Joseph Wilczak v. Select Portfolio Servicing, In

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2020
• Docket: 19-60068
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: JOSEPH L. WILCZAK; JUDITH A. No. 19-60068 WILCZAK, BAP No. 19-1038 Debtors,

------------------------------ MEMORANDUM*

JOSEPH L. WILCZAK; JUDITH A. WILCZAK,

Appellants,

v.

SELECT PORTFOLIO SERVICING, INC.; THE BANK OF NEW YORK MELLON, as trustee, on behalf of the holders of the Alternative Loan Trust 2007-OA10, Mortgage Pass-Through Certificates Series 2007-OA10,

Appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Faris, Brand, and Gan, Bankruptcy Judges, Presiding

Submitted November 30, 2020**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision Before: GOODWIN, SCHROEDER, and SILVERMAN, Circuit Judges.

Joseph L. and Judith A. Wilczak, Chapter 11 debtors, appeal pro se the

Bankruptcy Appellate Panel’s judgment affirming the bankruptcy court’s order

overruling the Wilczaks’ objection to the claim of creditors Select Portfolio

Servicing, Inc., and the Bank of New York Mellon. We have jurisdiction under 28

U.S.C. § 158(d). We review for clear error the bankruptcy court’s findings of fact.

Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070, 1073 (9th Cir. 2000).

We affirm.

The bankruptcy court did not clearly err in finding that the signatures on the

loan documents were valid. First, the record, including the Wilczaks’ admissions at

trial, supports the bankruptcy court’s finding that the Wilczaks signed the loan

documents. Second, “we give singular deference to a trial court’s judgments about

the credibility of witnesses,” including the bankruptcy court’s determinations that

notary Cindy North’s testimony was credible and the Wilczaks’ testimony was

implausible. Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017). Finally, the

Wilczaks’ contention that the bankruptcy court erred by noting irregularities in the

signatures without finding them forged lacks merit.

To the extent the Wilczaks contend that their own counsel engaged in

without oral argument. See Fed. R. App. P. 34(a)(2).

2 misconduct, the record discloses no misconduct affecting fundamental fairness. See

Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1145, 1148 (9th Cir. 2001)

(limiting review in civil cases to whether attorney misconduct affected

fundamental fairness where the error is alleged for the first time on appeal).

To the extent the Wilczaks raise the issue on appeal, the bankruptcy court

did not abuse its discretion by rejecting expert testimony by Nancy Cole because

Cole’s qualifications were out of date and her testimony would not have been

helpful or reliable. See Fed. R. Evid. 702(a) (qualified witnesses may testify as

experts if their “scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue”); Samuels v.

Holland Am. Line-USA Inc., 656 F.3d 948, 952 (9th Cir. 2011) (“a trial court has

broad discretion in assessing the relevance and reliability of expert testimony”

(citation and internal quotation marks omitted)).

The Wilczaks’ contention that the issue decided at trial was different than

the issue raised in their objection to the proof of claim lacks merit.

AFFIRMED.