In re: Frances Diane Toth

Opinion

FILED OCT 13 2016

1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. AZ-15-1425-FLJu )

6 FRANCES DIANE TOTH, ) Bk. No. 14-18264-DPC )

7 Debtor. )

_____________________________ )

8 )

FRANCES DIANE TOTH, )

9 )

Appellant, )

10 )

v. ) MEMORANDUM* 11 )

TROY SHORT; WILLIAM E. PIERCE,)

12 Trustee, )

)

13 Appellees.** )

______________________________)

14 Argued and Submitted on September 23, 2016 15 at Phoenix, Arizona 16 Filed – October 13, 2016 17 Appeal from the United States Bankruptcy Court for the District of Arizona 18 Honorable Daniel P. Collins, Chief Bankruptcy Judge, Presiding 19 20 Appearances: Appellant Frances Diane Toth argued pro se; David Smith Chipman of Chipman Glasser, LLC argued on 21 behalf of Appellee Troy Short. 22 Before: FARIS, LAFFERTY, and JURY, Bankruptcy Judges.

23 24

*

This disposition is not appropriate for publication.

25 Although it may be cited for whatever persuasive value it may 26 have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1.

27

**

Appellee William E. Pierce did not file an answering 28 brief or otherwise participate in this appeal.

1 INTRODUCTION 2 Faced with the prospect of losing her home, appellant 3 Frances Diane Toth complains that the mistakes and incompetence 4 of her bankruptcy counsel denied her counsel and the effective 5 assistance of counsel, the right to a fair trial, and due 6 process. She appeals the bankruptcy court’s rulings denying 7 conversion of her chapter 71 bankruptcy case to chapter 13, 8 disapproving a compromise between chapter 7 trustee William E. 9 Pierce (“Trustee”) and appellee Troy Allen Short, and ordering 10 the Trustee to market and sell her house. 11 Ms. Toth deserves our sympathy. Mr. Short abused Ms. Toth 12 during their stormy relationship. In the litigation that ensued, 13 Ms. Toth did not fare well, mostly because of her unfortunate 14 decision to stop participating in that litigation at a critical 15 juncture. But this appeal concerns only two orders of the 16 bankruptcy court, and those orders only addressed a small part of 17 the dispute between Ms. Toth and Mr. Short. Ms. Toth has not 18 convinced us that either of those orders is erroneous. 19 Accordingly, we AFFIRM. 20 21 22 23 24 25

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26 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all 27 “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, and all “Civil Rule” references are 28 to the Federal Rules of Civil Procedure, Rules 1-86.

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1 FACTUAL BACKGROUND2 2 A. The Colorado civil actions and judgment against Ms. Toth 3 Ms. Toth and Mr. Short lived together in Denver, Colorado 4 for approximately two and a half years. During the course of 5 their relationship, they were involved in numerous domestic 6 disputes, some of which gave rise to mutual accusations of 7 threats and physical abuse. 8 The relationship ended in 2011 amid escalating tensions. 9 Each sought restraining orders against the other, and the parties 10 filed competing civil complaints against each other. In April 11 2011, a Colorado state court entered a permanent civil 12 restraining order against Mr. Short and denied Mr. Short’s 13 request for restraining orders against Ms. Toth and certain of 14 her family members and acquaintances. The parties also mediated 15 and settled their original competing civil lawsuits against each 16 other. 17 Thereafter, Ms. Toth left Colorado to live in Arizona in a 18 home that she owned from her previous marriage (the “Arizona 19 Property”). She claimed that she kept the Colorado court updated 20 as to her Arizona address. 21 The parties made reciprocal claims of harassment based on 22 multiple lawsuits filed in various jurisdictions. (Both claimed 23 that, as a result, they had to play “whack-a-mole.”) Ms. Toth 24 (and her brother) filed multiple small claims lawsuits against 25 26 2 Ms. Toth presents us with an incomplete record on appeal.

