In Re: Lawrence Remsen v. Richard Marshack

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 3, 2024
• Docket: 22-60057
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: ALICIA MARIE RICHARDS, No. 22-60057

Debtor, BAP No. 21-1266

------------------------------ MEMORANDUM* LAWRENCE REMSEN,

Appellant,

v.

RICHARD A. MARSHACK, Chapter 7 Trustee; RYAL W. RICHARDS,

Appellees.

In re: ALICIA MARIE RICHARDS, No. 22-60058

Debtor, BAP No. 21-1262

------------------------------

ALICIA MARIE RICHARDS,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. RICHARD A. MARSHACK, Chapter 7 Trustee; RYAL W. RICHARDS,

Appeals from the Ninth Circuit Bankruptcy Appellate Panel Spraker, Gan, and Lafferty, Bankruptcy Judges, Presiding

Submitted May 29, 2024**

Before: FRIEDLAND, BENNETT, and SANCHEZ, Circuit Judges.

In these consolidated appeals, Chapter 7 debtor Alicia Marie Richards and

Lawrence Remsen appeal pro se from the Bankruptcy Appellate Panel’s (“BAP”)

judgments affirming the bankruptcy court’s order authorizing the sale of a

residence free and clear of liens under 11 U.S.C. § 363(b)(1) and (f). We have

jurisdiction under 28 U.S.C. § 158(d). We review de novo the BAP’s decision and

apply the same standard of review that the BAP applied to the bankruptcy court’s

ruling. Wood v. Stratos Prod. Dev., LLC (In re Ahaza Sys., Inc.), 482 F.3d 1118,

1123 (9th Cir. 2007). We affirm.

The bankruptcy court did not abuse its discretion by authorizing the Chapter

7 trustee to sell the residence free and clear of liens under 11 U.S.C. § 363(f)

because appellants’ claims were subject to bona fide disputes and the sale price

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 22-60057 22-60058 was greater than the aggregate value of all liens. See 11 U.S.C. § 363(f)(3), (4)

(providing that the trustee may sell property under § 363(b) free and clear of any

interest in such property if, inter alia, such interest is a lien and the sale price is

greater than the aggregate value of all liens on such property, or such interest is in

bona fide dispute); id. § 363(p)(2) (providing that “the entity asserting an interest

in property has the burden of proof on the issue of the validity, priority, or extent

of such interest”); Clear Channel Outdoor, Inc. v. Knupfer (In re PW, LLC), 391

B.R. 25, 32 (B.A.P. 9th Cir. 2008) (setting forth standard of review). Although

appellants challenge the good faith of the purchaser in these appeals, we do not

consider the challenge because the BAP properly determined appellants did not

meaningfully raise the issue before the BAP. See Brownfield v. City of Yakima,

612 F.3d 1140, 1149 n.4 (9th Cir. 2010) (explaining that “a bare assertion does not

preserve a claim”); Burnett v. Resurgent Capital Servs. (In re Burnett), 435 F.3d

971, 975-76 (9th Cir. 2006) (stating that, absent exceptional circumstances, issues

not raised before the BAP are waived).

Contrary to appellants’ contention, the bankruptcy court did not err in

determining that it had subject matter jurisdiction because the residence was an

asset of the bankruptcy estate. See 11 U.S.C. § 541(a)(2) (providing that the filing

of a bankruptcy petition creates an estate comprised of, inter alia, “[a]ll interests of

the debtor and the debtor’s spouse in community property as of the commencement

3 22-60057 22-60058 of the case”); Sea Hawk Seafoods, Inc. v. State of Alaska (In re Valdez Fisheries

Dev. Ass’n, Inc.), 439 F.3d 545, 547 (9th Cir. 2006) (setting forth standard of

review). We reject as without merit appellants’ contentions that the bankruptcy

court was required to hold a separate hearing on jurisdiction and that the BAP

erred by taking judicial notice of a state court judgment.

We reject as unsupported by the record appellants’ contention that Remsen

was denied due process in connection with the sale motion. See Partington v.

Gedan, 961 F.2d 852, 865 (9th Cir. 1992) (recognizing that due process does not

necessarily require the opportunity to present arguments orally).

AFFIRMED.

4 22-60057 22-60058