In re: John Thymes and Shirley Thymes

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: November 9, 2016
• Docket: CC-16-1039-FMcTa
• Status: Unpublished

Opinion

FILED NOV 09 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. CC-16-1039-FMcTa ) 6 JOHN THYMES and ) Bk. No. 2:88-bk-10553-RN SHIRLEY THYMES, ) 7 ) Debtors. ) 8 _____________________________ ) ) 9 JOHN THYMES; SHIRLEY THYMES, ) ) 10 Appellants. ) MEMORANDUM* ______________________________) 11 Argued and Submitted on October 21, 2016 12 at Pasadena, California 13 Filed – November 9, 2016 14 Appeal from the United States Bankruptcy Court for the Central District of California 15 Honorable Richard M. Neiter, Bankruptcy Judge, Presiding 16 17 Appearances: Appellant Shirley Thymes argued pro se. 18 Before: FARIS, McKITTRICK,** and TAYLOR, Bankruptcy Judges. 19 20 21 22 23 24 * This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may 25 have, see Fed. R. App. P. 32.1, it has no precedential value, see 26 9th Cir. BAP Rule 8024-1. ** 27 The Honorable Peter C. McKittrick, United States Bankruptcy Judge for the District of Oregon, sitting by 28 designation. 1 INTRODUCTION 2 In 1989, the bankruptcy court dismissed a chapter 71 case 3 filed by debtors John Anthony Thymes and Shirley Rose Thymes. 4 Twenty-six years later, Debtors sought relief from that order. 5 They attempted to explain their delay by claiming that they never 6 received notice of the order and had been waiting – for two and a 7 half decades – to hear from the bankruptcy court. They have 8 produced no record of what transpired in the bankruptcy court in 9 1988-89; they have not even provided a copy of the 1989 order 10 from which they seek relief. They have made no cogent legal 11 argument that the bankruptcy court erred in 1989. The bankruptcy 12 court did not err when it refused their 2015 request for relief 13 from the 1989 order. We AFFIRM. 14 FACTUAL BACKGROUND2 15 Debtors filed a chapter 7 petition on May 17, 1988 (the 16 “Chapter 7 Case”). The bankruptcy court dismissed the case on or 17 around July 18, 1989. The official record of that case has been 18 destroyed. 19 The Chapter 7 Case was only one of several bankruptcy cases 20 filed by Debtors in the 1980s and 1990s. On May 2, 1989, Debtors 21 1 22 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all 23 “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, and all “Civil Rule” references are 24 to the Federal Rules of Civil Procedure, Rules 1-86. 25 2 Debtors present us with a prohibitively limited record. 26 We have exercised our discretion to review the bankruptcy court’s docket, as appropriate, see Woods & Erickson, LLP v. Leonard 27 (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008), although the docket contains almost no information about what 28 transpired in 1988-89.

2 1 filed a chapter 13 petition (the “Chapter 13 Case”). The 2 disposition of the Chapter 13 Case is equally unclear; for 3 example, we do not know whether Debtors’ plan was confirmed and 4 consummated or whether they received a discharge. However, 5 Debtors represented that they were paying $1,700 per month as a 6 part of their plan. 7 On April 3, 2015, twenty-six years after the court dismissed 8 their Chapter 7 Case, Debtors filed a motion to reopen the case 9 (“Motion to Reopen”). They concurrently filed a motion for 10 relief from dismissal under Rule 9024 (“Motion for Relief”). The 11 Motion for Relief argued that Debtors were entitled to a 12 discharge in the Chapter 7 Case and that the dismissal was 13 “unconstitutional and unjust.” 14 The court granted the Motion to Reopen and set a hearing on 15 the Motion for Relief on July 2, 2015. 16 Debtors did not appear at the July 2 hearing, and the court 17 denied the Motion for Relief. Instead, Debtors appeared in court 18 on July 9 and claimed that they did not receive notice of the 19 July 2 hearing. The court vacated its order denying the Motion 20 for Relief and reset the hearing for August 18. The court later 21 granted Debtors’ motion to continue the hearing to September 9. 22 Following the September 9 hearing, the bankruptcy court 23 denied the Motion for Relief. The court found that: (1) the 24 Chapter 7 Case was dismissed 26 years ago, and the original case 25 files had been destroyed and cannot be retrieved; (2) the time to 26 appeal the dismissal had long expired under Rule 8002; (3) the 27 motion was grossly untimely; (4) the Motion for Relief lacked the 28 relevant information to determine whether Debtors should be