27 We have exercised our discretion to review the bankruptcy court’s docket, as appropriate. See Woods & Erickson, LLP v. Leonard 28 (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008).

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1 Mr. Short in Denver County, Colorado, Chaffee County, Colorado, 2 and Mohave County, Arizona. These actions were consolidated into 3 a single lawsuit in Chaffee County, Colorado. 4 Mr. Short filed counterclaims against Ms. Toth and her 5 brother for abuse of the legal process, defamation, interference 6 with prospective business advantage, and civil conspiracy. The 7 Colorado court scheduled a hearing to address a variety of 8 pending motions. It directed that, based on Ms. Toth’s “prior 9 failure to comply with Court orders and the failure to resolve 10 certain matters via telephonic hearings,” all parties needed to 11 be present in person. However, Ms. Toth failed to appear in 12 person at the hearing. The court granted Ms. Toth a continuance 13 on the condition that she pay Mr. Short’s attorneys’ fees and 14 costs incurred as a result of the hearing; the court warned that, 15 if Ms. Toth did not make such payment, it would enter default 16 judgment against her as to both her claims against Mr. Short and 17 Mr. Short’s counterclaims against her. 18 When Ms. Toth failed to pay Mr. Short’s attorneys’ fees and 19 costs, Mr. Short moved for default. The Colorado court held that 20 Ms. Toth had “demonstrated willful and deliberate disregard of 21 [the] Court’s orders and [her] obligations as a litigant under 22 the applicable rules.” The court therefore entered default 23 against Ms. Toth. 24 The Colorado court scheduled an evidentiary hearing to 25 determine Mr. Short’s damages. The day prior to the hearing, the 26 court received a letter from Ms. Toth wherein she recapitulated 27 her claims against Mr. Short and indicated that she would not 28 appear at the hearing. She stated that she has “no qualms about

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1 filing bankruptcy against any judgment that is in his favor.” 2 She told the judge that Mr. Short “is a true piece of s**t and I 3 am scraping him off my shoe. I am throwing my hands in the air, 4 your honor, as I have no other options.” 5 The Colorado court held the evidentiary hearing the 6 following day. The court adopted the facts as alleged in 7 Mr. Short’s counterclaim and stated that Mr. Short had satisfied 8 each element of his claims. The court awarded Mr. Short $133,500 9 in lost income and $57,134.80 in attorneys’ fees (“Colorado 10 Judgment”). Ms. Toth claims she was not properly served with the 11 judgment; she did not appeal or seek relief from the judgment in 12 the Colorado state courts. 13 Mr. Short then domesticated the Colorado Judgment in 14 Arizona and recorded a judgment lien on the Arizona Property. In 15 December 2014, Mr. Short apparently seized the Arizona Property. 16 Ms. Toth claimed that she did not receive notice of the 17 domestication proceedings or the judgment lien until days after 18 the seizure. Mr. Short proceeded to obtain a writ of execution 19 against the Arizona Property. 20 B. Ms. Toth’s chapter 7 bankruptcy 21 On December 15, 2014, Ms. Toth filed her chapter 7 22 bankruptcy petition. She had retained attorney Dale Stoker to 23 represent her in the bankruptcy proceedings. 24 Ms. Toth filed a motion (“Motion to Avoid Lien”) to avoid 25 Mr. Short’s judicial lien on the Arizona Property under § 522(f). 26 She asserted that the lien impaired exemptions to which she would 27 be entitled under § 522(b). 28 Mr. Short objected to Ms. Toth’s claimed homestead exemption

