Filed: Aug. 27, 2020
Latest Update: Aug. 27, 2020
Summary: FILED NOT FOR PUBLICATION AUG 27 2020 SUSAN M. SPRAUL, CLERK U.S. BKCY.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. HI-20-1042-BSG OLGA VLADMIROVNA BORDENYUK, Debtor. Bk. No. 19-01368-RF OLGA VLADMIROVNA BORDENYUK, Appellant, v. MEMORANDUM* RICHARD A. YANAGI, Chapter 7 Trustee; BENJAMIN GALE, Appellees. Appeal from the United States Bankruptcy Court for the District of Hawaii Robert J. Faris, Chief Bankruptcy Judge, Presiding Befor
Summary: FILED NOT FOR PUBLICATION AUG 27 2020 SUSAN M. SPRAUL, CLERK U.S. BKCY.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. HI-20-1042-BSG OLGA VLADMIROVNA BORDENYUK, Debtor. Bk. No. 19-01368-RF OLGA VLADMIROVNA BORDENYUK, Appellant, v. MEMORANDUM* RICHARD A. YANAGI, Chapter 7 Trustee; BENJAMIN GALE, Appellees. Appeal from the United States Bankruptcy Court for the District of Hawaii Robert J. Faris, Chief Bankruptcy Judge, Presiding Before..
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FILED
NOT FOR PUBLICATION AUG 27 2020
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. HI-20-1042-BSG
OLGA VLADMIROVNA BORDENYUK,
Debtor. Bk. No. 19-01368-RF
OLGA VLADMIROVNA BORDENYUK,
Appellant,
v. MEMORANDUM*
RICHARD A. YANAGI, Chapter 7
Trustee; BENJAMIN GALE,
Appellees.
Appeal from the United States Bankruptcy Court
for the District of Hawaii
Robert J. Faris, Chief Bankruptcy Judge, Presiding
Before: BRAND, SPRAKER, and GAN, Bankruptcy Judges.
INTRODUCTION
Appellant Olga V. Bordenyuk appeals an order approving the chapter
71 trustee's compromise with the personal representative for the probate
*
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.
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
(continued...)
estate of Karen Stirling ("Stirling Probate Estate"). We AFFIRM.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Prepetition events
In January 2018, Stirling and Bordenyuk entered into an agreement
whereby Bordenyuk, for a fee, would provide personal services to Stirling,
to include handling of Stirling's finances and caring for her condominium in
Hawaii. On May 1, 2018, Stirling and Bordenyuk entered into a three-year
lease agreement for the condominium ("Lease"), with Stirling as lessor and
Bordenyuk as lessee.
Stirling passed away three weeks after entering into the Lease with
Bordenyuk. Benjamin Gale is the personal representative for the Stirling
Probate Estate. Bordenyuk filed various claims in the probate case seeking,
among other relief, compensation for services she provided to Stirling and
reimbursement for payment of certain expenses for the condominium. The
total amount Bordenyuk requested has been asserted as both $564,778.52
and $438,722.28. In turn, the personal representative filed claims against
Bordenyuk including declaratory and injunctive relief on her claims and for
an order compelling her to return probate estate property.
Between October and December 2019, the probate court entered a
series of oral rulings and written orders denying all of Bordenyuk's claims,
1
(...continued)
Rules of Bankruptcy Procedure.
2
except her claim for reimbursement of certain funeral expenses. Bordenyuk
appealed the orders to the Hawaii Intermediate Court of Appeals ("Probate
Appeal").
B. Postpetition events
After Bordenyuk filed her chapter 7 bankruptcy case on October 25,
2019, the chapter 7 trustee, Richard A. Yanagi ("Trustee"), filed a motion to
approve a settlement agreement with the personal representative for the
Stirling Probate Estate ("Settlement Motion"). In exchange for Trustee’s
dismissal of the Probate Appeal and his assignment of the bankruptcy
estate's interest in the Lease and any other claims against the Stirling Probate
Estate (except the funeral expense claim), the Stirling Probate Estate would
pay Trustee $20,000. Trustee argued that the compromise was reasonable,
fair and equitable, and satisfied the factors set forth in Woodson v. Fireman's
Fund Insurance Co. (In re Woodson), 839 F.2d 610 (9th Cir. 1988) and Martin v.
Kane (In re A & C Properties),
784 F.2d 1377 (9th Cir. 1986).
Objections to the Settlement Motion were to be filed by January 29,
2020, fourteen days before the hearing set for February 12. The Notice of
Hearing filed and served with the Settlement Motion warned that, pursuant
to Local Rule 9021-1, failure to object could result in the February 12 hearing
being vacated and entry of an order granting relief upon the movant's filing
of a Declaration and Request for Entry of Order. Bordenyuk's attorney of
record, Michael Collins, was served with the Notice of Hearing and
3
Settlement Motion.
