FILED UNITED STATES COURT OF APPEALS SEP 24 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In re: RUBEN GONZALEZ CUEVAS, No. 16-60086
Debtor, BAP No. 15-1353 ______________________________
PHILIP EBERHARD KOEBEL, ORDER AMENDING MEMORANDUM DISPOSITION Appellant, AND DENYING PETITION FOR PANEL REHEARING v.
STEVAN CHANDLER, Trustee of the Juliana Cuevas Living Trust and HEIDE KURTZ,
Appellees.
In re: PHILIP EBERHARD KOEBEL, No. 16-60091 ______________________________ BAP No. 16-1149 PHILIP EBERHARD KOEBEL, attorney disciplinary matter,
Appellant.
Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,* District Judge.
* The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. The memorandum disposition filed August 23, 2018 (Docket Entry No. 49),
is amended as follows:
1. On page 6, replace the second sentence of the first complete paragraph:
Moreover, Koebel was well aware that he had been sanctioned in the past for wrongfully removing unlawful detainer actions against his debtor clients to bankruptcy court.”
with
Moreover, Koebel was well aware that he had been warned in the past for wrongfully removing unlawful detainer actions against his debtor clients to the bankruptcy court, and had also previously been sanctioned for "egregious, vexatious, and bad faith conduct."
2. On page 6, replace the second sentence of the second complete
paragraph:
Koebel did not question the bankruptcy court's authority to impose sanctions against him and conceded certain points at the disciplinary hearing, namely that he may have left himself "defenseless" by neglecting to address the disciplinary order against him in a meaningful way.
Koebel did not question the bankruptcy court's authority to impose sanctions against him and conceded certain points to the BAP, namely that he may have left himself “defenseless” by neglecting to address the disciplinary order against him in a meaningful way.
With the foregoing amendments to the memorandum disposition,
Appellant’s petition for panel rehearing (Docket Entry No. 50) is DENIED.
No further petitions for rehearing will be accepted in this case.
2 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PHILIP EBERHARD KOEBEL, MEMORANDUM*
Appellant,
v.
STEVAN CHANDLER, Trustee of the Juliana Cuevas Living Trust and HEIDE KURTZ,
Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Kurtz, and Taylor, Bankruptcy Judges, Presiding
In re: PHILIP EBERHARD KOEBEL, No. 16-60091 ______________________________ BAP No. 16-1149 PHILIP EBERHARD KOEBEL, attorney disciplinary matter,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Pappas, and Faris, Bankruptcy Judges, Presiding
Submitted August 8, 2018** Pasadena, California
Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,*** District Judge.
In this consolidated appeal, Philip E. Koebel (Koebel) appeals the Bankruptcy
Appellate Panel’s (BAP) decision affirming a bankruptcy court’s orders suspending
and imposing monetary sanctions against him. We have jurisdiction to review
Koebel’s appeal pursuant to 28 U.S.C. § 158(d). We review the bankruptcy court’s
interpretations of the Bankruptcy Code de novo and its findings of fact for clear
error. United States v. Hatton (In re Hatton), 220 F.3d 1057, 1059 (9th Cir. 2000).
We review the imposition of Rule 9011 sanctions and discipline for an abuse of
discretion. See Price v. Lehtiner, 564 F.3d 1052, 1058 (9th Cir. 2009). We affirm.
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation.
2 I.
The BAP found that Koebel did not make any argument specifically and
distinctly addressing the bankruptcy court's sanctions in his appeal brief, and any
argument was therefore forfeited. The BAP also explained that Koebel did not
address the disciplinary suspension during oral argument, and that his appeal to the
BAP did not identify any error in the order suspending him. “Absent exceptional
circumstances, issues not raised before the BAP are waived.” In re Eliapo, 468 F.3d
592, 603 (9th Cir. 2006) (internal quotation marks omitted). Koebel has not offered
any exceptional circumstance that excuses his failure make these arguments to the
BAP. Instead, he asserts that challenging the dismissal of his chapter 13 plan was
sufficient. Accordingly, Koebel waived any argument challenging his suspension
and the monetary sanctions. However, even if Koebel did not waive these
arguments, they would fail.
