In re: Brian W. Davies

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 9, 2011
• Docket: CC-11-1353-PaMkH
• Status: Unpublished

Opinion

FILED DEC 09 2011 SUSAN M SPRAUL, CLERK 1 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-11-1353-PaMkH ) 6 BRIAN W. DAVIES, ) Bk. No. 10-37900-SC ) 7 Debtor. ) ___________________________________) 8 ) BRIAN W. DAVIES, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) PATRICIA ZIMMERMAN, Chapter 7 ) 12 Trustee, ) ) 13 Appellee. ) ) 14 ___________________________________) 15 Argued and Submitted on November 16, 2011 at Pasadena, California 16 Filed - December 9, 2011 17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Scott C. Clarkson, Bankruptcy Judge, Presiding 20 Appearances: Appellant Brian W. Davies argued pro se. Trustee 21 Patricia Zimmerman filed a brief but did not appear at oral argument. 22 23 Before: PAPPAS, MARKELL and HOLLOWELL, Bankruptcy Judges. 24 25 26 1 This disposition is not appropriate for publication. 27 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 28 Cir. BAP Rule 8013-1.

-1- 1 Chapter 72 debtor Brian W. Davies (“Davies”) appeals the 2 bankruptcy court’s “Order Denying in Part and Granting in Part 3 Trustee’s Motion to Set Aside/Reconsider Order Granting Debtor’s 4 Motion to Compel Abandonment of Property by the Trustee and to 5 Withdraw the Trustee’s No Asset Report.” We AFFIRM. 6 FACTS 7 Unless noted otherwise, the facts in this appeal are 8 undisputed. 9 Davies divorced his wife, Carolyn Kao, in 2007. In 10 connection with the divorce, in October 2007, Davies was granted a 11 money judgment against Kao for $2,693,680.97 (the “Judgment”). 12 Davies alleges that Kao, a Canadian citizen, left the area and he 13 has been unable to locate her. 14 After several years of unsuccessful searching, Davies 15 assigned his interest in the Judgment to Scott Kohn, a collections 16 agent, on June 29, 2009. The assignment provided that any amounts 17 collected by Kohn on the Judgment would be split evenly between 18 Davies and Kohn. The agreement also provided that “if judgment 19 has not been satisfied after 2 years, judgment will be reassigned 20 back to [Davies].” 21 Davies filed a petition under chapter 7 on August 31, 2010. 22 Patricia Zimmerman was appointed trustee (“Trustee”). Although 23 his original schedules made no reference to the Judgment, on 24 September 27, 2010, Davies amended Schedule B to include the 25 following information about the Judgment: 26 2 Unless otherwise indicated, all chapter, section and rule 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, or to 28 the Federal Rules of Civil Procedure, Civil Rules 1–86.

-2- 1 Judgment against Carolyn Kao entered on 10/29/2007 as part of the divorce Debtor was awarded $2.7 million. 2 Debtor signed over the award money to a collection agency to collect the money. If collection agency 3 collects the debt, Debtor gets half and collection agency gets half of what is collected. Respondent in 4 case has disappeared and a skip trace has been placed. Likelihood of collection is unknown. 5 6 Davies listed the value of the Judgment in the schedule as 7 “$0.00.” 8 Davies was examined by Trustee at the § 341(a) meeting on 9 October 15, 2010, where Davies provided Trustee a copy of the 10 Judgment and Kohn’s address. Davies and Trustee agree that, at 11 the creditor’s meeting, Davies advised Trustee that he tried to 12 collect on the Judgment but that he had “given up.” 13 Trustee thereafter contacted Kohn and was told that there was 14 little hope of recovering on the Judgment. Trustee filed a “No 15 Asset” report with the bankruptcy court on November 26, 2010.3 16 Davies filed a motion to compel abandonment of property on 17 March 14, 2011. The only reference in the moving papers to the 18 property at issue was the following: 19 The market value of Debtor’s real property [in Indio] is approximately $230,000 and the disputed debt against 20 said real property is $650,000. The real property, taking into account the mortgages, liens and the costs 21 of sale, has no equity for the benefit of the estate or the creditors. By this motion, the Debtor seeks the 22 Court for an Order to compel abandonment of property by the Trustee on the grounds that the property is 23 burdensome and is of inconsequential value to the estate. 24 25 Trustee did not oppose Davies’ abandonment motion, and the 26 bankruptcy court entered an order granting the motion on April 7, 27 3 This conversation with Trustee is the only documented contact with Kohn in the bankruptcy case. Kohn has not appeared 28 or taken any part in the proceedings or in this appeal.