3 1 relieved from the order dismissing the bankruptcy case and failed 2 to specify the reason for dismissal or even attach a copy of the 3 dismissal order; and (5) Debtors have not shown that they were 4 deprived of due process. 5 On October 19, 2015, Debtors filed a motion for 6 reconsideration (“Motion for Reconsideration”) that essentially 7 restated the same arguments from the Motion for Relief. Among 8 other things, they argued that creditors Metmor Financial, Inc. 9 and Cal-Western Reconveyance Corporation violated the automatic 10 stay and that they were not given notice of the 1989 dismissal.3 11 The court held a hearing on the Motion for Reconsideration. 12 Debtors’ oral presentation did little to clarify their arguments. 13 Debtors referenced a debt owed to creditor Metmor Financial but 14 failed to explain it. Further, Debtors also admitted that they 15 did not have any current debt they sought to discharge and that 16 the debt owed to Metmor Financial had been “settled.” Debtors 17 insisted that the Chapter 13 Case “is fine” and they’re “only 18 here for the Chapter 7, because the Chapter 13 we got a judgment 19 against all these - Metmor and all these agents that we named 20 already. . . . We got a judgment and everything on that. That’s 21 been settled.” 22 The court struggled to ascertain what relief Debtors were 23 seeking. After the court explained its tentative ruling to deny 24 the Motion for Reconsideration, Debtors compounded the confusion 25 26 3 Debtors also stated that the Motion for Reconsideration 27 was based on two of their other bankruptcy cases (98-bk-03657 and 89-bk-51827) but do not explain the relevance of those cases or 28 whether they were previously raised before the bankruptcy court.

4 1 by appearing to agree with the court that the Chapter 7 Case was 2 too old for re-adjudication: 3 THE COURT: Well, but the Chapter 7 is old and cold. It’s done. 4 MR. THYMES: Right. That’s what I’m saying. 5 THE COURT: We can’t reopen that. 6 MR. THYMES: Right. So I’m not getting off into 7 all the other cases that we got judgment on already. It’s just the Chapter 7 that we’re supposed to be here 8 before you, and I just read your tentative ruling and whatnot, and I don’t see where any harm or damage could 9 be done here because everything has been settled through all the other means. 10 11 Ultimately, the conclusion of the hearing failed to add any 12 clarity to the proceedings: 13 THE COURT: Do you deny that you got a discharge in Chapter 7? 14 MR. THYMES: No, I’m not denying to get a discharge 15 for Chapter 7. 16 MS. THYMES: What is he asking? What is he asking? 17 MR. THYMES: But I’m saying at the same time we had two bankruptcies pending. 18 THE COURT: Okay. 19 MR. THYMES: Yeah. 20 THE COURT: So what? 21 MR. THYMES: So what I’m saying is everything was 22 taken care of through Chapter 13. 23 THE COURT: Okay. If everything was taken care of, we have nothing to take care of here. 24 MR. THYMES: Yeah, right. 25 THE COURT: Thank you. 26 MR. THYMES: Okay. That’s it. 27 THE COURT: This is -- there is nothing that I see 28 to take care of here.

5 1 MR. THYMES: Right. 2 The bankruptcy court adopted its tentative ruling and denied 3 the Motion for Reconsideration. It held that the Motion for 4 Reconsideration did not address any of the grounds for relief 5 enumerated in Civil Rule 60(b) or present any evidence warranting 6 reconsideration and that Debtors failed to provide evidence that 7 the automatic stay or their due process rights were violated. 8 Debtors timely appealed from the orders denying the Motion 9 for Relief and Motion for Reconsideration. 10 JURISDICTION 11 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 12 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C. 13 § 158. 14 ISSUES 15 (1) Whether the bankruptcy court erred in denying the Motion 16 for Relief. 17 (2) Whether the bankruptcy court erred in denying the Motion 18 for Reconsideration. 19 STANDARDS OF REVIEW 20 We review denials of motions for relief under Civil 21 Rule 60(b) for an abuse of discretion. See United States v. 22 Estate of Stonehill, 660 F.3d 415, 443 (9th Cir. 2011). 23 Accordingly, we reverse only where the bankruptcy court applied 24 an incorrect legal rule or where its application of the law to 25 the facts was illogical, implausible, or without support in 26 inferences that may be drawn from the record. United States v. 27 Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). 28 “Whether an appellant’s due process rights were violated is

