In re: Charles G. Mahakian

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: April 13, 2015
• Docket: NV-14-1115-JuKuD
• Status: Published

Opinion

FILED 1 ORDERED PUBLISHED APR 13 2015

2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 6 In re: ) BAP No. NV-14-1115-JuKuD ) 7 CHARLES G. MAHAKIAN, ) Bk. No. 2:10-bk-17568-MKN ) 8 Debtor. ) Adv. No. 2:11-ap-01207-MKN ______________________________) 9 ) CHARLES G. MAHAKIAN, ) 10 ) Appellant, ) 11 v. ) O P I N I O N ) 12 WILLIAM MAXWELL INVESTMENTS, ) LLC, ) 13 ) Appellee. ) 14 ______________________________) 15 Argued and Submitted on March 19, 2015 16 at Las Vegas, Nevada 17 Filed - April 13, 2015 18 Appeal from the United States Bankruptcy Court for the District of Nevada 19 Honorable Mike K. Nakagawa, Chief Bankruptcy Judge, Presiding 20 _________________________ 21 Appearances: Mark Bruce Segal argued for appellant Charles G. 22 Mahakian; David V. Wadsworth, of Sender Wasserman Wadsworth, P.C., argued for appellee William 23 Maxwell Investments, LLC. _________________________ 24 25 Before: JURY, KURTZ, and DUNN, Bankruptcy Judges. 26 27 28 1 JURY, Bankruptcy Judge: 2 3 Chapter 71 debtor, Charles G. Mahakian (Debtor), omitted 4 appellee-creditor William Maxwell Investments, LLC (WMI) from 5 his schedules in what was originally noticed as a no asset case. 6 After Debtor received his § 727 discharge, the chapter 7 trustee 7 (Trustee) filed a notice of assets, a claims bar date was set, 8 and notice was sent to creditors. WMI did not receive notice of 9 the claims bar date and never filed a proof of claim (POC) in 10 this case. WMI foreclosed on the real property which secured 11 the debt guaranteed by Debtor and then filed a lawsuit against 12 Debtor in the state court to collect the deficiency. 13 In the bankruptcy case, Debtor amended his Schedule F to 14 include WMI as a creditor. Debtor also filed a POC on WMI’s 15 behalf well past the claims bar date and the additional thirty 16 days allowed under Rule 3004. Debtor then commenced this 17 adversary proceeding requesting a determination that his 18 obligation to WMI had been discharged, and filed a motion 19 seeking to have the POC filed on WMI’s behalf deemed as timely 20 filed under § 523(a)(3)(A) based on excusable neglect 21 (Retroactive POC Motion). 22 On the parties’ cross-motions for summary judgment in the 23 adversary proceeding, the bankruptcy court entered a judgment in 24 favor of WMI and against Debtor, finding that the prepetition 25 26 1 Unless otherwise indicated, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and “Rule” references are to the Federal Rules of Bankruptcy 28 Procedure.

-2- 1 debt of WMI had not been discharged because it had never been 2 scheduled (MSJ Judgment). The bankruptcy court denied Debtor’s 3 Retroactive POC Motion in a separate order (Retroactive POC 4 Order). Debtor appeals from the SMJ Judgment and Retroactive 5 POC Order. For the reasons stated, we AFFIRM. 6 I. FACTS2 7 Debtor and his brother were members in Fountain View 8 Center, LLC (FVC). In May 2006, Union Bank loaned $1,735,000 to 9 FVC which was evidenced by a promissory note secured by a deed 10 of trust against real property located in Maricopa County, 11 Arizona. Debtor and his brother personally guaranteed the FVC 12 loan. 13 On April 27, 2010, Debtor filed a skeletal chapter 7. 14 Debtor did not include Union Bank in the creditor mailing matrix 15 attached to the petition. 16 The bankruptcy clerk sent out the standard § 341 notice 17 setting June 2, 2010, as the date for the first meeting of 18 creditors and August 2, 2010, as the last day for filing 19 complaints under §§ 523 or 727. The court noticed the case as a 20 no asset case, advising creditors not to file a POC. Union Bank 21 did not receive this notice. 22 In June 2010, Union Bank assigned the promissory note and 23 deed of trust to WMI. 24 In mid-July 2010, Debtor filed his schedules and statement 25 26 27 2 As noted by the bankruptcy court, the historical and procedural facts were either stipulated or not disputed by the 28 parties.