-3- 1 2011 (the “Abandonment Order”). 2 A month after entry of the Abandonment Order, on or about 3 May 7, Trustee received an offer of $5,000 to buy the Judgment. 4 The record does not reflect who submitted the offer. Trustee, on 5 June 20, 2011, filed a Motion to Set Aside/Reconsider Order 6 Granting Debtor’s Motion to Compel Abandonment of Property by the 7 Trustee and to Withdraw the Trustee’s No Asset Report (the “Set 8 Aside Motion”). In the motion, Trustee asked the bankruptcy court 9 to either set aside the Abandonment Order, or to amend it to only 10 include real property. 11 Davies filed an opposition to the Set Aside Motion on 12 June 22, 2010. Davies principally argued that an Abandonment 13 Order under § 554(b) is irrevocable. Davies’ opposition contained 14 no reference to Kohn. 15 On June 29, 2011, finding that no hearing was necessary, the 16 bankruptcy court entered an Order denying in part and granting in 17 part the Set Aside Motion (the “Set Aside/Reconsider Order”). The 18 court granted that portion of the Set Aside Motion requesting 19 leave by Trustee to withdraw the No Asset report, but denied the 20 request to set aside or modify the Abandonment Order because: 21 The Order entered on April 7, 2011 as docket number 75, granting Debtor’s Motion to Compel Abandonment by 22 Trustee (the “Abandonment Order”), only concerned and affected the real property identified as [the Indio 23 property]. No other property, real or personal, was abandoned by the Abandonment Order. The “Ko Judgment” 24 identified in the Motion remains property of the bankruptcy estate. Therefore, the [Set Aside] Motion 25 with respect to abandonment is denied as moot. 26 Davies filed a timely appeal of the Set Aside/Reconsider 27 Order on July 8, 2011, commencing the instant appeal. 28 On July 3, 2011, Trustee filed a Notice of Assets and

-4- 1 Possible Dividend in the bankruptcy case. On July 13, 2011, 2 Trustee filed a motion for approval of the sale of the Judgment. 3 In this motion, Trustee proposed to sell the bankruptcy estate’s 4 interest in the Judgment to Asset Acquisition Partners, LLC of 5 Orlando Florida for $5,000, free and clear of liens, but subject 6 to the right of others to submit overbids. A hearing on the sale 7 motion was set for August 10, 2011. 8 Davies did not oppose the sale motion. However, on July 20, 9 2011, he filed an emergency motion for stay of the Set 10 Aside/Reconsider Order pending appeal in the bankruptcy court. He 11 repeated his argument that the Judgment had been effectively 12 abandoned in the Abandonment Order under § 554(b), and that such 13 abandonment was irreversible. He urged that he would likely 14 succeed on the merits in this appeal, that he would suffer 15 irreparable harm if Trustee’s proposed sale was not stayed, and 16 that a stay would not harm others. Again, Davies made no mention 17 of Kohn in his motion for stay pending appeal. Trustee opposed 18 the motion. 19 The bankruptcy court conducted a hearing on Davies’ stay 20 motion on July 25, 2011. Davies and Trustee appeared.4 On 21 July 25, 2011, the bankruptcy court entered a Memorandum Opinion 22 indicating its intent to deny the stay motion. The court observed 23 that the only legal question presented by Davies in the appeal was 24 whether the Abandonment Order effectively covered all estate 25 property, including the Judgment. The court repeated its earlier 26 conclusion that the Abandonment Order pertained only to real 27 property, not the Judgment. While it agreed, generally, with 28 4 There is no transcript of this hearing in the record.

