FILED
JUN 19 2018
1 NOT FOR PUBLICATION
2 SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3
UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5
In re: ) BAP No. NC-17-1233-TaFB
6 )
DOORMAN PROPERTY MAINTENANCE, ) Bk. No. 3:15-bk-30912-DM
7 )
Debtor. )
8 ______________________________)
)
9 NICHOLAS KRAEMER; BARRETT )
RAFTERY, )
10 )
Appellants, )
11 )
v. ) MEMORANDUM*
12 )
FS PARTNERSHIP; FULTON HOUSE, )
13 LLC, )
)
14 Appellees. )
______________________________)
15
Argued and Submitted on May 25, 2018
16 at San Francisco, California
17 Filed – June 19, 2018
18 Appeal from the United States Bankruptcy Court
for the Northern District of California
19
Honorable Dennis Montali, Bankruptcy Judge, Presiding
20
21 Appearances: Charles Alex Naegele argued for appellants;
William F. McLaughlin argued for appellees.
22
23 Before: TAYLOR, FARIS, and BRAND, Bankruptcy Judges.
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8024-1(c)(2).
1 INTRODUCTION
2 This appeal involves a contract to renovate the
3 “Archbishop’s Mansion,” a building in San Francisco, California
4 (the “Property”). FS Partnership hired “Doorman Property
5 Maintenance” to perform the required renovation. At that time,
6 Doorman Property Maintenance was a DBA for Doorman Property
7 Management, a California Partnership (the “Doorman
8 Partnership”). Nicholas Kraemer and Barrett Raftery
9 (collectively, “Appellants”) formed the Doorman Partnership and
10 were its general partners. They also subsequently formed and
11 have an interest in two corporations with names including the
12 words “Doorman Property.”
13 During the renovation project, the Doorman Property
14 entities lost the required contractor’s license, ceased doing
15 business, and “Doorman Property Management” filed a chapter 71
16 bankruptcy petition. There was initial confusion about which
17 Doorman Property entity filed, but eventually a substantive
18 consolidation determination brought two Doorman Property
19 entities before the bankruptcy court.
20 The FS Partnership and a related entity, Fulton House LLC,
21 (collectively, the “Fulton Entities”) filed a $310,000 proof of
22 claim in the case. Appellants objected and sought to disallow
23 the claim in full. After a trial, the bankruptcy court
24 partially overruled the objection; it found that the claim
25
1
Unless otherwise indicated, all chapter and section
26 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
27 All “Rule” references are to the Federal Rules of Bankruptcy
Procedure. All “Civil Rule” references are to the Federal Rules
28 of Civil Procedure.
2
1 totaled $286,896 and that $186,896 was a Doorman Partnership
2 liability.
3 Appellants principally argue on appeal that the bankruptcy
4 court deprived them of due process: they assert that they
5 intended to argue, in a different proceeding and based on new
6 arguments and additional evidence, that the debt owed by the
7 Doorman Partnership should be set at $0.
8 The bankruptcy court, however, did not clearly err in
9 finding that the Doorman Partnership contracted with
10 FS Partnership and was partially liable on the claim. The
11 additional evidence advanced by the Doorman Property entities
12 does not show otherwise. And Appellants had reasonable notice
13 that the bankruptcy court would decide the Doorman Partnership’s
14 liability in the context of the claim objection.
15 We AFFIRM the bankruptcy court.
16 FACTS2
17 Appellants form various “Doorman Property” entities and do
18 business with the Fulton Entities. In January 2011, Appellants
19 formed the Doorman Partnership and named themselves its general
20 partners. The Doorman Partnership did business as “Doorman
21 Property Maintenance.”
22 In 2012, FS Partnership bought the Property and began a
23 business relationship with the Doorman Partnership.
24 In 2013, Appellants formed a California S corporation; they
25
2
We exercise our discretion to take judicial notice of
26 documents electronically filed in the bankruptcy case and a
27 related adversary proceeding. See Atwood v. Chase Manhattan
Mortg. Co. (In re Atwood),
293 B.R. 227, 233 n.9 (9th Cir. BAP
28 2003).