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1 on the Arizona Property. He argued that the Arizona Property was 2 not Ms. Toth’s primary residence, since she had represented to 3 the Colorado court that she resided in California. 4 Concurrently, Mr. Short filed an adversary complaint against 5 Ms. Toth to determine nondischargeability of the judgment debt 6 pursuant to § 523(a)(6). He claimed, among other things, that 7 Ms. Toth harassed him and abused the legal process by “filing 8 multiple baseless and vexatious small claims lawsuits against 9 Short, one after another, in multiple jurisdictions, with the 10 intent of obtaining as many default judgments as possible and to 11 damage, as much as possible, Short’s reputation in his 12 community.”3 13 While the issues concerning the judgment lien and 14 nondischargeability complaint were pending, Ms. Toth received her 15 discharge on April 6, 2015. 16 1. The motion to compromise and the motion to set aside 17 On June 30, 2015, the Trustee filed a motion to approve a 18 compromise with Mr. Short (“Motion to Compromise”). Noting that 19 there was no unencumbered value in the Arizona Property for the 20 bankruptcy estate, the Trustee proposed that Mr. Short be allowed 21 to market the Arizona Property for sale and decide which offer to 22 accept, subject to court approval. 23 Ms. Toth initially filed a response approving of the 24 proposed compromise, provided that Mr. Short not be allowed on or 25

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26 On February 18, 2016 (after the commencement of this appeal), the bankruptcy court entered its nondischargeability 27 judgment in favor of Mr. Short. Ms. Toth also appealed that judgment to the BAP (BAP No. AZ-16-1052), but that appeal is not 28 before the Panel at this time.

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1 near the Arizona Property. Shortly thereafter, Ms. Toth, through 2 her counsel, withdrew her approval. Instead, she stated that she 3 objected to the compromise. She also stated that she had reached 4 an agreement with the Trustee, whereby the value of the Arizona 5 Property was to be set by an appraisal; if the appraisal exceeded 6 the total of the statutorily exempt amount, the first lien deed 7 of trust, and the costs of sale, then Ms. Toth would be allowed 8 to pay the difference and retain the Arizona Property. She 9 claimed that the “agreement” was memorialized in an e-mail. 10 Based on the appraised value of $275,000, Ms. Toth calculated 11 that the amount due to the Trustee under her proposal would be 12 $22,500.4 13 Ms. Toth’s position suffered from a fatal flaw: the Trustee 14 did not agree to her offer. Rather, he stated that the 15 bankruptcy court needed to resolve first the objection to the 16 homestead exemption. Until this question was answered, one could 17 not determine how much Ms. Toth would have to pay. 18 The next day, Ms. Toth filed pro se a combined opposition to 19 the Motion to Compromise and a motion to set aside Mr. Short’s 20 default judgment (“Motion to Set Aside”). Ms. Toth restated her 21 arguments against Mr. Short regarding their prior legal battles 22 in Colorado. As to the Motion to Compromise, she argued that the 23

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24 Ms. Toth’s calculations were as follows: 25 Appraisal: $275,000 26 Less mortgage of: $75,000 Less exemption: $150,000 27 Less realtor/closing: $27,500

28 Resulting net to Trustee: $22,500

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1 restraining order against Mr. Short prevented the bankruptcy 2 court from approving the Motion to Compromise, since it 3 constituted harassment and would allow Mr. Short “to manipulate a 4 third party to control and interface with the Protected Person 5 and her domicile.” 6 As to the Motion to Set Aside the Colorado Judgment, 7 Ms. Toth argued that Mr. Short failed to perfect service upon 8 her, since all documents were sent to her California address. 9 She also argued that Mr. Short perpetrated fraud upon the court 10 by making misleading statements. 11 At a hearing on September 9, 2015, the bankruptcy court 12 heard a number of motions, including the Motion to Compromise and 13 the Motion to Set Aside. The court orally denied both motions. 14 A minute order entered the same day states that the Motion to 15 Compromise is denied. As far as we can tell, no written order 16 denying the Motion to Set Aside was ever entered.5 17 Although the record does not make it entirely clear, there 18 is some indication that the court denied the Motion to Compromise 19 due to Mr. Short’s pending objection to the homestead exemption. 20 Shortly thereafter, Mr. Short withdrew his objection to 21 Ms. Toth’s claim of a homestead exemption. 22 2. The motion to convert 23 On November 3, 2015, Ms. Toth filed a motion to convert her 24 chapter 7 case to chapter 13 (“Motion to Convert”). She later 25 argued that she was unaware that, by filing for bankruptcy under 26

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27 The minutes note that the Motion to Set Aside was on calendar for the September 9 hearing, but do not include the 28 disposition of that motion.