II.
The bankruptcy court did not err by imposing monetary sanctions. Under Fed.
R. Bankr. P. 9011, a bankruptcy court has authority to impose monetary sanctions,
such as reasonable attorneys’ fees and costs, against an individual where the papers
are frivolous or filed for an improper purpose, such as to harass, cause unnecessary
delay, or a needless increase in litigation costs. See Valley Nat’l Bank v. Needler (In
3 re Grantham Bros.), 922 F.2d 1438, 1441 (9th Cir. 1991) (internal citations
omitted).1
Koebel asserts that the bankruptcy court failed to consider evidence, such as
the contents of Cuevas’s chapter 13 schedules and plan, which, he alleges,
establishes that his bankruptcy filings were made in good faith. He maintains that
post-chapter 7 tax debts in excess of $17,785 remained to be addressed as well as
legal fees potentially owed to a lawyer who had defended Cuevas in an unlawful
detainer action. Koebel made other dubious claims, such as his reliance on a
speculative, lump-sum trust distribution in the amount $195,000 as funding for
Cuevas’s chapter 13 plan, and Cuevas’s claimed homestead exemption.
None of these arguments have merit. Cuevas’s chapter 13 case sought to
establish a homestead exemption in spite of a previous ruling that Cuevas held no
legal or equitable title or possessory interest in the subject home at the time his
bankruptcy petitions were filed. Koebel’s reliance on In re Moffat, 107 B.R. 255,
259 n.7 (Bankr. C.D. Cal. 1989), and In re Harris, 101 B.R. 210, 214 (Bankr. E.D.
Cal. 1989), overlooks the fact that in both of those cases the debtors had either a
1 Since Fed. R. Civ. P. 11 and Fed. R. Bankr. P. 9011 utilize essentially identical language, courts often rely on cases interpreting the former when construing the latter. See Grantham Bros., 922 F.2d at 1441.
4 current or prior legal interest in the properties for which they sought a homestead
exemptions.
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FILED UNITED STATES COURT OF APPEALS SEP 24 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In re: RUBEN GONZALEZ CUEVAS, No. 16-60086
Debtor, BAP No. 15-1353 ______________________________
PHILIP EBERHARD KOEBEL, ORDER AMENDING MEMORANDUM DISPOSITION Appellant, AND DENYING PETITION FOR PANEL REHEARING v.
STEVAN CHANDLER, Trustee of the Juliana Cuevas Living Trust and HEIDE KURTZ,
Appellees.
In re: PHILIP EBERHARD KOEBEL, No. 16-60091 ______________________________ BAP No. 16-1149 PHILIP EBERHARD KOEBEL, attorney disciplinary matter,
Appellant.
Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,* District Judge.
* The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. The memorandum disposition filed August 23, 2018 (Docket Entry No. 49),
is amended as follows:
1. On page 6, replace the second sentence of the first complete paragraph:
Moreover, Koebel was well aware that he had been sanctioned in the past for wrongfully removing unlawful detainer actions against his debtor clients to bankruptcy court.”
with
Moreover, Koebel was well aware that he had been warned in the past for wrongfully removing unlawful detainer actions against his debtor clients to the bankruptcy court, and had also previously been sanctioned for "egregious, vexatious, and bad faith conduct."
2. On page 6, replace the second sentence of the second complete
paragraph:
Koebel did not question the bankruptcy court's authority to impose sanctions against him and conceded certain points at the disciplinary hearing, namely that he may have left himself "defenseless" by neglecting to address the disciplinary order against him in a meaningful way.
Koebel did not question the bankruptcy court's authority to impose sanctions against him and conceded certain points to the BAP, namely that he may have left himself “defenseless” by neglecting to address the disciplinary order against him in a meaningful way.