3
1 also named it “Doorman Property Management.”
2 In 2014, FS Partnership signed a “Terms and Conditions”
3 agreement for a job located at the Property (the “Property
4 Agreement”); the Property Agreement bears a Doorman Property
5 Maintenance header and provides for payments to “Doorman
6 Property Management.” Mr. Kraemer signed it as an “Authorized
7 Doorman Representative.” The record supports that the Doorman
8 Partnership was the contracting party as, at the time of the
9 Property Agreement, only the Doorman Partnership did business as
10 Doorman Property Maintenance.
11 After the Property Agreement was signed, corporate Doorman
12 Property Management amended its articles of incorporation to
13 change its name to “Doorman Property Maintenance.”
14 And about the same time, Appellants formed a third entity,
15 another California corporation called “Doorman Property
16 Management, Inc.”
17 In January 2015, Doorman Property Management (no corporate
18 identifier) and FS Partnership modified the Property Agreement.
19 At this time, only the Doorman Partnership was named “Doorman
20 Property Management,” and the modification of the Property
21 Agreement by the Doorman Partnership provides additional
22 evidence that it was the contracting Doorman Property entity.
23 A month later, Doorman Property Maintenance and Doorman
24 Property Management Inc. as “S Corporations in California”
25 executed two demand promissory notes evidencing loans from
26 Fulton House LLC. The notes were in the principal amounts of
27 $25,000 and $75,000.
28 At some point, the only contractor’s license allowing the
4
1 Doorman Property entities to operate was suspended, and they
2 shut down.
3 The bankruptcy filing, substantive consolidation, and claim
4 objection. In July 2015, Doorman Property Management filed a
5 chapter 7 bankruptcy petition. The petition listed “DBA
6 Doorman; DBA Doorman Property Maintenance” as names used in the
7 last 8 years. The names in the petition were accurate only in
8 reference to the Doorman Partnership. The petition also
9 provided two EINs, one ending in 7 and the other in 2. One EIN
10 relates to the Doorman Partnership; the record does not identify
11 the entity related to the other EIN. That said, however,
12 “Corporation” was checked in the “Type of Debtor” box, and
13 Mr. Raftery signed the petition as CFO.
14 As it turns out, Appellants did not want the Doorman
15 Partnership to file. They eventually noticed the error and
16 filed an amended petition that changed the Debtor’s name to
17 “Doorman Property Maintenance, a CA Scorp” and listed “FKA
18 Doorman Property Management, a CA S Corp” as a name used in the
19 last 8 years. The amended petition identified a new EIN, this
20 time ending in 9. The “Corporation” box remained checked.
21 Mr. Raftery signed the petition as CFO and filed an explanatory
22 declaration:
23 In the originally filed Voluntary Petition, Debtor
incorrectly listed the EIN of the Doorman Property
24 Management Partnership. . . . Debtor had intended to
file the instant Chapter 7 for the California
25 Corporation and not a General Partnership. Therefore,
Debtor now amends the Voluntary Petition deleting the
26 EIN of the Doorman Property Management Partnership.
27 Further, in the originally filed Voluntary Petition,
Debtor inadvertently and incorrectly listed “Doorman
28 Property Management” as the name of the filing Debtor
5
1 instead of “Doorman Property Maintenance, a CA SCorp.”
Debtor now amends the Voluntary Petition to list
2 “Doorman Property Maintenance, a CA SCorp. formerly
known as Doorman Property Management, a CA S Corp.” as
3 the filing name of the Debtor.
4 Ambiguity as to the debtor or debtors before the bankruptcy
5 court thus existed. And in the face of this confusion, the
6 Fulton Entities filed Claim No. 18-1 in the amount of $310,000
7 based on “Breach of Contract” and “Construction Defect”. They
8 named the debtor as “Doorman Property Maintenance” – the name
9 most recently selected for the case absent the “a CA S Corp”
10 limitation.
11 The chapter 7 trustee promptly disputed the legal effect of
12 the petition amendment; she argued that deleting the partnership
13 name did not remove it or its assets from the bankruptcy estate.
