The opinion
Way 2<U, □□□□□
Clerk, U.S. Bankruptcy Court
Below is an opinion of the court.
Daw) We Horch _
DAVID W. HERCHER
U.S. Bankruptcy Judge
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF OREGON
In re
Case No. 11-30493-dwh7
Preston C. Hiefield ITI,
Debtor.
Preston C. Hiefield ITI, Adversary Proceeding
No. 24-03050-dwh
Plaintiff,
and MEMORANDUM DECISION
DENYING DEFENDANT’S
Gillian Stratton, individually and AMENDED MOTION TO
as trustee of The Gillian M. DISMISS!
Stratton Living Trust,
Plaintiff-intervenor,
V.
Morris Westlund and The Morris
Westlund Trust,
Defendant.
1 This disposition is specific to this action. It may be cited for whatever
persuasive value it may have.
Page 1 - MEMORANDUM DECISION DENYING DEFENDANTS ete.
I. Introduction
Defendant, Morris Westlund, has moved to dismiss this action.2
I previously dismissed the amended complaint filed by plaintiff
Preston Hiefield, and he did not further amend. The motion to dismiss is thus
moot as to Hiefield.
Because this court has jurisdiction over this action, I will deny the
motion as to the complaint in intervention by plaintiff-intervenor Gillian
Stratton.
II. Facts
The following facts are based on the allegations of Stratton’s
complaint, as augmented by events in the record of Hiefield’s 2011 chapter 7
case that are consistent with Westlund’s arguments for dismissal.
A. Westlund’s 2009 judgment lien
On November 30, 2009, Westlund, as trustee of a trust, obtained a
money judgment against Hiefield in the Multnomah County, Oregon, Circuit
Court. The judgment amount of $225,000 bears interest from July 2, 2009, at
the rate of 37.5 percent per year, compounded monthly.3
On December 17, 2009, Westlund caused to be recorded in the real-
estate records of Washington County, Oregon, a lien record abstract of the
Multnomah County judgment.4
2 ECF No. 40.
3 Case No. 11-30493 ECF No. 87 Ex. 2; Case No. 11-30493 ECF No. 88 Ex. 2.
4 Case No. 11-30493 ECF No. 81 Ex. A at 3–4, ECF No. 87 Ex. 3.
B. Hiefield’s 2011 chapter 7 bankruptcy case
Hiefield initiated a chapter 7 bankruptcy case in 2011.5 His scheduled
assets include a one-half interest in a residence in Tualatin,6 in Washington
County.7
Hiefield moved under 11 U.S.C. § 522(f) to avoid the lien of the
judgment as impairing his Oregon homestead exemption.8 He then owned the
property with Stratton, his spouse, as tenants by the entirety.9 The
approximate balance due under the judgment was then $402,577.55.10 In
ruling on the motion, the bankruptcy judge ordered that the judgment be
“partially avoided with said judicial lien attaching only to the extent of
$6,000.00.”11
After the chapter 7 case was fully administered, it was initially closed
on May 21, 2015.12 It has since been opened and reclosed several times, but it
is now closed.13
Westlund claims that the amount secured by the lien is now more than
$700,000 “based upon the 37.5% compounded interest rate.”14
5 ECF No. 38 at 2 ¶ 2.
6 Case No. 11-30493 ECF No. 12 Sched. A; ECF No. 11-1 at 5: 8–10.
7 Case No. 11-30493 ECF No. 37 att. at 1 ¶ 2.
8 Case No. 11-30439 ECF No. 37.
9 ECF No. 38 at 2 ¶ 7.
10 Case No. 11-30493 ECF No. 37 att. at 1 ¶ 2.
11 Case No. 11-30493 ECF No. 47 at 2:1–2; ECF No. 38 at 2 ¶¶ 3–4.
12 ECF No. 11-30493 ECF No. 70.
13 Case No. 11-30493 ECF Nos. 72–73, 75, 99,–100, 102.
14 ECF No. 38 at 2 ¶ 6.
C. Property conveyances
In 2020, Hiefield conveyed his interest in the property to Stratton,15
and in 2021, she conveyed it to herself as trustee of a trust.16
D. Hiefield’s 2023 chapter 13 case
In 2023, Hiefield filed a chapter 13 petition. He obtained confirmation
of a plan,17 and that case is open.
