foundations.

The Fanchers lost at every level. It’s the procedural equivalent of Groundhog Day, except the repeating loop involves rodent infestations and weary judges. Fanchers appealed all the way to the California Court of Appeal before turning to bankruptcy proceedings as their final recourse. Their arguments in bankruptcy court were ultimately technical challenges to the validity of the abatement lien and procedural compliance, claims that had been addressed and rejected by multiple state courts.

The short version?Res judicata aka claim preclusion. If you’re like me, you haven’t really studied this doctrine since law school. So, this case presented the opportunity for me to dig in.

The Full Faith and Credit Clause in Article IV of the Constitution says that states must respect the “judicial proceedings” of other states. This was then extended to the federal courts with 28 USC § 1738, which says, in pertinent part, that “Such [state] Acts, records and judicial proceedings… shall have the same full faith and credit in every court…as they have … in the courts of such State… from which they are taken.” Essentially, if it happened in a state, then the federal courts —  including bankruptcy courts — shall give it full credit.

The Supreme Court reviewed § 1738 and noted, “Section 1738 embodies concerns of comity and federalism that allow the States to determine, subject to the requirements of the statute and the Due Process Clause, the preclusive effect of judgments in their own courts.” Marrese v. American Academy of Orthopaedic Surgeons, 470 US 373, 380 (1985). Marrese established that federal courts must first apply state preclusion law unless an exception to § 1738 applies. Id. at 381

Let’s be clear: Bankruptcy courts aren’t state court appeals departments. Forget the crumbling foundation for a second — the real framework here? It’s ironclad. Res judicata and claim preclusion are long-established cornerstone doctrines against recycling old causes of action. Cromwell v. County of Sac, 94 US 351, (1876); also see Allen v. McCurry, 449 US 90 (1980), and, recently revisited by California’s Supreme Court: DKN Holdings LLC v. Faerber, 61 Cal. 4th 813 (Cal. 2015).

Wait, you’re probably thinking: “What would satisfy the second prong in the Marrese test above as an exception to § 1738?” That takes us another Supreme Court case that denied res judicata to a claim on a matter specifically designated to federal courts, such as nondischargability actions under 11 USC § 523(a). Brown v. Felsen, 442 US 127, 138-139 (1979). This is the exception that Fancher confused with his case. He mistook Brown’s fraud exception for a blanket right to challenge state judgments.

The contrast is this: Marrese governs defensive bankruptcy challenges to state court judgments. Brown discusses offensive creditor attacks on judgments for fraud. 

As Marrese dictates, Fancher’s attempt to void the lien is precluded. Unlike Brown’s fraud exception, Congress did not override state preclusion here through the 1978 Bankruptcy Code amendments that transformed § 17 into 11 U.S.C. § 523(a). The Supreme Court subsequently affirmed in Archer v. Warner, 538 U.S. 314, 321 (2003), that Brown‘s core reasoning remained intact after those amendments: bankruptcy courts retain authority to examine whether a debt “arises out of” fraud regardless of its formal characterization in settlement agreements or lien determinations. While Archer involved offensive creditor claims rather than defensive state-judgment challenges, its reliance on Brown confirms that the 1978 statutory update preserved rather than alter the framework. Fancher conflated a defensive posture under Marrese with offensive challenges under Brown and Archer’s framework. It’s the difference between mending a fence and burning the barn down.

The BAP correctly applied Marrese by deferring to California’s res judicata rules (Stewart, Gray). Res judicata aka claim preclusion transcend shields; they’re cold, unyielding concrete poured over claims long settled. Each state-level loss adds another layer, and returning in bankruptcy with a shovel will echo with a futile clang.

There are takeaways here for practitioners:

• State court losses don’t get a do-over on the merits in bankruptcy; exhaust appeals with the state
• Procedural compliance with abatement statutes is not negotiable.
• Litigating post-judgment? Distinguish between defensive challenges under Marrese or an exception like Brown.
• One can’t claim “no due process” if the reason for the delay
• If the county opts out, abatement liens can act as a legal bulldozer, attaching as an operation of law by statutory force, and not timing of recordation.

The next time a client asks why they can’t challenge a state court judgment in bankruptcy, don’t just say “res judicata.” Explain why: because the Constitution demands it, because Congress codified it, and because every court from Marrese to the BAP in this case has enforced it. See also, See, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (“Rooker Feldman Doctrine”).

In a legal landscape littered with clutter, the BAP decision stands as a quiet rebuke: some claims cannot be recycled. Petition filings cannot act as compost heaps, turning old arguments into fertile ground for new claims. What state courts deemed settled remains established, regardless of how much a debtor wishes to till the soil again. Bankruptcy courts are finality’s enforcers, not escape hatches. Just as the property refused to yield to proper maintenance, Fancher refused to accept the court’s finality. Some foundations, like some claims, are beyond repair. The refuse stays buried, not by choice, but by statute.

These materials were written by Hale Andrew Antico, Chief Counsel of Antico Law Firm, representing consumer debtors in the Central District of California, and President of the Central District Consumer Bankruptcy Attorneys Association, with editorial contributions by Ed Hays of Marshack Hays Wood LLP in Irvine, California  and Kathlen A. Cashman-Kramer of Fennemore LLP’s San Diego office.

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