In re: BRUCE DWAIN COPELAND, DBA Copeland & Company, DBA Copeland Enterprises, DBA West American Construction

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: July 3, 2017
• Docket: CC-16-1343-LTaKu
• Status: Unpublished

Opinion

FILED JUL 03 2017 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT 4 5 In re: ) BAP No. CC-16-1343-LTaKu ) 6 BRUCE DWAIN COPELAND, DBA ) Bk. No. 2:05-bk-11844-ER Copeland & Company, DBA ) 7 Copeland Enterprises, DBA ) West American Construction, ) 8 ) Debtor. ) 9 ______________________________) ) 10 BRUCE DWAIN COPELAND, ) ) 11 Appellant, ) ) 12 v. ) M E M O R A N D U M* ) 13 LEVENE, NEALE, BENDER, YOO & ) BRILL, LLP; DAVID B. ) 14 GOLUBCHIK, Esq.; TODD M. ) ARNOLD, Esq.; TIMOTHY J. YOO, ) 15 Chapter 7 Trustee, ) ) 16 Appellees. ) ______________________________) 17 Submitted Without Argument on June 22, 2017 18 Filed - July 3, 2017 19 Appeal from the United States Bankruptcy Court 20 for the Central District of California 21 Honorable Ernest M. Robles, Bankruptcy Judge, Presiding _________________________ 22 Appearances: Appellant Bruce D. Copeland, pro se on brief; 23 Edith R. Matthai and Marta A. Alcumbrac of Robie & Matthai on brief for Appellees. 24 _________________________ 25 26 * 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. 28 See 9th Cir. BAP Rule 8024-1. 1 Before: LAFFERTY, TAYLOR, and KURTZ, Bankruptcy Judges. 2 3 INTRODUCTION 4 Chapter 71 debtor Bruce Copeland appeals the bankruptcy 5 court’s denial of his motion to reopen his bankruptcy case; he 6 sought reopening to pursue litigation against his former counsel 7 for allegedly forging Copeland’s signature on a declaration in 8 support of a fee application. Copeland’s claims based on the 9 alleged forgery, however, had previously been dismissed by a 10 state court, two federal district courts, and the bankruptcy 11 court. Accordingly, the bankruptcy court denied the motion to 12 reopen as futile. We AFFIRM. 13 FACTS 14 Copeland filed a chapter 11 petition in January 2005; the 15 case was converted to chapter 7. Copeland received a discharge, 16 and the case was closed in February 2011. 17 During the chapter 11, Copeland was represented by Appellees 18 David Golubchik and Todd Arnold and their law firm, Appellee 19 Levene, Neale, Bender, Yoo & Brill, LLP (“LNBYB”).2 On 20 October 27, 2006, shortly after the case was converted, LNBYB 21 filed its first and final application for compensation. Among 22 the documents filed in support of the fee application was the 23 declaration of Bruce Copeland filed November 17, 2006 (the 24 1 Unless specified otherwise, all chapter and section 25 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 26 2 At the time the case was converted, Appellee Timothy Yoo 27 was an attorney with Robinson, Diamant & Wolkowitz (“RDW”) and was appointed as chapter 7 trustee. RDW merged with LNBYB on 28 January 1, 2010.

-2- 1 “11/17/06 Declaration”).3 Copeland did not object to the fee 2 application, and the bankruptcy court approved it on August 17, 3 2007. 4 In October 2011, Copeland filed a cross-complaint against 5 LNBYB, Golubchik, and others in a state court lawsuit that had 6 been filed by a creditor against Copeland and others. That 7 cross-complaint included an allegation that LNBYB had forged 8 Copeland’s signature on the 11/17/06 Declaration and sought 9 relief for that conduct under various theories, including 10 forgery. In May 2012 the state court entered judgment in favor 11 of LNBYB and Golubchik on Copeland’s cross-claims; Copeland did 12 not appeal. 13 Thereafter, in 2012, Copeland sued LNBYB and others in the 14 United States District Court for the District of Oklahoma, again 15 alleging that LNBYB had forged Copeland’s signature on the 16 11/17/06 Declaration. That complaint was dismissed on LNBYB’s 17 motion. Copeland did not appeal. 18 In 2014, Copeland again sued LNBYB and others, this time in 19 the United States District Court for the Central District of 20 California, again alleging that LNBYB had forged his signature on 21 the 11/17/06 Declaration. In October 2014, that complaint was 22 dismissed on LNBYB’s motion, and again, Copeland did not appeal. 23 On July 1, 2015, Copeland filed an adversary proceeding in 24 25 3 By order of December 27, 2016, a BAP motions judge waived 26 the requirement for Appellant to file excerpts of the record. We have therefore exercised our discretion to examine the bankruptcy 27 court’s docket and imaged papers in Case No. 05-11844-ER and related adversary proceedings. Woods & Erickson, LLP v. Leonard 28 (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008).

