Filed: Apr. 06, 2020
Latest Update: Apr. 06, 2020
Summary: FILED APR 6 2020 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. SC-19-1060-LGS JORDANA BAUMAN, Bk. No. 18-02875-CL13 Debtor. JORDANA BAUMAN, Appellant, v. MEMORANDUM* THOMAS H. BILLINGSLEA, JR., Chapter 13 Trustee, Appellee. Argued and Submitted on March 26, 2020 Filed – April 6, 2020 Appeal from the United States Bankruptcy Court for the Southern District of California * This disp
Summary: FILED APR 6 2020 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. SC-19-1060-LGS JORDANA BAUMAN, Bk. No. 18-02875-CL13 Debtor. JORDANA BAUMAN, Appellant, v. MEMORANDUM* THOMAS H. BILLINGSLEA, JR., Chapter 13 Trustee, Appellee. Argued and Submitted on March 26, 2020 Filed – April 6, 2020 Appeal from the United States Bankruptcy Court for the Southern District of California * This dispo..
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FILED
APR 6 2020
NOT FOR PUBLICATION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. SC-19-1060-LGS
JORDANA BAUMAN, Bk. No. 18-02875-CL13
Debtor.
JORDANA BAUMAN,
Appellant,
v. MEMORANDUM*
THOMAS H. BILLINGSLEA, JR., Chapter
13 Trustee,
Appellee.
Argued and Submitted on March 26, 2020
Filed – April 6, 2020
Appeal from the United States Bankruptcy Court
for the Southern District of California
*
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 Christopher B. Latham, Bankruptcy Judge, Presiding
Appearances: Appellant Jordana Bauman argued pro se; Kathleen A.
Cashman-Kramer on brief for Appellee.
Before: LAFFERTY, GAN, and SPRAKER, Bankruptcy Judges.
INTRODUCTION
Appellant Jordana Bauman (“Debtor”) appeals the bankruptcy
court’s order denying her motion to extend the time to appeal under Rule
8002(d)(1).1 In deciding the motion, the bankruptcy court correctly applied
the legal standard for excusable neglect articulated in Pioneer Investment
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). We
therefore find no abuse of discretion and AFFIRM.
FACTUAL BACKGROUND
Debtor filed a chapter 13 petition on May 11, 2018. The case was her
sixth bankruptcy filing and her fourth chapter 13 case. 2 In September 2018
the chapter 13 trustee, Appellee Thomas Billingslea (“Trustee”) filed an
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
All three previous chapter 13 cases were dismissed pre-confirmation, and her
2016 chapter 13 case was dismissed with a 180-day bar to refiling based on the
bankruptcy court's finding that she had filed the case in bad faith.
2
objection to confirmation and a motion to dismiss Debtor’s case with a one-
year bar to refiling. The bases for Trustee’s objection and motion were
Debtor’s failure to make plan payments and numerous deficiencies in
Debtor’s proposed chapter 13 plan. Further, Trustee alleged that Debtor’s
plan was not proposed in good faith, citing her prior bankruptcies, her
failure to make ongoing mortgage payments since at least 2011, and the
fact that she and her brother had filed at least fifteen appeals of case
dismissals or orders denying reconsideration of those dismissals.
The certificate of service for the notice of hearing on Trustee’s motion
to dismiss shows that Debtor was served by first class mail at her home
address3 and electronically to her email address, and she does not contend
that she failed to receive the notice. Nevertheless, she did not file a
response or appear at the scheduled hearing on Trustee’s motion. On
November 8, 2018, the court granted the motion to dismiss, imposing a
one-year bar. The certificates of service for the notice of dismissal and the
dismissal order show that both documents were served on Debtor by the
Bankruptcy Noticing Center on November 10, 2018 at the address reflected
on the bankruptcy court’s docket.
On December 12, 2018, thirty-four days after entry of the dismissal
3
The address on the certificate of service for Trustee’s notice varies slightly from
the address on the bankruptcy court docket: the word “Front” appears after the street
address and before the PMB number. That word does not appear in the address on the
court docket.
3
order, Debtor filed a “Motion to Reopen or Extend Time to Appeal”
(“Motion to Extend”). Debtor alleged in the Motion to Extend that she had
not received the notice of dismissal and that the bankruptcy court should
extend the time to appeal based on excusable neglect.4
Trustee opposed the Motion to Extend, arguing that Debtor had
failed to show excusable neglect. The bankruptcy court issued a ruling
without a hearing and denied the Motion to Extend, finding that the Pioneer
factors weighed against granting the relief sought by Debtor.
