In re: Marco Gutierrez and Jennifer Gutierrez

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: August 19, 2014
• Docket: NC-13-1469-DJuKu
• Status: Unpublished

Opinion

FILED AUG 19 2014 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY.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 In re: ) BAP No. NC-13-1469-DJuKu ) 6 MARCO GUTIERREZ and JENNIFER ) Bk. No. 08-44503 GUTIERREZ, ) 7 ) Debtors. ) 8 ______________________________) ) 9 MARCO GUTIERREZ; JENNIFER ) GUTIERREZ, ) 10 ) Appellants, ) 11 ) v. ) M E M O R A N D U M1 12 ) JOHN DIAZ COKER; IRENE MACIAS,) 13 ) Appellees. ) 14 ______________________________) 15 Argued and Submitted on July 24, 2014 at San Francisco, California 16 Filed - August 19, 2014 17 Appeal from the United States Bankruptcy Court 18 for the Northern District of California 19 Honorable M. Elaine Hammond, Bankruptcy Judge, Presiding 20 Appearances: Appellants Marco Gutierrez and Jennifer Gutierrez 21 argued pro se; John Diaz Coker, Esq. argued pro se and for Appellee Irene Macias. 22 23 Before: DUNN, JURY and KURTZ, Bankruptcy Judges. 24 25 26 1 This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8013-1.

-1- 1 Debtor appellants Marco A. Gutierrez (“Mr. Gutierrez”) and 2 Jennifer V. Gutierrez (“Ms. Gutierrez”) (collectively, “Debtors”) 3 appeal the bankruptcy court’s order denying their motion for 4 contempt for violation of the discharge injunction (“Motion”) 5 against appellees Irene Macias (“Ms. Macias”) and John Diaz Coker 6 (“Mr. Coker”) (collectively, “Appellees”). The Debtors contend 7 that the bankruptcy court erred in determining that the Appellees 8 did not willfully violate the discharge injunction. We conclude 9 otherwise, and we AFFIRM. 10 I. FACTUAL BACKGROUND 11 The Debtors and Appellees each filed multiple, voluminous 12 declarations setting forth their conflicting versions of events 13 in support of and in opposition to the Motion prior to the 14 evidentiary hearing on the Motion before the bankruptcy court, 15 which they have submitted in their excerpts of record. However, 16 the parties did not include in their excerpts of record the 17 bankruptcy court’s Memorandum Decision (“Memorandum Decision”), 18 entered on September 9, 2013, that set forth its findings of fact 19 and conclusions of law for purposes of Civil Rule 52(a), 20 applicable with respect to the Motion under Rules 7052 and 9014,2 21 or its Order Denying Motion for Contempt (“Order”), entered on 22 the same date. We located and reviewed the Memorandum Decision 23 and the Order in exercising our discretion to review the 24 25 2 Unless otherwise indicated, all chapter and section 26 references are to the federal Bankruptcy Code, 11 U.S.C. 27 §§ 101-1532, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. All “Civil Rule” 28 references are to the Federal Rules of Civil Procedure.

-2- 1 bankruptcy court’s electronic docket and the documents on record 2 therein. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, 3 Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase 4 Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th 5 Cir. BAP 2003). The following factual narrative relies 6 substantially on the factual information included in the 7 Memorandum Decision. 8 A. Pre-Bankruptcy Relations 9 This appeal arises from the personal relationship between 10 the Debtors and Ms. Macias that ripened into friendship but 11 ultimately soured into estrangement and antipathy. The Debtors 12 formed and operated Hidalgo Properties, a real estate and 13 mortgage brokerage business. Ms. Macias worked for the Debtors 14 from 2006 until 2008, first as a real estate assistant and later 15 as a real estate broker under Mr. Gutierrez’ license. Hidalgo 16 Properties eventually grew to encompassing 60 agents and 17 assistants with four branches in Antioch, Citrus Heights, Madera 18 and Concord, California. However, with the recession, Hidalgo 19 Properties and the Debtors fell on hard times, and the Debtors 20 experienced financial difficulties. As Ms. Macias recalled, 21 “Toward the end of the time I was with them [the Debtors] began 22 to do loan modifications and bankruptcies, as their regular real 23 estate business decreased. With the real estate crisis of 2007, 24 their business decreased so much that they fell behind in paying 25 commissions so they lost all but two of their agents.” 26 Ms. Macias Declaration, at p. 2. 27 In July 2007, facing eviction from the Antioch office, the 28 Debtors moved their business office into their home. During the