-3- 1 of financial affairs (SOFA).3 Debtor did not list the debt owed 2 to Union Bank, which had been assigned to WMI, in his schedules. 3 On October 19, 2010, Debtor was granted his § 727 4 discharge. 5 The next day, Trustee filed a notice that assets would be 6 administered for the payment of creditors claims. The clerk 7 then sent notice to all matrix-identified creditors which set a 8 deadline of January 24, 2011, for the filing of proofs of claim. 9 Neither Union Bank nor WMI received this notice. 10 The Internal Revenue Service (IRS) timely filed a POC in 11 the secured amount of $109,205.90, priority unsecured amount of 12 $38,002.40, and nonpriority unsecured amount of $1,046.65. 13 In early December 2010, FVC had defaulted on the FVC loan. 14 A notice of sale under the deed of trust was recorded and on 15 April 2, 2011, WMI purchased the property for $1,350,000 at a 16 non-judicial foreclosure sale. At some point, WMI’s counsel 17 informed Debtor’s counsel that WMI was owed a prepetition debt 18 based on a deficiency due to Debtor’s personal guarantee. 19 On May 24, 2011, Debtor filed an amended Schedule F that 20 added Union Bank and WMI as unsecured creditors having a 21 disputed claim in an “unknown” amount based on the loan to FVC. 22 Two days later, Debtor served Union Bank and WMI with a copy of 23 the § 341 notice by mail. 24 On June 28, 2011, WMI commenced a lawsuit against Debtor, 25 his brother, and others in the Superior Court for Maricopa 26 County, Arizona (Case No. CV-2011-053051). Based upon their 27 3 The bankruptcy court entered two orders extending the 28 time for Debtor to file his schedules and SOFA.

-4- 1 personal guarantees of the FVC loan, WMI sought to recover from 2 Debtor and his brother the balance of the FVC loan in the amount 3 of $446,516.14. Debtor filed an answer to WMI’s complaint, but 4 it is unclear whether he asserted his discharge as a defense. 5 On August 2, 2011, Debtor filed a POC on WMI’s behalf in 6 his bankruptcy case in the nonpriority amount of $446,516.14. 7 Since the claims bar date was January 24, 2011, Debtor had 8 thirty days under Rule 3004, or until February 23, 2011, to file 9 a POC on WMI’s behalf. 10 Debtor then commenced this adversary proceeding against 11 WMI, seeking a determination that any debt owed to WMI was 12 discharged under § 727 and requesting injunctive relief to 13 prevent WMI from collecting the debt in the state court action. 14 Debtor amended the complaint to include a claim for attorney’s 15 fees and costs allegedly based on a violation of the discharge 16 injunction arising under § 524. 17 On August 17, 2011, Debtor filed the Retroactive POC Motion 18 in the bankruptcy case asking the court to “retroactively” 19 approve his filing of a POC on WMI’s behalf under Rule 3004 20 based on Rule 9006(b)(1) and the excusable neglect standard 21 applied in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. 22 P’ship, 507 U.S. 380 (1993). The Pioneer court set forth four 23 factors for determining whether a party’s neglect of a bar date 24 was excusable: “the danger of prejudice to the [non-moving 25 party], the length of the delay and its potential impact on 26 judicial proceedings, the reason for the delay, including 27 whether it was within the reasonable control of the movant, and 28 whether the movant acted in good faith.” Id. at 395.

-5- 1 Debtor argued that all four factors weighed in favor of the 2 bankruptcy court finding excusable neglect. First, Debtor 3 asserted that he would be prejudiced if WMI’s claim passed 4 through the bankruptcy without being discharged. Debtor argued 5 that he filed a POC on WMI’s behalf in time to permit payment of 6 the claim under § 726(a)(2)(C)(ii). Second, Debtor maintained 7 that the length of delay in filing the POC was only thirty-five 8 days after WMI sued debtor in Arizona. According to Debtor, it 9 was not clear until that time that WMI would disagree with his 10 position that the debt had been discharged. Third, Debtor 11 contended that there was no sinister motive on his part and he 12 was under the mistaken impression that, based on an agreement 13 with his brother, he was no longer obligated under the personal 14 guaranty to Union Bank. Finally, Debtor argued that he acted in 15 good faith by filing the POC soon after WMI sued him in Arizona. 16 WMI opposed Debtor’s motion, contending that under the 17 plain language of §§ 523(a)(3) and 727(b) the debt was excepted 18 from discharge because it was neither listed nor scheduled and 19 WMI had no notice or actual knowledge of the bankruptcy case in 20 time to timely file a POC. WMI also argued that the excusable 21 neglect standard under the Pioneer factors was not met in this 22 case. 23 At the initial hearing on the Retroactive POC Motion, the 24 bankruptcy court continued the matter to allow Debtor to file an 25 additional response to WMI’s opposition. On October 5, 2011, 26 Debtor filed a supplemental reply. There, Debtor asserted that 27 § 726(a)(2)(C) makes timely an otherwise “tardy” claim for 28 purposes of deeming a claim to have been filed in time to permit

