FILED
DEC 14 2012
1 SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
2
UNITED STATES BANKRUPTCY APPELLATE PANEL
3
OF THE NINTH CIRCUIT
4
5 In re: ) BAP No. CC-12-1150-MkBePa
)
6 MIGUEL LEON; GREGORY LEE, ) Bk. Nos. RS 10-15045-MJ
) RS 10-15079-MJ
7 Debtors. ) (Consolidated Bankruptcy Cases)
______________________________)
8 ) Adv. Nos. RS 11-01980-MJ
DONOVANT GRANT, ) RS 11-01981-MJ
9 ) (Consolidated Adversary Proceedings)
Appellant, )
10 )
v. ) MEMORANDUM*
11 )
MIGUEL LEON; GREGORY LEE, )
12 )
Appellees. )
13 ______________________________)
14 Submitted Without Oral Argument
on November 15, 2012**
15
Filed – December 14, 2012
16
Appeal from the United States Bankruptcy Court
17 for the Central District of California
18 Honorable Meredith Jury, Bankruptcy Judge, Presiding***
19 Appearances: Appellant Donovant Grant pro se on brief; Gary
Sodikoff on brief for appellees Miguel Leon and
20 Gregory Lee.
21
22 *
This disposition is not appropriate for publication.
23 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
24 See 9th Cir. BAP Rule 8013-1.
**
25 By order entered October 4, 2012, this appeal was deemed
suitable for submission without oral argument.
26
***
Case Number RS 10-15079-MJ and Adversary Number
27 RS 11-01981-MJ formerly were assigned to Judge Catherine Bauer.
28 However, by order of both Judge Bauer and Judge Jury, Case Number
RS 10-15079-MJ and Adversary Number RS 11-01981-MJ were
reassigned to Judge Jury.
1
Before: MARKELL, BEESLEY**** and PAPPAS, Bankruptcy Judges.
2
3
INTRODUCTION
4
Donovant Grant (“Grant”) commenced nondischargeability
5
adversary proceedings against debtors Miguel Leon and Gregory Lee
6
(collectively, “Debtors”) under
11 U.S.C. §§ 523(a)(2)(A) and
7
(a)(6).1 The bankruptcy court granted summary judgment in favor
8
of the Debtors, holding that Grant had not timely filed his
9
dischargeability complaints. Grant appeals, and we AFFIRM.
10
FACTS
11
Most of the key facts are not in dispute. We have drawn
12
many of them from the adversary proceeding dockets and from the
13
underlying bankruptcy case dockets.2
14
In 2005, Grant bought a 2002 Ford Explorer (“Explorer”) for
15
roughly $8,000. Grant claims that he bought the Explorer from
16
both of the Debtors. Grant also claims that, in order to induce
17
him to purchase the Explorer, the Debtors intentionally made
18
misrepresentations to him regarding the condition of and
19
20
****
Hon. Bruce T. Beesley, United States Bankruptcy Judge for
21
the District of Nevada, sitting by designation.
22 1
Unless specified otherwise, all chapter and section
23 references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532, and
all “Rule” references are to the Federal Rules of Bankruptcy
24 Procedure, Rules 1001-9037. All “Civil Rule” references are to
the Federal Rules of Civil Procedure.
25
2
26 We can take judicial notice of these dockets and of the
imaged documents attached thereto. See O’Rourke v. Seaboard Sur.
27 Co. (In re E.R. Fegert, Inc.),
887 F.2d 955, 957–58 (9th Cir.
1989); Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),
28
293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
2
1 maintenance performed on the Explorer. According to Grant, he
2 suffered approximately $4,000 in damages as a result of the
3 Debtors’ alleged fraud.
4 Grant first sued the Debtors in state court (Ventura County
5 Superior Court Case No. CIV 244559). But before the disposition
6 of Grant’s state court lawsuit, both debtors filed chapter 7
7 bankruptcy cases on February 24, 2010. Neither of the Debtors
8 initially listed Grant on their original master mailing lists
9 filed on February 24, 2010, contemporaneously with their
10 bankruptcy petitions. Consequently, unlike those creditors
11 initially listed by the Debtors, the bankruptcy court did not
12 mail to Grant formal written notice of the bankruptcy filings.