-3- 1 period from mid-2007 through 2008, Ms. Macias continued to work 2 for the Debtors. She stated in her Declaration: 3 I became the office manager, and continued as agent when all of their other agents left them. My 4 relationship became personal and I even helped [Debtors] with frequent small loans, with housekeeping, 5 and with the care of their children. 6 I was occasionally paid, but more often I was asked to give them money because they were in financial 7 difficulty with their large house . . . . 8 Ms. Macias Declaration, at pp. 2-3. Ms. Gutierrez stated in her 9 Declaration that her husband “believed the debt owed to Miguel 10 and Irene Macias to be approximately $50,000.” Ms. Gutierrez 11 Declaration, at p. 11. 12 In his Declaration, Miguel Macias stated, “As Marco 13 Gutierrez’ business declined my wife [Ms. Macias] and I became 14 close to them and helped them by sharing some of my earnings from 15 other employment.” Miguel Macias Declaration, at p. 2. In fact, 16 when utilities were shut off at the Debtors’ home for nonpayment, 17 the Debtors moved their family in with Mr. and Ms. Macias for a 18 short period. However, over time, the relationship between the 19 Debtors and Mr. and Ms. Macias deteriorated to the point where 20 Ms. Macias decided to cut off all ties with the Debtors and 21 ceased communications. 22 B. The Debtors’ Bankruptcy 23 The Debtors are no strangers to bankruptcy court. They have 24 filed “a total of 14 bankruptcy cases (either jointly or 25 individually).” Memorandum Decision, at p. 2; Mr. Coker 26 Declaration, at p. 8. The chapter 7 case (“Chapter 7 Case”) from 27 which this appeal arises was filed on August 19, 2008, and is the 28 only one of the Debtors’ bankruptcy cases in which they obtained

-4- 1 a discharge. At oral argument, Ms. Gutierrez insisted that the 2 Chapter 7 Case was only the Debtors’ third bankruptcy filing. 3 Ms. Macias stated in her Declaration, 4 During the time I was working with [Debtors] they explained to me how they were using the bankruptcy 5 court to prevent foreclosure on their home and to prevent other collection efforts, since they had no 6 money. Mrs. Gutierrez explained to us that the way they were preventing a foreclosure was by filing for 7 bankruptcy and then not following up on a legal requirement and the case would be dismissed. She 8 explained to us that sometimes there was a three month period between the filing and the dismissal and that 9 interfered with the foreclosure. 10 Ms. Macias Declaration, at p. 5. 11 Initially, the Debtors did not list Ms. Macias as a creditor 12 in their schedules. However, two and a half months after the 13 Chapter 7 Case was filed, the Debtors filed an amended Schedule F 14 listing Ms. Macias as a creditor. The amended Schedule F was 15 filed after a notice of a possible distribution to creditors was 16 served. “There is no record of [Ms.] Macias having received 17 notice from the court of the bankruptcy filing at this time, or 18 of the opportunity to file proofs of claim.” Memorandum 19 Decision, at p. 2. The Debtors received their discharge by order 20 entered on May 27, 2009. 21 C. Subsequent Litigation among the Parties 22 The Debtors first sued Ms. Macias and her husband in Contra 23 Costa Superior Court (“State Court”) in January 2010 (“First 24 Suit”). Ms. Macias filed a general denial and affirmative 25 defenses, but did not file a cross-complaint for unpaid wages or 26 commissions. The First Suit was mediated and ultimately was 27 dismissed without any determination of liability. 28 The Debtors subsequently filed a second lawsuit (“Second

