Filed: Nov. 15, 2018
Latest Update: Mar. 03, 2020
Summary: FILED, NOV 15 2018, NOT FOR PUBLICATION, SUSAN M. SPRAUL, CLERK, U.S. BKCY.The bankruptcy court denied the motion, and Bartlett appealed.judgment revoking Debtors discharge.Bartletts motion to reopen the bankruptcy case.in the time provided by Rule 8002 of the Bankruptcy Rules.F.3d at 986 n.2.
FILED
NOV 15 2018
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. AZ-17-1047-TaBKu
BAP No. AZ-18-1093-TaBKu
ALAN M. BARTLETT AND LUZ MARINA BAP No. AZ-18-1096-TaBKu
BARTLETT-MORAN, (Related Appeals)
Debtors. Bk. No. 2:00-bk-11770-MCW
ALAN M. BARTLETT, Adv. No. 2:01-ap-01276-MCW
Adv. No. 2:01-ap-00059-MCW
Appellant,
v.
DAVID A. BIRDSELL, CHAPTER 7 TRUSTEE; MEMORANDUM*
CITIBANK, SOUTH DAKOTA, N.A.,
Appellees.
Argued and Submitted on October 25, 2018
at Seattle, WA
Filed – November 15, 2018
Appeal from the United States Bankruptcy Court
for the District of Arizona
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Honorable Madeline Carmel Wanslee, Bankruptcy Judge, Presiding
Appearances: Appellant Alan M. Bartlett argued pro se.
Before: TAYLOR, BRAND, and KURTZ, Bankruptcy Judges.
INTRODUCTION
Alan Bartlett (“Bartlett”) and Luz Marina Bartlett-Moran (collectively,
“Debtors”) filed a chapter 71 petition in 2000 but failed to obtain a
discharge of their debts. Citibank, South Dakota, N.A. (“Citibank”)
obtained a nondischargeability judgment by default. And the chapter 7
trustee later obtained a default judgment revoking Debtors’ discharge of all
debt. Debtors did not appeal from either default judgment, and nothing
happened in the closed chapter 7 case for well over a decade.
In 2016, Bartlett sought to reopen the case to “enforce” the discharge.
The bankruptcy court denied the motion, and Bartlett appealed. He later
filed notices of appeal of the default judgments. But those appeals are
untimely and we, accordingly, lack jurisdiction over the adversary
proceeding judgments. And as for Bartlett’s motion to reopen, he fails to
provide us with a record adequate to review the bankruptcy court’s
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal
Rules of Bankruptcy Procedure.
2
decision. Accordingly, we DISMISS BAP Nos. AZ-18-1093 and AZ-18-1096
for lack of jurisdiction and SUMMARILY AFFIRM in BAP No. AZ-17-1047.
FACTS2
Debtors filed a chapter 7 petition in 2000. Citibank subsequently filed
a complaint to render its claim nondischargeable under § 523(a)(2)(A). The
bankruptcy court later entered a default judgment in Citibank’s favor.
The bankruptcy court’s docket3 reflects that, although Debtors
initially received a discharge and their case was closed, the Trustee later
withdrew his no-asset report and obtained an order reopening the Debtors’
bankruptcy case. The Trustee then filed a complaint seeking turnover of
Debtors’ 2000 tax returns and any refunds or, in the alternative, revocation
of their discharge. In 2002, the bankruptcy court entered a separate
judgment revoking Debtors’ discharge.
The bankruptcy court’s docket4 reflects that thereafter the Trustee
entered a second report of no distribution, and the bankruptcy court closed
the case.
Over a decade later, in November 2016, Bartlett filed a motion that
2
We exercise our discretion to take judicial notice of documents electronically
filed in the bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293
B.R. 227, 233 n.9 (9th Cir. BAP 2003).
3
Bartlett did not provide a copy of the relevant documents, and they are not
available through CM/ECF.
4
Again, Bartlett did not provide a copy of the relevant documents and they are
not available through CM/ECF.
3
the bankruptcy court later construed as a motion to reopen. He also filed a
variety of motions “for Summary Judgment” and “to Approve
Enforcement of Bankruptcy Injunction.” Later, he filed a motion more
clearly seeking to reopen his 2000 bankruptcy and requesting enforcement
of his alleged discharge injunction.
After a hearing, the bankruptcy court entered a signed minute order
denying the motion to reopen for the reasons stated on the record. Bartlett
timely appealed. Later, he also filed notices of appeal in the two adversary
proceedings.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A), (H), and (I). We consider our jurisdiction below.
ISSUES
Whether we have jurisdiction to review the adversary proceeding
judgments.
Whether the bankruptcy court abused its discretion when it denied
Bartlett’s motion to reopen the bankruptcy case.
STANDARD OF REVIEW
We review our own jurisdiction de novo. Ellis v. Yu (In re Ellis), 523
B.R. 673, 677 (9th Cir. BAP 2014). We review the denial of a motion to
reopen a bankruptcy case for abuse of discretion. Staffer v. Predovich (In re
Staffer),
306 F.3d 967, 971 (9th Cir. 2002).
4
DISCUSSION
Bartlett filed three appeals; he discussed them all in one opening
brief; we liberally construe his pro se submission. See Cruz v. Stein Strauss
Trust # 1361 (In re Cruz), 516 B.R. 594, 604 (9th Cir. BAP 2014). We,
similarly, address the appeals jointly.
