In re: Jordana Bauman

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: April 6, 2020
• Docket: SC-19-1060-LGS
• Status: Unpublished

Opinion

FILED APR 6 2020 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. SC-19-1060-LGS

JORDANA BAUMAN, Bk. No. 18-02875-CL13

Debtor.

JORDANA BAUMAN,

Appellant,

v. MEMORANDUM*

THOMAS H. BILLINGSLEA, JR., Chapter 13 Trustee,

Appellee.

Argued and Submitted on March 26, 2020

Filed – April 6, 2020

Appeal from the United States Bankruptcy Court for the Southern District of California

* This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. Honorable Christopher B. Latham, Bankruptcy Judge, Presiding

Appearances: Appellant Jordana Bauman argued pro se; Kathleen A. Cashman-Kramer on brief for Appellee.

Before: LAFFERTY, GAN, and SPRAKER, Bankruptcy Judges.

INTRODUCTION

Appellant Jordana Bauman (“Debtor”) appeals the bankruptcy

court’s order denying her motion to extend the time to appeal under Rule

8002(d)(1).1 In deciding the motion, the bankruptcy court correctly applied

the legal standard for excusable neglect articulated in Pioneer Investment

Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). We

therefore find no abuse of discretion and AFFIRM.

FACTUAL BACKGROUND

Debtor filed a chapter 13 petition on May 11, 2018. The case was her

sixth bankruptcy filing and her fourth chapter 13 case. 2 In September 2018

the chapter 13 trustee, Appellee Thomas Billingslea (“Trustee”) filed an

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure. 2 All three previous chapter 13 cases were dismissed pre-confirmation, and her 2016 chapter 13 case was dismissed with a 180-day bar to refiling based on the bankruptcy court's finding that she had filed the case in bad faith.

2 objection to confirmation and a motion to dismiss Debtor’s case with a one-

year bar to refiling. The bases for Trustee’s objection and motion were

Debtor’s failure to make plan payments and numerous deficiencies in

Debtor’s proposed chapter 13 plan. Further, Trustee alleged that Debtor’s

plan was not proposed in good faith, citing her prior bankruptcies, her

failure to make ongoing mortgage payments since at least 2011, and the

fact that she and her brother had filed at least fifteen appeals of case

dismissals or orders denying reconsideration of those dismissals.

The certificate of service for the notice of hearing on Trustee’s motion

to dismiss shows that Debtor was served by first class mail at her home

address3 and electronically to her email address, and she does not contend

that she failed to receive the notice. Nevertheless, she did not file a

response or appear at the scheduled hearing on Trustee’s motion. On

November 8, 2018, the court granted the motion to dismiss, imposing a

one-year bar. The certificates of service for the notice of dismissal and the

dismissal order show that both documents were served on Debtor by the

Bankruptcy Noticing Center on November 10, 2018 at the address reflected

on the bankruptcy court’s docket.

On December 12, 2018, thirty-four days after entry of the dismissal

3 The address on the certificate of service for Trustee’s notice varies slightly from the address on the bankruptcy court docket: the word “Front” appears after the street address and before the PMB number. That word does not appear in the address on the court docket.

3 order, Debtor filed a “Motion to Reopen or Extend Time to Appeal”

(“Motion to Extend”). Debtor alleged in the Motion to Extend that she had

not received the notice of dismissal and that the bankruptcy court should

extend the time to appeal based on excusable neglect.4

Trustee opposed the Motion to Extend, arguing that Debtor had

failed to show excusable neglect. The bankruptcy court issued a ruling

without a hearing and denied the Motion to Extend, finding that the Pioneer

factors weighed against granting the relief sought by Debtor.

Debtor timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(1) and (b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Whether the bankruptcy court abused its discretion in denying

Debtor’s Motion to Extend.

STANDARD OF REVIEW

The bankruptcy court’s denial of a motion to extend the time to file a

notice of appeal is reviewed for abuse of discretion. Pincay v. Andrews, 389

F.3d 853, 858–59 (9th Cir. 2004) (en banc). Under the abuse of discretion

4 On the same day, Debtor filed a notice of appeal of the dismissal order (BAP No. SC-18-1334). The Panel dismissed the appeal as untimely, but without prejudice to reinstatement following appellate review of this appeal.

