In re: Sharon Mary Adams

Opinion

FILED NOV 26 2019 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. CC-19-1030-TaLS

SHARON MARY ADAMS, Bk. No. 8:13-bk-20139-CB

Debtor.

DAVID BRENT ADAMS,

Appellant,

v. MEMORANDUM*

GARY ZIEBARTH; PAMELA ZIEBARTH; WENETA M.A. KOSMALA, Chapter 7 Trustee,

Appellees.

Argued and Submitted on October 24, 2019 at Pasadena, California

Filed – November 26, 2019

Appeal from the United States Bankruptcy Court

* 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. for the Central District of California

Honorable Catherine E. Bauer, Bankruptcy Judge, Presiding

Appearances: Fritz J. Firman argued for appellant; David Bruce Dimitruk argued for appellees Gary and Pamela Ziebarth; Erin P. Moriarty of Law Offices of Weneta M.A. Kosmala argued for appellee Weneta M.A. Kosmala, Chapter 7 Trustee.

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

INTRODUCTION

Sharon Adams filed a chapter 71 petition in 2013. Her Trustee sought

to sell the estate’s interest—whatever it was—in real property titled in the

name of her non-filing husband, Brent Adams. Initially, Debtor and

Mr. Adams opposed, and the bankruptcy court concluded that Mr. Adams

should have been afforded an opportunity to exercise his § 363(i) rights; it

continued the hearing on the sale.

But before the hearing, Debtor withdrew her opposition, and

Mr. Adams advised the Trustee that he did not have funds to match the bid

under § 363(i). The Trustee then sold the Property to the only qualified

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 Civil Procedure.

2 bidders, Gary and Pamela Ziebarth.

Shortly thereafter, the bankruptcy court entered an order approving

the sale and noting that Mr. Adams waived his § 363(i) rights. A day later,

Mr. Adams filed a notice of his renewed intent to exercise his § 363(i)

rights, but he did not appeal from the sale approval order. Instead, several

months later, he filed a Rule 60(b)(1) motion and alleged that the sale order

erroneously determined his § 363(i) rights waiver. The bankruptcy court

denied the motion, and Mr. Adams appeals.

On review, we conclude that the bankruptcy court did not abuse its

discretion in denying the motion—Mr. Adams knew about the alleged

infirmity in the sale order at its entry, indeed, he caused it; and he neither

appealed nor sought reconsideration nor amendment before the appeal

period expired. This type of alleged mistake does not justify Rule 60(b)(1)

relief. Accordingly, we AFFIRM.

FACTS

Sharon Adams filed a chapter 7 petition, and her Trustee moved to

sell the estate’s interest (if any, no more and no less, and on an “as is, where

is” basis) in real property in Costa Mesa, California (the “Property”).

As for what the estate was selling, the Trustee was uncertain. When

Mr. Adams acquired title to the Property, Debtor concurrently quitclaimed

any interest she held to him as his separate property. Later, the parties held

the Property as joint tenants to facilitate financing, but Debtor promptly

3 transferred her interest back to Mr. Adams by way of a recorded

interspousal transfer grant deed. Title thereafter remained in Mr. Adams’

name for the approximately nine years preceding the bankruptcy. So,

Debtor did not have any record interest in the Property when she filed her

chapter 7 case, and the Trustee was not prepared to warrant that the Debtor

had any other interest therein. But this lack of clarity did not deter the

Ziebarths.

Prepetition and in 2007, Mr. Adams sought to improve the Property;

Bank of America was willing to loan funds only if Debtor and the Ziebarths

co-signed. So Debtor, Mr. Adams, and the Ziebarths obtained a $600,000

line of credit to build a new unit. Mr. Adams allegedly withdrew funds but

never built the new unit; this left the Ziebarths with no option except to

pay off the Bank of America loan to protect their credit. They then filed a

state court action against Debtor and Mr. Adams, asserting breach of

contract, fraud, and related causes of action.

After the state court trial commenced, Debtor and Mr. Adams filed

bankruptcy petitions that were subsequently dismissed. Trial was reset but

again stayed by Debtor’s filing of the present bankruptcy petition. After

stay relief, the parties returned to the state court and judgment was

eventually entered in the Ziebarths’ favor against both Debtor and

Mr. Adams on the breach of contract claim and against Mr. Adams only

based on breach of fiduciary duty. The bankruptcy court later found in

4 Debtor’s favor in the Ziebarth’s adversary proceeding seeking § 523 and

§ 727 relief.

The Ziebarths apparently saw an advantage in purchasing the

Debtor’s amorphous and unspecific interest in the Property. Eventually,

the Trustee agreed to a sale at $10,000, subject to overbid, and the Ziebarths

deposited the purchase price. Debtor then opposed and asked for more

specificity about what the estate was selling.

We lack a transcript of the initial sale hearing, but both Debtor and

the Trustee state that the bankruptcy court concluded that the interest

being sold was a community property interest and that Mr. Adams should

have proper notice and a chance to exercise his § 363(i) rights.

