Clifford Brace, Jr. v. Steven Speier

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: CLIFFORD ALLEN BRACE, Jr., No. 19-56463

Debtor, D.C. No. ______________________________ 5:19-cv-00290-JGB

CLIFFORD ALLEN BRACE, Jr., MEMORANDUM* Appellant,

v.

STEVEN M. SPEIER, Chapter 7 Trustee,

Appellee.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted November 18, 2020**

Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.

* 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). Chapter 7 debtor Clifford Brace appeals the district court’s order affirming

the bankruptcy court’s emergency order requiring turnover of real property to the

Chapter 7 Trustee Steven Speier. The facts are known to the parties, so we repeat

them only as necessary to explain our decision.

I

We need not reach the merits of this case because Brace forfeited his right to

appeal the bankruptcy court’s order due to his absence at the motion hearing.

“[A]ttendance and objection are not prudential standing requirements in

bankruptcy cases, but rather relate to whether a party has waived or forfeited its

right to appeal a given order of the bankruptcy court.” In re Wrightwood Guest

Ranch, LLC, 896 F.3d 1109, 1113 (9th Cir. 2018).

II

The district court also correctly affirmed on the merits.

A

Undisputed facts in the record show the bankruptcy court did not abuse its

discretion in finding the notice requirements were met. Trustee’s counsel complied

with the telephonic notice requirement and service requirements. L.B.R. 9075-

1(a)(5)–(6). Trustee called, emailed, and mailed Brace, his counsel, and his former

counsel. The bankruptcy court’s finding was not “illogical, implausible, or without

support . . . in the record.” In re Taylor, 599 F.3d 880, 888 (9th Cir. 2010).

2 B

Brace’s challenge to the bankruptcy court’s subject-matter jurisdiction is

meritless. Brace claims that the property at issue is the property of his late mother’s

probate estate. Probate and the administration of a decedent’s estate are typically

reserved to state probate courts. Marshall v. Marshall, 547 U.S. 293, 311–12

(2006). But the property at issue here was stipulated to be part of the bankruptcy

estate when the court entered the order approving the settlement agreement. The

probate exception “does not bar federal courts from adjudicating matters . . .

otherwise within federal jurisdiction.” Marshall, 546 U.S. at 296. Further, Brace

had “a fair chance to challenge the Bankruptcy Court’s subject-matter jurisdiction”

when it entered the order approving settlement, so he “cannot challenge it now by

resisting enforcement.” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 129 (2009).

C

Brace’s objections to the bankruptcy court’s language contemplating

contempt are unripe. Brace argues that the emergency order is vague as to how he

might purge possible contempt. Even if it were vague, the order stated only that the

court may deem non-compliance to be contempt; it did not find Brace in contempt.

As such, Brace shows no “realistic danger of sustaining a direct injury.” Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000).

AFFIRMED.