FILED NOT FOR PUBLICATION MAY 14 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: NATIONS FIRST CAPITAL, LLC, No. 20-60037
Debtor, BAP No. 19-1201
------------------------------ MEMORANDUM* JEAN G. DECEMBRE, DBA Ale Transportation,
Appellant,
v.
NATIONS FIRST CAPITAL, LLC,
Appellee.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel Gan, Lafferty III, and Brand, Bankruptcy Judges, Presiding
Submitted May 11, 2021** San Francisco, California
* 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 without oral argument. See Fed. R. App. P. 34(a)(2). Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,*** Judge.
Jean Decembre appeals from a decision by the Bankruptcy Appellate Panel
(“BAP”) reversing the bankruptcy court’s vacatur of an order disallowing
Decembre’s claim against debtor Nations First Capital (“NFC”). We have
jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.
I
We review the BAP’s decision de novo and may affirm “on any ground
supported by the record.” Cal. Franchise Tax Bd. v. Kendall (In re Jones), 657
F.3d 921, 924 (9th Cir. 2011) (citation omitted). “[A]pply[ing] the same standard
of review that the BAP applied to the bankruptcy court’s ruling,” Brace v. Speier
(In re Brace), 979 F.3d 1228, 1232 (9th Cir. 2020), we ask whether the bankruptcy
court abused its discretion when it denied Decembre relief under Federal Rule of
Civil Procedure (“Rule”) 60(b)(1), but granted him relief under Rule 60(b)(6). See
Phillips v. Gilman (In re Gilman), 887 F.3d 956, 963 (9th Cir. 2018) (reviewing
bankruptcy court’s order granting Rule 60(b) relief for an abuse of discretion).
The bankruptcy court abuses its discretion if it does “not identify the correct legal
rule.” USAA Fed. Sav. Bank v. Thacker (In re Taylor), 599 F.3d 880, 887–88 (9th
*** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 Cir. 2010). We accept the bankruptcy court’s factual findings “unless [they] leave
the definite and firm conviction that a mistake has been committed.” Khan v.
Barton (In re Khan), 846 F.3d 1058, 1063 (9th Cir. 2017); see also United Student
Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204, 211 (B.A.P. 9th Cir. 2006) (“The
bankruptcy court’s factual findings regarding service of process and other
documents are reviewed for clear error.”).
II
The BAP properly held that the bankruptcy court properly declined to grant
Decembre relief from the order disallowing his claim (“Disallowance Order”)
under Rule 60(b)(1), but erred in granting him relief from that order under Rule
60(b)(6). See 11 U.S.C. § 502(j) (“A claim that has been allowed or disallowed
may be reconsidered for cause.”); Fed. R. Bankr. P. 9024 (providing that Rule 60
applies to motions for relief from a judgment or order in a bankruptcy case); see
also Wylie, 349 B.R. at 209 (explaining that motions for reconsideration of a claim
disallowance filed “after the 10-day appeal period has expired” are “subject to the
constraints of [Rule] 60(b) as incorporated by [Bankruptcy] Rule 9024”).
3 A
The bankruptcy court properly declined to conclude that Decembre’s failure
to timely respond to NFC’s claim objection resulted from “excusable neglect”
within the meaning of Rule 60(b)(1). See Fed. R. Civ. P. 60(b)(1) (permitting a
court to relieve a party from an order upon a showing of “mistake, inadvertence,
surprise, or excusable neglect”). Decembre has not demonstrated that any of the
following factors favor Rule 60(b)(1) relief on the basis of excusable neglect: “the
danger of prejudice to the debtor, the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.”
Iopa v. Saltchuk-Young Brothers, Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (per
curiam) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993)).
The length of the delay between entry of the Disallowance Order and
Decembre’s request for relief from that order—roughly two months—was
substantial. See Harvest v. Castro, 531 F.3d 737, 747 (9th Cir. 2008) (concluding
that 64-day delay was “substantial” and cut against granting Rule 60(b)(1) relief).
Additionally, the explanation that Decembre’s counsel provided for the delay does
not demonstrate a genuine, good faith mistake. The proof of service for the
4 objection and notice of hearing reflects that NFC properly mailed those documents
to counsel’s law firm (consistent with Decembre’s request in his proof of claim)
and Decembre’s personal address.1 Counsel’s bare assertions that he did not see
and “doubts that his office received” this mail do not overcome the presumption of
receipt. See Moody v. Bucknum (In re Bucknum), 951 F.2d 204, 207 (9th Cir.