About a week before the continued hearing, Debtor withdrew her

opposition and said that neither she nor Mr. Adams intended to appear at

the hearing.

At the final sale hearing, Debtor’s counsel (who also represented

Mr. Adams), although not making a formal appearance, noted that he was

on the phone for a different matter on the calendar in that case. The

Trustee’s counsel then confirmed that Debtor’s opposition was withdrawn

and said, based on communication from his attorney, that Mr. Adams had

decided not to exercise his § 363(i) right of first refusal. The bankruptcy

court, thus, approved sale to the Ziebarths at the hearing.

The Trustee lodged an order granting the unopposed motion and

5 authorizing sale to the Ziebarths. The next day the bankruptcy court

modified and entered an order granting the motion (the “Sale Order”). It

read:

The Court having read and considered the Motion, heard the statements of counsel, noted: (1.) The receipt of a qualified offer; (2.) Debtor’s non-filing spouse, David Brent Adams, declined to exercise any right of first refusal; (3.) The withdrawal of the opposition filed by Debtor; and with good cause shown, IT IS ORDERED: 1. The Motion is granted. 2. Trustee is authorized to sell the Estate’s interest (if any) in the real property to Gary and Pamela Ziebarth for the “reserve” price of $10,000.

August 9, 2018 Sale Order.

One day later, Mr. Adams filed a notice of his intent to exercise his

§ 363(i) rights and purchase the Property for $10,000. In the notice, he

asserted that the statement in the Sale Order that Mr. Adams declined to

exercise his right of first refusal was inaccurate. Mr. Adams apparently

tendered $10,000 to the Trustee four days later.

The Ziebarths then filed an adversary proceeding against Debtor,

Mr. Adams, and the Trustee seeking an order compelling the Trustee to

conclude the sale. Mr. Adams and Debtor filed motions to dismiss. At a

November 27, 2018 status conference and hearing on the motions to

dismiss, the bankruptcy court expressed its surprise at the existence of the

6 adversary proceeding, given the Sale Order’s finality.

Approximately four months after entry of the Sale Order, Mr. Adams,

through new counsel, filed a motion to correct the sale order. Mr. Adams

argued that he did not waive his right of first refusal but instead timely

exercised it; he asserted that Rule 60(b)(1) applied.

The Ziebarths opposed the motion to correct the sale order; they also

requested a judgment in the adversary proceeding by ex parte application.

The Trustee opposed both motions.

After a hearing, the bankruptcy court denied the Ziebarths’ ex parte

application. That same day, it denied Mr. Adams’ motion to correct the Sale

Order:

The Court having read and considered the Motion and the opposition, heard the statements of counsel, and with good cause shown, noted the following: 1. The August 9, 2018 Sale Order was a final order that was not appealed. 2. David Brent Adams failed to carry his burden of proof for entitlement to a right under 11 U.S.C. section 363(i) or relief under Federal Rules of Bankruptcy Procedure rule 60(a) or 60(b). IT IS ORDERED: 1. The Motion is denied.

January 28, 2019 Order Denying David Brent Adams’ Motion To Correct

Order for Sale of Alleged Community Property Interest Rule 60(a) Or to Be

Relieved From Order Under Rule 60(b).

7 Mr. Adams timely appealed.

JURISDICTION

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

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

ISSUES

Did the bankruptcy court abuse its discretion when it denied

Mr. Adams’ reconsideration motion?

STANDARD OF REVIEW

We review for an abuse of discretion a bankruptcy court’s decision to

grant or deny a reconsideration motion. Weiner v. Perry, Settles & Lawson,

Inc. (In re Weiner), 161 F.3d 1216, 1217 (9th Cir. 1998); Tennant v. Rojas (In re

Tennant), 318 B.R. 860, 866 (9th Cir. BAP 2004). A bankruptcy court abuses

its discretion if it applies the wrong legal standard, misapplies the correct

legal standard, or makes factual findings that are illogical, implausible, or

without support in inferences that may be drawn from the facts in the

record. See TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir.

2011) (citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en

banc)).

DISCUSSION

To start, the Ziebarths argue that § 363(m) prevents Mr. Adams from

obtaining appellate relief because he did not obtain a stay pending appeal

and because the deed was recorded. But the bankruptcy court did not make

8 a § 363(m) finding, and it does not apply. We consider the merits.

The parties argue as if this were a § 363(i) appeal. It is not.

Mr. Adams sought relief under Rule 60(b)(1), applied in bankruptcy

proceedings by Federal Rule of Bankruptcy Procedure 9024, from the

bankruptcy court’s decision that he waived his § 363(i) rights.2 The

bankruptcy court’s stated basis for denial of the reconsideration motion

was the finality and nonappealability of the Sale Order. And we

acknowledge that finality of an order is ordinarily not cause to deny a Rule

60 motion because, by definition, it is a motion seeking relief from a final

judgment—Rule 60(b)(1) allows a court to relieve a party from a final

judgment or order for “mistake, inadvertence, surprise, or excusable

neglect . . . .” Fed. R. Civ. P. 60(b)(1). Nonetheless, the record adequately

supports affirmance.