Debtor timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(1) and (b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.
ISSUE
Whether the bankruptcy court abused its discretion in denying
Debtor’s Motion to Extend.
STANDARD OF REVIEW
The bankruptcy court’s denial of a motion to extend the time to file a
notice of appeal is reviewed for abuse of discretion. Pincay v. Andrews, 389
F.3d 853, 858–59 (9th Cir. 2004) (en banc). Under the abuse of discretion
4
On the same day, Debtor filed a notice of appeal of the dismissal order (BAP No.
SC-18-1334). The Panel dismissed the appeal as untimely, but without prejudice to
reinstatement following appellate review of this appeal.
4
standard, we first “determine de novo whether the [bankruptcy] court
identified the correct legal rule to apply to the relief requested.” United
States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If the
bankruptcy court identified the correct legal rule, we then determine under
the clearly erroneous standard whether its factual findings and its
application of the facts to the relevant law were: “(1) illogical,
(2) implausible, or (3) without support in inferences that may be drawn
from the facts in the record.”
Id. (internal quotation marks omitted).
DISCUSSION
Upon entry of a judgment, order, or decree by a bankruptcy court, a
party has fourteen days to file a notice of appeal. Rule 8002(a). If unable to
meet that deadline, a party may move for an extension of time to file the
notice of appeal. Rule 8002(d). While the deadline for filing a request to
extend the appeal time is also fourteen days from the entry of the order to
be appealed, the Rules contain an additional twenty-one day window (a
total of thirty-five days) during which the bankruptcy court may grant a
late-filed motion to extend time, but only if the moving party demonstrates
that its neglect in not filing a timely motion was “excusable.” Rule
8002(d)(1)(B). The party requesting an extension of time bears the burden
of proving the existence of excusable neglect. Key Bar Invs., Inc. v. Cahn (In
re Cahn), 188 B.R. 627, 631 (9th Cir. BAP 1995).
In determining whether the moving party has shown excusable
5
neglect, the court considers: (1) the danger of prejudice to the other party;
(2) the length of the delay caused by the neglect, and its potential impact on
judicial proceedings; (3) the reason for the delay, including whether it was
within the movant’s reasonable control; and (4) whether the movant acted
in good faith. Pioneer Inv. Servs. Co., 507 U.S. at 395. In conducting this
analysis, the court is to consider all relevant circumstances surrounding the
neglect; no “single circumstance in isolation compels a particular result
regardless of the other factors.”
Pincay, 389 F.3d at 856-57 (quoting Briones
v. Riviera Hotel & Casino,
116 F.3d 379, 382 n.2 (9th Cir. 1997)).
The sole argument presented by Debtor in the bankruptcy court was
that she failed timely to appeal the dismissal order because she had not
received the notice of dismissal. The bankruptcy court analyzed the Motion
to Extend under the Pioneer standard for excusable neglect and concluded
that the factors weighed against granting the motion. The bankruptcy court
found that there was no danger of prejudice to Trustee from the delay, so
this factor weighed in Debtor’s favor. Similarly, the bankruptcy court
found that although the delay was “significant” because the motion was
filed on the cusp of the maximum time allowed under Rule 8002(d)(1), no
case administration or judicial proceedings would be affected, particularly
in light of the facts that the case had been dismissed with a one-year bar,
6
and the automatic stay had not been in effect for some time.5
The bankruptcy court concluded, however, that the “reason for the
delay” and “good faith” factors weighed sharply against granting Debtor’s
motion. First, the court noted there was no dispute that the notice of
dismissal was properly addressed and mailed to Debtor’s address of record
in the bankruptcy case, and that Debtor did not dispute having received
notice of Trustee’s motion to dismiss. Accordingly, the mailbox rule
applied. Under the mailbox rule, “proof of mailing creates a rebuttable
presumption of . . . receipt.” Berry v. U.S. Trustee (In re Sustaita), 438 B.R.
198, 209 (9th Cir. BAP 2010), aff’d, 460 F. App’x 627 (9th Cir. 2011) (citations
omitted). The presumption can be overcome only by clear and convincing
evidence that the mailing was not accomplished. Moody v. Bucknum (In re
Bucknum),
951 F.2d 204, 207 (9th Cir. 1991). Bare denial of receipt, even in
an affidavit, is not sufficient to overcome the presumption. CUNA Mutual
Ins. Grp. v. Williams (In re Williams),
185 B.R. 598, 600 (9th Cir. BAP 1995). In
light of these authorities, the court found that Debtor’s denial of receipt
was insufficient to overcome the presumption of delivery in the absence of
any other evidence, such as the notice being returned as undelivered.
