In re: Rubilyn M. Fernando

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 22, 2017
• Docket: NV-17-1096-TaBH
• Status: Unpublished

Opinion

FILED DEC 22 2017 1 NOT FOR PUBLICATION 2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT 4 5 In re: ) BAP No. NV-17-1096-TaBH ) 6 RUBILYN M. FERNANDO, ) Bk. No. 2:16-bk-13250-LED ) 7 Debtor. ) Adv. No. 2:16-ap-01115-LED ______________________________) 8 ) RUBILYN M. FERNANDO, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) OCWEN LOAN SERVICING, LLC; ) 12 HSBC BANK USA, N.A., as ) Trustee for the Benefit of ) 13 People’s Financial Realty ) Mortgage Securities Trust, ) 14 Series 2006-1, Mortgage Pass- ) Through Certificates, Series ) 15 2006-1; FRANKLIN CREDIT ) MANAGEMENT CORPORATION; ) 16 DEUTSCHE BANK NATIONAL TRUST ) COMPANY, as Certificate ) 17 Trustee on Behalf of Bosco ) Credit II Trust Series 2010-1;) 18 WESTERN PROGRESSIVE - NEVADA, ) INC., ) 19 ) Appellees. ) 20 ______________________________) 21 Submitted Without Argument on December 1, 2017 22 Filed – December 22, 2017 23 Appeal from the United States Bankruptcy Court for the District of Nevada 24 Honorable Laurel E. Davis, Bankruptcy Judge, Presiding 25 26 * 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 8024-1(c)(2). 1 2 Appearances: Appellant Rubilyn M. Fernando pro se on brief. 3 Before: TAYLOR, BRAND, and HOULE,** Bankruptcy Judges. 4 5 INTRODUCTION 6 Five days after the bankruptcy court dismissed her 7 bankruptcy case and two minutes after she filed a redundant 8 voluntary request for case dismissal, Rubilyn Fernando filed an 9 adversary proceeding. The bankruptcy court later dismissed the 10 litigation without prejudice and denied Ms. Fernando’s motion 11 for relief from the dismissal order. The bankruptcy court 12 explained its decision in oral findings of fact and conclusions 13 of law, which were incorporated by general reference into its 14 order. Because Ms. Fernando refused to provide us with a 15 transcript detailing these findings, we cannot adequately review 16 the bankruptcy court’s orders. And consideration of the merits 17 on the limited record we have does not support a different 18 result. Accordingly, we AFFIRM the bankruptcy court. 19 FACTS 20 Ms. Fernando filed a chapter 131 petition in June 2016.2 21 22 ** The Hon. Mark D. Houle, United States Bankruptcy Judge 23 for the Central District of California, sitting by designation. 1 24 Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 25 All “Rule” references are to the Federal Rules of Bankruptcy Procedure. All “Civil Rule” references are to the Federal Rules 26 of Civil Procedure. 27 2 We exercise our discretion to take judicial notice of 28 (continued...)

2 1 Her chapter 13 plan drew opposition, and the bankruptcy court 2 eventually entered an order denying confirmation of the plan and 3 dismissing the case. Five days later, Ms. Fernando also, and 4 unnecessarily, requested voluntary dismissal of her bankruptcy 5 case under § 1307(b). And two minutes after her request for 6 voluntary dismissal, Ms. Fernando filed an adversary complaint 7 seeking declaratory relief and requesting clear title to her 8 real property. 9 Some defendants moved to dismiss; others later joined in 10 the motion. They argued lack of subject matter jurisdiction and 11 failure to state a claim and, in the alternative, requested 12 abstention. 13 While this motion was pending, the bankruptcy court’s 14 clerk’s office issued a notice of conditional dismissal of the 15 adversary proceeding based on dismissal of the bankruptcy case; 16 the notice provided for dismissal without prejudice unless an 17 objection was filed within 21 days of service. Ms. Fernando 18 filed a timely response;3 the clerk’s office, however, took 19 20 2 (...continued) 21 documents electronically filed in the adversary proceeding and in the underlying bankruptcy case. See Atwood v. Chase 22 Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 23 3 24 The opposition questioned why the notice was issued by the clerk of court, who lacked authority to dismiss the case; 25 argued that the bankruptcy court could only submit proposed findings of fact and conclusions of law in non-core proceedings; 26 and quoted text from Menk v. Lapaglia (In re Menk), 241 B.R. 27 896, 904 (9th Cir. BAP 1999), suggesting the bankruptcy court can entertain an adversary proceeding even when the main 28 (continued...)