14 Eventually, the Trustee moved for an order substantively
15 consolidating “Doorman Property Management, Inc., and (to the
16 extent not already part of the above bankruptcy case) Doorman
17 Property Management, a general partnership, with the estate of
18 the above Debtor.”
19 Over opposition, the bankruptcy court granted the motion,
20 in part, “insofar as the Trustee sought to consolidate
21 substantively Doorman Property Management, a corporation, to the
22 extent that Doorman Property Management, a general partnership,
23 and its assets and liabilities, were not at all times part of
24 the bankruptcy case.” Consolidation was effective nunc pro tunc
25 to the petition date. The bankruptcy court deferred deciding
26 whether to substantively consolidate Doorman Property
27 Management, Inc.
28 The substantive consolidation order was not appealed. It
6
1 “combine[d] the assets and liabilities of [the] separate and
2 distinct—but related—legal entities into a single pool and
3 treat[ed] them as though they belong[ed] to a single entity.”
4 Alexander v. Compton (In re Bonham),
229 F.3d 750, 764 (9th Cir.
5 2000).
6 Anticipating that estate assets would not pay claims in
7 full, the Trustee demanded that Appellants make up any
8 deficiency as required by § 723 based on their status as general
9 partners of the Doorman Partnership. The Trustee later filed an
10 adversary proceeding against Appellants and included a § 723
11 claim for relief; she alleged that there was a $539,039
12 deficiency between the assets and aggregate claims on file and
13 that, under § 723, Appellants were liable for the deficiency as
14 partners.
15 Appellants, as “non-debtor interested parties” and as
16 “general partners of [the Doorman Partnership]” objected to
17 Claim No. 18. The claim objection relied significantly on their
18 potential § 723 status as a basis for standing. And the
19 arguments advanced in the claim objection relate exclusively to
20 claims under the Property Agreement and alleged defenses to such
21 claims. FS Partnership defended the claim.
22 The bankruptcy court’s oral ruling and separate order
23 resolving the claim objection. The bankruptcy court eventually
24 held a one-day trial on the claim objection. Just over a week
25 later, the bankruptcy court made oral findings of fact and
26 conclusions of law. It liquidated the claim and found that it
27 supported a claim for $186,896 in damages based on breach of the
28 Property Agreement. It also found that the corporate Doorman
7
1 Property entities, but not the Doorman Partnership, owed
2 $100,000 on the promissory notes.
3 In sum, the bankruptcy court found that the Fulton Entities
4 had “a total allowed claim of 286,896, . . . of which 186,896 is
5 joint and several liability of both the [Doorman Partnership]
6 and the corporate debtor.” Oral Findings of Fact, Hr’g Tr.
7 (Jan. 18, 2017) at 9:15–19.
8 Having ruled, the bankruptcy court asked if either party
9 had any questions or points of clarification. Appellants’
10 counsel noted his supposition that the trial would not decide
11 “the differentiation between the corporation and the partnership
12 . . . .”
Id. at 10:10–11. The bankruptcy court did not alter
13 its conclusion but told Appellants they could bring a
14 reconsideration motion.
15 The bankruptcy court entered an order consistent with its
16 oral ruling.
17 Appellants seek reconsideration. Appellants filed a
18 reconsideration motion that argued, among other things, that no
19 debt should be allocated to the Doorman Partnership. They also
20 provided evidence allegedly supporting their position. The
21 bankruptcy court issued a memorandum decision and separate order
22 denying reconsideration. He carefully discussed Appellants’
23 theories and evidence but found neither persuasive. In
24 particular, he noted that the new argument that Appellants
25 abandoned the Doorman Partnership was inconsistent with the
26 record. He further noted the complete absence of evidence that
27 Appellants properly dissolved the Doorman Partnership as
28 required by California law and outlined the consequences of this
8
1 failure. And he underscored that the reconsideration motion was
2 not based on newly discovered evidence; rather, it was a second
3 attempt after Appellants’ counsel’s concession that he had not
4 previously made available arguments with sufficient precision.