-6- 1 its payment. In other words, § 523(a)(3)(A)’s timely-filed 2 requirement includes “tardily” filed claims under 3 § 726(a)(2)(C). Debtor also stated that he was not seeking to 4 have the POC allowed nunc pro tunc as of February 23, 2011, 5 which was the deadline to file the POC under Rule 3004. 6 In November 2011, WMI filed a motion to dismiss the amended 7 complaint for lack of subject matter jurisdiction or, 8 alternatively, based on a request for abstention. The 9 bankruptcy court heard WMI’s motion on January 17, 2012, and 10 took the matter under submission. Pending the outcome of the 11 dismissal and abstention motion, the Retroactive POC Motion, 12 which was scheduled to be heard on the same day, was vacated 13 from the court’s calendar. In July 2012, the bankruptcy court 14 denied WMI’s dismissal and abstention motion in a memorandum 15 decision and order. The Retroactive POC Motion was not re- 16 calendared. 17 On June 8, 2012, Trustee filed a notice of final report and 18 proposed distribution. The final report indicated that the IRS 19 would receive a payment on a portion of its secured claim, but 20 that no distribution would be made to nonpriority unsecured 21 claims in the case. No one filed an objection to Trustee’s 22 proposed distribution. 23 On September 24, 2012, Trustee filed his final distribution 24 report setting forth the payments he had made to creditors in 25 the case. 26 In mid-November 2012, the bankruptcy court entered an order 27 setting a trial in this adversary proceeding. Thereafter, the 28 parties filed a joint stipulation of facts and cross motions for

-7- 1 summary judgment. After a hearing on January 16, 2013, the 2 bankruptcy court took the matter under submission. 3 On February 28, 2014, the bankruptcy court issued a 4 memorandum decision denying Debtor’s motion for summary judgment 5 (MSJ) and granting WMI’s MSJ. In its ruling, the court adopted 6 the reasoning in Purcell v. Khan (In re Purcell), 362 B.R. 465 7 (Bankr. E.D. Cal. 2007), a case factually similar to this case. 8 The court in In re Purcell cited to Laczko v. Gentran, Inc. 9 (In re Laczko), 37 B.R. 676, 678-79 (9th Cir. BAP 1984), aff’d 10 without opinion, 772 F.2d 912 (9th Cir. 1985) (table), which 11 stated that when a bar date is set and an unscheduled creditor 12 is deprived of the right to file a timely proof of claim, the 13 plain language of § 523(a)(3)(A) should be followed - courts had 14 no power to disregard the clear language of § 523(a)(3)(A). In 15 the end, the Purcell bankruptcy court concluded that there were 16 no equitable exceptions to § 523(a)(3)(A) and that its plain 17 language controlled. Following Purcell, the bankruptcy court 18 here applied the plain language of § 523(a)(3)(A) to the 19 undisputed facts and found that all elements for an exception to 20 discharge were met. On the same day, the bankruptcy court 21 entered the MSJ Judgment finding that WMI’s debt was excepted 22 from Debtor’s discharge. 23 Also on February 28, 2014, the bankruptcy court entered the 24 Retroactive POC Order denying the motion. The bankruptcy court 25 construed Debtor’s motion to seek a determination that the 26 Retroactive POC Motion was filed on August 2, 2011, the same day 27 as the POC was filed. Indeed, the bankruptcy court found in its 28 memorandum decision that “it is not entirely clear why the