13 That notice, sent to other creditors as of February 26, 2010, set
14 forth the date of the § 341(a) first meeting of creditors and the
15 deadline or bar date under Rule 4007(c) for filing
16 nondischargeability complaints. In Leon’s case, the bar date was
17 set for June 7, 2010, and in Lee’s case it was set for June 4,
18 2010.
19 Both Debtors filed papers in their respective bankruptcy
20 cases in March 2010 listing Grant and his correct address. These
21 papers included: (1) their amended master mailing lists, and
22 (2) their schedule of nonpriority unsecured creditors
23 (Schedule F). There are proofs of service attached to both
24 amended master mailing lists, both dated March 3, 2010. In them,
25 the debtors declared under penalty of perjury that they had
26 mailed a notice of their amended master mailing lists to the
27 parties listed on the attached mailing list (“March 2010
28 Notice”). Grant is listed on both mailing lists, again at his
3
1 correct address.
2 In addition, Grant admitted to having actual knowledge of
3 both bankruptcy filings by no later than early May 2010 (“May
4 2010 Notice”). He received the May 2010 Notice from Debtors’
5 state court counsel, who filed and served in the state court, on
6 April 29, 2010, formal notice of the bankruptcy filings.
7 Grant did not take any action in either of the Debtors’
8 bankruptcy cases until January 2011, when he filed motions to
9 reopen both bankruptcy cases so that he could commence
10 dischargeability actions against both Debtors. Grant obtained
11 leave to reopen both cases, and in October 2011 he commenced an
12 adversary proceeding in each bankruptcy case seeking an exception
13 from discharge of debt under §§ 523(a)(2)(A) and (a)(6).3
14 Ultimately, the bankruptcy court consolidated for hearing and
15 disposition both bankruptcy cases and both adversary proceedings.
16 Shortly before consolidation, at status conferences held in
17 December 2011 in both adversary proceedings, the court discussed
18 with the parties its view that the adversary proceedings appeared
19 ripe for disposition on summary judgment. Particularly in the
20 adversary proceeding against Leon, the court explained why it
21 thought Leon was entitled to summary judgment. According to the
22 court: (1) the complaint appeared untimely, and (2) Grant
23
3
24 In addition to his claims for relief under §§ 523(a)(2)(A)
and (a)(6), Grant stated in each complaint a third claim for
25 relief under § 105(a). Because Grant’s appeal brief does not
26 address this third claim for relief, he has waived any argument
relating thereto. See Golden v. Chicago Title Ins. Co. (In re
27 Choo),
273 B.R. 608, 613 (9th Cir. BAP 2002); Branam v. Crowder
(In re Branam),
226 B.R. 45, 55 (9th Cir. BAP 1998), aff’d,
28
205 F.3d 1350 (table) (9th Cir. 1999).
4
1 appeared to have sufficient knowledge of the bankruptcy filing
2 such that he should have filed his dischargeability complaints
3 long before he actually did. The Debtors’ counsel indicated at
4 both status conferences that he would be filing summary judgment
5 motions along the lines indicated by the court. Thus, Grant knew
6 in December 2011 that he likely was going to face summary
7 judgment motions in both adversary proceedings asserting:
8 (1) that he had actual knowledge of the Debtors’ bankruptcy
9 filings, and (2) that he nonetheless failed to timely file his
10 dischargeability complaints.
11 The Debtors moved for summary judgment, asserting that Grant
12 did not timely file his nondischargeability complaints, as
13 required by Rule 4007(c). The hearing on the summary judgment
14 motion4 was set for March 1, 2012. Grant did not timely respond
15 to the summary judgment motion. Instead, he filed on
16 February 17, 2012, less than two weeks before the hearing on the
17 summary judgment motion, a motion to continue. The main reason
18 Grant gave for a continuance was that he needed more time to
19 conduct discovery. In relevant part, Grant asserted that he was
20 in the process of conducting discovery in order to address the
21 issue of whether Debtors actually served their March 2010
22
23
24
25 4
Actually, the adversary proceedings had not yet been
26 consolidated, so the Debtors filed two separate summary judgment
motions. But we still refer to them herein as a single summary
27 judgment motion, in light of the subsequent consolidation and for
ease of reference. There is no material distinction between the
28 two motions.