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1 chapter 7, there was a chance that she may lose the Arizona 2 Property. She claimed that Mr. Stoker was unfamiliar with the 3 applicable law and blamed him for providing faulty advice. The 4 Motion to Convert was set for hearing on December 1, 2015. 5 Mr. Short opposed the Motion to Convert, arguing that 6 Ms. Toth sought conversion in bad faith. He asserted that 7 Ms. Toth had sworn to harm Mr. Short through the bankruptcy 8 process and that the motion was “not a good faith or bona fide 9 effort to pay debt.” 10 3. The renewed motion to compromise 11 Shortly after Mr. Short withdrew his objection to the 12 homestead exemption, the Trustee filed a renewed motion to 13 approve the compromise with Mr. Short (“Renewed Motion to 14 Compromise”). Ms. Toth opposed the Renewed Motion to Compromise 15 for the same reasons she opposed the initial motion. The Renewed 16 Motion to Compromise was also set for hearing on December 1, 17 2015. 18 4. The motion to withdraw 19 During this time, Ms. Toth’s relationship with her attorney, 20 Mr. Stoker, deteriorated. She claimed that he was not 21 responsive, did not file the documents she wanted, did not make 22 the arguments that she requested, and did not seek the discovery 23 that she demanded. She had separate counsel in the adversary 24 proceeding who was willing to take over the bankruptcy case, but 25 only if the court granted the Motion to Convert. 26 On November 19, Mr. Stoker requested leave to withdraw as 27 Ms. Toth’s counsel (“Motion to Withdraw”) due to an “irremediable 28 breakdown in the attorney-client relationship.” He stated that

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1 Ms. Toth had “been notified in writing of the status of the case 2 by providing a copy of this motion” and that he also advised her 3 of the December 1 hearing on the Motion to Convert and Renewed 4 Motion to Compromise. The bankruptcy court granted the 5 withdrawal by order dated November 20. 6 5. The December 1, 2015 hearing 7 At the December 1 hearing on the Motion to Convert and 8 Renewed Motion to Compromise, Ms. Toth claimed that she was 9 unaware that Mr. Stoker had withdrawn as her counsel and would 10 not argue at the hearing. She admitted that Mr. Stoker might 11 have mailed a copy of the documents to her but that she had not 12 been checking her mail. The bankruptcy court did not find her 13 excuses credible. 14 Ms. Toth asked the court to continue the hearing for sixty 15 days to allow her to obtain new counsel. The court did not agree 16 to continue the hearing, but rather asked Ms. Toth to explain her 17 position and arguments to the court. 18 Ms. Toth stated that she was eligible as a chapter 13 19 debtor. She argued again that she had not been served properly 20 in the Colorado and domestication proceedings. She also blamed 21 Mr. Stoker for advising her to file for chapter 7. She said that 22 “Mr. Stoker has explained to me he doesn’t understand Chapter 13 23 that well so he wanted me to file a Chapter 7 because that’s what 24 he does.” 25 Ms. Toth also argued that Mr. Short committed fraud on the 26 court by making false statements. She contended that she did not 27 act in bad faith and was adversely affected by Mr. Short’s 28 actions.