-3- 1 the bankruptcy court against Appellees and others seeking relief 2 under various state law theories, including forgery, based in 3 part on the same forgery allegations against LNBYB and Golubchik 4 that were asserted in the prior lawsuits.4 The bankruptcy court 5 dismissed Copeland’s claims against Appellees with prejudice on 6 the grounds that Copeland’s claims were barred by the statute of 7 limitations and claim preclusion. The bankruptcy court also 8 denied Copeland’s motion for reconsideration. Again, Copeland 9 did not appeal. 10 On September 15, 2016, Copeland filed a second motion to 11 reopen, again alleging that his former counsel had forged 12 Copeland’s signature to the 11/17/06 Declaration. Copeland did 13 not specify what action he intended to take if the case was 14 reopened. The motion stated in relevant part: 15 Copeland discovered David Golubchik and the Law Office Levine, Neale, Bender, Rankin & Brill forged his 16 signature to an affidavit to obtain payment from the Bankruptcy Court. 17 Copeland believes the forgery committed by his attorney 18 on the affidavit submitted to the court is “good cause” to re-open the bankruptcy proceedings [sic] that was 19 previously closed. 20 (emphasis in original). Appellees filed an opposition. The 21 bankruptcy court found the matter suitable for submission without 22 oral argument and denied the motion to reopen without a hearing 23 4 24 At the time Copeland filed this adversary proceeding, the bankruptcy case was closed, but a motion to reopen was pending. 25 Copeland filed that motion in February 2013 for purposes of 26 avoiding a judgment lien that he contended was procured by fraud, i.e., for reasons that appeared to be unrelated to the forgery 27 allegation. For reasons that are not clear from the record, approximately three years passed before the bankruptcy court 28 denied Copeland’s first motion to reopen in February 2016.

-4- 1 on October 13, 2016. The bankruptcy court found that because it 2 had dismissed with prejudice Copeland’s claims based on his 3 forgery allegations, there was no legal basis upon which the 4 court could grant relief to Copeland. As a result, reopening the 5 case to allow Copeland to pursue those claims would be futile. 6 Copeland timely appealed. 7 JURISDICTION 8 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 9 §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. 10 § 158. 11 ISSUE 12 Did the bankruptcy court abuse its discretion in denying 13 Copeland’s motion to reopen? 14 STANDARD OF REVIEW 15 The denial of a motion to reopen a bankruptcy case is 16 reviewed for abuse of discretion. Staffer v. Predovich 17 (In re Staffer), 306 F.3d 967, 971 (9th Cir. 2002). A bankruptcy 18 court abused its discretion if it applied the wrong legal 19 standard or its findings were illogical, implausible or without 20 support in the record. TrafficSchool.com, Inc. v. Edriver Inc., 21 653 F.3d 820, 832 (9th Cir. 2011). 22 DISCUSSION 23 A. Preliminary Matter: Appellant’s “Objection to the Altering 24 of the Record and the Removal of Exhibits attached to be 25 Reviewed by the Appellate Court” 26 On June 2, 2017, Copeland filed the above-referenced 27 document with the BAP Clerk. Copeland alleges in the objection 28 that an “exhibit of his signature being forged” was attached to

-5- 1 his “original” notice of appeal but thereafter completely removed 2 from the record. The notice of appeal appearing on the BAP 3 docket, however, is identical to the notice of appeal filed in 4 the bankruptcy court; thus, there is no indication that the 5 notice of appeal was altered. In any event, the Panel has access 6 to the referenced document (the 11/17/06 Declaration) from the 7 bankruptcy court docket. 8 Next, Copeland contends that an exhibit attached to his 9 reply brief was altered. That exhibit is a copy of a document 10 filed in the bankruptcy court on September 2, 2015, Plaintiff’s 11 Opposition to Defendant Levene, Arnold[,] Golubchik, and Yoo’s 12 Motion [to] Dismiss (the “Opposition”), which, as originally 13 filed, included 13 supporting exhibits. The Opposition, as 14 attached to Copeland’s reply brief as Exhibit 2, includes only 15 its first two exhibits. Based on the omission of 11 exhibits, 16 Copeland alleges that someone in the BAP Clerk’s office tampered 17 with his filings. 18 There is no evidence of any tampering; rather, it appears 19 that Copeland inadvertently omitted the 11 exhibits. The 20 confusion may stem from the fact that Copeland attached the 21 Opposition (including the first two exhibits) as Exhibit 2 to his 22 reply brief. He then attached a copy of his “Request for 23 Electronic Notice” filed in the bankruptcy court on September 24, 24 2015 as Exhibit 3 to the reply brief. Exhibit 3 to the original 25 Opposition is the case docket for adversary proceeding 26 no. 15-01505. Thus, at first glance it appears that Exhibit 3 27 has been replaced, but the issue seems to be the result of an 28 inadvertent error by the filer.