-5- 1 Suit”) against Mr. and Ms. Macias and Ms. Lorena Mendez in State 2 Court on September 13, 2011, setting forth claims for 3 “Defamation, Civil Conspiracy, Misappropriation of Trade Secret 4 and Punitive Damages,” seeking damages of “one dollar short of 5 one million.” Ms. Macias Declaration, at p. 6; Mr. Coker 6 Declaration, at p. 3. The Second Suit 7 was brought after [Ms.] Macias and Lorena Mendez had cooperated with the investigation by the State 8 Department of Real Estate resulting from a complaint by Mr. Oscar Garzon, which ultimately resulted in 9 revocation of Mr. Gutierrez’ broker’s license, for various violations, including the surreptitious taking 10 of money from the bank account of Mr. Oscar Garzon, the illegal collection of fees in advance of a modification 11 for the same individual and his wife, and for Debtors’ acting in the real estate field on suspended licenses. 12 13 Mr. Coker Declaration, at p. 3. The defendants answered, and 14 Ms. Macias filed a cross-complaint for unpaid wages, unpaid 15 commissions and abuse of process, pro se but assisted by a law 16 student. Ultimately, the Second Suit was dismissed, again with 17 no determination of liability. 18 Meanwhile, the Debtors filed a motion to reopen the 19 Chapter 7 Case, which was granted by order entered on January 10, 20 2012. The Debtors subsequently filed an adversary proceeding 21 complaint against Mr. and Ms. Macias, Mr. Coker and his wife, and 22 Lorena Mendez, asserting claims for violation of the discharge 23 injunction and additional state law claims, to which answers were 24 filed. The bankruptcy court abstained from hearing claims other 25 than the claim for violation of the discharge injunction. 26 D. Further Proceedings and the Decision on the Motion 27 In light of the Ninth Circuit’s determination that no 28 private right of action exists to enforce the discharge

-6- 1 injunction, see Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 2 (9th Cir. 2002), the bankruptcy court interpreted the Debtors’ 3 adversary complaint as a motion (“Motion”) for civil contempt. 4 As noted above, the parties filed multiple, lengthy declarations 5 in support of and in opposition to the Motion. 6 The Motion was heard at an evidentiary hearing (“Hearing”) 7 before the bankruptcy court on August 29, 2013. At that point, 8 the claims against Mr. Macias, Mrs. Coker and Lorena Mendez had 9 been dropped, and the Debtors were pursuing the Motion only 10 against Ms. Macias and Mr. Coker. In addition to the 11 declarations submitted by the parties, Ms. Macias, Ms. Gutierrez 12 and Lorena Mendez testified at the Hearing. At the conclusion of 13 the Hearing, the bankruptcy court took the matter under 14 submission. 15 In its subsequent Memorandum Decision, the bankruptcy court 16 began its legal analysis by noting that a party who knowingly 17 violates the discharge injunction can be held in contempt under 18 § 105(a), citing Walls v. Wells Fargo Bank, 276 F.3d at 507. 19 The bankruptcy court continued: 20 Violation of a discharge injunction requires proof that the creditor (1) knew the discharge injunction was 21 applicable and (2) intended the actions, which violated the injunction. In re Zilog, Inc., 450 F.3d 996, 1007 22 (9th Cir. 2006). A party seeking contempt sanctions has the burden of proving by clear and convincing 23 evidence that sanctions are justified. In re Bennett, 298 F.3d 1059, 1069 (9th Cir. 2002). 24 25 Memorandum Decision, at p. 3. 26 The bankruptcy court then stated separate findings as to 27 Ms. Macias and Mr. Coker. As to Ms. Macias, the bankruptcy court 28 noted that the Debtors asserted that Ms. Macias had knowledge of

-7- 1 their discharge in the Chapter 7 Case because she received a copy 2 of the discharge order from the court. The bankruptcy court 3 further noted that the Bankruptcy Noticing Center sent a copy of 4 the discharge order to Ms. Macias at her home address in Oakley, 5 California (“Residence Property”) on May 29, 2009. 6 However, the bankruptcy court further noted that Ms. Macias 7 testified that she moved from the Residence Property in March 8 2009 following foreclosure, and that due to a forwarding error, 9 the postal service continued to deliver her mail to the Residence 10 Property. Ms. Macias admitted that she had knowledge of the 11 Debtors’ bankruptcy filings, but she testified that she did not 12 know that the Debtors had received a discharge in the Chapter 7 13 Case. Ms. Gutierrez asserted in her Declaration that Ms. Macias 14 was informed that the Debtors had obtained a discharge during a 15 December 2010 settlement conference. However, the bankruptcy 16 court considered this evidence and rejected it as dispositive for 17 the following reasons: 18 The court notes that this appears to be the only time knowledge on this basis is asserted in the 18 months of 19 proceedings before this court and the state court, and in the approximately 11 inches of pleadings filed on 20 the issue of violation of the discharge. At the [Hearing], no testimony was provided as to this 21 allegation. The court finds it is not clear and convincing evidence that [Ms.] Macias knew of the 22 discharge. 23 Memorandum Decision, at p. 3 n.3. 24 The bankruptcy court also addressed the Debtors’ allegations 25 that Ms. Macias violated the discharge injunction by cooperating 26 with an investigation conducted by the California Department of 27 Real Estate with respect to the Debtors’ business practices and 28 by speaking out against the Debtors’ business operations within