-8- 1 Debtor labels the Retroactive POC Motion as seeking relief ‘nunc 2 pro tunc’.” As a result, the court found that the “relief 3 requested in the Retroactive POC Motion was immaterial to the 4 dischargeability of the obligation owed by the Debtor to WMI.” 5 Thus, the bankruptcy court did not consider the excusable 6 neglect standards under Pioneer. 7 Debtor filed a timely notice of appeal (NOA) from the 8 “judgment, order, or decree” of the bankruptcy court entered on 9 February 28, 2014. WMI contends that Debtor’s NOA does not 10 include an appeal from the Retroactive POC Order. We discuss 11 the scope of the appeal below. 12 II. JURISDICTION 13 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 14 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. 15 § 158. 16 III. ISSUES 17 A. What is the scope of this appeal? 18 B. Did the bankruptcy court abuse its discretion by not 19 applying the excusable neglect standards to Debtor’s untimely 20 filed POC? 21 C. Did the bankruptcy court err by finding that the plain 22 language of § 523(a)(3)(A) precluded Debtor’s discharge of WMI’s 23 unscheduled claim? 24 IV. STANDARDS OF REVIEW 25 We address the question of our jurisdiction de novo. Menk 26 v. LaPaglia (In re Menk), 241 B.R. 896, 903 (9th Cir. BAP 1999). 27 The bankruptcy court’s denial of a request for an extension 28 of time under Rule 9006 is reviewed for abuse of discretion.

-9- 1 Foster v. Double R Ranch Ass’n (In re Foster), 435 B.R. 650, 655 2 (9th Cir. BAP 2010) (citing Nunez v. Nunez (In re Nunez), 196 3 B.R. 150, 155 (9th Cir. BAP 1996)). In applying the abuse of 4 discretion standard, we first “determine de novo whether the 5 [bankruptcy] court identified the correct legal rule to apply to 6 the relief requested.” United States v. Hinkson, 585 F.3d 1247, 7 1261-62 (9th Cir. 2009) (en banc). If the correct legal rule 8 was applied, we then consider whether its application of the 9 correct legal standard “was illogical, implausible, or without 10 support in inferences that may be drawn from the facts in the 11 record.” Id. at 1263. Only in the event that one of these 12 three apply are we then able to find that the lower court abused 13 its discretion. Id. at 1262. 14 We review the bankruptcy court’s decision to grant or deny 15 a motion for summary judgment de novo. In re Foster, 435 B.R. 16 at 655. We also review issues of statutory construction and 17 conclusions of law de novo. Id. 18 V. DISCUSSION 19 A. The Scope of the Appeal 20 Before reaching the merits, we briefly address the scope of 21 the appeal. Debtor’s main argument on appeal is that the 22 bankruptcy court erred by declining to address whether the 23 excusable neglect standards under Pioneer were met as applied to 24 Debtor’s tardily filed POC. Debtor maintains that once it is 25 determined a tardy filing was due to excusable neglect, the 26 filing is deemed timely for discharge purposes under 27 § 523(a)(3)(A) so long as the claim was filed in time for the 28 creditor to receive payment from the chapter 7 trustee under

-10- 1 § 726(a)(2)(C). 2 WMI contends that Debtor did not raise Rule 9006 and 3 excusable neglect in his MSJ and his NOA only challenged the MSJ 4 Judgment. Relying on Shevchynski v. Christiansen, 122 F. App’x 5 359 (9th Cir. 2005), WMI maintains that we lack jurisdiction to 6 review an order not identified in the NOA. We disagree. 7 While it is true that Debtor did not list any specific 8 judgment or order in his NOA, at the time he filed his appeal, 9 Rule 8001(a) did not require him to do so. United States v. 10 Arkison (In re Cascade Roads, Inc.), 34 F.3d 756 (9th Cir. 11 1994). Since then, the Rules have been amended effective 12 December 1, 2014, and Rule 8003 now governs the content of a 13 NOA. In addition, Debtor fully briefed the Rule 9006 and 14 excusable neglect issue before the bankruptcy court and in his 15 opening brief before this Panel. WMI responded to those 16 arguments. The bankruptcy court also addressed the Retroactive 17 POC Motion in its memorandum decision on the parties’ cross 18 motions for summary judgment. Finally, Debtor’s submissions in 19 this appeal show that he also is challenging the Retroactive POC 20 Order entered on the same date as the MSJ Judgment. Because we 21 interpret notices of appeal liberally, and WMI has not been 22 prejudiced or misled by the contents of Debtor’s NOA, we 23 construe the NOA as covering both the MSJ Judgment and the 24 Retroactive POC Order. See In re Cascade Roads, Inc., 34 F.3d 25 at 761–62. 26 B. The Merits 27 Our resolution of this case turns on the interpretation of 28 § 523(a)(3)(A). Questions of statutory interpretation begin