E. This action
Hiefield commenced this action by filing a complaint, and then an
amended complaint, against Westlund.18 The caption identifies the defendant
as “Morris Westlund and the Morris Westlund Trust.”19 Hiefield sought a
declaration that the lien is limited to $6,00020 and bears no interest.21
Westlund moved to dismiss the amended complaint, arguing that
Hiefield lacked standing, this court lacked jurisdiction, and claim-preclusion
barred this action.22 In Hiefield’s opposition, he said his wife intended to
refinance debt on the property to help him pay his chapter 13 plan
obligations.23 He also said that the lien-avoidance order “could have easily
15 ECF No. 38 at 2 ¶ 8.
16 ECF No. 38 at 2 ¶ 9.
17 Case No. 23-31146 ECF Nos. 28, 84.
18 ECF Nos. 1–2.
19 ECF No. 1 at 1.
20 ECF No. 2 at 2 ¶ 7.
21 ECF No. 2 at 2 ¶ 8.
22 ECF No. 11.
23 ECF No. 14 at 4.
stated that interest continues to accrue at the judgment rate, but it does
not.”24
Then, Stratton moved to intervene as a plaintiff.25
On January 18, I granted Westlund’s motion to dismiss Hiefield’s
complaint and Stratton’s motion to intervene. I ordered that any amended
complaint by Hiefield and any complaint in intervention by Stratton be filed
within 14 days. I also said that if Hiefield amended or Stratton pleaded
timely, I would then consider Westlund’s subject-matter jurisdiction
argument. Hiefield did not amend.26
But Stratton did file her complaint, and it largely tracks Hiefield’s
amended complaint.27 The caption of her complaint identifies the plaintiff-
intervenor as her, both individually and as trustee.28 She alleges that “the
$6,000 judgment lien is over $700,000 based upon the 37.5% compounded
interest rate,”29 and since 2021 title to the property has been held by her as
trustee.30 She asks for a declaration “that based upon 11 U.S.C. § 522(f)(2)”
Westlund’s lien on the former interest of Hiefield is limited to $6,000 and
includes no interest.31
24 ECF No. 14 at 5.
25 ECF No. 16.
26 ECF No. 35.
27 ECF No. 38.
28 ECF No. 38 at 1.
29 ECF No. 38 at 2 ¶ 6.
30 ECF No. 38 at 2 ¶ 9.
31 ECF No. 38 at 3 ¶¶ 11, 13, 1–3.
III. Analysis
A. Stratton did not violate a court order.
In dismissing Hiefield’s amended complaint for lack of constitutional
standing, I said that the injury-in-fact and redressability requirements might
have been satisfied had either he or Stratton asserted that she would, in fact,
sell the property and donate the proceeds for use in the plan—but their
declarations and her draft complaint conspicuously lacked that assertion. The
bare possibility that she might sell and donate was not enough to give
Hiefield standing.
Although I did say that Stratton’s failure to include in her proposed
complaint the allegation that she would sell the property and contribute the
proceeds to the plan deprived Hiefield of standing, I did not order her to
include that allegation in her complaint. I reject Westlund’s argument that
she violated a court order, requiring dismissal.