-8- 1 their common religious community. The bankruptcy court found 2 that the discharge injunction did not prohibit Ms. Macias from 3 engaging in such speech, and no evidence was presented to the 4 effect that such speech by Ms. Macias was undertaken to collect a 5 discharged debt. In fact, the bankruptcy court further concluded 6 that harming the Debtors’ business operations would be 7 counterproductive if Ms. Macias’ goal was to collect a debt, 8 discharged or otherwise. The bankruptcy court ultimately 9 determined that the Debtors had not established by clear and 10 convincing evidence that Ms. Macias had violated the discharge 11 injunction order in the Chapter 7 Case. 12 As to Mr. Coker, the bankruptcy court first noted that 13 Mr. Coker “was not, and never has been, a creditor of Debtors.” 14 Memorandum Decision, at p. 2. However, the Debtors asserted that 15 Mr. Coker assisted Ms. Macias in preparing her cross-complaint 16 against them, and as Ms. Macias’ counsel, failed to dismiss the 17 cross-complaint immediately after receiving notice of the 18 Chapter 7 Case discharge in a letter from the Debtors. 19 The bankruptcy court found that Ms. Macias filed her 20 cross-complaint against the Debtors in the Second Suit on 21 October 24, 2011. Mr. Coker received a letter from Mr. Gutierrez 22 on November 28, 2011, advising Mr. Coker that the debt included 23 in Ms. Macias’ cross-complaint was discharged, and any effort to 24 collect that debt violated federal law. The bankruptcy court 25 found that Mr. Coker responded promptly on November 30, 2011, 26 acknowledging that the Debtors had provided a partial copy of the 27 discharge order and stating that if the information provided was 28 correct, no further action to collect on the claim asserted in

-9- 1 Ms. Macias’ cross-complaint would be taken. However, the 2 bankruptcy court further noted that Mr. Coker had stated that 3 Ms. Macias had no knowledge of any discharge, and he indicated 4 that he was going to “review whether setoff of the discharged 5 debt might still be available.” Memorandum Decision, at p. 4. 6 Mr. Coker subsequently filed a motion to amend the cross- 7 complaint to assert only a claim for setoff, but before the 8 motion was determined, Ms. Macias voluntarily dismissed the 9 cross-complaint on February 7, 2012. 10 Noting that the Debtors did not allege that Mr. Coker had 11 any knowledge of their discharge prior to November 28, 2011, the 12 bankruptcy court found that his actions following their informal 13 letter notice did not constitute a clear violation of the 14 discharge injunction. Accordingly, the bankruptcy court found 15 against the Debtors on the Motion both as to Ms. Macias and 16 Mr. Coker. 17 Consistent with its findings and conclusions in the 18 Memorandum Decision, the bankruptcy court entered its Order 19 denying the Motion on September 9, 2013. The Debtors timely 20 appealed. 21 E. Epilogue 22 After the bankruptcy court abstained from hearing the state 23 law claims asserted in the Debtors’ adversary proceeding, the 24 Debtors filed a new lawsuit (“Third Suit”) in State Court against 25 Mr. and Ms. Macias and Lorena Mendez, seeking three million 26 dollars in damages. The Debtors’ allegations in the Third Suit 27 were essentially the same as in their prior State Court lawsuits. 28 After the defendants had filed answers and cross-complaints for

