Olga Bordenyuk v. Richard Yanagi

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 6, 2021
• Docket: 20-60042
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: OLGA VLADIMIROVNA No. 20-60042 BORDENYUK, BAP No. 20-1042 Debtor,

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

OLGA VLADIMIROVNA BORDENYUK,

Appellant,

v.

RICHARD A. YANAGI, Chapter 7 Trustee; BENJAMIN GALE,

Appellees.

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

Submitted August 4, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

* 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). Olga Bordenyuk (“Bordenyuk”) appeals pro se the Bankruptcy Appellate

Panel’s (the “BAP”) decision affirming the bankruptcy court’s order approving the

Chapter 7 trustee Richard Yanagi’s (the “Trustee”) compromise with the personal

representative for the probate estate of Karen Stirling. We have jurisdiction under

28 U.S.C. § 158, and we affirm.

We review a decision by the BAP de novo. In re Arden, 176 F.3d 1226,

1227 (9th Cir. 1999). A bankruptcy court’s decisions to approve a compromise

and to deny a motion to alter or amend the judgment are reviewed for abuse of

discretion. In re A & C Properties, 784 F.2d 1377, 1380 (9th Cir. 1986); In re

Clinton, 449 B.R. 79, 82 (B.A.P. 9th Cir. 2011).

Bordenyuk waived her arguments that the bankruptcy court erred by

approving a settlement that was not “fair and equitable,” the settlement order did

not contain the proper findings to support the bankruptcy court’s decision, and the

bankruptcy court “ignored the fact that the probate order is probably void” because

it violated the stay. She presented these arguments for the first time to the BAP in

an unauthorized brief and the BAP did not consider these arguments. Accordingly,

we decline to entertain Bordenyuk’s challenges now. See Orr v. Plumb, 884 F.3d

923, 932 (9th Cir. 2018) (“The usual rule is that arguments . . . omitted from the

opening brief are deemed forfeited.”); In re Burnett, 435 F.3d 971, 975–76 (9th

Cir. 2006) (“Absent exceptional circumstances, issues not raised before the BAP

2 are waived.”).

Bordenyuk’s challenges to the bankruptcy court’s denial of her motion for

relief from the settlement order (“Reconsideration Motion”) are not properly

before the court because Bordenyuk failed to amend her notice of appeal to the

BAP to include the Reconsideration Motion and therefore the BAP did not

consider those challenges. See Fed. R. Bankr. Pro. 8002(b)(3); see also In re

Slimick, 928 F.2d 304, 306 (“The untimely filing of a notice of appeal [to the BAP]

is jurisdictional.”); In re Burnett, 435 F.3d at 975–76.

AFFIRMED.