-11- 1 with the plain language of the statute. Lamie v. U.S. Tr., 540 2 U.S. 526, 534 (2004). Section 727 provides that a chapter 7 3 debtor is discharged from all debts, subject to the exception in 4 § 523(a)(3)(A). Section 523(a)(3)(A) states in relevant part: 5 A discharge under [§] 727 . . . of this title does not discharge an individual debtor from any debt— . . . 6 (3) neither listed nor scheduled . . . with the name . . . of the creditor to whom such debt is owed, in time 7 to permit— . . . timely filing of a proof of claim, unless such creditor had notice or actual knowledge of 8 the case in time for such timely filing . . . . 9 The language contained in § 523(a)(3)(A) is clear and not 10 ambiguous: a debt is excepted from discharge if the creditor 11 was neither listed nor scheduled and did not otherwise know of 12 the bankruptcy case in time to file a timely POC. As there is 13 nothing for us to interpret, we must enforce the statute 14 according to its terms. United States v. Ron Pair Enters., 15 Inc., 489 U.S. 235, 241 (1989). The undisputed facts show that 16 Debtor did not list or schedule the debt owed to WMI prior to 17 the claims bar date and that WMI did not have notice or actual 18 knowledge of the case in time to file a timely POC. Thus, the 19 bankruptcy court properly found that all the elements under 20 § 523(a)(3)(A) for an exception to Debtor’s discharge were met. 21 Nonetheless, Debtor argues on appeal that our decision on 22 the dischargeability of WMI’s debt lies somewhere outside the 23 plain language of § 523(a)(3)(A). Debtor maintains that he was 24 authorized under § 501(c) to file a POC on behalf of WMI and 25 although his filing of the POC was untimely, Rule 9006(b)(1) and 26 the excusable neglect standards under Pioneer apply and are met 27 in this case. Without citation to any binding authority, Debtor 28 asserts that once the excusable neglect standards are met, his

-12- 1 tardily filed POC under Rule 3004 is deemed to be “timely” for 2 discharge purposes so long as it was made at a time when the 3 creditor would have been able to receive payment from the 4 chapter 7 trustee under § 726(a)(2)(C).4 We are not persuaded. 5 Debtor is correct that in chapter 7 cases, some untimely 6 filed proofs of claim are “allowed.” Section 502(b)(9) provides 7 that an untimely claim should be disallowed “except to the 8 extent tardily filed as permitted under paragraph (1), (2), or 9 (3) of [§] 726(a).” Section 726(a)(2)(C) allows payments to 10 unsecured creditors who submit “tardily filed” proofs of claim 11 if the creditor had no notice or actual knowledge of the 12 bankruptcy case to permit a timely filing. The tardy claim must 13 be filed in time to permit payment, i.e., before the 14 distribution of the bankruptcy estate. § 726(a)(2)(C)(ii). 15 These payments are allowed the same priority as timely filed 16 claims. 17 These statutes do not support Debtor’s position. Section 18 502(b)(9) addresses the circumstances under which an untimely 19 claim is allowed and § 726(a)(2)(C) addresses the priority of 20 distributions to unsecured creditors who submit tardily filed 21 proofs of claim. The scope and aim of §§ 502(b)(9) and 22 726(a)(2)(C) is thus distinct from and not connected to the 23 dischargeability of a debt. Here, Debtor’s conduct falls within 24 4 25 Some courts have approached § 523(a)(3)(A) by focusing on whether a party has an opportunity to participate in 26 distributions rather than by focusing on the plain language of the statute. See Lott Furniture, Inc. v. Ricks (In re Ricks), 27 253 B.R. 734 (Bankr. M.D. La. 2000); Eglin Fed. Credit Union v. Horlacher (In re Horlacher), 2009 WL 903620 (N.D. Fla. Mar. 31, 28 2009).

-13- 1 the particular circumstances addressed in § 523(a)(3)(A) and not 2 the other statutes relied upon. Section 726(a)(2)(C) is also 3 inapplicable to this case by its plain terms. This section 4 applies only to “tardily filed” claims filed under § 501(a). 5 Section 501(a) refers to claims filed by creditors and indenture 6 trustees. WMI did not submit a “tardily filed” POC in this 7 case. 8 Debtor’s reliance on the excusable neglect standards to 9 override the plain language of § 523(a)(3)(A) is also misplaced. 10 While excusable neglect might be relevant to determine whether a 11 late-filed POC under Rule 3004 should be deemed timely filed, 12 such a finding does not translate into a timely filed claim for 13 purposes of § 523(a)(3)(A).5 As Debtor would have it, if he can 14 establish excusable neglect for filing an untimely POC on the 15 creditor’s behalf prior to distributions in the case, we should 16 simply ignore the language in § 523(a)(3)(A) pertaining to 17 unscheduled debts and notice and find the debt discharged. 18 Adopting Debtor’s argument would make a nullity of 19 § 523(a)(3)(A) concerning the consequence of not properly 20 listing or scheduling such a debt. It would also be inequitable 21 to allow Debtor the benefit of dischargeability and treat the 22 debt as if it had been listed when WMI, who was not at fault, is 23 24 5 Debtor’s reliance on In re Sprague, 2013 WL 6670576 25 (Bankr. D. Idaho Dec. 18, 2013), is misplaced. Sprague is a chapter 13 case where the bankruptcy court deemed a late-filed 26 POC under Rule 3004 as timely filed after finding the standards for excusable neglect had been met. The bankruptcy court 27 briefly discussed § 523(a)(3)(A) in a footnote which was mostly dicta. The court concluded by noting that the discharge issue 28 was not before it. Id. at *4 n.7.