1991) (per curiam). Although counsel may have been unaware of the claim
objection because of garden-variety negligence on his or his staff’s part, there is no
explanation to that effect in the record. Decembre has also failed to explain how
the prejudice factor favors a finding of excusable neglect. See Iopa, 916 F.3d at
1301.
The BAP properly concluded that the bankruptcy court properly denied Rule
60(b)(1) relief. Compare Tracht Gut, LLC v. Los Angeles Cnty. Treasurer & Tax
Collector (In re Tracht Gut, LLC), 836 F.3d 1146, 1155 (9th Cir. 2016) (affirming
denial of Rule 60(b)(1) relief where the movant failed “to identify any instance of
neglect that was excusable”) with Gilman, 887 F.3d at 963–64 (affirming grant of
Rule 60(b)(1) relief where counsel explained that she failed to respond to an
1 On appeal, Decembre takes issue with the fact that NFC addressed the mail to “Jean G. Decembre c/o Crowley & Crowley,” rather than to Crowley himself. NFC addressed the mail in the manner that Decembre requested in his proof of claim. In any event, because Decembre did not raise this issue below, we need not consider it.
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FILED NOT FOR PUBLICATION MAY 14 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: NATIONS FIRST CAPITAL, LLC, No. 20-60037
Debtor, BAP No. 19-1201
------------------------------ MEMORANDUM* JEAN G. DECEMBRE, DBA Ale Transportation,
Appellant,
v.
NATIONS FIRST CAPITAL, LLC,
Appellee.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel Gan, Lafferty III, and Brand, Bankruptcy Judges, Presiding
Submitted May 11, 2021** San Francisco, California
* 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 without oral argument. See Fed. R. App. P. 34(a)(2). Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,*** Judge.
Jean Decembre appeals from a decision by the Bankruptcy Appellate Panel
(“BAP”) reversing the bankruptcy court’s vacatur of an order disallowing
Decembre’s claim against debtor Nations First Capital (“NFC”). We have
jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.
I
We review the BAP’s decision de novo and may affirm “on any ground
supported by the record.” Cal. Franchise Tax Bd. v. Kendall (In re Jones), 657
F.3d 921, 924 (9th Cir. 2011) (citation omitted). “[A]pply[ing] the same standard
of review that the BAP applied to the bankruptcy court’s ruling,” Brace v. Speier
(In re Brace), 979 F.3d 1228, 1232 (9th Cir. 2020), we ask whether the bankruptcy
court abused its discretion when it denied Decembre relief under Federal Rule of
Civil Procedure (“Rule”) 60(b)(1), but granted him relief under Rule 60(b)(6). See
Phillips v. Gilman (In re Gilman), 887 F.3d 956, 963 (9th Cir. 2018) (reviewing
bankruptcy court’s order granting Rule 60(b) relief for an abuse of discretion).
The bankruptcy court abuses its discretion if it does “not identify the correct legal
rule.” USAA Fed. Sav. Bank v. Thacker (In re Taylor), 599 F.3d 880, 887–88 (9th
*** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 Cir. 2010). We accept the bankruptcy court’s factual findings “unless [they] leave
the definite and firm conviction that a mistake has been committed.” Khan v.
Barton (In re Khan), 846 F.3d 1058, 1063 (9th Cir. 2017); see also United Student
Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204, 211 (B.A.P. 9th Cir. 2006) (“The
bankruptcy court’s factual findings regarding service of process and other
documents are reviewed for clear error.”).
II
The BAP properly held that the bankruptcy court properly declined to grant
Decembre relief from the order disallowing his claim (“Disallowance Order”)
under Rule 60(b)(1), but erred in granting him relief from that order under Rule
60(b)(6). See 11 U.S.C. § 502(j) (“A claim that has been allowed or disallowed
may be reconsidered for cause.”); Fed. R. Bankr. P. 9024 (providing that Rule 60
applies to motions for relief from a judgment or order in a bankruptcy case); see
also Wylie, 349 B.R. at 209 (explaining that motions for reconsideration of a claim
disallowance filed “after the 10-day appeal period has expired” are “subject to the
constraints of [Rule] 60(b) as incorporated by [Bankruptcy] Rule 9024”).
