Waldo v. Bank of New York Mellon Trust

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 27, 2022
• Docket: 21-4050
• Status: Unpublished

Opinion

Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 27, 2022 _________________________________ Christopher M. Wolpert Clerk of Court In re: CHARLES C. WALDO; ETHANNE S. WALDO,

Debtors.

----------------------------

CHARLES C. WALDO; ETHANNE S. WALDO,

Appellants, No. 21-4050 v. (D.C. No. 2:20-CV-00238-DBB) (D. Utah) BANK OF NEW YORK MELLON TRUST COMPANY; OCWEN LOAN SERVICING, LLC,

Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, EID, and ROSSMAN, Circuit Judges. _________________________________

* Oral argument would not help us, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); Tenth Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A). Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 2

This appeal involves property once owned by Charles and Ethanne

Waldo. The Waldos obtained a mortgage, which was secured by a deed of

trust. The Waldos eventually defaulted on the loan, triggering foreclosure

proceedings. But the Waldos filed bankruptcy. In the bankruptcy

proceedings, the Waldos unsuccessfully tried to prevent a creditor from

enforcing the debt. Our appeal involves the aftermath of those bankruptcy

proceedings.

I. The Waldos challenge the proof of claim involving the mortgage.

In those bankruptcy proceedings, a proof of claim was filed by the

Bank of New York Mellon Trust Company, NA, as Indenture Trustee for

the IMC Home Equity Loan Owner Trust 1998-7, and Ocwen Loan

Servicing, LLC. The Waldos objected, but didn’t deny arrearage on the

mortgage. They instead questioned whether the bank and Ocwen could

enforce the debt. The bankruptcy court overruled the Waldos’ objection

and granted summary judgment to the bank and Ocwen. 1

The Waldos unsuccessfully moved to reopen and later sought

reconsideration of the refusal to reopen, arguing that the bank and Ocwen

1 The bankruptcy court conducted a hearing and issued a written order. We don’t know whether the bankruptcy court provided an oral explanation because the bankruptcy court’s docket contains no transcript or audio recording of the hearing. We thus lack any explanation from the bankruptcy court for its rulings. But the Waldos never properly appealed the bankruptcy court’s denial of their objection or grant of summary judgment to the bank and Ocwen.

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had no right to enforce the debt. In making this argument, the Waldos

again questioned the proof of claim, insisting that the mortgage contract

was no longer valid, Ocwen no longer serviced the loan, and the bank

entity (that filed the proof of claim) no longer existed.

II. The bankruptcy court denies the motions to reopen and reconsider.

To decide the motion to reopen, the bankruptcy court considered how

long the case had been closed, the possible relief for the Waldos, the

strength of the fraud allegations, the similarity between the current

allegations and earlier allegations, the potential for another court to hear

the issues raised in the motion, the prejudice to Ocwen and the bank, and

the prejudice to the Waldos if the case were to remain closed. The

bankruptcy court concluded that these factors weighed against the Waldos,

so the court denied their motion to reopen.

The Waldos asked the bankruptcy court to reconsider, but the court

treated the request as a motion to alter or amend a judgment and denied

relief.

The district court affirmed, and the Waldos appeal.

III. Article III Standing

Before reviewing the bankruptcy court’s rulings, we assess Article

III standing, which entails a jurisdictional issue. See Lee v. McCardle (In

re Peeples), 880 F.3d 1207, 1212 (10th Cir. 2018). The Waldos deny that

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the bank has Article III standing in the appeal. But it is the Waldos, not the

bank, who have invoked federal jurisdiction. So it’s the Waldos who must

show Article III standing. See Spokeo, Inc., v. Robins, 578 U.S. 330, 338

(2016). The Waldos do have Article III standing, and no one contends

otherwise.

We need not address whether the bank had Article III standing in the

bankruptcy court. The bank’s standing in bankruptcy court could bear on

summary judgment, but the Waldos didn’t properly appeal the summary-

judgment ruling.

IV. Discretion to Reopen or Reconsider

The bankruptcy court did not err in declining to reopen the

proceedings or to reconsider that ruling.

A. Standard of Review

Despite the district court’s ruling, we independently review the

bankruptcy court’s decisions without deferring to the district court’s

analysis. WD Equip., LLC v. Cowen (In re Cowen), 849 F.3d 943, 947

(10th Cir. 2017). In conducting this review, we apply the abuse–of–

discretion standard. See Nelson v. City of Albuquerque, 921 F.3d 925, 929

(10th Cir. 2019) (motion to alter or amend the judgment); Woods v. Kenan

(In re Woods), 173 F.3d 770, 778 (10th Cir. 1999) (motion to reopen). The

bankruptcy court abuses its discretion if the decision is “arbitrary,

capricious, whimsical, or manifestly unreasonable.” Rocky Mountain

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Christian Church v. Bd. of Cnty. Comm’rs, 613 F.3d 1229, 1239 (10th Cir.

2010) (internal quotation marks omitted).

B. Motion to Reopen

In seeking reopening, the Waldos presented numerous theories. Most

stemmed from alleged trickery by the bank and Ocwen in filing the proof

of claim in bankruptcy court.

Duration. The Waldos contend that the bankruptcy court focused too

heavily on how long the case had been closed. The bankruptcy court did

label the passage of time the “most influential” factor. Suppl. R. at 549.