5 Appellants timely appealed.
6 JURISDICTION
7 The bankruptcy court had jurisdiction under 28 U.S.C.
8 §§ 1334 and 157(b)(2)(B). We have jurisdiction under 28 U.S.C.
9 § 158.
10 ISSUES
11 Did the bankruptcy court deprive Appellants of due process?
12 Did the bankruptcy court err when it decided the claim
13 objection?
14 Did the bankruptcy court abuse its discretion when it
15 denied Appellants’ reconsideration motion?
16 STANDARDS OF REVIEW
17 We review de novo whether a litigant’s due process rights
18 were violated. DeLuca v. Seare (In re Seare),
515 B.R. 599, 615
19 (9th Cir. BAP 2014).
20 In the claim objection context, we review the bankruptcy
21 court’s legal conclusions de novo and its findings of fact for
22 clear error. Lundell v. Anchor Const. Specialists, Inc. (In re
23 Lundell),
223 F.3d 1035, 1039 (9th Cir. 2000).
24 We review for an abuse of discretion the bankruptcy court’s
25 decision on a § 502(j) reconsideration motion. Heath v. Am.
26 Express Travel Related Servs. Co. (In re Heath),
331 B.R. 424,
27 429 (9th Cir. BAP 2005).
28 A bankruptcy court abuses its discretion if it applies the
9
1 wrong legal standard, misapplies the correct legal standard, or
2 makes findings that are illogical, implausible, or without
3 support in inferences that may be drawn from the facts in the
4 record. See TrafficSchool.com, Inc. v. Edriver Inc.,
653 F.3d
5 820, 832 (9th Cir. 2011) (citing United States v. Hinkson,
6
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
7 A finding is “clearly erroneous” when “although there is
8 evidence to support it, the reviewing court on the entire
9 evidence is left with the definite and firm conviction that a
10 mistake has been committed.” Anderson v. City of Bessemer City,
11
470 U.S. 564, 573 (1985) (quotation marks omitted).
12 DISCUSSION
13 A. The bankruptcy claims process
14 A creditor asserts a claim in bankruptcy by filing a proof
15 of claim. 11 U.S.C. § 501(a); Fed. R. Bankr. P. 3001, 3002. A
16 claim is “deemed allowed, unless a party in interest . . .
17 objects.” 11 U.S.C. § 502(a). If an interested party objects,
18 the bankruptcy “court, after notice and a hearing, shall
19 determine the amount of such claim . . . and shall allow such
20 claim in such amount . . . .” 11 U.S.C. § 502(b) (emphasis
21 added).
22 A properly filed proof of claim “shall constitute prima
23 facie evidence of the validity and amount of the claim.” Fed.
24 R. Bankr. P. 3001(f). To overcome this presumption of validity,
25 the objector must do more than formally object. Lundell,
223
26 F.3d at 1039. Instead, to “defeat the claim, the objector must
27 come forward with sufficient evidence and ‘show facts tending to
28 defeat the claim by probative force equal to that of the
10
1 allegations of the proofs of claim themselves.’ ”
Id. (citing
2 Wright v. Holm (In re Holm),
931 F.2d 620, 623 (9th Cir. 1991)).
3 “If the objector produces sufficient evidence to negate one
4 or more of the sworn facts in the proof of claim, the burden
5 reverts to the claimant to prove the validity of the claim by a
6 preponderance of the evidence.”
Id. (quoting Ashford v. Consol.
7 Pioneer Mortg. (In re Consol. Pioneer Mortg.),
178 B.R. 222, 226
8 (9th Cir. BAP 1995)). The ultimate burden of persuasion, thus,
9 remains with the claimant.
Id.
10 An allowed or disallowed proof of claim “may be
11 reconsidered for cause. A reconsidered claim may be allowed or
12 disallowed according to the equities of the case.” 11 U.S.C. §
13 502(j); Fed. R. Bankr. P. 3008. If the time to appeal an order
14 on a claim objection has not expired, a reconsideration request
15 is governed by Civil Rule 59, applied in bankruptcy by Rule
16 9023. Wall St. Plaza, LLC v. JSJF Corp. (In re JSJF Corp.), 344
17 B.R. 94, 103 (9th Cir. BAP 2006), aff’d, 277 F. App’x 718 (9th
18 Cir. 2008).
19 B. The bankruptcy court did not clearly err when it found that
the contracting party was the partnership.