-14- 1 deprived of valuable rights in the bankruptcy. 2 A strict construction of § 523(a)(3)(A) is supported by 3 Judge O’Scannlain’s concurring opinion in Beezley v. Cal. Land 4 Title Co. (In re Beezley), 994 F.2d 1433 (9th Cir. 1993),6 5 which was later adopted by the Ninth Circuit in White v. Nielsen 6 (In re Nielsen, 383 F.3d 922, 926 (9th Cir. 2004). While the 7 actual holding of Beezley is irrelevant to an asset case such as 8 this, Judge O’Scannlain’s reasoning lends support to the plain 9 language approach we apply today. 10 In examining the legislative history of § 523(a)(3), Judge 11 O’Scannlain observed that “Congress has expressly disapproved 12 the importation of equitable notions of a debtor’s good faith or 13 a creditor’s fair opportunity to participate in the bankruptcy 14 process into the interpretation and analysis of section 15 523(a)(3).” In re Beezley, 954 F.2d at 1439 n.4. At another 16 point, Judge O’Scannlain emphasized that “[n]owhere in section 17 523(a)(3) is the reason why a debt was omitted from the 18 bankruptcy schedules made relevant to the discharge of that 19 debt. Courts are not free to condition the relief Congress has 20 made available in the Bankruptcy Code on factors Congress has 21 deliberately excluded from consideration.” Id. at 1439 22 6 There, the debtor Beezley sought to reopen his bankruptcy 23 case for the purpose of amending his schedules to include an 24 omitted creditor so that the debt could be discharged. The bankruptcy court denied the motion and the Ninth Circuit 25 affirmed. The court observed that after a case has been closed, dischargeability is unaffected by scheduling. Therefore, 26 amendment of Beezley’s schedules would have been a pointless exercise. In a concurring opinion, Judge O’Scannlain noted that 27 § 523(a)(3)(A) is not triggered in a no asset, no bar date bankruptcy case because there is no time limit for “timely 28 filing of a proof of claim,” so none are untimely.

-15- 1 (footnotes omitted). Finally, Judge O’Scannlain stated that “we 2 have only to apply the law as Congress has written it. What 3 Congress deemed a proper balancing of the equities as between 4 debtor and creditor with respect to unlisted debts it has 5 enacted in section 523(a)(3) of the Bankruptcy Code. It is not 6 for the courts to restrike that balance according to their own 7 lights.” Id. at 1440. 8 Taken together, Judge O’Scannlain’s observations support a 9 plain reading of § 523(a)(3)(A) which does not contain any 10 equitable exceptions. Therefore, the bankruptcy court had no 11 need to examine Debtor’s professed good faith which he 12 characterized as a Pioneer factor. That Debtor may have filed a 13 POC on WMI’s behalf before Trustee made the distributions in the 14 case is also irrelevant for purposes of § 523(a)(3)(A). Again, 15 discussed as a Pioneer factor for excusable neglect, Debtor 16 stated that the reason he omitted WMI from his schedules was 17 some agreement with his brother. However, in the § 523(a)(3)(A) 18 plain language analysis, the reason for the omission is 19 irrelevant. 20 We have previously stated that the court has no power to 21 disregard the clear language of § 523(a)(3)(A). See In re 22 Laczko, 37 B.R. 676. Although application of the plain text of 23 § 523(a)(3)(A) may lead to harsh results, courts may not “soften 24 the import of Congress’ chosen words.” Lamie v. U.S. Tr., 540 25 U.S. at 538. 26 VI. CONCLUSION 27 For the reasons stated, we AFFIRM. 28

-16-