5
1 Notice.5
2 The bankruptcy court denied Grant’s motion to continue. In
3 part, the bankruptcy court ruled that Grant’s pending and
4 proposed discovery was irrelevant to the sole issue presented by
5 the summary judgment motion – the timeliness issue.
6 The day before the hearing on the summary judgment motion,
7 Grant filed a belated opposition. Grant argued that the
8 bankruptcy court already had effectively granted him an extension
9 of the deadline under Rule 4007(c) for filing his
10 nondischargeability complaints, when it entered orders reopening
11 the Debtors’ bankruptcy cases in 2011. Grant alternately argued
12 that he should be granted Civil Rule 60(b)(1) relief from the
13 untimely filing of his complaints. According to Grant his
14 untimely filings were the result of excusable neglect caused by
15 the distraction of his ongoing litigation of unrelated disputes
16 with third parties. Grant also contended that the Debtors’
17 allegedly fraudulent and evasive conduct during the sale of the
18 Explorer, during the state court litigation and during their
19 bankruptcy cases all militated in favor of extending the
20 Rule 4007(c) deadline.6
21
5
22 As Grant put it, “plaintiff should be allowed to further
discover information pertaining to . . . when and whether the
23 defendant[s] gave notice of [their] late filed schedules,
statement of affairs as declared to in their Chapter 7 petitions
24 to local creditors.” Ex Parte Motion for Continuance (Feb. 17,
2012) at p. 4 of 7. In this regard, Grant further stated:
25 “Plaintiff served subpoenas on two of the several witnesses he as
26 [sic] intended to serve, in efforts to prove facts in support of
his opposition.”
Id. at p. 2 of 7; see also p. 7 of 7.
27
6
In part, Grant contended that the Debtors’ failure to
28 (continued...)
6
1 The next day, on March 1, 2012, the bankruptcy court held a
2 hearing on the summary judgment motion. The court decided to
3 consider Grant’s belated opposition, but it rejected his
4 arguments. The court held that it had no discretion to extend
5 the Rule 4007(c) deadline, based on excusable neglect, the
6 Debtors’ alleged conduct, or Grant’s motions to reopen.
7 According to the court, because Grant had admitted to receiving
8 actual notice of the Debtors’ bankruptcy filings by early
9 May 2010, Grant should have filed his dischargeability complaints
10 certainly by no later than September 2010. Because Grant did not
11 file his dischargeability complaints until October 2011, the
12 bankruptcy court concluded that the Debtors were entitled to
13 summary judgment and that Grant’s adversary proceedings should be
14 dismissed.
15 The bankruptcy court entered a judgment on March 1, 2012,
16 dismissing Grant’s consolidated adversary proceedings and
17 declaring Grants’ claims against the Debtors to be discharged.
18 Grant timely filed a notice of appeal from the judgment on
19 March 14, 2012.
20
21
6
(...continued)
22
schedule and list Grant and his claim at the time they filed
23 their bankruptcy petitions was intentional and fraudulent. But
Grant offered no evidence to support this proposition. More
24 importantly, the Debtors’ tardiness in scheduling and listing
their debt to Grant had no impact on the dischargeability of the
25 debt. These both were chapter 7 no-asset cases. In such cases,
26 failure to schedule (or tardily scheduling) a debt does not
affect its dischargeability. Beezley v. Cal. Land Title Co.
27 (In re Beezley),
994 F.2d 1433, 1434 (9th Cir. 1993). Accord,
White v. Nielsen (In re Nielsen),
383 F.3d 922, 925–27 (9th Cir.
28 2004).
7
1 JURISDICTION
2 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
3 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C.
4 § 158.
5 ISSUE
6 Did the bankruptcy court err when it held that Grant’s
7 nondischargeability complaints would be dismissed as untimely
8 under Rule 4007(c)?