4 standard, we first “determine de novo whether the [bankruptcy] court

identified the correct legal rule to apply to the relief requested.” United

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If the

bankruptcy court identified the correct legal rule, we then determine under

the clearly erroneous standard whether its factual findings and its

application of the facts to the relevant law were: “(1) illogical,

(2) implausible, or (3) without support in inferences that may be drawn

from the facts in the record.” Id. (internal quotation marks omitted).

DISCUSSION

Upon entry of a judgment, order, or decree by a bankruptcy court, a

party has fourteen days to file a notice of appeal. Rule 8002(a). If unable to

meet that deadline, a party may move for an extension of time to file the

notice of appeal. Rule 8002(d). While the deadline for filing a request to

extend the appeal time is also fourteen days from the entry of the order to

be appealed, the Rules contain an additional twenty-one day window (a

total of thirty-five days) during which the bankruptcy court may grant a

late-filed motion to extend time, but only if the moving party demonstrates

that its neglect in not filing a timely motion was “excusable.” Rule

8002(d)(1)(B). The party requesting an extension of time bears the burden

of proving the existence of excusable neglect. Key Bar Invs., Inc. v. Cahn (In

re Cahn), 188 B.R. 627, 631 (9th Cir. BAP 1995).

In determining whether the moving party has shown excusable

5 neglect, the court considers: (1) the danger of prejudice to the other party;

(2) the length of the delay caused by the neglect, and its potential impact on

judicial proceedings; (3) the reason for the delay, including whether it was

within the movant’s reasonable control; and (4) whether the movant acted

in good faith. Pioneer Inv. Servs. Co., 507 U.S. at 395. In conducting this

analysis, the court is to consider all relevant circumstances surrounding the

neglect; no “single circumstance in isolation compels a particular result

regardless of the other factors.” Pincay, 389 F.3d at 856-57 (quoting Briones

v. Riviera Hotel & Casino, 116 F.3d 379, 382 n.2 (9th Cir. 1997)).

The sole argument presented by Debtor in the bankruptcy court was

that she failed timely to appeal the dismissal order because she had not

received the notice of dismissal. The bankruptcy court analyzed the Motion

to Extend under the Pioneer standard for excusable neglect and concluded

that the factors weighed against granting the motion. The bankruptcy court

found that there was no danger of prejudice to Trustee from the delay, so

this factor weighed in Debtor’s favor. Similarly, the bankruptcy court

found that although the delay was “significant” because the motion was

filed on the cusp of the maximum time allowed under Rule 8002(d)(1), no

case administration or judicial proceedings would be affected, particularly

in light of the facts that the case had been dismissed with a one-year bar,

6 and the automatic stay had not been in effect for some time.5

The bankruptcy court concluded, however, that the “reason for the

delay” and “good faith” factors weighed sharply against granting Debtor’s

motion. First, the court noted there was no dispute that the notice of

dismissal was properly addressed and mailed to Debtor’s address of record

in the bankruptcy case, and that Debtor did not dispute having received

notice of Trustee’s motion to dismiss. Accordingly, the mailbox rule

applied. Under the mailbox rule, “proof of mailing creates a rebuttable

presumption of . . . receipt.” Berry v. U.S. Trustee (In re Sustaita), 438 B.R.

198, 209 (9th Cir. BAP 2010), aff’d, 460 F. App’x 627 (9th Cir. 2011) (citations

omitted). The presumption can be overcome only by clear and convincing

evidence that the mailing was not accomplished. Moody v. Bucknum (In re

Bucknum), 951 F.2d 204, 207 (9th Cir. 1991). Bare denial of receipt, even in

an affidavit, is not sufficient to overcome the presumption. CUNA Mutual

Ins. Grp. v. Williams (In re Williams), 185 B.R. 598, 600 (9th Cir. BAP 1995). In

light of these authorities, the court found that Debtor’s denial of receipt

was insufficient to overcome the presumption of delivery in the absence of

any other evidence, such as the notice being returned as undelivered.