-5- 1 Davies that an abandonment under § 554(b) is irrevocable, the 2 bankruptcy court concluded, again, that there had never been an 3 abandonment of the Judgment so it never left the bankruptcy 4 estate. Applying the four-part test for determining whether to 5 grant a stay pending appeal expressed in Leiva-Perez v. Holder, 6 640 F.3d 962, 964 (9th Cir. 2011), the court concluded: 7 The Debtor has not shown any likelihood of irreparable injury in the absence of stay, nor has it been shown 8 that the balance of hardships tips sharply in favor of Debtor. Because Debtor has not made a strong showing of 9 likelihood of success on appeal, and more importantly, because Debtor has failed to demonstrate any likelihood 10 of irreparable injury, his motion for stay pending appeal is denied. 11 12 The bankruptcy court entered an order denying the motion for a 13 stay pending appeal on July 25, 2011.5 14 The hearing on Trustee’s motion to sell the Judgment took 15 place on August 10, 2011. Only the Trustee appeared, and there 16 were no other bidders. The bankruptcy court granted the motion 17 and entered an order approving Trustee’s proposal to sell the 18 Judgment as proposed in his motion on August 12, 2011. Davies did 19 not appeal that order, and it is not clear in the record or the 20 bankruptcy docket whether the sale has been completed. 21 JURISDICTION 22 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 23 and 157(b)(2)(A) and (O). We have jurisdiction under 28 U.S.C. 24 § 158. 25 5 Davies filed an emergency motion for stay pending appeal with the Panel on August 2, 2011, in which he made the same 26 arguments presented in the bankruptcy court. Notably, again, there was no mention in this motion of Kohn. The Panel denied the 27 motion on August 3, 2011, concluding that Davies was not likely to succeed on the merits. Davies v. Zimmerman, BAP no. CC-11-1353 28 (9th Cir. BAP, August 3, 2011).

-6- 1 ISSUE 2 Whether the bankruptcy court abused its discretion in 3 deciding that the Judgment had not been abandoned. 4 STANDARD OF REVIEW 5 The bankruptcy court's decision to authorize or deny 6 abandonment is reviewed for an abuse of discretion. Viet Vu v. 7 Kendall (In re Viet Vu), 245 B.R. 644, 647 (9th Cir. BAP 2000). A 8 bankruptcy court abuses its discretion if it bases a decision on 9 an incorrect legal rule, or if its application of the law was 10 illogical, implausible, or without support in inferences that may 11 be drawn from the facts in the record. United States v. Hinkson, 12 585 F.3d 1247, 1261–63 (9th Cir. 2009) (en banc); Ellsworth v. 13 Lifescape Med. Assocs. (In re Ellsworth), 455 B.R. 904, 914 (9th 14 Cir. BAP 2011). 15 DISCUSSION 16 I. 17 Before reaching the merits, we examine an issue raised by 18 Davies for the first time late in this appeal: that Davies had 19 sold the Judgment to Kohn pre-petition and, thus, “the 20 [bankruptcy] estate did not contain the Debtor’s sold judgment, 21 and both the Court and Trustee erred in pursuing the sale of 22 property not contained in the estate.” Davies’ Reply Br. at 1. 23 While the practice is disfavored, we have discretion to 24 review an issue raised for the first time on appeal, if "(1) there 25 are ‘exceptional circumstances’ why the issue was not raised in 26 the trial court, (2) the new issue arises while the appeal is 27 pending because of a change in the law, or (3) the issue presented 28 is purely one of law and the opposing party will suffer no