3 A
The bankruptcy court properly declined to conclude that Decembre’s failure
to timely respond to NFC’s claim objection resulted from “excusable neglect”
within the meaning of Rule 60(b)(1). See Fed. R. Civ. P. 60(b)(1) (permitting a
court to relieve a party from an order upon a showing of “mistake, inadvertence,
surprise, or excusable neglect”). Decembre has not demonstrated that any of the
following factors favor Rule 60(b)(1) relief on the basis of excusable neglect: “the
danger of prejudice to the debtor, the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.”
Iopa v. Saltchuk-Young Brothers, Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (per
curiam) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993)).
The length of the delay between entry of the Disallowance Order and
Decembre’s request for relief from that order—roughly two months—was
substantial. See Harvest v. Castro, 531 F.3d 737, 747 (9th Cir. 2008) (concluding
that 64-day delay was “substantial” and cut against granting Rule 60(b)(1) relief).
Additionally, the explanation that Decembre’s counsel provided for the delay does
not demonstrate a genuine, good faith mistake. The proof of service for the
4 objection and notice of hearing reflects that NFC properly mailed those documents
to counsel’s law firm (consistent with Decembre’s request in his proof of claim)
and Decembre’s personal address.1 Counsel’s bare assertions that he did not see
and “doubts that his office received” this mail do not overcome the presumption of
receipt. See Moody v. Bucknum (In re Bucknum), 951 F.2d 204, 207 (9th Cir.
1991) (per curiam). Although counsel may have been unaware of the claim
objection because of garden-variety negligence on his or his staff’s part, there is no
explanation to that effect in the record. Decembre has also failed to explain how
the prejudice factor favors a finding of excusable neglect. See Iopa, 916 F.3d at
1301.
The BAP properly concluded that the bankruptcy court properly denied Rule
60(b)(1) relief. Compare Tracht Gut, LLC v. Los Angeles Cnty. Treasurer & Tax
Collector (In re Tracht Gut, LLC), 836 F.3d 1146, 1155 (9th Cir. 2016) (affirming
denial of Rule 60(b)(1) relief where the movant failed “to identify any instance of
neglect that was excusable”) with Gilman, 887 F.3d at 963–64 (affirming grant of
Rule 60(b)(1) relief where counsel explained that she failed to respond to an
1 On appeal, Decembre takes issue with the fact that NFC addressed the mail to “Jean G. Decembre c/o Crowley & Crowley,” rather than to Crowley himself. NFC addressed the mail in the manner that Decembre requested in his proof of claim. In any event, because Decembre did not raise this issue below, we need not consider it. See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010). 5 objection “because of a calendaring error,” “her secretary’s disability,” and the fact
that she had “too many balls in the air”).
B
The BAP did not err in holding that the bankruptcy court should have
declined to vacate the Disallowance Order under Rule 60(b)(6). Under that catch-
all provision, a court may relieve a party from an order for “any other reason that
justifies relief,” Fed. R. Civ. P. 60(b)(6), but only “to prevent manifest injustice”
and “only where extraordinary circumstances prevented a party from taking timely
action.” Zurich Am. Ins. Co. v. Int’l Fibercom, Inc. (In re Int’l Fibercom, Inc.),
503 F.3d 933, 941 (9th Cir. 2007) (quoting United States v. Washington, 394 F.3d
1152, 1157 (9th Cir. 2005)); see also Delay v. Gordon, 475 F.3d 1039, 1044 (9th
Cir. 2007) (Rule 60(b)(6) “applies only when the reason for granting relief is not
covered by any of the other reasons set forth in Rule 60.”). Decembre did not
demonstrate such circumstances. The bankruptcy court improperly granted relief
on the sole ground that Decembre had a “potential meritorious defense” to NFC’s
claim objection. See United States v. Signed Pers. Check No. 730 of Yurban S.
Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (explaining that a court “must consider
three factors,” any of which, if met, is alone “sufficient reason for the district court
to refuse to set aside the default” (quotation marks omitted)).
6 AFFIRMED.