20
21 Appellants argue that the bankruptcy court’s allocation of
22 liability was not based on admissible evidence. But their brief
23 is self-defeating because it points to evidence the bankruptcy
24 court relied upon – they just think the evidence is either “not
25 really evidence” or ambiguous. Appellants’ Opening Br. at 24.
26 We disagree.
27 The bankruptcy court found that the Doorman Partnership
28 entered into the Property Agreement with FS Partnership. It
11
1 based this conclusion on the contract, which the parties entered
2 into evidence: it “has a title, ‘Doorman Property
3 Maintenance.’ ” Oral Findings of Fact at 11:8–9. And that
4 title “doesn’t recite corporation or not.”
Id. at 11:9–10.
5 Appellants argue that the lack of a corporate identifier is
6 inconclusive; they emphasize that the corporation’s official
7 name does, in fact, lack the corporate identifier: it is named
8 Doorman Property Maintenance. And Appellants are correct that,
9 on a cursory read, this appellation is ambiguous because it
10 could be read two ways: it could be the Doorman Partnership or a
11 Doorman corporation.3
12 Appellants are wrong, however, when they suppose this
13 ambiguity renders clearly erroneous the bankruptcy court’s
14 finding. To the contrary: “Where there are two permissible
15 views of the evidence, the factfinder’s choice between them
16 cannot be clearly erroneous.”
Anderson, 470 U.S. at 574; United
17 States v. Elliott,
322 F.3d 710, 714 (9th Cir. 2003). And
18 “[t]his is so even when the district court’s findings do not
19 rest on credibility determinations, but are based instead on
20 physical or documentary evidence or inferences from other
21 facts.”
Anderson, 470 U.S. at 574.
22 Further, when the Property Agreement was signed, the
23
24 3
Appellants stated this more clearly in their
25 reconsideration motion, emphasis added: “This Court made its
ruling on the partnership versus corporation liability split
26 based upon a single piece of evidence — the name in the
27 contract. Because this name was the same as the name of the
Partnership, the Court concluded that this must have been a
28 liability of the Partnership.”
12
1 corporation had not changed its name to Doorman Property
2 Maintenance. And after the corporation changed its name,
3 Doorman Property Management (i.e., the Doorman Partnership)
4 agreed with FS Partnership to modify the Property Agreement.
5 The bankruptcy court thus did not clearly err when it found
6 that the contracting party was the Doorman Partnership.
7 C. The bankruptcy court did not deprive Appellants of due
process.
8
9 Appellants raise two due process arguments. Neither
10 establishes that the bankruptcy court erred.
11 Appellants were on notice that the bankruptcy court would
12 determine the amount of the claim against the partnership.
13 Appellants argue that the bankruptcy court denied them due
14 process because they were not on notice that it would decide
15 whether the claim was an obligation of the corporation or the
16 Doorman Partnership or both. We disagree; Appellants
17 incorrectly assume the bankruptcy court did something other than
18 liquidate the claim.
19 “Due process requires notice reasonably calculated, under
20 all the circumstances, to apprise interested parties of the
21 pendency of the action and afford them an opportunity to present
22 their objections.” United Student Aid Funds, Inc. v. Espinosa,
23
559 U.S. 260, 272 (2010) (internal quotation marks and citation
24 omitted). As we illustrate, Appellants had notice that the
25 bankruptcy court would determine the amount of the claim.
26 The Fulton Entities filed Claim No. 18 before substantive
27 consolidation. At that time, there was ambiguity about which
28 entity was the debtor. That said, the claim was based on
13
1 “Breach of Contract” and “Construction Defect.” They attached
2 the relevant contract, the Property Agreement. As discussed
3 above, the Doorman Partnership was the party to that contract.
4 So the Fulton Entities asserted a claim against, at least in
5 part, the Doorman Partnership.