A Rule 60(b)(1) motion must be made “within a reasonable time” and

no later than a year after entry of the order. Fed. R. Civ. P. 60(c). The

bankruptcy court emphasized, however, that Mr. Adams had not appealed

the Sale Order. We interpret this as the bankruptcy court concluding that

Mr. Adams had not acted within a reasonable time. We agree.

What counts as a “reasonable time” depends on the facts of the case.

Zurich Am. Ins. Co. v. Int’l Fibercom, Inc. (In re Int'l Fibercom, Inc.), 503 F.3d

2 In the motion, Mr. Adams referred to Rule 60(a); but he never argued any Rule 60(a) grounds to the bankruptcy court, nor does he do so on appeal.

9 933, 945 (9th Cir. 2007). Those relevant facts “may include the length and

circumstances of the delay and the possibility of prejudice to the opposing

party.” Id. So Rule 60(b) relief should “only be granted where the moving

party is able to demonstrate that circumstances beyond its control

prevented timely action to protect its interests.” Id. (internal quotation

marks omitted); Lemoge v. United States, 587 F.3d 1188, 1196–97 (9th Cir.

2009) (“What constitutes ‘reasonable time’ depends upon the facts of each

case, taking into consideration the interest in finality, the reason for delay,

the practical ability of the litigant to learn earlier of the grounds relied

upon, and prejudice to the other parties.” (quoting Ashford v. Steuart, 657

F.2d 1053, 1055 (9th Cir. 1981) (per curiam)).

Here, Mr. Adams did not seek relief within a reasonable time. He

argues that the Sale Order was incorrect because he did not intend to waive

his § 363(i) rights but rather simply withdrew his opposition. But the

record makes clear that Mr. Adams, through his counsel’s communications

to the Trustee and silence at the hearing, caused the alleged mistake. He

also knew about this alleged deficiency in the Sale Order within at least a

day of its entry. Mr. Adams could have appealed the Sale Order or sought

modification and, thus, there is no evidence that circumstances beyond his

control prevented him from taking timely action to protect his interests.

Instead, he made a “conscious election not to appeal” the Sale Order.

Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982).

10 “[C]alculated, deliberate choices are not to be relieved from under Fed. R.

Civ. P. 60(b).” Id. (citing Ackermann v. United States, 340 U.S. 193, 198

(1950)).

Put differently, to the extent that Mr. Adams made a litigation

decision (i.e., he and Debtor chose to withdraw opposition to the sale

motion, tell the Trustee he lacked funds to bid at the hearing, not appear at

the hearing, and only then, post-hearing, notify the Trustee and bankruptcy

court that he intended to exercise his § 363(i) rights) that he now regrets,

Rule 60(b)(1) relief is not available to him. Latshaw v. Trainer Wortham & Co.,

452 F.3d 1097, 1101 (9th Cir. 2006) (“We agree that Rule 60(b)(1) is not

intended to remedy the effects of a litigation decision that a party later

comes to regret through subsequently-gained knowledge that corrects the

erroneous legal advice of counsel.”).

In addition, Mr. Adams does not argue inadvertence, surprise, or

excusable neglect. He asserts only mistake. Rule 60(b)(1)’s use of “mistake”

includes mistake on the part of the court, Kingvision Pay-Per-View Ltd. v.

Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999). But a “motion for relief on

grounds of judicial error must be filed within a reasonable time not

exceeding the time for appeal.” Jones v. Frazesn, No. 2:07-cv-02758-RCT,

2010 WL 3504847, at *3 (E.D. Cal. Sept. 3, 2010) (internal quotation marks

omitted). Cf. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270

(2010) (“Similarly, a motion under Rule 60(b)(4) is not a substitute for a

11 timely appeal.”); Atkins v. Fiberglass Representatives, Inc. (In re Atkins), 134

B.R. 936, 939 (9th Cir. BAP 1992) (“Ninth Circuit decisions have settled that

Rule 60(b) is not a substitute avenue for appeal . . . .”). Here, the deadline to

appeal the Sale Order was August 23, 2018. Mr. Adams filed his Rule

60(b)(1) motion on December 17, 2018. Thus, to the extent Mr. Adams

contends that the mistake was the bankruptcy court’s fault (i.e., it misread

his notice of withdrawal as his waiving his § 363(i) rights), he did not file

his motion within a reasonable time. And we emphasize, again, that

Mr. Adams knew of the alleged mistake within a day of the Sale Order’s

entry.

In sum, the bankruptcy court denied the reconsideration motion in

large part because it sought to accomplish what Mr. Adams could have and

should have done by way of an appeal or motion before expiration of the

appeal period—dispute the finding and conclusion that Mr. Adams had

waived his § 363(i) rights. Mr. Adams knew about this alleged error within

the timeframe for an appeal. He elected not to appeal or to seek

modification during the appeal period and instead to pursue other

litigation strategies. On these facts, the bankruptcy court did not abuse its

discretion in denying Rule 60(b)(1) relief based on alleged mistake or

inadvertence.

CONCLUSION

Based on the foregoing, we AFFIRM.