9 STANDARDS OF REVIEW
10 We review de novo the application and construction of the
11 Bankruptcy Code and the Federal Rules of Bankruptcy Procedure.
12 Duffy v. Dwyer (In re Dwyer),
303 B.R. 437, 439 (9th Cir. BAP
13 2003) aff’d,
426 F.3d 1041 (9th Cir 2005).
14 DISCUSSION
15 The exceptions to discharge under §§ 523(a)(2), (4) and (6)
16 are not self-executing. See § 523(c)(1). A creditor holding a
17 debt subject to one or more of these paragraphs must “request”
18 that the debt be excepted from discharge. Id. That request
19 should be in the form of an adversary complaint, Rules 4007(e)
20 and 7001(6), and must be filed no later than sixty days after the
21 first date set for the § 341(a) meeting of creditors.
22 Rule 4007(c).7 Under the explicit language of Rule 4007(c), the
23 deadline for commencing an action on a § 523(c) claim only may be
24 extended if the creditor files an extension motion before the
25
7
26 The deadline under Rule 4007(c) is not jurisdictional, and
must be asserted as a defense, or the defense of untimeliness may
27 be forfeited. See Kontrick v. Ryan,
540 U.S. 443, 458-60 (2004).
Both Debtors here asserted untimeliness as a defense in their
28 answers.
8
1 deadline has run. Excusable neglect and relief under Civil
2 Rule 60(b)(1) cannot be used to extend the deadline, unless those
3 theories are asserted in connection with a timely extension
4 motion. Kelly v. Gordon (In re Gordon),
988 F.2d 1000, 1001 (9th
5 Cir. 1993); Jones v. Hill (In re Hill),
811 F.2d 484, 486 (9th
6 Cir. 1987); Herndon v. De La Cruz (In re De La Cruz),
176 B.R.
7 19, 24 (9th Cir. BAP 1994); Osborn v. Ricketts (In re Ricketts),
8
80 B.R. 495, 496 (9th Cir. BAP 1987).
9 The Ninth Circuit has strictly enforced the Rule 4007(c)
10 deadline against untimely § 523(c) claims. See, e.g., Moody v.
11 Bucknum (In re Bucknum),
951 F.2d 204, 206-07 (9th Cir. 1991);
12 Lompa v. Price (In re Price),
871 F.2d 97, 98-99 (9th Cir 1989).
13 Nonetheless, the Bankruptcy Code provides an alternate claim for
14 relief for § 523(c) creditors who are neither “listed nor
15 scheduled” in time to permit them to file their dischargeability
16 complaint before the Rule 4007(c) deadline expires. See
17 § 523(a)(3)(B). That section provides in relevant part:
18 (a) A discharge under section 727, . . . does not
discharge an individual debtor from any debt-
19 . . . .
(3) neither listed nor scheduled under section
20 521(1) of this title with the name, if known to
the debtor, of the creditor to whom such debt is
21 owed, in time to permit-
. . . .
22 (B) if such debt is of a kind specified in
paragraph (2), (4) or (6) of this subsection,
23 timely filing of a proof of claim and timely
request for a determination of dischargeability of
24 such debt under one of such paragraphs, unless
such creditor had notice or actual knowledge of
25 the case in time for such timely filing and
request.
26
27
28
9
1 (Emphasis added).8
2 This Panel agrees with the parties and the bankruptcy court
3 that the key to this appeal is the independent clause at the end
4 of § 523(a)(3)(B): “unless such creditor had notice or actual
5 knowledge of the case in time for such timely filing and
6 request.” We also agree with them that Manufacturers Hanover v.
7 Dewalt (In re Dewalt),
961 F.2d 848, 851 (9th Cir. 1992), is
8 controlling. We first will examine Dewalt and its application in
9 this case; then we will consider Grant’s arguments on appeal.
10 In Dewalt, the creditor Manufacturers Hanover (“Hanover”)
11 filed an untimely adversary complaint under § 523(a)(2)(B),
12 roughly five months after the Rule 4007(c) deadline had passed.