-7- 1 prejudice as a result of the failure to raise the issue in the 2 trial court.” Rhoades v. Henry, 598 F.3d 495, 501 (9th Cir. 3 2010). None of these conditions apply. However, even if we were 4 to examine this tardy argument, we conclude it lacks merit. 5 At the very beginning of the case, Trustee contacted Kohn and 6 was informed that there was little likelihood of collecting on the 7 Judgment. Thus, Kohn was aware that Davies had filed a bankruptcy 8 case, and that Trustee had concluded that the bankruptcy estate 9 held some interest in the Judgment. Despite being the putative 10 owner of the Judgment, Kohn did not participate in the case. One 11 reasonable inference from these events would be that Kohn 12 considered whatever interest he might have in the Judgment to be 13 worthless, and he therefore chose not to assert that interest in 14 the bankruptcy case. 15 Second, and perhaps more important, whatever interests Kohn 16 had in the Judgment had been extinguished by the time that the 17 bankruptcy court entered its Set Aside/Reconsider Order, the order 18 on appeal. As noted above, Davies’ assignment to Kohn contained a 19 reversion clause: "if [the] judgment has not been satisfied after 20 2 years, judgment will be reassigned back to [Davies].” It is 21 apparently undisputed that Kohn had made no collections on the 22 Judgment, and thus, by the terms of the assignment, whatever 23 interest in the Judgment Kohn had been given under the assignment 24 reverted back to Davies, and to his bankruptcy estate, on June 29, 25 2011. 26 That this date is coincidentally the same as the day the 27 bankruptcy court entered the Set Aside/Reconsider Order at issue 28 in this appeal is interesting, but not necessarily relevant. Even

-8- 1 before that, Davies had, at a minimum, a contingent, reversionary 2 interest in the Judgment and, under § 541(a) and Ninth Circuit 3 case law, Davies’ contingent reversionary interest became property 4 of the bankruptcy estate on the petition date. Nicholas v. 5 Birdsell, 491 F.3d 987, 990 (9th Cir. 2007) ("By including all 6 legal interests without exception, Congress indicated its 7 intention to include all legally recognizable interests although 8 they may be contingent and not subject to possession until some 9 future time."). 10 We therefore conclude there is no merit in Davies’ late 11 argument that Trustee “erred in pursuing the sale of property not 12 contained in the estate.” Davies’ interest in the Judgment was 13 always part of the estate, and Kohn’s interest in the Judgment was 14 extinguished under the terms of the assignment by the time the 15 bankruptcy court entered the Set Aside/Reconsider Order.6 16 II. 17 Turning to the merits, in the bankruptcy court, and on 18 appeal, Davies has steadfastly contended that the bankruptcy 19 court’s Abandonment Order effectively abandoned the Judgment. 20 From that premise, Davies argues that whatever is abandoned cannot 21 be returned to the estate. There is, of course, support for the 22 irrevocability of an abandonment: 23 A number of cases recognize a general rule that abandonment is irrevocable, even if it is subsequently 24 discovered that the abandoned property had greater value than previously believed. In re Lintz West Side Lumber, 25 Inc., 655 F.2d 786, 789 (7th Cir. 1981) [other citations 26 6 Davies has filed a Request for Judicial Notice of five documents relating to Kohn’s actions and services. These 27 documents were never presented to the bankruptcy court. See Kirschner v. Uniden Corp. of Am., 842 F.2d 1074, 1077-78 (9th Cir. 28 1988). The request is therefore DENIED.