6 The bankruptcy court entered the substantive consolidation
7 order. That order clarified that to the extent the Doorman
8 Partnership was not “at all times part of the bankruptcy case[]”
9 it was consolidated with the bankruptcy estate.
10 Appellants then objected to the claim and argued they had
11 standing to do so as general partners of the Doorman Partnership
12 and as corporate equity holders. They disputed liability on the
13 Property Agreement, and they sought to disallow the claim in
14 full on a variety of theories.
15 After trial, the bankruptcy court overruled the claim
16 objection in part, sustained it in part, and attributed a
17 portion of the claim to the Doorman Partnership. These
18 decisions are all consistent with the requirements of § 502(b).
19 Appellants had notice that the bankruptcy court would
20 determine the amount of the claim as to the consolidated debtor,
21 which included the Doorman Partnership. And they requested a
22 determination relevant to partnership debt when they objected as
23 general partners. Any misapprehension that the bankruptcy court
24 would liquidate the claim owed by the Doorman Partnership was
25 not based on a failure of due process. Durkin v. Benedor Corp.
26 (In re G.I. Indus., Inc.),
204 F.3d 1276, 1280 (9th Cir. 2000)
27 (“In other words, a bankruptcy court can only consider an
28 objection to a claim and thus overcome the presumption of its
14
1 validity by examining the contract itself and the circumstances
2 surrounding its formation.”).
3 The bankruptcy court’s standing analysis, which we find
4 compelling, underscores this point. In the claim objection
5 context, a chapter 7 debtor, “in its individual capacity, lacks
6 standing to object unless it demonstrates that it would be
7 ‘injured in fact’ by the allowance of the claim.” Cheng v.
8 K&S Diversified Invs., Inc. (In re Cheng),
308 B.R. 448, 454
9 (9th Cir. BAP 2004), aff’d, 160 F. App’x 644 (9th Cir. 2005).
10 In the case of a corporation, this includes its officers,
11 directors, and agents. So when “the estate is insolvent, a
12 chapter 7 debtor ordinarily lacks standing to object to proofs
13 of claim.” Wellman v. Ziino (In re Wellman),
378 B.R. 416, 2007
14 WL 4105275, at *1 n.5 (9th Cir. BAP 2007) (unpublished). But
15 when “there is a sufficient possibility of a surplus to give the
16 chapter 7 debtor a pecuniary interest or when the claim involved
17 will not be discharged[]” the chapter 7 debtor has standing.
18
Id.
19 Here, Appellants arguably had standing to object on two
20 bases. First, as they made abundantly clear, they were general
21 partners of the Doorman Partnership subject to the Trustee’s
22 § 723 action; any reduction in claims against the partnership
23 would reduce any deficiency the Trustee could seek against them.
24 Second, they had an equity interest as shareholders in the
25 debtor corporation; if objecting to the claim created a surplus
26 estate, they had standing.
27 But nothing suggests that this would be a surplus estate;
28 Appellants point to no fact evidencing that there is even a
15
1 remote possibility of a surplus.4 Accordingly, Appellants had
2 standing to object to the claim only because they were general
3 partners seeking to disallow a partnership claim.
4 Appellants’ remaining arguments also are not persuasive.
5 They misread Rule 3001(f) when they assert that a properly
6 filed claim is only prima facie evidence of “the amount of the
7 claim, not the nature of the claim.” Appellants’ Opening Br. at
8 19. To the contrary, Rule 3001(f) states that a properly filed
9 claim is “prima facie evidence of the validity and amount” of
10 that claim. Fed. R. Bankr. P. Rule 3001(f) (emphasis added).
11 Also erroneous is their suggestion that, because neither
12 party bore the burden of proof on the allocation issue, the
13 bankruptcy court “should not have raised the [allocation] issue
14 sua sponte.” Appellants’ Opening Br. at 20. Their starting
15 premise is wrong. The bankruptcy court decided liability on a
16 contract because Appellants objected, as partners, to a claim
17 asserting breach of a contract. In the absence of a pretrial
18 stipulation or other bifurcation of issues for trial, the
19 identity of the contracting party is relevant to a breach of
20 contract claim. So the bankruptcy court decided the matter put
21 before it: liability on the contract.