13 The debtor Dewalt filed a motion to dismiss the complaint based
14 on the timeliness issue. It was undisputed that Hanover did not
15 receive any formal written notice of either the bankruptcy filing
16 or of the Rule 4007(c) bar date. It also was undisputed that
17 Hanover gained actual knowledge of Dewalt’s bankruptcy filing
18 seven days before the Rule 4007(c) deadline, when “the debtor’s
19 counsel telephoned the office of the creditor’s counsel and left
20 a cryptic message with the secretary that the debtor had
21 previously filed for bankruptcy.” Id. at 849.
22 The bankruptcy court granted the motion to dismiss, and a
23 divided BAP panel affirmed the bankruptcy court. Relying on
24
25 8
The Rule 4007(c) bar date does not apply to § 523(a)(3)(B)
26 claims for relief. See Wilborn v. Gallagher (In re Wilborn),
205 B.R. 202, 208 (9th Cir. BAP 1996); Irons v. Santiago (In re
27 Santiago),
175 B.R. 48, 50 (9th Cir. BAP 1994). Instead,
Rule 4007(b) applies, and that rule states that the complaint can
28 be filed “at any time.” See
id.
10
1 In re Price,
871 F.2d at 97, the BAP held that seven days was
2 enough time to permit Hanover to at least file an extension
3 motion seeking more time to file its complaint. Thus, according
4 to the BAP, Hanover could not assert a claim for relief under
5 § 523(a)(3)(B) because § 523(a)(3)(B)’s actual knowledge clause
6 precluded it from doing so. Id. at 850.
7 The Ninth Circuit reversed the BAP, holding that, in most
8 cases, the creditor must have actual knowledge of the bankruptcy
9 case at least thirty days before the Rule 4007(c) bar date in
10 order to satisfy § 523(a)(3)(B)’s actual knowledge clause. As
11 the Ninth Circuit put it, “ . . . in the great majority of cases,
12 30 days advance knowledge of the case is both necessary and
13 sufficient to satisfy section 523(a)(3)(B).” In re Dewalt,
14
961 F.2d at 851 (emphasis added).
15 The Dewalt court further opined that Price had not set forth
16 any standards to enable a bankruptcy court to determine how long
17 before the Rule 4007(c) bar date an unscheduled (or tardily
18 scheduled) chapter 7 creditor must learn of the bankruptcy to
19 fall within § 523(a)(3)(B). Id. at 850. As a result, the Dewalt
20 court endeavored to set forth such standards. Id. at 850-51.
21 Dewalt stated that thirty days was an appropriate benchmark for
22 most cases as to “the minimum time within which it is reasonable
23 to expect a creditor to act at penalty of default.” Id. at 851.
24 Dewalt cautioned that, in the presence of certain
25 “extraordinary circumstances,” thirty days knowledge of the
26 bankruptcy filing in advance of the bar date might not be enough
27 time to satisfy § 523(a)(3)(B)’s actual knowledge clause. Id.
28 According to Dewalt, one set of extraordinary circumstances that
11
1 might necessitate more than thirty days advance knowledge
2 included: (1) an unsophisticated creditor, (2) unrepresented by
3 counsel, (3) without apparent familiarity with the bankruptcy
4 system, who (4) receives only the most sketchy notice that a
5 bankruptcy has been filed. Id. On the other hand, Dewalt
6 concluded that, even if extraordinary circumstances required more
7 than thirty days advance knowledge of the bankruptcy, in no event
8 would the creditor be entitled to actual knowledge of the
9 bankruptcy filing more than eighty days in advance of the
10 Rule 4007(c) bar date. Id. at 851 n.4.
11 In sum, Dewalt requires bankruptcy courts to count backward
12 from the Rule 4007(c) bar date to determine how much in advance
13 of the bar date the creditor had actual knowledge of the
14 bankruptcy filing. In the vast majority of cases, a minimum of
15 thirty days will be sufficient to satisfy § 523(a)(3)(B)’s actual
16 knowledge clause.