-10- 1 abuse of process, among other claims, the Debtors agreed to 2 dismiss the Third Suit with prejudice, and the cross-complaints 3 also were dismissed with prejudice. 4 II. JURISDICTION 5 The bankruptcy court had jurisdiction under 28 U.S.C. 6 §§ 1334 and 157(b)(2)(O). We have jurisdiction under 28 U.S.C. 7 § 158. 8 III. ISSUE 9 Did the bankruptcy court err in determining that Ms. Macias 10 and Mr. Coker did not willfully violate the discharge injunction 11 in the Debtors’ Chapter 7 Case? 12 IV. STANDARDS OF REVIEW 13 “We review the decision to impose contempt for an abuse of 14 discretion, and underlying factual findings for clear error.” 15 Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1191 (9th Cir. 16 2003) (citing FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th 17 Cir. 1999)). 18 A bankruptcy court abuses its discretion if it applies an 19 incorrect legal standard or misapplies the correct legal standard 20 under the facts before it. United States v. Hinkson, 585 F.3d 21 1247, 1262 (9th Cir. 2009) (en banc). If the bankruptcy court 22 applied the correct legal standard, the question then becomes 23 “whether the . . . court’s application of the correct legal 24 standard was (1) ‘illogical,’ (2) ‘implausible,’ or without 25 ‘support in inferences that may be drawn from the facts in the 26 record.’” Id. (quoting Anderson v. City of Bessemer City, North 27 Carolina, 470 U.S. 564, 577 (1985)). Clear error exists when, on 28 the entire record, the reviewing court has a definite and firm

-11- 1 conviction that a mistake was made. Hoopai v. Countrywide Home 2 Loans, Inc. (In re Hoopai), 369 B.R. 506, 509 (9th Cir. BAP 3 2007). “Where there are two permissible views of the evidence, 4 the factfinder’s choice between them cannot be clearly 5 erroneous.” Anderson, 470 U.S. at 574. 6 We may affirm a decision of the bankruptcy court on any 7 basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 8 1086 (9th Cir. 2008). 9 V. DISCUSSION 10 Section 524 provides that a discharge in bankruptcy 11 “operates as an injunction against the commencement or 12 continuation of an action . . . to collect, recover or offset any 13 [discharged] debt as a personal liability of the debtor.” 14 § 524(a)(2). To justify the imposition of contempt sanctions for 15 violating the discharge injunction, the Ninth Circuit has adopted 16 a two-part test: The debtor must establish by clear and 17 convincing evidence “that the creditor (1) knew the discharge 18 injunction was applicable and (2) intended the actions which 19 violated the injunction.” Renwick v. Bennett (In re Bennett), 20 298 F.3d 1059, 1069 (9th Cir. 2002). Zilog, Inc. v. Corning 21 (In re Zilog, Inc.), 450 F.3d 996, 1007 (9th Cir. 2006) (“A party 22 who knowingly violates the discharge injunction can be held in 23 contempt under section 105(a) of the bankruptcy code.”). 24 These are precisely the legal standards applied by the 25 bankruptcy court in its Memorandum Decision, and the Debtors do 26 not argue otherwise. Construing the Debtors’ pro se briefs 27 liberally, what they do argue is that the bankruptcy court 28 misapplied the applicable legal standards based on the evidence

-12- 1 before it. We disagree for the following reasons. 2 1. Ms. Macias 3 The Debtors argue that Ms. Macias violated the discharge 4 injunction by pursuing her cross-complaint in the Second Suit 5 when she had knowledge of the Debtors’ discharge in the Chapter 7 6 Case from the bankruptcy court and from the Debtors. The record 7 before the bankruptcy court contained contradictory evidence on 8 this point. The Debtors contended that Ms. Macias received a 9 copy of their discharge order and presented evidence that the 10 Bankruptcy Noticing Center sent the discharge order to Ms. Macias 11 on May 29, 2009 at the Residence Property. Ms. Macias countered 12 that she had moved out of the Residence Property following 13 foreclosure in March 2009, and although she had provided a 14 forwarding address for her mail to the postal service, they kept 15 delivering her mail to the Residence Property. Although 16 Ms. Macias admitted that she knew about the Debtors’ bankruptcy 17 filings, she stated in her Declaration that she did not know that 18 they had received a discharge in this Chapter 7 Case, testimony 19 that she reiterated under oath at the Hearing. The bankruptcy 20 court found that there was no evidence to the contrary. The 21 parties presented two not necessarily contrary versions of the 22 facts concerning whether Ms. Macias received a copy of the 23 discharge order and thus knew that the Debtors had received a 24 discharge. On this mixed record, the bankruptcy court concluded 25 that the Debtors had not proved by clear and convincing evidence 26 that Ms. Macias knew that the discharge injunction was 27 applicable. We perceive no error in that determination. 28 The bankruptcy court also considered Ms. Gutierrez’

