Bruce Singer v. Henry Bushkin

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2018
• Docket: 16-55644
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re HENRY ISAAC BUSHKIN, No. 16-55644

Debtor. D.C. No. 2:15-cv-06489-CJC ____________________________________

BRUCE SINGER and SINGER MEMORANDUM* FINANCIAL CORPORATION,

Appellants,

v.

HENRY ISAAC BUSHKIN,

Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted February 9, 2018** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,*** District Judge.

Henry Bushkin and Bruce Singer agreed to create a book about the comedian

Johnny Carson. Singer Financial Corporation (“SFC”) fronted the money, and

Bushkin agreed to write. The book ultimately did well, but before Bushkin could

realize significant profits, he declared bankruptcy. Under the terms of the

collaboration, Bushkin owed money to SFC, but in his bankruptcy filings he listed

Singer—not SFC—as a creditor. Notice was mailed to Singer of the deadline to

object to any discharge of Bushkin’s debt.

The deadline came and went without objection, and the bankruptcy court

discharged Bushkin’s debts. Eventually, both Singer and SFC disputed the discharge,

claiming that they never received notice of the bankruptcy or their chance to object.

The bankruptcy court rejected their argument, applying the rule that properly

addressed letters are presumed received. See, e.g., Dandino, Inc. v. U.S. Dep’t of

Transp., 729 F.3d 917, 921 (9th Cir. 2013).

On appeal, the primary question is the burden of proof. We answered that

question in Moody v. Bucknum (In re Bucknum), 951 F.2d 204, 206–07 (9th Cir.

1991) (per curiam), in which we held that when notice is mailed to a creditor, it is

*** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

2 presumed received unless the bankruptcy court finds otherwise by clear and

convincing evidence, a finding we review for clear error. Singer’s evidence that he

did not receive the notice may be plausible, but it is not akin to what Bucknum

suggested would be sufficient, and we cannot say that the bankruptcy court clearly

erred in finding it less than clear and convincing. We thus affirm the bankruptcy

court’s decision to reject Singer’s untimely objection. We affirm as to SFC for the

same reason: although the notice was not mailed with SFC’s name on the envelope,

notice was mailed to Singer, and Singer was the registered agent for SFC. See, e.g.,

Frankfort Marine, Acc. & Plate Glass Ins. Co. v. John B. Stevens & Co., 220 F. 77,

79 (9th Cir. 1915).

Singer and SFC also object to the bankruptcy court’s dismissal of their

request for a declaratory judgment that they owned rights to the book, rights that

were never part of the bankruptcy estate. The bankruptcy court correctly denied that

judgment because it would not have done any good. See Bilbrey ex rel. Bilbrey v.

Brown, 738 F.2d 1462, 1470 (9th Cir. 1984). As the district court explained:

[T]he bankruptcy court could have decided what rights, exactly, belonged to Bushkin’s estate. But Singer and SFC’s claims against those rights were discharged. And even if the bankruptcy court had figured what proportion of the rights—if any—belonged to Singer and SFC, and not to the estate, an action to collect on those rights would not have been a “matter[] concerning the administration of the estate.” 28 U.S.C. § 157(b)(2)(A).

3 Because we rule against Singer and SFC on their other claims, their claim for

an accounting of the book’s profits, a derivative remedy, was also inappropriate. See

Faivre v. Daley, 29 P. 256, 258–59 (Cal. 1892); Duggal v. G.E. Capital Commc’ns

Servs., Inc., 96 Cal. Rptr. 2d 383, 393 (Ct. App. 2000).

AFFIRMED.