In re: Yoana Ayanova Kiprilov

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: October 28, 2019
• Docket: CC-18-1186-TaLS
• Status: Unpublished

Opinion

FILED OCT 28 2019 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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-18-1186-TaLS

YOANA AYANOVA KIPRILOV, Bk. No. 6:18-bk-12309-SC

Debtor.

YOANA AYANOVA KIPRILOV,

Appellant,

v. MEMORANDUM*

LOREN PAUL ZAHN; JEFFREY L. HOFFER,

Appellees.

Submitted Without Oral Argument on October 24, 2019 at Pasadena, California

Filed – October 28, 2019

Appeal from the United States Bankruptcy Court for the Central 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 Scott C. Clarkson, Bankruptcy Judge, Presiding

Appearances: Yoana Ayanova Kiprilov on brief pro se; Barry Z. Brodsky, Steve R. Belilove, and Vincent S. Green of Kaufman Dolowich Voluck LLP on brief for appellee Loren Paul Zahn.

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

INTRODUCTION

Yoana Ayanova-Kiprilov filed a chapter 71 bankruptcy petition while

embroiled in a dispute with her former attorneys. She reached a

postpetition settlement of the dispute and then requested dismissal of her

bankruptcy. Before hearing on her motion, the bankruptcy court entered a

discharge order. Eight days later, it orally denied the motion to dismiss.

The next day, Ms. Ayanova-Kiprilov filed a notice of appeal of the

discharge order, and thereafter the bankruptcy court entered its order

denying her dismissal request.

On appeal, Ms. Ayanova-Kiprilov argues that the bankruptcy court

erred when it denied her dismissal motion. But she did not appeal from

that decision and did not provide a record that allows us to review it. And

we cannot address her request that we purge the public record of evidence

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532.

2 that she sued her attorneys and initiated a bankruptcy.

Accordingly, we AFFIRM.

FACTS

Ms. Ayanova-Kiprilov filed a chapter 7 petition.2 Thereafter, she filed

a notice of removal of a state court lawsuit targeting her former attorneys

and created an adversary proceeding. The attorneys filed a proof of claim.

In the adversary proceeding, the attorneys filed a motion to dismiss.

And at a status conference, the bankruptcy court engineered an elegant

resolution. It confirmed that: (1) Ms. Ayanova-Kiprilov’s complaint

asserted only prepetition defensive claims and did not seek affirmative

recoveries from the attorneys; and (2) the attorneys agreed that their claims

were dischargeable. So, the bankruptcy court granted the motion to dismiss

the adversary proceeding: to the extent the complaint alleged affirmative

claims, Ms. Ayanova-Kiprilov lacked standing; and, to the extent the

complaint sought a reduction in counsels’ claim, it was either premature or

unnecessary.

During the hearing, Ms. Ayanova-Kiprilov asked if it would be

possible to withdraw her bankruptcy. The bankruptcy court appropriately

declined this informal request for relief.

2 We exercise our discretion to take judicial notice of documents electronically filed in the bankruptcy case and the adversary proceeding. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

3 Shortly thereafter, the chapter 7 trustee filed his report of no

distribution, and Ms. Ayanova-Kiprilov filed a motion to dismiss the

bankruptcy case. She requested dismissal because she had settled the

disputes with her attorneys that led her to file a chapter 7 bankruptcy and

now no longer needed bankruptcy protection.

While the case dismissal motion was pending, the bankruptcy court

entered Ms. Ayanova-Kiprilov’s chapter 7 discharge. It later orally denied

the case dismissal motion.

Thereafter, Ms. Ayanova-Kiprilov filed a notice of appeal from the

discharge order. Later that day, the bankruptcy court entered an order

denying her case dismissal motion (the “Dismissal Denial Order”) for the

reasons set forth on the record and for good cause shown.

JURISDICTION

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

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

ISSUE

Did the bankruptcy court err when it denied Ms. Ayanova-Kiprilov’s

motion to dismiss her bankruptcy case?

STANDARD OF REVIEW

We review for abuse of discretion a bankruptcy court’s denial of a

debtor’s motion to dismiss a voluntary chapter 7 case. Bartee v. Ainsworth

(In re Bartee), 317 B.R. 362, 365 (9th Cir. BAP 2004).

4 DISCUSSION

On appeal, Ms. Ayanova-Kiprilov reiterates the argument she made

in her motion to dismiss and alleges error. Although we liberally construe

her briefs due to her pro se status, Kashani v. Fulton (In re Kashani), 190 B.R.

875, 883 (9th Cir. BAP 1995), her appeal has no merit. The problems are

multiple.

First, she did not appeal the Dismissal Denial Order; she appealed

from the discharge order. And on appeal, she advances no argument

relevant to entry of her discharge. We may affirm an appeal from the

discharge order on this basis. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th

Cir. 2009) (“Because this argument was not raised clearly and distinctly in

the opening brief, it has been waived.”).

As to the Dismissal Denial Order, we acknowledge that, in many

instances, such orders are interlocutory and merge into a later, final order.

In such a case, a premature appeal is not fatal. But here the Dismissal

Denial Order was entered after the discharge order—it cannot, as a result,

merge into it. We could dismiss as to the Dismissal Denial Order because

she failed to file a timely appeal.

And, even if we assume she somehow correctly appealed from the

Dismissal Denial Order, we must affirm because we lack a record that

allows for adequate abuse of discretion review. The Dismissal Denial Order

states that the motion was denied for the reasons stated on the record.

5 Where a bankruptcy court makes findings of fact and conclusions of law on

the record, the appellant must include the transcript as part of the excerpts

of record on appeal. McCarthy v. Prince (In re McCarthy), 230 B.R. 414,

416–17 (9th Cir. BAP 1999); Fed. R. Bankr. P. 8009(a)(4). Here,

Ms. Ayanova-Kiprilov did not do so. Nor can we find a copy of the

transcript on the bankruptcy court’s docket. We, thus, cannot meaningfully

or adequately review the Dismissal Denial Order and summary affirmance

is appropriate. Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1189

(9th Cir. 2003).

Last, in her brief, Ms. Ayanova-Kiprilov notes that various websites

contain information about her lawsuits. She alleges that, as a result, she is

stigmatized and asks us to order those websites to remove her name from

the search results; she wants to purge the public record of all evidence of

the lawsuits and the bankruptcy that led to the settlement. But we lack any

authority to do this. We cannot alter the dockets of the bankruptcy and

state courts, and we cannot control the electronic availability of the data

contained therein. Accordingly, we deny this request.

CONCLUSION

Based on the foregoing, we AFFIRM.