6 1 a question of law we review de novo.” DeLuca v. Seare 2 (In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014); see also 3 HSBC Bank USA, Nat’l Ass’n v. Blendheim (In re Blendheim), 4 803 F.3d 477, 497 (9th Cir. 2015) (“Whether adequate notice has 5 been given for the purposes of due process is a mixed question of 6 law and fact that we review de novo.”). “De novo review requires 7 that we consider a matter anew, as if no decision had been made 8 previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 9 917 (9th Cir. BAP 2014) (citations omitted). 10 DISCUSSION 11 A. Debtors failed to present any information to the bankruptcy court to support the Motion for Relief. 12 13 Debtors provide no record of what transpired in the 14 Chapter 7 Case in 1988-89, before it was closed. The fact that 15 the court’s copies of the record were destroyed does not relieve 16 Debtors of their burden to provide us with a complete record on 17 appeal. See Welther v. Donell (In re Oakmore Ranch Mgmt.), 18 337 B.R. 222, 226 (9th Cir. BAP 2006) (the appellant “bears the 19 burden of presenting a complete record”). 20 Debtors have filed multiple requests for judicial notice, 21 including one on the morning of oral argument and others after 22 the matter was submitted at the conclusion of oral argument.4 We 23 deny all such requests. 24 We have not considered the post-argument requests. The 25 26 4 On the morning of oral argument, Debtors also filed a 27 motion asking the Panel to vacate a 1991 California superior court judgment. This issue is not before us on appeal, and we 28 thus deny the motion.

7 1 submission of this matter means that the parties’ opportunity to 2 present materials to the Panel has ended. Any submission of a 3 request for judicial notice thereafter is unauthorized and will 4 not be considered. 5 The documents which they ask us to consider in the 6 pre–argument request include multiple pages of argument, which 7 are really just unauthorized supplemental briefs and are not 8 proper subjects of judicial notice. Debtors also offer a 9 seemingly random collection of papers filed in other proceedings 10 before other federal and state courts. There is no indication 11 that any of those papers were before the bankruptcy court in 12 1988-89 or in 2015; most (if not all) of them did not even exist 13 until after the bankruptcy court dismissed the Chapter 7 Case in 14 1989. Finally, Debtors offer copies of summary sheets and the 15 electronic docket in the Chapter 7 Case, but those papers do not 16 help us because they contain no information from 1988-89, other 17 than to note that the Chapter 7 Case was filed and dismissed. 18 At oral argument, Debtors argued that (1) the trustee had 19 abandoned their case; (2) they want to reopen the Chapter 7 Case; 20 and (3) they want to file a quiet title action. They did not 21 elaborate on any of their arguments or explain why they are 22 entitled to that relief. 23 Ultimately, we do not know (1) what information was before 24 the bankruptcy court in the Chapter 7 Case in 1988-89; (2) what 25 the bankruptcy court did in the Chapter 7 Case in 1988-89 (other 26 than that the court dismissed the case); or (3) why the court 27 dismissed that case in 1989. In the absence of such information, 28 we cannot say that the bankruptcy court erred in 2015 when it

8 1 declined to grant relief from the 1989 order. 2 B. The bankruptcy court did not deny Debtors due process. 3 Debtors contend that the bankruptcy court denied them due 4 process because they did not receive notice of the July 2 5 hearing. Similarly, they claim that they did not receive notice 6 of the 1989 dismissal. We reject these arguments. 7 Generally speaking, a court must give sufficient notice of 8 its intention to dismiss a case and the opportunity for 9 interested parties to be heard. See Mullane v. Cent. Hanover 10 Bank & Tr. Co., 339 U.S. 306, 314 (1950); Tennant v. Rojas 11 (In re Tennant), 318 B.R. 860, 870 (9th Cir. BAP 2004). Even if 12 a bankruptcy court errs by failing to provide adequate notice and 13 hearing, however, the debtor must show prejudice from the 14 procedural deficiencies. See Rosson v. Fitzgerald 15 (In re Rosson), 545 F.3d 764, 776-77 (9th Cir. 2008); City 16 Equities Anaheim, Ltd. v. Lincoln Plaza Dev. Co. (In re City 17 Equities Anaheim, Ltd.), 22 F.3d 954, 959 (9th Cir. 1994). 18 Debtors state that the bankruptcy court sent notice of the 19 July 2 hearing to an incorrect address and, as a result, they 20 were denied an opportunity be heard. But even if Debtors did not 21 receive notice of the July 2 hearing, they were not prejudiced. 22 The court promptly vacated the denial of the Motion for Relief 23 and reset the matter for hearing on September 9 at Debtors’ 24 request. As far as we can tell, Debtors appeared at the 25 September 9 hearing and were heard. 26 Debtors also argue that the court denied them due process by 27 failing to give them notice of the dismissal in 1989. Debtors 28 cannot point to anything in the record that confirms their