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1 Regarding the Renewed Motion to Compromise, Ms. Toth argued 2 that allowing Mr. Short or his agent to market the Arizona 3 Property would violate the restraining order, because it would 4 give him control of her assets. She argued that the proposed 5 compromise was not fair, since it did not protect her from 6 Mr. Short. 7 The court inquired whether Ms. Toth had a competing 8 proposal. Ms. Toth insisted that “the deal that was settled back 9 in February was that they take the $22,000[,]” but now the 10 Trustee and Mr. Short are demanding “everything.” 11 Ultimately, the court denied approval of the compromise. 12 Instead, the court ordered that the Trustee – not Mr. Short - 13 would market and attempt to sell the Arizona Property. If the 14 Arizona Property did not sell for an adequate price within six 15 months, then the Trustee would abandon the Arizona Property. The 16 court also denied the Motion to Convert “for all the reasons 17 stated by the creditor in this case.” 18 The court entered minute orders denying both motions on 19 December 3. It entered an order on the Renewed Motion to 20 Compromise on December 4. Ms. Toth timely filed her notice of 21 appeal. 22 JURISDICTION 23 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 24 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C. 25 § 158. 26 ISSUE 27 Whether the bankruptcy court denied Ms. Toth the right to 28 counsel or the effective assistance of counsel under the Sixth

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1 Amendment, the right to a fair trial, or due process. 2 STANDARDS OF REVIEW 3 We review the bankruptcy court’s conclusions of law de novo 4 and its findings of fact for clear error. Hansen v. Moore 5 (In re Hansen), 368 B.R. 868, 874 (9th Cir. BAP 2007). “De novo 6 review requires that we consider a matter anew, as if no decision 7 had been made previously.” Francis v. Wallace (In re Francis), 8 505 B.R. 914, 917 (9th Cir. BAP 2014) (citation omitted). A 9 bankruptcy court clearly errs if its findings were illogical, 10 implausible, or “without support in inferences that may be drawn 11 from the facts in the record.” United States v. Hinkson, 12 585 F.3d 1247, 1262–63 & n.21 (9th Cir. 2009) (en banc). 13 DISCUSSION 14 A. The scope of this appeal is limited. 15 It is unclear whether Ms. Toth is appealing only the court’s 16 ruling on the Renewed Motion to Compromise, or both the Renewed 17 Motion to Compromise and the Motion to Convert. Her notice of 18 appeal states that she is appealing the bankruptcy court’s 19 “MINUTE ENTRY entered in this action On DECEMBER 3, 2015.” She 20 attached a copy of the minutes of the hearing on the Renewed 21 Motion to Compromise. She did not reference or attach the minute 22 entry on the Motion to Convert. Her opening brief does not 23 provide any definitive answer. 24 Ordinarily, we would only consider Ms. Toth’s arguments 25 concerning the Renewed Motion to Compromise because that is the 26 only order mentioned in and attached to the notice of appeal. 27 Nevertheless, because Ms. Toth is proceeding pro se, her opening 28 brief makes occasional reference to issues concerning the Motion

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1 to Convert, and Mr. Short has not raised an issue regarding the 2 scope of appeal, we construe her appeal as encompassing the 3 denial of her Motion to Convert, as well. 4 Although we can adopt a generous interpretation of 5 Ms. Toth’s notice of appeal, we lack jurisdiction to consider 6 issues that the orders on appeal do not decide. Ms. Toth argues 7 at length about errors in the Colorado state court and the 8 Arizona domestication proceedings. But the orders on appeal do 9 not pertain to those questions (which were previously addressed 10 in her Motion to Set Aside). Therefore, we cannot consider her 11 challenge to the Colorado Judgment or the Arizona domestication 12 of that judgment or her argument that she was denied due process 13 with respect to either of these proceedings. 14 B. The scope of Ms. Toth’s arguments is also limited. 15 We also note that Ms. Toth’s appellate briefs do not argue 16 that the bankruptcy court failed to apply correctly the 17 established standard for approval of a compromise, see, e.g., 18 Goodwin v. Mickey Thompson Entm’t Grp., Inc. (In re Mickey 19 Thompson Entm’t Grp., Inc.), 292 B.R. 415, 420 (9th Cir. BAP 20 2003); Rule 9019, or the statutory standard for conversion from 21 chapter 7 to chapter 13, see, e.g., § 706(a). 22 Rather, Ms. Toth argues that we should reverse both orders 23 for the same reasons, including denial of counsel, ineffective 24 assistance of counsel, denial of the right to a fair trial, and 25 denial of due process. Because none of these arguments is 26 specific to either of the two orders on appeal, we will consider 27 them in general terms.