B. Stratton has constitutional standing.
As part of the Article III requirement that a claim in federal court be a
“case or controversy,”32 the plaintiff must show standing. The plaintiff has
standing if the plaintiff has suffered an injury in fact that is fairly traceable
to conduct by the defendant and that the plaintiff’s injury is likely to be
redressed by a judgment in the plaintiff’s favor.33 Standing is a threshold
32 U.S. Const., Art. III, § 2, cl. 1.
33 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
requirement that must be met even though substantive law confers a right of
action on the plaintiff.34
Stratton, as trustee, now owns the property. If she is correct on her
merits claim that Westlund is claiming more than is due under his lien, she
has suffered an injury in fact that is traceable to him and could be redressed
by a judgment in her favor in her trustee capacity. Because he seeks to
dismiss her complaint in its entirety, rather than to strike the portion
asserting a claim in her individual capacity, her standing to pursue her claim
as trustee suffices to prevent dismissal for lack of standing.
C. This court has ancillary subject-matter jurisdiction over
Stratton’s complaint.
Under 28 U.S.C. § 1334(b), the district court has jurisdiction over
proceedings arising in a bankruptcy case, arising under title 11, or related to
a bankruptcy case. The avoidance motion arose under section 522 and thus
was within the district court’s arising-under jurisdiction. Under 28 U.S.C.
§ 157(a), the district court can refer bankruptcy cases and proceedings to the
bankruptcy court, as the district court in this district has done.35 Under
section 157(b) and (c), authority to enter the final order or judgment is
divided between the bankruptcy and district courts—but that division does
not affect subject-matter jurisdiction.
34 TransUnion LLC v. Ramirez, 594 U.S. 413, 426–27 (2021).
35 LR 2100-2(a)(a).
Ancillary jurisdiction may be employed “in subsequent proceedings for
the exercise of a federal court’s inherent power to enforce its judgments” and
to “assist in the protection and enforcement of federal judgments.”36 It may be
exercised by a federal court to, among other things, “vindicate its authority,
and effectuate its decrees.”37 Without ancillary jurisdiction, “the judicial
power would be incomplete and entirely inadequate to the purposes for which
it was conferred by the Constitution.”38 Ancillary jurisdiction may extend to a
claim based on a prior action, but the prior action “must contain an
independent basis for federal jurisdiction” because “[t]he court must have
jurisdiction over a case or controversy before it may assert jurisdiction over
ancillary claims.”39
In a 2009 decision addressing the scope of ancillary jurisdiction, the
Supreme Court held that a bankruptcy court “plainly had jurisdiction to
interpret and enforce its prior orders”—describing that holding as “easy.”40
Similarly, the Ninth Circuit has held that a bankruptcy court “has the power
to interpret and enforce its own orders.”41 Because ancillary jurisdiction
36 Peacock v. Thomas, 516 U.S. 349, 356 (1996).
37 Peacock, 516 U.S. at 354 (1996), quoting Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 379 (1994).
38 Peacock, 516 U.S. at 356, quoting Riggs v. Johnson Cnty., 73 U.S. 166, 187
(1867).
39 Peacock, 516 U.S. at 355.
40 Travelers Indem. Co. v. Bailey, 557 U.S. 137, 151 (2009).
41 Wilshire Courtyard v. California Franchise Tax Board (In re Wilshire
Courtyard), 729 F.3d 1279, 1289 (9th Cir. 2013), citing Travelers, 557 U.S.
at 151.
covers only claims that are ancillary to a court’s prior rulings on claims over
which the court had statutory jurisdiction, a court lacks jurisdiction “to grant
new relief independent of its prior rulings . . ..”42
Westlund argues that a court has ancillary jurisdiction to interpret a
prior order only if the interpretation would “have some effect on an open
bankruptcy proceeding,”43 citing the Supreme Court’s 1994 decision in
Kokkonen v. Guardian Life Ins. Co. of Am.44 and the Ninth Circuit’s 2006
decision in Sea Hawk Seafoods, Inc. v. Alaska (In re Valdez Fisheries Dev.