22 In short, Appellants were on notice that the bankruptcy
23
24
4
25 At oral argument before the Panel, Appellants’ counsel
argued that, if all of Appellants’ claim objections were
26 sustained, there would be a surplus estate. But the assertions
27 of counsel at an appellate argument are not evidence, and the
disallowance of this claim would not eliminate an alleged
28 deficiency of more than $500,000.
16
1 court would determine the amount of the Doorman Property claim.5
2 The bankruptcy court did not shift the burden of proof.
3 Appellants’ other due process argument asserts that the
4 bankruptcy court deprived them of due process by shifting the
5 burden of proof in the § 723 action. In that action, the
6 Trustee has the burden to prove that the partnership owed the
7 debt. Appellants argue that, by deciding which entity owed the
8 debt in the claim objection, the bankruptcy court shifted the
9 burden of proof to Appellants.
10 Appellants overstate things. The bankruptcy court has not
11 reached a final decision in the § 723 action, and it has not
12 impermissibly shifted a burden. If Appellants disagree with the
13 bankruptcy court’s resolution of the § 723 action, they may
14
15 5
We also note another issue, one that crystalized at oral
16 argument: Which entity filed initially? Appellants proceed as
if the Doorman Partnership did not file bankruptcy and was not
17 in bankruptcy until the substantive consolidation order.
18 We question this conclusion. In its oral findings of fact,
the bankruptcy court found as follows: “So the Debtor, Doorman
19 Property Maintenance, is a partnership; that's been well
established, and its bankruptcy case is substantively
20 consolidated with Doorman Property Maintenance, Inc., a
21 corporation.” Oral Findings of Fact at 4:4–7. We read this as
a dispositive ruling on the issue.
22 Appellants disagree but do not dispute the finding in their
opening appellate brief. Accordingly, if our reading is the
23 correct one, they waived any argument about it. McKay v.
24 Ingleson,
558 F.3d 888, 891 (9th Cir. 2009).
Further, if the bankruptcy court found that the Doorman
25 Partnership filed the initial bankruptcy petition, which as we
read the finding it did, any contest on the point would be
26 unavailing. Here, the bankruptcy court chose between two
27 permissible views of the facts. We are not free to reach
another conclusion on appeal.
Anderson, 470 U.S. at 574;
28
Elliott, 322 F.3d at 714.
17
1 appeal from that decision.
2 We acknowledge that Appellants are concerned that the claim
3 objection order will have a collateral effect in the § 723
4 action. See Appellants’ Reply Br. at 4. Issues related to the
5 § 723 action, however, are not presently before us. Nor would
6 it be appropriate for us to render an advisory opinion about the
7 prospective effect of the claim objection order (e.g., discuss
8 whether law of the case applies or whether all the elements of
9 issue preclusion are satisfied). E.g., Restoration Homes, LLC
10 v. Taniguchi, No. 15-CV-00032-WHO,
2015 WL 4734488, at *2 n.1
11 (N.D. Cal. Aug. 7, 2015) (“Moreover, as described below, because
12 I do not determine what the bankruptcy order precludes, but
13 merely clarify that it furnishes a basis for a plea of res
14 judicata, assuming the appropriate elements are met, I do not
15 offer an improper advisory opinion.”). Appellants may argue
16 those points at the appropriate place; this appeal is not it.6
17 That said, drawing their due process argument to its
18 logical conclusion would mean that any decision that could have
19 issue or claim preclusive effect in another lawsuit deprives the
20 losing party of due process; that is not the law.7
21
22 6
Appellants’ reliance on GMAC Mortgage Corporation v.
Salisbury (In re Loloee),
241 B.R. 655 (9th Cir. BAP 1999), is
23
misplaced. They argue that it is analogous because the
24 bankruptcy court’s decision shifted the burden in the § 723
action and because § 723 liability can only be determined in an
25 adversary proceeding. But as we note above, the bankruptcy
court has not decided the § 723 action.