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1 C. The alleged ineffectiveness of Ms. Toth’s counsel would not warrant reversal.

2 3 Ms. Toth largely bases her appeal on Mr. Stoker’s supposed 4 errors. She argues at length that he erroneously advised her to 5 file a chapter 7 petition, rather than chapter 13; withdrew as 6 counsel a week before the December 1 hearing; did not appear at 7 the hearing; did not provide the court with certain evidence; and 8 did not conduct discovery. In summary, she contends that we 9 should reverse the court’s rulings because she did not have 10 effective counsel. 11 Ms. Toth’s arguments are unavailing. Her position rests on 12 a false premise: that she has a constitutional right to counsel 13 and the effective assistance of counsel under the Sixth 14 Amendment. However, the right to counsel does not apply to 15 bankruptcy proceedings. She cites no authority to the contrary. 16 It is well settled that parties to a bankruptcy proceeding 17 do not have a constitutional right to counsel. See Hedges v. 18 Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (“there 19 is no absolute right to counsel in civil proceedings”). “There 20 is no constitutional right to counsel in a legal proceeding 21 unless it is criminal or quasi-criminal in nature.” Davis v. 22 Cent. Bank (In re Davis), 23 B.R. 773, 776 (9th Cir. BAP 1982); 23 see U.S. Const. amend. VI (applicable to “all criminal 24 proceedings”); Cutter v. Seror (In re Cutter), 468 F. App’x 657, 25 658 (9th Cir. 2011) (rejecting claim of right to counsel in 26 bankruptcy proceedings, noting that “the Sixth Amendment by its 27 own terms applies only to criminal prosecutions”). 28 Consequently, the mistakes or incompetence of counsel in a

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1 bankruptcy case cannot amount to a violation of constitutional 2 rights. See Yu v. Nautilus, Inc. (In re Yu), BAP No. CC-16-1045- 3 KuFD, 2016 WL 4261655, at *7 (9th Cir. BAP Aug. 11, 2016) 4 (rejecting the debtor’s argument that she suffered ineffective 5 assistance of counsel, because “[t]here is no guaranteed right to 6 counsel in civil or bankruptcy proceedings - effective or 7 otherwise”); see also Shepard v. Conklin (In re Shepard), BAP No. 8 EC–09–1096–DJuBa, 2009 WL 7809003, at *8 (9th Cir. BAP Nov. 24, 9 2009) (“A ‘full and fair opportunity to litigate’ simply means 10 that the debtor had a reasonable chance to appear in court and 11 contest the factual and legal issues raised in the state court 12 action, not that the debtor should have equal footing from a 13 tactical standpoint.”). 14 Ms. Toth cites Turner v. Rogers, 564 U.S. 431 (2011), for 15 the proposition that due process requires the court to provide 16 counsel in certain civil cases. However, the passage she quotes 17 in the reply brief is not found in the Supreme Court decision. 18 Moreover, Turner only considered “an indigent’s right to paid 19 counsel at such a [civil] contempt proceeding[,]” id. at 444, not 20 whether a bankruptcy debtor has a right to counsel. The court 21 ultimately held that “the Due Process Clause does not 22 automatically require the provision of counsel at civil contempt 23 proceedings to an indigent individual who is subject to a child 24 support order, even if that individual faces incarceration (for 25 up to a year).” Id. at 448. As such, Turner does not aid 26 Ms. Toth’s argument. 27 In an attempt to make sense of Ms. Toth’s Sixth Amendment 28 argument, Mr. Short charitably frames it as an argument