Ass'n, Inc.).45 In Kokkonen, the Court held that, after stipulated dismissal of
an action, the trial court lacked ancillary jurisdiction to enforce a settlement
agreement that was the basis for dismissal; the new action did not seek to
enforce or interpret a prior court order. The Court acknowledged that
"ancillary jurisdiction to enforce the agreement would” have existed if the
settlement agreement had been made part of a court order.46
In Valdez, the Ninth Circuit held that a bankruptcy court’s
interpretation of a settlement agreement was not ancillary to a court’s prior
order approving the agreement at the request of the chapter 11 debtor in
possession. Under Federal Rule of Bankruptcy Procedure 9019, a bankruptcy
court’s approval of a settlement agreement adjudicates only whether a
42 Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 481 (9th Cir. 1989).
43 ECF No. 33 at 10.
44 511 U.S. 375, 379–80 (1994).
45 439 F.3d 545, 549 (9th Cir. 2006).
46 Kokkonen, 511 U.S. at 381.
settlement agreement to which the estate representative is a party is in the
best interest of the estate; it does not adjudicate the parties’ rights and
obligations under the agreement. So a separate action to enforce the
agreement is not one to enforce or interpret—and is thus not ancillary to—
the settlement-approval order.
Westlund also points to the portion of the Valdez decision discussing
the “close nexus” test applicable to bankruptcy litigation after confirmation of
a chapter 11 plan.47 That test applies to whether a court asked to hear
postconfirmation litigation in a chapter 11 case has section 1334(b)
jurisdiction under the related-to option. But here, case in which the lien was
avoided was under chapter 7, which provides for liquidation rather than
reorganization, and the court had jurisdiction over the avoidance motion
under the arising-under option, giving the court ancillary, arising-under
jurisdiction over Stratton’s request to interpret the avoidance order. The
close-nexus test thus does not apply to this action.
Westlund also argues that closure of Hiefield’s chapter 7 case makes
“this court’s jurisdiction extremely limited relating to any non-debtor claim
by Stratton attempting to now be asserted,”48 citing the Ninth Circuit’s
decision in Battle Ground Plaza, LLC v. Ray (In re Ray).49 In Ray, the court
addressed the bankruptcy court’s exercise of jurisdiction over a removed
47 ECF No. 33 at 11; Valdez, 439 F.3d at 548.
48 ECF No. 33 at 2.
49 624 F.3d 1124, 1136 (9th Cir. 2010).
state-court action by a nondebtor against the chapter 11 debtor in possession
and others, alleging breach of the plaintiff’s first-refusal rights.50 In deciding
that the bankruptcy court lacked ancillary jurisdiction, the Ninth Circuit
relied primarily on plan confirmation, referring to its prior decision that after
confirmation a “debtor is usually without the protection of the bankruptcy
court.”51 The Ninth Circuit also held that ancillary jurisdiction to “vindicate
[a court’s] authority and effectuate its decrees” is available to a bankruptcy
court52 and permits a bankruptcy court “to interpret orders entered prior to
dismissal of the underlying bankruptcy case . . ..”53
Westlund also argues this court lacks subject-matter jurisdiction
because “the subject of the adversary proceeding does not affect property of
the estate.”54 That the outcome of a bankruptcy proceeding could affect estate
property could support related-to jurisdiction. But the absence of related-to
jurisdiction is irrelevant if, as here, the court has arising-under jurisdiction.
This court has ancillary jurisdiction over Stratton’s request to
interpret the avoidance order because the request is ancillary to the
avoidance motion, over which the court had arising-under jurisdiction.
50 Ray, 624 F.3d at 1129.
51 Ray, 624 F.3d at 1136, quoting Hillis Motors, Inc. v. Hawaii Auto. Dealers’
Ass’n, 997 F.2d 581, 589 (9th Cir. 1993).