17 Here, applying the standard set forth in Dewalt, Grant had
18 between thirty-two and thirty-five days actual knowledge of the
19 bankruptcy filings in advance of the Rule 4007(c) bar dates. We
20 have made this calculation by counting back from the bar dates of
21 June 4, 2010, and June 7, 2010, to May 3, 2010, when Grant
22 obtained actual knowledge of the bankruptcy filings based on his
23 admitted receipt of the May 2010 Notice. This meets Dewalt’s
24 standard for the thirty-day minimum amount of advance knowledge
25 required in the vast majority of cases to satisfy
26 § 523(a)(3)(B)’s actual knowledge clause. See Dewalt,
961 F.2d
27
28
12
1 at 851.9
2 We note that the bankruptcy court did not appear to consider
3 whether any extraordinary circumstances existed which might have
4 required longer advance notice to satisfy § 523(a)(3)(B)’s actual
5 knowledge clause. But Grant did not challenge in his opening
6 appeal brief the bankruptcy court’s failure to consider
7 extraordinary circumstances. Nor did he argue in his opening
8 brief that such extraordinary circumstances existed.
9 Grant obviously was aware of Dewalt and its standards
10 because he discussed Dewalt extensively in his opening appeal
11 brief. Yet he made no attempt to address the portion of Dewalt
12 dealing with extraordinary circumstances. Consequently, he has
13 waived the issue; arguments not specifically and distinctly made
14
9
15 If we were to count back to the March 2010 Notice, Grant
would have had between 81 and 84 days knowledge of the bankruptcy
16 filings in advance of the bar dates. Based on Dewalt, this would
have exceeded the amount of advance knowledge any creditor under
17 any circumstances needs to have in order to satisfy
§ 523(a)(3)(B)’s actual knowledge clause. Furthermore, the March
18 2010 Notice likely is subject to application of the “mailbox
19 rule,” as the only items of evidence we could find in the record
concerning receipt of the March 2010 Notice were: (1) the proofs
20 of service each Debtor executed indicating that they mailed the
March 2010 Notice to Grant; and (2) a declaration of Grant in
21 which he indicated that he did not receive the March 2010 Notice.
Under the “mailbox rule,” a litigant’s declaration of non-receipt
22
is insufficient by itself to overcome the presumption of receipt
23 arising from valid proof of service. In re Bucknum,
951 F.2d at
206-07 & n.1; CUNA Mut. Ins. Grp. v. Williams (In re Williams),
24
185 B.R. 598, 599 (9th Cir. BAP 1995). Simply put, if the
bankruptcy court had chosen to focus on the March 2010 Notice,
25 Grant would have failed to overcome the mailbox rule presumption
26 by presenting “‘clear and convincing evidence that the mailing
was not, in fact, accomplished.’” Berry v. U.S. Trustee
27 (In re Sustaita),
438 B.R. 198, 209 (9th Cir. BAP 2010), aff’d,
460 Fed.Appx. 627 (9th Cir. 2011) (quoting In re Bucknum,
28
951 F.2d at 207).
13
1 in the appellant’s opening brief are deemed waived. Brownfield
2 v. City of Yakima,
612 F.3d 1140, 1149 n.4 (9th Cir. 2010)
3 (citing Greenwood v. F.A.A.,
28 F.3d 971, 977 (9th Cir. 1994));
4 Cashco Fin. Servs., Inc. v. McGee (In re McGee),
359 B.R. 764,
5 774 (9th Cir. BAP 2006) (citing Doty v. County of Lassen,
37 F.3d
6 540, 548 (9th Cir. 1994)); see also Wilcox v. C.I.R.,
848 F.2d
7 1007, 1008 n.2 (9th Cir. 1988) (holding that even pro se
8 litigants must brief arguments on appeal, or they will forfeit
9 them).
10 In short, because Grant had sufficient actual knowledge of
11 the bankruptcy filings within the meaning of § 523(a)(3)(B)’s
12 actual knowledge clause, Grant was not entitled to pursue a claim
13 for relief under § 523(a)(3)(B). Instead, he was limited to the
14 claims subject to § 523(c) for relief, and these types of claims
15 are subject to the strict Rule 4007(c) bar date. Thus, the
16 bankruptcy court correctly dismissed as untimely Grant’s § 523(c)
17 claims for relief.