With the foregoing amendments to the memorandum disposition,
Appellant’s petition for panel rehearing (Docket Entry No. 50) is DENIED.
No further petitions for rehearing will be accepted in this case.
2 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PHILIP EBERHARD KOEBEL, MEMORANDUM*
Appellant,
v.
STEVAN CHANDLER, Trustee of the Juliana Cuevas Living Trust and HEIDE KURTZ,
Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Kurtz, and Taylor, Bankruptcy Judges, Presiding
In re: PHILIP EBERHARD KOEBEL, No. 16-60091 ______________________________ BAP No. 16-1149 PHILIP EBERHARD KOEBEL, attorney disciplinary matter,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Pappas, and Faris, Bankruptcy Judges, Presiding
Submitted August 8, 2018** Pasadena, California
Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,*** District Judge.
In this consolidated appeal, Philip E. Koebel (Koebel) appeals the Bankruptcy
Appellate Panel’s (BAP) decision affirming a bankruptcy court’s orders suspending
and imposing monetary sanctions against him. We have jurisdiction to review
Koebel’s appeal pursuant to 28 U.S.C. § 158(d). We review the bankruptcy court’s
interpretations of the Bankruptcy Code de novo and its findings of fact for clear
error. United States v. Hatton (In re Hatton), 220 F.3d 1057, 1059 (9th Cir. 2000).
We review the imposition of Rule 9011 sanctions and discipline for an abuse of
discretion. See Price v. Lehtiner, 564 F.3d 1052, 1058 (9th Cir. 2009). We affirm.
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation.
2 I.
The BAP found that Koebel did not make any argument specifically and
distinctly addressing the bankruptcy court's sanctions in his appeal brief, and any
argument was therefore forfeited. The BAP also explained that Koebel did not
address the disciplinary suspension during oral argument, and that his appeal to the
BAP did not identify any error in the order suspending him. “Absent exceptional
circumstances, issues not raised before the BAP are waived.” In re Eliapo, 468 F.3d
592, 603 (9th Cir. 2006) (internal quotation marks omitted). Koebel has not offered
any exceptional circumstance that excuses his failure make these arguments to the
BAP. Instead, he asserts that challenging the dismissal of his chapter 13 plan was
sufficient. Accordingly, Koebel waived any argument challenging his suspension
and the monetary sanctions. However, even if Koebel did not waive these
arguments, they would fail.
II.
The bankruptcy court did not err by imposing monetary sanctions. Under Fed.
R. Bankr. P. 9011, a bankruptcy court has authority to impose monetary sanctions,
such as reasonable attorneys’ fees and costs, against an individual where the papers
are frivolous or filed for an improper purpose, such as to harass, cause unnecessary
delay, or a needless increase in litigation costs. See Valley Nat’l Bank v. Needler (In
3 re Grantham Bros.), 922 F.2d 1438, 1441 (9th Cir. 1991) (internal citations
omitted).1
Koebel asserts that the bankruptcy court failed to consider evidence, such as
the contents of Cuevas’s chapter 13 schedules and plan, which, he alleges,
establishes that his bankruptcy filings were made in good faith. He maintains that
post-chapter 7 tax debts in excess of $17,785 remained to be addressed as well as
legal fees potentially owed to a lawyer who had defended Cuevas in an unlawful
detainer action. Koebel made other dubious claims, such as his reliance on a
speculative, lump-sum trust distribution in the amount $195,000 as funding for
Cuevas’s chapter 13 plan, and Cuevas’s claimed homestead exemption.
None of these arguments have merit. Cuevas’s chapter 13 case sought to
establish a homestead exemption in spite of a previous ruling that Cuevas held no
legal or equitable title or possessory interest in the subject home at the time his
bankruptcy petitions were filed. Koebel’s reliance on In re Moffat, 107 B.R. 255,
259 n.7 (Bankr. C.D. Cal. 1989), and In re Harris, 101 B.R. 210, 214 (Bankr. E.D.