9 1 allegation, and they do not identify any prejudice they suffered. 2 Moreover, they slept on their rights for twenty-six years. We 3 thus discern no error.5 4 C. Debtors fail to establish a violation of the automatic stay. 5 Debtors argue that the California superior court, creditors 6 Metmor Financial and Cal-Western Reconveyance Corporation, and 7 the chapter 7 trustee violated the automatic stay. They provide 8 no information to substantiate or even describe the supposed 9 violations.6 10 Debtors ask us to take judicial notice of the alleged 11 violations of the automatic stay in the Chapter 13 Case. But 12 issues relating to the Chapter 13 Case are not before us on this 13 appeal in the Chapter 7 Case. 14 Moreover, this appeal relates to the dismissal of the 15 Chapter 7 Case. Any violation of the automatic stay has no 16 bearing on whether the dismissal was proper. Therefore, this 17 argument is irrelevant to the order on appeal. 18 D. Debtors’ remaining arguments lack legal and factual support. 19 Debtors offer numerous other reasons why the bankruptcy 20 court should have set aside the 1989 dismissal. They argue that 21 the trustee violated the law and Debtors’ constitutional rights; 22 the trustee breached his duty to protect Debtors’ interest in 23 24 5 In light of our discussion concerning the alleged deprivation of due process, we need not address the bankruptcy 25 court’s conclusion that no government action occurred. 26 6 Some of the documents in Debtors’ second request for 27 judicial notice indicate that Cal-Western Reconveyance Corporation foreclosed on Debtors’ property. But we do not take 28 judicial notice of these documents for their purported truth.

10 1 exemptions; the bankruptcy court failed to take judicial notice 2 of Debtors’ exhibits; the bankruptcy court lacked jurisdiction; 3 the Chapter 7 Case was “first” and should be the “lead case”; 4 Debtors are judgment-proof and should receive a discharge; 5 excusable neglect justifies the late Motion for Relief; and a 6 creditor’s 1989 notice of trustee’s sale was fraudulent. 7 Aside from one-sentence statements of purported errors, 8 Debtors fail to explain the factual or legal bases for their 9 arguments. We will not review arguments on appeal that are not 10 distinctly argued or supported by the record. See Christian 11 Legal Soc. Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th 12 Cir. 2010) (An appellate court “won’t consider matters on appeal 13 that are not specifically and distinctly argued in appellant’s 14 opening brief.”). 15 Furthermore, many of these arguments were not presented in 16 any substantial way to the bankruptcy court in the first 17 instance. See Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 18 543 (9th Cir. 2016) (“Generally, an appellate court will not hear 19 an issue raised for the first time on appeal.”) 20 And, again, there is no record to tell us what actually 21 happened during the Chapter 7 Case. 22 Accordingly, we find no error. 23 E. The bankruptcy court did not err in denying the Motion for Reconsideration. 24 25 Both in the Motion for Reconsideration and their oral 26 presentation, Debtors merely repeated the arguments raised in the 27 Motion for Relief. They did not present any compelling (or even 28 comprehensible) reason to reconsider the order denying the Motion

11 1 for Relief. See Agostini v. Felton, 521 U.S. 203, 257 (1997) 2 (“relitigation of the legal or factual claims underlying the 3 original judgment is not permitted in a Rule 60(b) motion or an 4 appeal therefrom”). Indeed, at the hearing, they agreed with the 5 court that nothing further could be done in the Chapter 7 Case. 6 The court did not abuse its discretion in denying the Motion 7 for Reconsideration. 8 CONCLUSION 9 For the reasons set forth above, the bankruptcy court 10 properly denied the Motion for Relief and the Motion for 11 Reconsideration. Accordingly, we AFFIRM. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28