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1 concerning the court’s discretion to continue the hearing to 2 allow for a substitution of counsel. Inexplicably, Ms. Toth 3 rejects this characterization in her reply brief, making clear 4 that the asserted error concerns only her purported 5 constitutional right to the effective assistance of counsel, not 6 the court’s denial of a continuance to allow her to obtain 7 counsel. As such, our review is limited to whether the court 8 deprived her of this constitutional right, and we do not consider 9 whether the court erred in refusing to continue the hearing. 10 Ms. Toth argues in passing that relief from the court’s 11 order was justified under Civil Rule 60, because she was 12 surprised that she had to argue at the December 1 hearing. 13 However, she never moved the bankruptcy court for relief under 14 Civil Rule 60. We will not consider arguments raised for the 15 first time on appeal. See Ezra v. Seror (In re Ezra), 537 B.R. 16 924, 932 (9th Cir. BAP 2015) (“Ordinarily, federal appellate 17 courts will not consider issues not properly raised in the trial 18 courts.”). 19 Accordingly, we discern no error concerning Ms. Toth’s 20 alleged right to counsel or right to effective assistance of 21 counsel. 22 D. The bankruptcy court did not deny Ms. Toth a fair trial. 23 Ms. Toth groups a number of alleged errors under the 24 umbrella of the denial of a right to a fair trial. Essentially, 25 she argues that the court erred in denying the Renewed Motion to 26 Compromise, granting alternative relief, and accepting the facts 27 presented by Mr. Short in the Colorado state court proceedings. 28 None of these arguments is persuasive.

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1 1. The bankruptcy court did not err in rejecting the proposed compromise and granting alternative relief.

2 3 Ms. Toth’s primary argument is that the court erred in 4 granting alternative relief rather than approving the proposed 5 compromise with Mr. Short. She contends that the court changed 6 the agreement that was proposed in the Renewed Motion to 7 Compromise and that, in doing so, the court denied her a fair 8 trial. We discern no error. 9 In the first place, we do not understand why Ms. Toth 10 objects to the court’s disapproval of the compromise, because 11 that is exactly what she asked the court to do.6 Ms. Toth’s 12 opposition to the Motion to Compromise requested that Mr. Short 13 not be allowed to handle the sale and asked that a realtor market 14 and sell the Arizona Property. The court essentially granted her 15 request and ordered the Trustee, not Mr. Short, to handle the 16 sale of the Arizona Property. It also provided that, if the 17 Trustee could not sell the Arizona Property within six months, he 18 would abandon the Arizona Property. Thus, the terms of the 19 approved compromise were more favorable to Ms. Toth than those of 20 the proposed compromise. 21 In the second place, Ms. Toth does not explain why she 22 thinks that the court erred when it granted alternative relief. 23 In fact, that ruling was partly favorable to her, because it gave 24 the Trustee only six months to sell the Arizona Property and 25

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26 Even Ms. Toth recognized in her appellate brief that the court approved alternative relief in consideration of her 27 objection: “Further that exact language [in the court’s ruling on the Renewed Motion to Compromise] is what APPELLANT used to 28 submit an objection to the Motion.”

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1 provided that the Arizona Property would be abandoned to her if 2 the Trustee did not get an adequate offer during that period. 3 Ms. Toth also argues that the court treated her unfairly 4 when it changed the terms of the compromise in its written 5 ruling, rather than at the December 1 hearing, thereby depriving 6 her of an opportunity to contest the ruling. This argument 7 misrepresents what happened. The court orally explained its 8 ruling at the December 1 hearing at least three times directly to 9 Ms. Toth. She had an opportunity to respond to the alternative 10 relief and did so at length. The court bent over backwards to 11 explain its ruling to her and allow her to argue. 12 Ms. Toth alternatively argues that the court should have 13 approved the “compromise” reached by herself and the Trustee, 14 whereby she would pay $22,000 to her estate and retain the 15 Arizona Property. However, there is no indication in the record 16 that the Trustee agreed to this compromise.7 We thus decline to 17 enforce Ms. Toth’s supposed compromise for $22,000. 18 2. Ms. Toth does not establish any evidentiary error. 19 Ms. Toth argues in passing that she “was not allowed to 20 examine documents handed into the court and was given no access 21 to the same.” However, she does not specify what documents were 22 handed to the court or when. We will not review arguments on 23 appeal that are not distinctly argued or supported by the record. 24 See Christian Legal Soc. Chapter of Univ. of Cal. v. Wu, 626 F.3d 25

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26 Ms. Toth admitted at the December 1 hearing that there was no agreement to settle for $22,000: “The deal is and the deal 27 that was settled back in February was that they take the $22,000 or the $20,000 to settle this case and they said that’s not 28 enough for us.” (Emphasis added.)