52 Ray, 624 F.3d at 1130, quoting Sea Hawk Seafoods, Inc. v. Alaska (In re
Valdez Fisheries Dev. Ass’n, Inc.), 439 F.3d 545, 549, citing Kokkonen,
511 U.S. at 379–80.
53 Ray, 624 F.3d at 1135.
54 ECF No. 11-1 at 4–6.
D. This court has constitutional authority over Stratton’s
complaint.
Westlund argues that this court lacks constitutional authority over
this action, citing the Supreme Court’s 2011 decision in Stern v. Marshall.55
Stern addressed not the scope of the district court’s statutory
bankruptcy jurisdiction but whether Congress could constitutionally assign to
the bankruptcy court the authority to finally determine certain referred core
proceedings. Stern does not affect a bankruptcy court’s authority to act in all
stages of a proceeding short of entry of the final order or judgment. The
Supreme Court later held that, in hearing a Stern claim, a bankruptcy court
may follow the procedures under section 157(c)(1) for noncore, related-to
claims: the bankruptcy court hears the proceeding, submits proposed findings
of fact and conclusions of law to the district court, and the final order or
judgment is entered by the district judge.56
Because a motion to dismiss a bankruptcy proceeding tests whether
the district court has jurisdiction but not whether the final order or judgment
may be entered by the bankruptcy court, Stern does not require dismissal of
this action.
E. The court will not abstain from this action.
Westlund asks that the court abstain from hearing this action.57
55 564 U.S. 462 (2011).
56 Exec. Benefits Ins. Agency v. Arkison, 573 U.S. 25, 38 (2014).
57 ECF No. 33 at 12–13.
Section 1334(c)(1) permits a district court to abstain from hearing a
proceeding in the interest of justice or in the interest of comity with state
courts or respect for state law. Because section 1334(d) bars appellate review
by the courts of appeals and the Supreme Court of decisions to permissively
abstain or not abstain, it has the effect of preventing the development by
those courts of decisional law with stare decisis effect.
In a 1990 Ninth Circuit decision cited by Westlund, Christensen v.
Tucson Estates, Inc. (In re Tucson Ests., Inc.),58 the court considered whether
there existed cause for automatic-stay relief under 11 U.S.C. § 362(d)(1) to
allow state-court litigation against the debtor. The court held that “[w]here a
bankruptcy court may abstain from deciding issues in favor of an imminent
state court trial involving the same issues, cause may exist for lifting the stay
as to the state court trial.”59 The court quoted a Texas bankruptcy court’s list
of 12 permissive-abstention factors.60 The next year, the Ninth Circuit
characterized Tucson as having “laid out the factors courts should consider in
deciding whether to abstain under §1334(c)(1).”61
Westlund argues that “[a]ll of the foregoing [12 Tucson] factors (those
that are applicable) weigh in favor of” abstention, and then he mentions “the
58 912 F.2d 1162, 1167 (9th Cir. 1990).
59 Tucson, 912 F.2d at 1166.
60 Republic Reader’s Service, Inc. v. Magazine Service Bureau, Inc. (In re
Republic Reader’s Serv., Inc.), 81 B.R. 422, 429 (Bankr. S.D. Tex. 1987).
61 Eastport Assocs. v. City of Los Angeles (In re Eastport Assocs.), 935 F.2d
1071, 1075 (9th Cir. 1991).
repeated transfers of the property between Debtor, Stratton and now the
Stratton trust outside of bankruptcy.”62 But he does not explain how the
property transfers support abstention—and he does not address specifically
any of the factors.
Factor 1 is “the effect or lack thereof on the efficient administration of
the estate” if the court abstains. Hiefield’s chapter 7 case has been fully
administered and closed, so abstention will not affect administration of that
estate. In the current chapter 13 case, the only possible ongoing estate
administration is Hiefield’s performance of his plan. Although the outcome of
this action might give Stratton the ability (but not, as pleaded, the obligation)
to contribute funds to Hiefield for the plan, whether her claim is decided here
or in state court would not affect his plan performance. Factor 1 is neutral.