-9- 1 omitted]. 2 DeVore v. Marshack (In re DeVore), 223 B.R. 193, 197 (9th Cir. BAP 3 1998). The bankruptcy court agreed with Davies on this point, 4 even citing In re Lintz W. Side Lumber, Inc. But the court 5 repeatedly, and correctly, reminded Davies that this case did not 6 present any question whether the Abandonment Order should be 7 “revoked.” Instead, the bankruptcy court construed its order, and 8 concluded in the Set Aside/Reconsider Order that the Abandonment 9 Order: 10 only concerned and affected the real property identified as [the Indio, California property]. No other property, 11 real or personal, was abandoned by the Abandonment Order. The [Judgment] identified in the Motion remains 12 property of the bankruptcy estate. 13 Set Aside Order at 1. Because it concluded that the Abandonment 14 Order only concerned Davies’ real property in Indio, California,7 15 it held the Judgment had never been abandoned. As a result, 16 Davies’ arguments are misplaced. 17 In reaching its conclusion, the bankruptcy court interpreted 18 its own order.8 The Ninth Circuit instructs that we should "give 19 deference to [a] court's interpretation of its own order, based on 20 the court's extensive oversight of the decree from the 21 7 Concurrently with this appeal, the Panel examined a dispute between Davies and Deutsche Bank regarding this real 22 property. See Davies v. Deutsche Bank Nat’l Trust Co., BAP no. CC-11-1221 (9th Cir. BAP 2011). 23 8 The full text of the Abandonment Order reads as follows: 24 “On March 14, 2011, Brian William Davies (the “Debtor”) filed 25 his Motion to Compel Abandonment of Property by Trustee in this case. 26 “The Debtor having filed a declaration on April 1, 2011 stating that he has not received any opposition nor any objection 27 to his Motion, and for good cause shown, “IT IS HEREBY ORDERED that the Debtor’s Motion to Compel 28 Abandonment of Property by Trustee is GRANTED.”

-10- 1 commencement of the litigation to the current appeal." Hallett v. 2 Morgan, 296 F.3d 732, 739-40 (9th Cir. 2002); accord Zinchiak v. 3 CIT Small Bus. Lending Corp. (In re Zinchiak), 406 F.3d 214, 224 4 (3rd Cir. 2005) (noting that the bankruptcy court is well suited 5 to "provide the best interpretation of its own order."); 6 Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir. 7 1989) ("Few persons are in a better position to understand the 8 meaning of a [court order] than the judge who oversaw and approved 9 it."); Brown v. Neeb, 644 F.2d 551, 558 n.12 (6th Cir. 1981). 10 Our deference to the construction by the bankruptcy court is 11 not blind and, in this case, there is considerable support in the 12 record for the bankruptcy court’s conclusion that the Abandonment 13 Order did not cover the Judgment. For example, Davies’ motion to 14 compel abandonment described only the real property. Immediately 15 following that description, the motion represents that, “By this 16 motion, the Debtor seeks the Court for an Order to compel 17 abandonment of property by the Trustee on the grounds that the 18 property is burdensome and is of inconsequential value to the 19 estate.” And though § 554(b) authorizing abandonment upon request 20 of a party targets property which is either burdensome or of 21 inconsequential value, the only property of Davies that was both 22 burdensome and of inconsequential value (as referenced in the 23 motion) was the over-encumbered real property. The Judgment, 24 arguably, had inconsequential value at the time the abandonment 25 motion was acted on by the bankruptcy court, but it is difficult 26 to see how it could be described as burdensome. 27 Davies’ argument supporting the abandonment motion notes: 28 Not all property of the bankruptcy estate will be of

-11- 1 value to creditors. Often, the Debtor’s property is so heavily encumbered, as in this case, that there is no 2 equity and the expenses of maintaining the property are greater than can be realized from the sale or other 3 disposition of the property. 4 In this passage, Davies is arguing to the bankruptcy court that 5 the property to be abandoned has no equity and its maintenance is 6 costing the bankruptcy estate more than it is worth. Fairly, that 7 argument can only refer to the real property. Even if the 8 Judgment had no equity, it also was maintenance-free. 9 Finally, as shown above, neither the motion for abandonment 10 nor the Abandonment Order contains any reference to the Judgment. 11 The bankruptcy court, in construing its own order, is 12 entitled to deference. The court based its construction on its 13 parallel review of Davies’ abandonment motion, that unquestionably 14 referred to abandonment of property that was both burdensome on 15 the estate and of inconsequential value. That description can 16 only apply to the real property in this case. Neither the motion 17 nor the order entered by the bankruptcy court specifically 18 references the Judgment. 19 All things considered, the bankruptcy court did not abuse its 20 discretion when it decided that the Abandonment Order did not 21 cover the Judgment, and in denying Davies’ Set Aside Motion for 22 that reason. 23 CONCLUSION 24 We AFFIRM the order of the bankruptcy court. 25 26 27 28

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