Cal. 1989), overlooks the fact that in both of those cases the debtors had either a
1 Since Fed. R. Civ. P. 11 and Fed. R. Bankr. P. 9011 utilize essentially identical language, courts often rely on cases interpreting the former when construing the latter. See Grantham Bros., 922 F.2d at 1441.
4 current or prior legal interest in the properties for which they sought a homestead
exemptions. Indeed, at the time of Cuevas’s chapter 13 filing, Koebel had no
arguable basis for believing Cuevas possessed any legal interest in his mother’s
home beyond his claim for distribution of trust funds. Also, Koebel has not refuted
that Cuevas’s creditors were not pressing, and that Cuevas lacked the ability to
reorganize his finances. Furthermore, the finding of an improper purpose is fully
supported by the timing of the filing of the chapter 13 case.
We find that the bankruptcy court’s bad faith finding was not illogical,
implausible, or unsupported by the record and that the imposition of monetary
sanctions did not violate Fed. R. Bankr. P. 9011. See Retz v. Samson (In re Retz),
606 F.3d 1189, 1196 (9th Cir. 2010).
III.
Nor did the bankruptcy disciplinary panel (BDP) err in suspending Koebel
from filing any new case or proceeding in the bankruptcy court and placing him on
probation for four and one-half years. Bankruptcy courts have inherent authority to
regulate the practice of attorneys who appear before them, including disbarment or
the suspension of attorneys from practice. Chambers v. NASCO, Inc., 501 U.S. 32,
43–45 (1991). An attorney subjected to discipline, however, is entitled to certain
guarantees of procedural due process, namely notice and a hearing. See Rosenthal
v. Justices of the Supreme Court of Cal., 910 F.2d 561, 564 (9th Cir. 1990).
5 Contrary to Koebel’s claims, the record shows that the order to show cause
issued by the bankruptcy court notified Koebel of the conduct charged against him.
Koebel was also served with notice of the bankruptcy court’s decision and
recommendation, which was adopted by the BDP. Moreover, Koebel was well
aware that he had been warned in the past for wrongfully removing unlawful detainer
actions against his debtor clients to the bankruptcy court, and had also previously
been sanctioned for “egregious, vexatious, and bad faith conduct.”
The order to show cause not only identified the bankruptcy court’s
disciplinary authority, but also the possibility of the imposition of sanctions against
Koebel for his conduct. Koebel did not question the bankruptcy court’s authority to
impose sanctions against him and conceded certain points to the BAP, namely that
he may have left himself “defenseless” by neglecting to address the disciplinary
order against him in a meaningful way. Therefore, Koebel’s due process rights were
not violated when the BDP addressed other relevant conduct as well as his conduct
during the hearing.
Further, the BDP’s decision to discipline Koebel did not rest on evidence other
than that presented to or found by the bankruptcy court through judicial notice or its
records. The BDP made its extensive, detailed factual findings based upon Koebel’s
sworn testimony concerning his handling of Cuevas’s case, declarations and exhibits
submitted by him, and other evidence presented to the bankruptcy court. The BDP
6 found that the appellant had an extensive history—as well as an ongoing practice—
of similar violations, consisting of bad faith, dilatory tactics, undertaken without any
legitimate purpose other than to stall or maximize delay in litigation for his
bankruptcy debtor clients. More importantly, Koebel does not dispute his
motivation for filing the chapter 13 case—to stall or delay Cuevas’s eviction.
Finally, the BDP considered Koebel’s mitigating circumstances, including his
financial responsibilities. Nonetheless, it chose to impose the sanctions
recommended by the bankruptcy court, referencing the criterion of the American
Bar Association. Koebel does not maintain that the sanctions were disproportionate
to the attorneys’ fees and costs incurred, or otherwise penal in nature.
We conclude that the disciplinary sanctions imposed by the BDP were based on
record evidence and are reasonable under the circumstances. Koebel has not shown
that the bankruptcy court abused its discretion in sanctioning and disciplining him.
The bankruptcy court’s orders are AFFIRMED.