Factor 2 is “the extent to which state law issues predominate over
bankruptcy issues.” Stratton requests interpretation of a federal bankruptcy
court order (the avoidance order), which applied federal law (section 522).
Westlund does not identify state law applicable to interpretation of the
avoidance order. Factor 2 weighs against abstention.
Factor 3 is “the difficulty or unsettled nature of the applicable law.”
Westlund does not identify state law applicable to interpretation of the
avoidance order. The difficulty or unsettled nature of applicable federal law is
not a reason for a federal court to abstain. Factor 3 is neutral.
62 ECF No. 33 at 13.
Factor 4 is “the presence of a related proceeding commenced in state
court or other nonbankruptcy court.” The only state-court proceeding the
parties identify is the action leading to Westlund’s judgment, which is no
longer pending. He does not point to a pending state-court action that would
address the meaning of the avoidance order. Factor 4 weighs against
abstention.
Factor 5 is “the jurisdictional basis, if any, other than 28 U.S.C.
§1334.” Westlund does not point to a jurisdictional basis for this action other
than section 1334. Factor 5 weighs against abstention.
Factor 6 is “the degree of relatedness or remoteness of the proceeding
to the main bankruptcy case.” I understand “relatedness” to refer to the
relation between an action and a case that could give rise to related-to
jurisdiction. But because this action is ancillary to the avoidance motion,
which was a proceeding arising under section 522, the court has arising-
under jurisdiction over this action. Factor 6 does not to apply to this action
and is neutral.
Factor 7 is “the substance rather than form of an asserted ‘core’
proceeding.” Here, the lien-avoidance motion was a proceeding to
“determine[] the . . . extent . . . of [a] lien”63 and thus core in substance, not
just form; the same is true for this ancillary-jurisdiction action to interpret
the avoidance order. Factor 7 weighs against abstention.
63 28 U.S.C. § 157(b)(2)(K).
Factor 8 is “the feasibility of severing state law claims from core
bankruptcy matters to allow judgments to be entered in state court with
enforcement left to the bankruptcy court.” Westlund does not identify state
law applicable to this action. Factor 8 weighs against abstention.
Factor 9 is “the burden of [the bankruptcy court's] docket.” This action
would not burden this court. Factor 9 weighs against abstention.
Factor 10 is “the likelihood that the commencement of the proceeding
in bankruptcy court involves forum shopping by one of the parties.” Every
well-advised litigant who has any say in the choice of forum will try to choose
a forum that it believes to be favorable. It’s naïve to imagine that any litigant
chooses its forum out of a public-spirited desire to foster comity and judicial
economy. I don’t blame Hiefield and Stratton for their forum choice, nor do I
blame Westlund for seeking abstention. The question for me is not whose
motives are purer; it’s whether abstention is warranted for objective reasons.
Neither side is engaged in the abusive kind of forum shopping that this factor
contemplates. Factor 10 is neutral.
Factor 11 is “the existence of a right to a jury trial.” Neither party has
asserted the right to a jury trial. Factor 11 is neutral.
Factor 12 is “the presence in the proceeding of nondebtor parties.”
With the rare exception of actions by and between only debtors in the same
case, every bankruptcy proceeding necessarily involves one or more
nondebtor parties. Factor 12 is neutral.
No factor favors abstention, six factors (2, 4, 5, and 7 through 9) weigh
against abstention, and six factors (1, 3, 6, and 10 through 12) are neutral. I
give the greatest weight to factors 2and 7 because Westlund does not identify
state law relevant to interpretation of the avoidance order.
The court will not abstain from this action.
F. The court will not decline jurisdiction over this action.
In addition to arguing for section 1334(c)(1) permissive abstention,
Westlund argues that this court “is not required to exercise its jurisdiction,”64
citing four Supreme Court cases holding that a federal court has discretion
whether to exercise jurisdiction over a declaratory judgment action, including
Brillhart v. Excess Ins. Co. of Am. in 1942 and65 Pub. Serv. Comm’n of Utah v.
