Marino II: Ninth Circuit Lacked Jurisdiction to Review BAP’s Decision on Contempt Sanctions For Discharge Injunction Violation and Affirmed Bap’s Denial of Appellate Fees

Leonard L. Gumport¹

Leonard L. Gumport is a lawyer and mediator at Gumport Law Firm, PC, in Pasadena, California. He has served as a provisional director, bankruptcy examiner, and bankruptcy and SIPC trustee. He is admitted to practice in Alaska, California, the District of Columbia, and New York.

In Ocwen Loan Servicing, LLC v. Marino (In re Marino) ("Marino II"),² the United States Court of Appeals for the Ninth Circuit ruled that it lacked jurisdiction under 28 U.S.C. § 158(d)(1) of an appeal from the decision of the United States Bankruptcy Appellate Panel for the Ninth Circuit ("BAP") in Ocwen Loan Servicing, LLC v. Marino (In re Marino) ("Marino I").³ The BAP’s decision in Marino I, concerning emotional distress and punitive damages for violations of the discharge injunction, was not a final decision as required by § 158(d)(1). The BAP’s post-decision order denying appellate attorneys’ fees was, however, a final decision. Marino II affirmed the fee denial order because the appeal in Marino I was non-frivolous; a contractual fee provision did not apply; and 11 U.S.C. § 105 did not permit an award of appellate attorneys’ fees.

FACTS: On March 15, 2013, Christopher and Valerie Marino ("Debtors") filed a chapter 7 petition in the United States Bankruptcy Court for the District of Nevada in No. 13-bk-50461. In their schedules, Debtors represented that they owned and planned to surrender a residence in Verdi, California (the "Property"). Prior to filing bankruptcy, Debtors vacated the Property.