Accordingly, the court found that Debtor received the notice. Moreover, the
5
In July 2018 the bankruptcy court denied Debtor’s motion to extend the
automatic stay, which had expired 30 days after the petition date pursuant to
§ 362(c)(3)(A).
7
court noted that parties have an affirmative duty to monitor the dockets to
inform themselves of the entry of any orders they wish to appeal. Delaney v.
Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994). In light of the fact
that Debtor did not dispute having received notice of Trustee’s motion to
dismiss and the hearing thereon, the court found that her failure to monitor
the docket was grossly negligent.
Finally, the bankruptcy court found that Debtor did not bring the
motion in good faith, given that she is familiar with bankruptcy litigation
and had filed numerous appeals. The court noted that Debtor had
previously complained of issues with receiving mail and found that Debtor
had either refused the court’s admonishments to ensure that her address of
record was current and accurate, or she intentionally misrepresented lack
of receipt. The court thus concluded that Debtor’s Motion to Extend was an
abuse of the bankruptcy process and yet another attempt to hinder and
delay her creditors.
Based on the foregoing analysis, the bankruptcy court found that
Debtor’s failure timely to appeal the dismissal order was not the result of
excusable neglect and denied the motion.
Debtor’s arguments in her appellate brief address several matters,
but nothing relevant to the order on appeal. She argues that the bankruptcy
court should not have dismissed her case, although it is not clear which
one: she references the dismissal of her 2011 case and a District Court order
8
vacating and remanding that order on grounds of violation of due process.
She contends that the bankruptcy court did not follow the mandate of the
District Court on remand. She also accuses Judge Latham of being biased
and of using “tricks” to deny her due process in her 2017 bankruptcy case.
In fact, much of her brief is devoted to purported errors in the dismissal of
the 2017 case and the subsequent motion to vacate, which are the subjects
of separate appeals. She further argues that Judge Latham should have
recused himself in this (2018) case, but the record does not reflect that she
(or anyone else) ever moved for recusal.
Crucially, Debtor makes no attempt to explain to this Panel how the
bankruptcy court erred in its excusable neglect analysis or in denying her
Motion to Extend. Although we construe pro se appellate briefs liberally,
see Cruz v. Stein Strauss Trust #1361 (In re Cruz), 516 B.R. 594, 604 (9th Cir.
BAP 2014), “we cannot manufacture arguments for an appellant and
therefore we will not consider any claims that were not actually argued in
appellant’s opening brief.” Indep. Towers of Wash. v. Wash.,
350 F.3d 925, 929
(9th Cir. 2003) (citations and internal quotations omitted). And arguments
not specifically and distinctly raised in an appellant’s opening brief are
deemed waived. Price v. Lehtinen (In re Lehtinen),
332 B.R. 404, 410 (9th Cir.
BAP 2005), aff’d,
564 F.3d 1052 (9th Cir. 2009).
At oral argument in this appeal, Debtor noted–as she did in the
bankruptcy court– that in the past she had experienced problems receiving
9
mail at her home address. But, as noted above, the notice of dismissal and
the dismissal order were served on Debtor at the address on the
bankruptcy court docket. Debtor does not contend that that address is
incorrect, but if it is, it is Debtor’s duty to correct it. Rule 4002(a)(5); See also
Davis v. Case (In re Davis), 275 B.R. 864, 867 (8th Cir. BAP 2002), aff’d, 55 F.
App’x 789 (8th Cir. 2003) (“The debtor who fails to keep the court apprised
of his proper mailing address has only himself to blame.”). Moreover, as
pointed out by the bankruptcy court, any known issues with timely
receiving mail resulted in a heightened duty on the part of Debtor to
monitor the bankruptcy court docket for any relevant filings.
In sum, nothing in the record suggests that the bankruptcy court
abused its discretion in denying Debtor’s Motion to Extend. The court
applied the correct legal standard, and the record supports the bankruptcy
court’s factual findings; Debtor did not meet her burden to show that those
findings were clearly erroneous. See Wells Fargo Bank, N.A. v. Loop 76, LLC
(In re Loop 76, LLC), 465 B.R. 525, 545 (9th Cir. BAP 2012), aff’d, 578 F. App’x
644 (9th Cir. 2014) (to show clear error, appellant has to show how the
findings were not supported by the record).
CONCLUSION
For the reasons set forth above, we AFFIRM the bankruptcy court’s
order denying Debtor’s Motion to Extend.
10