And the Waldos correctly say that no time bar prevents the setting aside of

a judgment for fraud on the court. United States v. Buck, 281 F.3d 1336,

1341–42 (10th Cir. 2002). But the passage of time is a proper factor for a

bankruptcy court to consider when deciding whether to reopen a case. See

Redmond v. Fifth Third Bank, 624 F.3d 793, 798 (7th Cir. 2010). The

bankruptcy court did not treat the passage of time as conclusive; the court

considered this as just one of several factors. In doing so, the court acted

within its discretion. See id.

Prejudice. The bankruptcy court also acted within its discretion

when finding that reopening would prejudice Ocwen and the bank by

forcing them to relitigate the validity of their proof of claim. In the

Waldos’ view, Ocwen and the bank shouldn’t have participated in this

case, so reopening the case would not have prejudiced them. The Waldos’

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argument ignores the interest of Ocwen and the bank in defending their

judgment. Although the Waldos downplay the expected costs for Ocwen

and the bank, the bankruptcy court could reasonably consider those costs

prejudicial.

Consideration of the Waldos’ arguments. The Waldos assert that

the bankruptcy court ignored their arguments and evidence. We disagree.

The bankruptcy court denied the Waldos’ motion to reopen and explained

the decision. The Waldos do not point to anything in the record showing

that the bankruptcy court ignored any arguments or evidence.

Standing. The Waldos imply that the bankruptcy court overlooked

their challenge to Article III standing for Ocwen and the bank. But the

Waldos’ motion to reopen did not challenge Article III standing of Ocwen

or the bank.

Fraud on the court. The motion instead attacked the grant of

summary judgment based on fraud on the court. In arguing that Ocwen and

the bank had committed a fraud on the court, the Waldos asserted that

“there was never the requisite [s]tanding to file a [c]laim.” Suppl. R. at

539. Rejecting this assertion, the bankruptcy court pointed out that the

Waldos had already raised nearly identical challenges. This

characterization fell within the bankruptcy court’s discretion, and the

Waldos have not shown an abuse of discretion in the denial of their motion

to reopen.

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C. Motion to Reconsider

Nor did the bankruptcy court err when denying the Waldos’ motion to

reconsider.

The bankruptcy court could reconsider when the controlling law has

changed, new evidence becomes available, or correction is needed because

of a clear error or manifest injustice. Servants of Paraclete v. Does,

204 F.3d 1005, 1012 (10th Cir. 2000). Applying these factors, the

bankruptcy court concluded that nothing had substantially changed since

the ruling on the motion to reopen.

The Waldos argue that the bankruptcy court ignored some of their

arguments. We disagree. The court said that it had considered all of the

arguments, and we have no reason to think otherwise.

Granted, the bankruptcy court did not address the Waldos’ references

to Article III standing. But even if these references had constituted an

argument based on a lack of Article III standing, the bankruptcy court

would have acted within its discretion by declining to consider the

argument: The Waldos had not presented the argument in their motion to

reopen, and the bankruptcy court didn’t need to consider arguments that

could have been presented earlier. See Banister v. Davis, 140 S. Ct. 1698,

1708 (2020).

The Waldos contend that the attorney for Ocwen and the bank

“should not have been allowed to participate” in the proceedings.

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Appellant’s Opening Br. at 3a. 2 For this contention, the Waldos cite

perceived deficiencies in the attorney’s entry of appearance:

1. The attorney never filed an entry of appearance for Ocwen or its successor.

2. The attorney’s appearance form identified the bank by its old name.

This argument is invalid under Federal Rule of Bankruptcy Procedure

9010(b): “An attorney appearing for a party in a case under the Code shall

file a notice of appearance with the attorney’s name, office address and

telephone number, unless the attorney’s appearance is otherwise noted in

the record.” This rule applies because the record otherwise clarifies that

the attorney represented both Ocwen and the bank. For example, the

attorney’s brief for summary judgment identifies the clients as Ocwen and

the bank under its new name. So any perceived deficiencies in the entry of

appearance wouldn’t matter. 3 For this contention, the Waldos have not

shown that the bankruptcy court abused its discretion when denying

reconsideration.

2 The attorney did not participate in the proceedings related to the motion to reopen, so we understand this argument to address the denial of reconsideration. 3 We deny the Waldos’ request to strike the entry of appearance filed here by counsel for Ocwen and the bank. The entry of appearance complies with Tenth Circuit Rule 46.1. 8 Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 9

D. The Waldos’ Additional Arguments

The Waldos challenge the bankruptcy court’s award of attorney’s

fees. The bankruptcy court ordered the fees more than a month after the

Waldos had filed their notice of appeal. The Waldos did not file a

supplemental notice of appeal, a step necessary to give us “jurisdiction

over an attorneys’ fees issue that becomes final subsequent to the initial

notice of appeal.” EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250

(10th Cir. 1999). So we lack jurisdiction to consider the award of

attorney’s fees.

The Waldos make several claims that appear to challenge the

bankruptcy court’s ruling on summary judgment. But that ruling isn’t at

issue, so we cannot consider the Waldos’ challenge to the grant of

summary judgment. See Lang v. Lang (In re Lang), 414 F.3d 1191, 1195-96

(10th Cir. 2005).

The Waldos allege many problems with the district court’s analysis.

They argue, for example, that the district court erred by ignoring evidence

and by taking judicial notice of several documents. We have independently

reviewed the bankruptcy court’s rulings, disregarding the documents

noticed by the district court, and we find no abuse of discretion.

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Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judge