-13- 1 assertion in her Declaration that Ms. Macias had been informed 2 that the Debtors had obtained a discharge of their debts during 3 the course of a settlement conference in 2010. Noting that over 4 the course of 18 months of proceedings in the State Court and the 5 bankruptcy court and in their voluminous papers, the Debtors only 6 referred to such a communication to Ms. Macias on one occasion, 7 and no testimony to support this allegation was presented at the 8 Hearing, despite the fact that Ms. Gutierrez testified, the 9 bankruptcy court emphatically determined that the Debtors did not 10 establish by clear and convincing evidence that Ms. Macias knew 11 of their bankruptcy discharge from their direct communications. 12 Memorandum Decision, at p. 3 n.3. Again, we perceive no error in 13 the bankruptcy court’s determination on this point based on the 14 entire record before it. 15 Finally, the Debtors contend that Ms. Macias violated the 16 discharge injunction by cooperating with the investigation of the 17 California Department of Real Estate that resulted in 18 Mr. Gutierrez losing his broker’s license and by speaking against 19 the Debtors’ business practices with people in their common 20 religious community. The bankruptcy court found no violation of 21 the discharge injunction on these bases for two reasons: first, 22 because the discharge injunction did not prohibit such speech; 23 and second, because no evidence was presented tending to 24 establish that Ms. Macias’ conduct was an effort to collect a 25 discharged debt. As the bankruptcy court noted, such conduct 26 “would be counter to any collection efforts.” Memorandum 27 Decision, at p. 5. We conclude, particularly based on the second 28 rationale articulated by the bankruptcy court for its

-14- 1 determination, that the bankruptcy court did not err in its 2 conclusion that such evidence of conduct by Ms. Macias did not 3 establish a violation of the discharge injunction. 4 Ultimately, we conclude, based on the record before us, that 5 the bankruptcy court did not err in deciding that the Debtors did 6 not meet their burden of proof to establish that Ms. Macias 7 committed a sanctionable violation of the discharge injunction in 8 the Chapter 7 Case. 9 2. Mr. Coker 10 The Debtors argue that Mr. Coker violated the discharge 11 injunction by assisting Ms. Macias in the preparation of the 12 cross-complaint against them in the Second Suit and in failing to 13 dismiss Ms. Macias’ cross-complaint immediately after receiving 14 notice of the Debtors’ discharge in a letter from Mr. Gutierrez. 15 Mr. Coker is not a creditor of the Debtors, and they do not 16 assert otherwise. 17 The uncontradicted evidence before the bankruptcy court was 18 that Ms. Macias prepared the cross-complaint herself with the 19 assistance of a law student, and it was filed on October 24, 20 2011. Mr. Coker was not involved in the preparation of the 21 cross-complaint. From the record before us, it appears that 22 Ms. Macias filed the cross-complaint in an effort to counter the 23 Debtors’ harassment through their State Court lawsuits. 24 The record is also clear that Mr. Coker was not aware of the 25 Debtors’ bankruptcy discharge until receiving Mr. Gutierrez’ 26 letter on November 28, 2011. As noted by the bankruptcy court, 27 Mr. Coker promptly responded two days later on November 30, 2011, 28 stating that if, in fact, the Debtors had discharged their

-15- 1 obligation to Ms. Macias in bankruptcy, no further collection 2 efforts would be taken. However, he also stated that Ms. Macias 3 was not aware that the Debtors had obtained a discharge, and he 4 would investigate whether a setoff of the discharged debt might 5 still be available to Ms. Macias. 6 The record reflects that Mr. Coker is not a bankruptcy 7 attorney. He did file a motion to amend the cross-complaint to 8 assert only a setoff claim. However, after consulting with the 9 bankruptcy counsel retained to represent all of the defendants in 10 the Debtors’ adversary proceeding, Mr. Coker voluntarily 11 dismissed the cross-complaint on February 7, 2012, before any 12 action was taken on the motion to amend. 13 On this record, Mr. Coker could be faulted for failing to do 14 the limited research required to determine that the Debtors’ debt 15 to Ms. Macias in fact had been discharged and to dismiss the 16 cross-complaint more quickly. However, we conclude that the 17 bankruptcy court did not err in determining that the Debtors did 18 not meet their burden of proof to establish by clear and 19 convincing evidence that Mr. Coker willfully violated the 20 discharge injunction. Cf. Knupfer v. Lindblade (In re Dyer), 21 322 F.3d at 1196-97. 22 VI. CONCLUSION 23 Based on the foregoing authorities and analysis, we AFFIRM 24 the bankruptcy court’s Order denying the Motion. 25 26 27 28

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