-6- 1 Copeland also notes that he is unable to retrieve most of 2 the purportedly missing documents from the bankruptcy court 3 dockets. Those documents were filed before the advent of 4 electronic filing in the Bankruptcy Court for the Central 5 District of California. At that time most documents were not 6 scanned, so they are not now available from the bankruptcy court 7 dockets, but those documents would likely be available upon 8 request to the Federal Records Center. 9 However, to the extent necessary for its review, the Panel 10 has accessed the original Opposition and its exhibits directly 11 from the docket in adversary proceeding no. 15-01351. Therefore, 12 Copeland is not prejudiced by any omission in the exhibits filed 13 with the BAP. To the extent Copeland requests relief in his 14 objection, that relief is DENIED. 15 B. Merits 16 A bankruptcy court may reopen a closed bankruptcy case “to 17 administer assets, to accord relief to the debtor, or for other 18 cause.” § 350. Reopening a closed bankruptcy case “is a 19 ministerial act that functions primarily to enable the file to be 20 managed by the [bankruptcy court] clerk as an active matter and 21 that, by itself, lacks independent legal significance and 22 determines nothing with respect to the merits of the case.” Menk 23 v. LaPaglia (In Re Menk), 241 B.R. 896, 913 (9th Cir. BAP 1999). 24 Ordinarily, it is inappropriate to consider the merits of an 25 underlying claim when ruling on a motion to reopen. See id. at 26 915. A “motion to reopen legitimately presents only a narrow 27 range of issues: whether further administration appears to be 28 warranted; whether a trustee should be appointed; and whether the

-7- 1 circumstances of reopening necessitate payment of another filing 2 fee. Extraneous issues should be excluded.” Id. at 916-17. See 3 also In re Staffer, 306 F.3d at 972 (holding that whether the 4 potential defendant has an affirmative defense is an extraneous 5 issue in the context of a motion to reopen for purposes of filing 6 a nondischargeability action, citing Menk). 7 Here, the bankruptcy court denied the motion to reopen on 8 grounds of futility because it had previously found the forgery 9 claim was barred under the applicable statute of limitations and 10 claim preclusion. The bankruptcy court’s ruling thus initially 11 appears to be contrary to the rule articulated in Menk and 12 Staffer. However, when the undisputed facts in the record 13 unequivocally establish that reopening the case would be a 14 “pointless exercise,” the bankruptcy court may deny the motion to 15 reopen on that basis. See, e.g., Beezley v. Cal. Land Title Co. 16 (In re Beezley), 994 F.2d 1433, 1437 (9th Cir. 1993). 17 Based on our review of the record, we find no abuse of 18 discretion in the bankruptcy court’s denial of the motion to 19 reopen. Copeland’s claims based on his allegation that the 20 11/17/06 Declaration was forged were dismissed by every tribunal 21 that considered them – one state court, two federal district 22 courts, and the bankruptcy court. The bankruptcy court dismissed 23 those claims with prejudice. As such, it would have been 24 pointless for the bankruptcy court to grant Copeland’s motion to 25 reopen to pursue those claims yet again. 26 On appeal, Copeland fails to acknowledge that his claims 27 based on his forgery allegations against LNBYB have been 28 dismissed with prejudice and are thus forever barred. Instead,

-8- 1 Copeland argues that the bankruptcy court invoked “a subtle form 2 of nepotism to protect the misdeeds of Appellant’s former 3 bankruptcy attorneys”; that the alleged forgery violated 4 Copeland’s Sixth Amendment right to effective counsel; that LNBYB 5 committed fraud upon the court in forging Copeland’s signature; 6 that Copeland has been denied the right to an impartial tribunal 7 in violation of his Fourteenth Amendment rights; and that the 8 bankruptcy court erred in rejecting all of the evidence Copeland 9 presented to it in support of the forgery allegations. None of 10 these arguments acknowledges the fact that Copeland’s claims 11 against LNBYB have been dismissed with prejudice and that the 12 expiration of the appeal period for those rulings is long past. 13 In short, the undisputed facts presented here establish that 14 reopening Copeland’s bankruptcy case would have been a pointless 15 exercise; the bankruptcy court could not have afforded any relief 16 to Copeland even if it had granted the motion. As such, the 17 bankruptcy court did not abuse its discretion in denying the 18 motion to reopen. See In re Beezley, 994 F.2d at 1437 (holding 19 that bankruptcy court did not abuse its discretion in denying 20 motion to reopen to permit a debtor in a no-asset chapter 7 case 21 to add an omitted debt to his schedules because scheduling would 22 not affect dischargeability of the debt). 23 CONCLUSION 24 For the reasons set forth above, we AFFIRM. 25 26 27 28

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