26
7
27 Fed. Deposit Ins. Corp. v. Daily (In re Daily),
47 F.3d
365, 369 (9th Cir. 1995) (“It is implicit in the doctrine of
28 (continued...)
18
1 In sum, when they objected to the claim, Appellants were on
2 notice that the bankruptcy court would determine the amount of
3 the claim. When the bankruptcy court engaged in the required
4 liquidation of the claim, it did not impermissibly shift the
5 burden of proof in the § 723 action — indeed, it cannot have
6 done so, as it has not yet decided that matter.
7 D. The bankruptcy court did not abuse its discretion when it
denied Appellants’ motion for reconsideration.
8
9 Appellants claim the bankruptcy court erred in denying
10 their reconsideration motion in two respects. We disagree.
11 The bankruptcy court applied the correct standard. The
12 first problem, they argue, is that the bankruptcy court applied
13 the wrong legal standard: because it raised the allocation issue
14 sua sponte, it should have evaluated the evidence “anew” and not
15 based on the Civil Rule 59 standard. They assert that by not
16 doing so “the bankruptcy court specifically violated the holding
17 of McMillan v. Jarvis,
332 F.3d 244 (4th Cir. 2003) and applied
18 the incorrect law . . . .” Appellants’ Opening Br. at 28.
19 But we have already concluded that Appellants were on
20 notice that the bankruptcy court could adjudicate the amount of
21 the claim as to the Doorman Partnership. As a result, the
22 bankruptcy court did not sua sponte and without notice decide
23 the matter. So it did not need to consider “anew” the newly
24
7
25 (...continued)
collateral estoppel that, where a party has been accorded a full
26 and fair opportunity to litigate an issue in a prior proceeding,
27 due process is not violated by denying the party a further
opportunity to litigate the same issue in a subsequent
28 proceeding.”).
19
1 offered evidence.
2 In addition, Appellants misread the record. The bankruptcy
3 court carefully considered the evidence. It issued a nine-page
4 memorandum decision discussing reconsideration and spent five
5 pages addressing the “newly introduced” evidence. Admittedly,
6 the bankruptcy court did not formally accept the evidence. But
7 it evaluated and considered the proffered evidence; it decided
8 that the evidence did not change its conclusion.
9 Finally, Appellants asked the bankruptcy court to apply the
10 Civil Rule 59 standard. In their reconsideration motion,
11 Appellants argued that, when a § 502(j) reconsideration motion
12 is filed within 14 days of the decision, the Civil Rule 59
13 standard is appropriate. Now, on appeal, Appellants argue that
14 a different standard should apply. Because they did not apprise
15 the bankruptcy court of this alternate standard, they waived the
16 issue on appeal. Mano-Y&M, Ltd. v. Field (In re Mortg. Store,
17 Inc.),
773 F.3d 990, 998 (9th Cir. 2014) (“A litigant may waive
18 an issue by failing to raise it in a bankruptcy court.”); Orr v.
19 Plumb,
884 F.3d 923, 932 (9th Cir. 2018) (“The usual rule is
20 that arguments raised for the first time on appeal . . . are
21 deemed forfeited.”).
22 The bankruptcy court considered the new evidence.
23 Appellants next contend that evidence they submitted with their
24 reconsideration motion shows that the bankruptcy court erred;
25 they relate the evidence and repeat the arguments from their
26 reconsideration motion. In their reply brief, they admit that
27 the reconsideration motion included “all the evidence they would
28 have submitted had the bankruptcy court” said it would decide
20
1 the allocation issue. Appellants’ Reply Br. at 8.
2 Appellants miss an important point. The bankruptcy court
3 considered that evidence. It found it wanting; indeed, it
4 issued a detailed memorandum decision denying Appellants’ motion
5 for reconsideration. It walked through the evidence, evaluated
6 Appellants’ arguments, and explained why neither compelled a
7 different result. And Appellants never argue or explain in
8 their opening brief why the bankruptcy court’s analysis is
9 flawed. As a result, they have not shown how the bankruptcy
10 court abused its discretion.
11 CONCLUSION
12 Based on the foregoing, we AFFIRM.
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