Wycoff Co. in 1952.66 That discretion follows from the language of 28 U.S.C.
§ 2201(a), enacted in 1948,67 under which a court of the United States “may
declare the rights and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could be sought”
(emphasis added). It also follows from the language of the predecessor statute
(addressed in Brillhart), 28 U.S.C. § 400(1) (1940), enacted in 1934,68 under
which a court “shall have power” to grant declaratory relief.
64 ECF No. 11-1 at 6:12–17; ECF No. 29 at 3.
65 316 U.S. 491 (1942).
66 344 U.S. 237, 243 (1952).
67 62 Stat. 869, 1948 (1948).
68 Ch. 512 § 274D, 48 Stat. 955 (1934).
Under Brillhart and Public Service, factors that weigh against the
discretionary exercise of jurisdiction include that (1) the federal action
presents issues not governed by federal law, (2) another action is pending in
state court presenting the same issues, and (3) the issues can better be
settled in state court.69 Where a federal court has ancillary jurisdiction over a
request to interpret or enforce a prior order or judgment of that court, it is
not clear that the court’s authority to grant declaratory relief also turns on
section 2201(a). Even if it does, the three Brillhart and Public Service factors
favor exercising jurisdiction. That’s because this action presents issues
governed by federal law and no other action is pending in state court
presenting the same issue, so the issue cannot better be settled in state court.
The exercise of jurisdiction is also supported by the 12 permissive-abstention
factors, which here weigh against abstention.
Westlund points to facts that he suggests weigh against the exercise of
jurisdiction: “the procedural history of Debtor’s Chapter 7 proceeding and his
lack of standing regarding the issue in the adversary complaint . . .”70 and
that the property is no longer an estate asset and Stratton took title without
warranty from Hiefield.71 But those facts are irrelevant to the three Brillhart
and Public Service factors informing the exercise of jurisdiction over a
declaratory-judgment action.
69 Brillhart, 316 U.S. at 495; Wilton, 515 U.S. at 290.
70 ECF No. 11-1 at 6:17–19.
71 ECF No. 29 at 3–4.
The court will not decline to exercise jurisdiction over this action.
G. This action is not barred by claim preclusion.
Under the heading “Res Judicata/Claim Preclusion,” Westlund argues
that “the subject of [Hiefield’s claim] has already been previously adjudicated
by both the Multnomah County Circuit Court and by this Court.”72 He then
discusses judicial admissions,73 Hiefield’s failure to assert “[a]ll issues
regarding objection to the interest rate,”74 claim preclusion,75 stipulated facts
in connection with the avoidance motion,76 Westlund’s proof of claim,77 and
the preclusive effects of both a deemed-allowed claim78 and “the prior
determination relating to the interest rate.”79
I understand Westlund to argue that interpretation of the avoidance
order to exclude interest would be inconsistent with and thus precluded by
the judgement and avoidance order. If Stratton is correct that, after partial
avoidance under section 522(f), the surviving portion of a judgment lien no
longer accrues interest, the interest otherwise due under the judgment is
irrelevant.
This action is not barred by res judicata or claim preclusion.
72 ECF No. 11-1 at 6:21–23.
73 ECF No. 11-1 at 7:17–23.
74 ECF No. 11-1 at 7:24–25.
75 ECF No. 11-1 at 7:25 – 8:3.
76 ECF No. 11-1 at 8:4 – 9:16.
77 ECF No. 11-1 at 9:19–22.
78 ECF No. 11-1 at 9:23 – 10:1.
79 ECF No. 11-1 at 11:1–3.
IV. Conclusion
Hiefield’s complaint remains dismissed.
I will deny the motion to dismiss Stratton’s complaint. I will prepare
an order; none need be lodged.
I will schedule a continued pretrial conference.
# # #