BAP Nos. AZ-18-1093 & AZ-18-1096: We lack jurisdiction over the
adversary proceeding judgments. Our jurisdiction to hear appeals is found
in 28 U.S.C. § 158. In relevant part, it states that an appeal must be taken
“in the time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C.
§ 158(c)(2). Rule 8002, in turn, provides that a notice of appeal must be filed
within 14 days of entry of the judgment. Fed. R. Bankr. P. 8002(a)(1). This
14-day timeline is a jurisdictional requirement. Wilkins v. Menchaca (In re
Wilkins), 587 B.R. 97, 107 (9th Cir. BAP 2018).
Here, the bankruptcy court entered judgment in Citibank’s adversary
proceeding in 2001 and in the Trustee’s adversary proceeding in 2002.
Bartlett filed his notices of appeal in 2018. We, accordingly, lack jurisdiction
to review the judgments.5 Accordingly, we dismiss BAP Nos. AZ-18-1093
& AZ-18-1096 for lack of jurisdiction.
BAP No. AZ-17-1047: We lack jurisdiction over the November 2002
order reopening the bankruptcy case; we otherwise summarily affirm the
5
On appeal, Bartlett argues that the judgments are void because the complaints
were not properly served. Even if true, his remedy is not an appeal.
5
bankruptcy court’s order. In his notice of appeal, Bartlett states that he is
appealing the “revocation of discharge and [the] denial of motion for
summary judgment seeking redress for post-discharge injunction
violations[.]” But we have already concluded that we lack jurisdiction over
the judgment revoking his discharge.
In his opening brief, Bartlett does not discuss the denial of his
motions for summary judgment, much less argue that the bankruptcy court
erred in doing so. As a result, we deem any argument about that decision
waived. Padgett v. Wright, 587 F.3d 983, 986 n.2 (9th Cir. 2009) (per curiam)
(appellate courts “will not ordinarily consider matters on appeal that are
not specifically and distinctly raised and argued in appellant's opening
brief”).
Instead, the only argument Bartlett makes in his opening brief about
the administration of his main bankruptcy case concerns the November
2001 reopening of his bankruptcy case: he contends the bankruptcy court
abused its discretion in doing so. But, for the same reasons articulated
above, we lack jurisdiction over that order because the notice of appeal was
not timely as to that order.
Bartlett’s notice of appeal was timely filed only as to the bankruptcy
court’s order on Bartlett’s 2016 motion to reopen. We thus have jurisdiction
under 28 U.S.C. § 158 in this singular context.
That said, the bankruptcy court’s minute order denying Bartlett’s
6
motion to reopen incorporated oral findings of fact and conclusions of law
made on the record at the hearing. If a bankruptcy court makes its findings
of facts and conclusions of law on the record, the appellant must include
the transcript as part of the excerpts of record. McCarthy v. Prince (In re
McCarthy), 230 B.R. 414, 416–17 (9th Cir. BAP 1999). Here, Bartlett elected
not to obtain a transcript.6 Nor can we find a copy of the transcript on the
bankruptcy court’s docket. We, thus, cannot meaningfully or adequately
review the bankruptcy court’s order denying the motion to reopen and
determining that the other motions were moot. Ehrenberg v. Cal. State Univ.,
Fullerton Found. (In re Beachport Entm’t),
396 F.3d 1083, 1087–88 (9th Cir.
2005); Morrissey v. Stuteville (In re Morrissey),
349 F.3d 1187, 1189 (9th Cir.
2003) (failing to provide a critical transcript may result in summary
affirmance). As a result, we may and do summarily affirm.
And, as noted, Bartlett’s opening brief addresses the bankruptcy
court’s 2001 decision to reopen the bankruptcy case; he does not argue that
the bankruptcy court erred when it denied his 2016 motion to reopen. As a
result, we deem any argument about the 2016 decision waived. Padgett, 587
F.3d at 986 n.2.
6
Post-appeal, the United States District Court for the District of Arizona granted
Bartlett’s motion to proceed in forma pauperis on appeal. See BAP No. AZ-17-1047, Dkt.
No. 16. Bartlett then asked the bankruptcy court to certify that the appeal was not
frivolous, but presents a substantial question, so the United States would pay for
preparation of the transcripts. Bk. Case No. 2:00-bk-11770-MCW, Dkt. Nos. 97 and 98.
The bankruptcy court found that the appeal was frivolous and denied the requested
certification. Bk. Case No. 2:00-bk-11770-MCW, Dkt. No. 106.
7
CONCLUSION
Based on the foregoing, we DISMISS BAP Nos. AZ-18-1093 and AZ-
18-1096 for lack of jurisdiction and SUMMARILY AFFIRM in BAP No.
AZ-17-1047.
8