3 1 almost two full days to docket it. And during this period of 2 delay, the bankruptcy court entered a dismissal order based on 3 the absence of a timely response to the notice on the docket. 4 The reconsideration motion. Given the dismissal, 5 Ms. Fernando filed a reconsideration motion claiming that there 6 was an oversight or omission because she timely filed her 7 objection. She also repeated arguments from her opposition 8 papers. 9 Some of the defendants opposed; they argued that granting 10 the motion would be an exercise in futility because the case 11 would remain subject to dismissal for all the reasons 12 articulated in their motion to dismiss. In her reply, 13 Ms. Fernando argued that her complaint initiated a non-core 14 proceeding and that, as a result, the bankruptcy court could not 15 enter a final judgment on her claims. 16 The bankruptcy court heard oral argument on the 17 reconsideration motion and stated its oral findings of fact and 18 conclusions of law on the record. It later incorporated those 19 findings and conclusions into its order denying Ms. Fernando’s 20 reconsideration request. 21 Ms. Fernando timely appealed. 22 JURISDICTION 23 Subject to the discussion below, the bankruptcy court had 24 jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(K). We have 25 jurisdiction under 28 U.S.C. § 158. 26 27 3 (...continued) 28 bankruptcy case is closed.

4 1 ISSUES 2 Did the bankruptcy court abuse its discretion in denying 3 Ms. Fernando’s motion for relief from the dismissal order or in 4 dismissing the adversary proceeding? 5 STANDARDS OF REVIEW 6 We review for an abuse of discretion a bankruptcy court’s 7 decision on a reconsideration motion. Ybarra v. McDaniel, 8 656 F.3d 984, 998 (9th Cir. 2011) (Civil Rule 59); Lal v. 9 California, 610 F.3d 518, 523 (9th Cir. 2010) (Civil Rule 60); 10 Weiner v. Perry, Settles & Lawson, Inc. (In re Weiner), 161 F.3d 11 1216, 1217 (9th Cir. 1998). We review de novo whether a 12 litigant’s due process rights were violated. DeLuca v. Seare 13 (In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014). 14 A bankruptcy court abuses its discretion if it applies the 15 wrong legal standard, misapplies the correct legal standard, or 16 makes factual findings that are illogical, implausible, or 17 without support in inferences that may be drawn from the facts 18 in the record. See TrafficSchool.com, Inc. v. Edriver Inc., 19 653 F.3d 820, 832 (9th Cir. 2011) (citing United States v. 20 Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). 21 DISCUSSION 22 We liberally construe Ms. Fernando’s pro se brief. See 23 Cruz v. Stein Strauss Trust # 1361 (In re Cruz), 516 B.R. 594, 24 604 (9th Cir. BAP 2014). 25 Scope of appeal. In her notice of appeal, Ms. Fernando 26 says that she “appeal[s] th[e bankruptcy] court’s entry of the 27 Order dismissing this case (docket #36).” But docket entry 36 28 is the order denying her reconsideration motion; she also

5 1 attached that order to her notice of appeal. Similarly, in her 2 appellate brief, she states that she is appealing the order 3 denying her motion for relief and identifies it by docket 4 number. 5 Despite the infirmities in the notice of appeal and 6 Ms. Fernando’s express statement that she is appealing the 7 reconsideration order, we conclude that she intended to also 8 appeal the dismissal order.4 9 We affirm the bankruptcy court’s orders. 10 The bankruptcy court’s order denying Ms. Fernando’s 11 reconsideration motion incorporated oral findings of fact and 12 conclusions of law made on the record. If a bankruptcy court 13 makes its findings of facts and conclusions of law on the 14 record, the appellant must include the transcript as part of the 15 excerpts of record. McCarthy v. Prince (In re McCarthy), 16 230 B.R. 414, 416–17 (9th Cir. BAP 1999). Here, Ms. Fernando 17 elected not to obtain a transcript.5 We thus cannot 18 meaningfully review the bankruptcy court’s order denying 19 4 Ms. Fernando’s notice of appeal was timely as to the 20 dismissal order: since she filed a reconsideration motion within 21 14 days of the dismissal order, the 14-day time to file the appeal ran from the entry of the order denying that motion. 22 Fed. R. Bankr. P. 8002(b)(1)(C)&(D). 23 5 In her designation of the record and statement of 24 issues, Ms. Fernando stated that she “designate[s] the case record in its entirety, without the transcript of the oral 25 record . . . .” In June 2017, the BAP issued an order noting that there were oral findings, informing Ms. Fernando why the 26 transcript was necessary, and warning her that failure to 27 provide it would impede review of her appeal and could lead to summary affirmance. Ms. Fernando filed a response stating that 28 she was not going to provide the transcript.