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1 483, 487 (9th Cir. 2010) (An appellate court “won’t consider 2 matters on appeal that are not specifically and distinctly argued 3 in appellant’s opening brief. Applying this standard, we’ve 4 refused to address claims that were only argue[d] in passing, or 5 that were bare assertion[s] . . . with no supporting argument.”). 6 Similarly, she argues that the court did not consider 7 evidence that she presented. Again, she does not identify what 8 evidence the court allegedly ignored, so we will not review this 9 issue on appeal.8 See id. 10 3. Ms. Toth does not establish any fraud upon the court. 11 Ms. Toth also argues that the Colorado Judgment was wrong 12 due to Mr. Short’s alleged fraud and that the bankruptcy court 13 should not have accepted the facts therein. However, as we have 14 stated above, the Colorado Judgment is beyond the scope of this 15 appeal. We therefore cannot review Ms. Toth’s arguments that 16 Mr. Short made false statements and committed fraud upon the 17 court. 18 E. The Panel denies Ms. Toth’s request to strike Mr. Short’s excerpts of record and will only consider her disputed 19 documents for background reference. 20 Finally, the parties have made competing requests to strike 21 portions of the other’s excerpts of record. 22

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23 In her reply brief, Ms. Toth argues that the correspondence between herself and Mr. Stoker showed that her 24 attorney abandoned her, and if the court “was afforded review of these attorney-client privileged documents during the hearing of 25 December 1, 2015, the court would have evidence proving that 26 Stoker was deficient, recklessly abandoned client [sic], caused undue hardship on APPELLANT and the court.” In other words, she 27 admits that these documents were not properly before the court and that the court could not have considered them in rendering 28 its decision.

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1 Mr. Short notes that Ms. Toth’s excerpts of record are “full 2 of documents that were not filed in the Chapter 7 bankruptcy or 3 the adversary proceeding.” He points to thirty documents that 4 were not filed with the bankruptcy court. 5 In response, Ms. Toth concedes that at least a few of those 6 documents were not before the court, because had the court seen 7 those documents, it would have found in her favor. 8 Except to aid in our understanding of the relevant factual 9 background and procedural history of this case, we will not 10 consider the thirty documents identified by Mr. Short. As far as 11 we can tell, these documents were not presented to the bankruptcy 12 court. See Graves v. Myrvang (In re Myrvang), 232 F.3d 1116, 13 1119 n.1 (9th Cir. 2000) (except in rare cases where “‘the 14 interests of justice demand it,’ an appellate court will not 15 consider evidence not presented to the trial court”); Kirshner v. 16 Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (an 17 appellate court is “concerned only with the record before the 18 trial judge when his decision was made”). 19 Conversely, Ms. Toth objects to certain portions of 20 Mr. Short’s supplemental designation of record. We overrule 21 Ms. Toth’s objections and will consider the December 1 hearing 22 transcript (which should have been included in Ms. Toth’s 23 excerpts of record). We will consider the bankruptcy court’s 24 nondischargeability judgment (issued post-appeal) and the 25 documents in the Colorado case only to the extent necessary to 26 understand the factual background and procedural history of this 27 case.

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1 CONCLUSION 2 For the reasons set forth above, the bankruptcy court did 3 not err when it (1) denied the Motion to Convert and (2) denied 4 the Renewed Motion to Compromise and approved alternative relief. 5 Accordingly, we AFFIRM. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26