18 None of Grant’s arguments on appeal persuade us otherwise.
19 Grant argues that the orders granting his motions to reopen the
20 Debtors’ bankruptcy cases (“Reopening Orders”) explicitly
21 permitted him to file his untimely § 523(c) complaints. But
22 Grant has not explained how or why the Reopening Orders, if they
23 did purport to set new bar dates, could trump the explicit
24 prohibition against granting extensions of Rule 4007(c) bar dates
25 after the bar dates have expired. In any event, the bankruptcy
26 court declined to interpret its own Reopening Orders in a manner
27 that would bring them into conflict with Rule 4007(c). We will
28 defer to the bankruptcy court’s interpretation of its own orders.
14
1 See Officers for Justice v. Civil Serv. Comm’n of City and County
2 of San Francisco,
934 F.2d 1092, 1094 (9th Cir. 1991); see also,
3 Zinchiak v. CIT Small Bus. Lending Corp. (In re Zinchiak),
4
406 F.3d 214, 224 (3rd Cir. 2005) (noting that the bankruptcy
5 court “was well suited to provide the best interpretation of its
6 own order.”); Graefenhain v. Pabst Brewing Co.,
870 F.2d 1198,
7 1203 (7th Cir. 1989) (“Few persons are in a better position to
8 understand the meaning of a [court order] than the [bankruptcy]
9 judge who oversaw and approved it.”)
10 Moreover, Grant’s argument betrays a fundamental
11 misunderstanding of the limited significance of the reopening of
12 the Debtors’ bankruptcy cases. Generally speaking, an order
13 granting a motion to reopen typically does not alter the rights
14 and liabilities of the parties involved. See Menk v. Lapaglia
15 (In re Menk),
241 B.R. 896, 916-17 (9th Cir. BAP 1999). More to
16 the point, an order granting a motion to reopen entered in a no
17 asset chapter 7 case does not change the rights and liabilities
18 of a creditor holding an unfiled § 523(c) claim for relief.
19 Regardless of the reopening, either: (1) the creditor had
20 sufficient notice/knowledge and the claim was discharged before
21 the bankruptcy case was closed, or (2) the creditor had
22 insufficient notice/knowledge and the creditor still has an
23 alternate claim for relief under § 523(a)(3)(B). See
24 In re Beezley,
994 F.2d at 1434.
25 Grant’s other arguments on appeal are similarly
26 unpersuasive. For instance, Grant argues that the Debtors’
27 allegedly fraudulent and evasive conduct, both before and after
28 he started litigating with them, justified an extension of the
15
1 Rule 4007(c) bar date. There are two obvious problems with this
2 argument: (1) Grant presented no evidence to the bankruptcy court
3 to support his allegations of fraudulent and evasive conduct, and
4 (2) even if he had presented such evidence, Rule 4007(c) simply
5 did not permit the bankruptcy court to give Grant an extension of
6 the bar date under these types of circumstances when Grant did
7 not request the extension before the bar date expired. See
8 In re Gordon,
988 F.2d at 1001; In re Hill,
811 F.2d at 486.
9 Finally, Grant argues that he was denied due process by the
10 bankruptcy court’s application of § 523(a)(3)(B)’s actual
11 knowledge clause. But the Ninth Circuit, and many other courts,
12 have repeatedly upheld this clause against such due process
13 challenges. As one leading treatise puts it:
14 The exception in section 523(a)(3) for creditors who do
not receive notice of the case but otherwise acquire
15 actual knowledge has been consistently upheld against
challenges based on due process.
16
17 4 Collier on Bankruptcy ¶ 523.09[4][a] (Alan N. Resnick and Henry
18 J. Sommer eds., 16th ed. 2012) (citing, among other cases,
19 In re Price,
871 F.2d at 97).
20 CONCLUSION
21 For all of the reasons set forth above, we AFFIRM the
22 bankruptcy court’s summary judgment dismissing Grant’s
23 nondischargeability complaints as untimely.10
24
25
10
26 In their responsive brief, the Debtors requested that
sanctions be imposed against Grant for filing a frivolous
27 appeal. That request is hereby ORDERED DENIED. Pursuant to
Rule 8020, sanctions requests must be made by separately-filed
28 motion.
16