Accordingly, the court found that Debtor received the notice. Moreover, the

5 In July 2018 the bankruptcy court denied Debtor’s motion to extend the automatic stay, which had expired 30 days after the petition date pursuant to § 362(c)(3)(A).

7 court noted that parties have an affirmative duty to monitor the dockets to

inform themselves of the entry of any orders they wish to appeal. Delaney v.

Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994). In light of the fact

that Debtor did not dispute having received notice of Trustee’s motion to

dismiss and the hearing thereon, the court found that her failure to monitor

the docket was grossly negligent.

Finally, the bankruptcy court found that Debtor did not bring the

motion in good faith, given that she is familiar with bankruptcy litigation

and had filed numerous appeals. The court noted that Debtor had

previously complained of issues with receiving mail and found that Debtor

had either refused the court’s admonishments to ensure that her address of

record was current and accurate, or she intentionally misrepresented lack

of receipt. The court thus concluded that Debtor’s Motion to Extend was an

abuse of the bankruptcy process and yet another attempt to hinder and

delay her creditors.

Based on the foregoing analysis, the bankruptcy court found that

Debtor’s failure timely to appeal the dismissal order was not the result of

excusable neglect and denied the motion.

Debtor’s arguments in her appellate brief address several matters,

but nothing relevant to the order on appeal. She argues that the bankruptcy

court should not have dismissed her case, although it is not clear which

one: she references the dismissal of her 2011 case and a District Court order

8 vacating and remanding that order on grounds of violation of due process.

She contends that the bankruptcy court did not follow the mandate of the

District Court on remand. She also accuses Judge Latham of being biased

and of using “tricks” to deny her due process in her 2017 bankruptcy case.

In fact, much of her brief is devoted to purported errors in the dismissal of

the 2017 case and the subsequent motion to vacate, which are the subjects

of separate appeals. She further argues that Judge Latham should have

recused himself in this (2018) case, but the record does not reflect that she

(or anyone else) ever moved for recusal.

Crucially, Debtor makes no attempt to explain to this Panel how the

bankruptcy court erred in its excusable neglect analysis or in denying her

Motion to Extend. Although we construe pro se appellate briefs liberally,

see Cruz v. Stein Strauss Trust #1361 (In re Cruz), 516 B.R. 594, 604 (9th Cir.

BAP 2014), “we cannot manufacture arguments for an appellant and

therefore we will not consider any claims that were not actually argued in

appellant’s opening brief.” Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929

(9th Cir. 2003) (citations and internal quotations omitted). And arguments

not specifically and distinctly raised in an appellant’s opening brief are

deemed waived. Price v. Lehtinen (In re Lehtinen), 332 B.R. 404, 410 (9th Cir.

BAP 2005), aff’d, 564 F.3d 1052 (9th Cir. 2009).

At oral argument in this appeal, Debtor noted–as she did in the

bankruptcy court– that in the past she had experienced problems receiving

9 mail at her home address. But, as noted above, the notice of dismissal and

the dismissal order were served on Debtor at the address on the

bankruptcy court docket. Debtor does not contend that that address is

incorrect, but if it is, it is Debtor’s duty to correct it. Rule 4002(a)(5); See also

Davis v. Case (In re Davis), 275 B.R. 864, 867 (8th Cir. BAP 2002), aff’d, 55 F.

App’x 789 (8th Cir. 2003) (“The debtor who fails to keep the court apprised

of his proper mailing address has only himself to blame.”). Moreover, as

pointed out by the bankruptcy court, any known issues with timely

receiving mail resulted in a heightened duty on the part of Debtor to

monitor the bankruptcy court docket for any relevant filings.

In sum, nothing in the record suggests that the bankruptcy court

abused its discretion in denying Debtor’s Motion to Extend. The court

applied the correct legal standard, and the record supports the bankruptcy

court’s factual findings; Debtor did not meet her burden to show that those

findings were clearly erroneous. See Wells Fargo Bank, N.A. v. Loop 76, LLC

(In re Loop 76, LLC), 465 B.R. 525, 545 (9th Cir. BAP 2012), aff’d, 578 F. App’x

644 (9th Cir. 2014) (to show clear error, appellant has to show how the

findings were not supported by the record).

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy court’s

order denying Debtor’s Motion to Extend.