No timely objections to the Settlement Motion were filed. On January
31, 2020, Trustee filed a Declaration and Request for Entry of Order
approving the Settlement Motion, attesting that all necessary parties were
served with the moving papers and that no objections had been timely filed.
On February 4, 2020, the bankruptcy court entered an order approving
the Settlement Motion, finding that notice was proper, that no objections
had been filed, and that approving the settlement would be in the best
interests of the estate and its creditors ("Settlement Order"). Later that same
day, Collins, on Bordenyuk's behalf, filed an "Affidavit" drafted by
Bordenyuk. Although the Affidavit appeared to be an untimely objection to
the Settlement Motion, it made no reference to it.
Bordenyuk timely filed both a motion for relief from the Settlement
Order and a notice of appeal. Without a hearing, the bankruptcy court
entered an order denying the motion for relief on March 2, 2020.2
II. JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.
2
Bordenyuk's notice of appeal filed on the same day as her motion for relief from
the Settlement Order became effective once the order denying relief from the Settlement
Order was entered by the bankruptcy court. Rule 8002(b)(2). However, Bordenyuk did
not file an amended notice of appeal to include the order denying relief from the
Settlement Order as required for our review of that order. Rule 8002(b)(3).
4
III. ISSUES
1. Did the bankruptcy court abuse its discretion by vacating the hearing
and entering the Settlement Order in the absence of a timely filed objection?
2. Did the bankruptcy court abuse its discretion in approving the
Settlement Motion?
IV. STANDARDS OF REVIEW
We review the bankruptcy court's application of its local rules for an
abuse of discretion. See United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.
2009). The bankruptcy court's approval of a compromise is also reviewed for
an abuse of discretion. Debbie Reynolds Hotel & Casino, Inc. v. Calstar Corp. (In
re Debbie Reynolds Hotel & Casino, Inc.),
255 F.3d 1061, 1065 (9th Cir. 2001). A
bankruptcy court abuses its discretion if it applies an incorrect legal
standard, or if its factual findings are illogical, implausible, or without
support from evidence in the record. United States v. Hinkson,
585 F.3d 1247,
1262 (9th Cir. 2009) (en banc).
V. DISCUSSION
Bordenyuk argues that the bankruptcy court erred by vacating the
February 12 hearing and entering the Settlement Order on February 4,
without notice to her. We disagree. Local Rule 9021-1(a)3 authorizes the
3
Local Rule 9021-1(a) provides:
(a) Request for Entry of Order Upon Default. In the absence of a timely filed
response to a motion or application, a party may request the entry of an
(continued...)
5
court to grant certain motions and take hearings off calendar in the absence
of a timely filed objection. Collins, Bordenyuk's attorney of record at the
time, was served with the Notice of Hearing and Settlement Motion. The
Notice of Hearing expressly stated that any party opposing approval of the
settlement must file an objection by January 29. Bordenyuk did not timely
object. Rather, her Affidavit, which failed to raise any relevant objection or
even mention the Settlement Motion, was not filed until just after the
Settlement Order was entered on February 4. With no objection filed by the
deadline of January 29, Trustee opted to file a Declaration and Request for
Entry of Order to obtain a default order. In its discretion under the local
rule, the bankruptcy court vacated the February 12 hearing and entered the
Settlement Order.
Bordenyuk also argues that the bankruptcy court erred by approving a
settlement based on misinformation and false statements. Bordenyuk fails to
articulate what "misinformation" or "false statements" the bankruptcy court
relied on for its decision to approve the settlement or how it constitutes
reversible error. In any case, Bordenyuk did not present these arguments to
the bankruptcy court before it entered the Settlement Order, and therefore
we will not consider them on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999) ("As a general rule, we will not consider arguments that are
3
(...continued)
order by filing a request substantially conforming to the local form
(Declaration and Request for Entry of Order).
6
raised for the first time on appeal").
Finally, in an unauthorized "opening" brief filed on March 25, 2020
(Dkt. 12), Bordenyuk argues that the bankruptcy court erred by approving a
settlement that was not "fair and equitable" and further erred by not making
the proper findings under Woodson and A & C Properties to support its
decision. Because Bordenyuk did not raise these arguments in her amended
opening brief filed on March 9, 2020 (Dkt. 8), the only authorized opening
brief filed in this case, she has waived them.4 See Orr v. Plumb, 884 F.3d 923,
932 (9th Cir. 2018) ("The usual rule is that arguments raised for the first time
on appeal or omitted from the opening brief are deemed forfeited.").
VI. CONCLUSION
For the reasons stated above, we AFFIRM.
4
We also did not consider the parties' additional unauthorized briefs filed on
April 22, 2020, April 23, 2020, June 13, 2020, and June 26, 2020.
7