6 1 reconsideration. Ehrenberg v. Cal. State Univ., Fullerton 2 Found. (In re Beachport Entm’t), 396 F.3d 1083, 1087-88 3 (9th Cir. 2005); Morrissey v. Stuteville (In re Morrissey), 4 349 F.3d 1187, 1189 (9th Cir. 2003) (failing to provide a 5 critical transcript may result in summary affirmance). 6 Accordingly, we summarily affirm the order denying 7 Ms. Fernando’s motion for reconsideration. 8 We next consider the dismissal order. In her opening brief 9 on appeal, Ms. Fernando repeats her argument that she timely 10 objected to the notice of conditional dismissal. Now on appeal, 11 she frames this as a due process concern. We independently 12 consider her due process argument and conclude that her due 13 process rights were not violated. Ms. Fernando’s declaration in 14 support of her motion for relief states that the bankruptcy 15 court was closed on December 27 and 28, a Tuesday and Wednesday, 16 due to water issues. But that is immaterial: Ms. Fernando was 17 able to timely file her opposition. She thus had access to the 18 court. Further, due process requires “notice ‘reasonably 19 calculated, under all the circumstances, to apprise interested 20 parties of the pendency of the action and afford them an 21 opportunity to present their objections.’” United Student Aid 22 Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (quoting 23 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 24 (1950)). Here, she does not contend that the bankruptcy court 25 did not consider her arguments against dismissal in the context 26 of the reconsideration motion. Nor could she, as the bankruptcy 27 court heard the matter and made findings of fact and conclusions 28 of law on the record. Instead, Ms. Fernando disagrees with the

7 1 bankruptcy court’s resolution of her objections. That does not, 2 however, mean her due process rights were violated. Given her 3 failure to provide a transcript, we can do nothing but disregard 4 her allegation that her arguments against dismissal did not 5 receive appropriate consideration. 6 She also raised arguments for the first time on appeal; we 7 deem them waived. “[I]n general, ‘a federal appellate court 8 does not consider an issue not passed upon below.’” Mano-Y&M, 9 Ltd. v. Field (In re Mortg. Store, Inc.), 773 F.3d 990, 998 10 (9th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 120 11 (1976)). 12 And as to the arguments she did raise before the bankruptcy 13 court, the lack of a transcript is again fatal to her appeal. 14 We cannot adequately review the bankruptcy court’s 15 determinations, and we again summarily affirm. 16 We would also affirm on the merits. 17 While we can only guess at the actual analysis made by the 18 bankruptcy court at the hearing, the appropriateness of 19 dismissal of the adversary proceeding is unquestionable; the 20 bankruptcy court lacked jurisdiction over Ms. Fernando’s claims 21 because she filed the adversary proceeding after dismissal of 22 her chapter 13 bankruptcy case. 23 As a result, the claims were not assets of an existing 24 bankruptcy estate and could not arise in or relate to an 25 existing bankruptcy case. Further, the state law claims did not 26 arise under bankruptcy law. Finally, they did not relate to a 27 bankruptcy court order, so there was no ancillary jurisdiction. 28 We acknowledge that Ms. Fernando has a legitimate grievance

8 1 with the dismissal order because it states that there was no 2 opposition when she had filed opposition. But we cannot avoid 3 the obvious; the bankruptcy court never had jurisdiction because 4 Ms. Fernando filed the adversary proceeding after bankruptcy 5 case dismissal. And consistent with this determination, the 6 bankruptcy court dismissed the adversary proceeding without 7 prejudice; it did not finally adjudicate or pass judgment on the 8 merits of any of Ms. Fernando’s claims; it simply determined 9 that the bankruptcy court was not the proper place for her to 10 proceed. She is free to assert her claims elsewhere. 11 CONCLUSION 12 Based on the foregoing, we AFFIRM. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28