Erik Benham V. , 678 F. App'x 474 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ERIK BENHAM, No. 12-57203
Debtor, D.C. No. 2:12-cv-01279-VBF
------------------------------
MEMORANDUM*
ERIK BENHAM,
Appellant,
v.
DAVID R. HAGEN, Chapter 7 Trustee,
Appellee.
In re: MARIA VISTA ESTATES, No. 14-56441
Debtor, D.C. No. 2:13-cv-05286-VBF
______________________________
ERIK BENHAM,
Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
JERRY NAMBA, Chapter 7 Trustee; DON
FIFE, CPA,
Appellees.
In re: ERIK BENHAM, No. 14-56705
Debtor, D.C. No. 2:13-cv-00205-VBF
______________________________
ERIK BENHAM,
Appellant,
v.
SEQUOIA EQUITIES, INC.; et al.,
Appellees.
Appeals from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Erik Benham appeals pro se from the district court’s judgment and orders
dismissing for lack of standing Benham’s appeals from bankruptcy court orders.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 12-57203, 14-56441, & 14-56705
The bankruptcy court dismissed his challenges related to the administration of his
bankruptcy estate and the bankruptcy estate of a company he co-owned. We have
jurisdiction under 28 U.S.C. § 158(d). We review for clear error the factual
finding of whether an appellant is a person aggrieved. Duckor Spradling &
Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 777 (9th Cir. 1999).
We review the bankruptcy court’s decision independently, Allred v. Kennerley (In
re Kennerley), 995 F.2d 145, 146 (9th Cir. 1993), and may affirm on any basis
supported by the record, Schneider v. Vennard (In re Apple Computer Sec. Litig.),
886 F.2d 1109, 1112 (9th Cir. 1989). We affirm.
In appeal number 12-57203, the bankruptcy court correctly determined that
Benham lacked standing to object to the motion seeking approval of a sales
agreement to sell assets of Benham’s bankruptcy estate because Benham was not a
“person aggrieved” by the order. See Fondiller v. Robertson (In re Fondiller), 707
F.2d 441, 442-43 (9th Cir. 1983) (a debtor carries the burden to “demonstrate that
[he] was directly and adversely affected pecuniarily by the order of the bankruptcy
court,” and “a hopelessly insolvent debtor does not have standing to appeal orders
affecting the size of the estate”).
In appeal number 14-56441, the bankruptcy court correctly determined that
3 12-57203, 14-56441, & 14-56705
Benham lacked standing to object to the trustee’s final report and fee application in
Maria Vista Estates’ bankruptcy proceedings because Benham failed to
demonstrate that he was directly and adversely affected by that order. See id.
In appeal number 14-56705, dismissal of Benham’s adversary proceeding
for lack of standing was proper because Benham failed to object to defendants’
motions to dismiss and for summary judgment, or appear at the bankruptcy court
hearing to resolve those motions, despite being given proper notice of the hearing
and an opportunity to object. See Brady v. Andrew (In re Commercial W. Fin.
Corp.), 761 F.2d 1329, 1334-35 (9th Cir. 1985) (explaining that attendance and
objection are prerequisites to fulfilling the “person aggrieved” standard where the
party was given proper notice of the hearing and an opportunity to object).
Further, the bankruptcy court did not abuse its discretion by denying Benham’s
untimely request for an extension of time because Benham failed to establish
excusable neglect. See Fed. R. Bankr. P. 9006(b)(1); see also In re Dix, 95 B.R.
134, 136-39 (B.A.P. 9th Cir. 1988) (standard of review and discussing what
constitutes excusable neglect).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
4 12-57203, 14-56441, & 14-56705
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Benham’s motions to file a late reply brief and to file an oversized reply
brief, filed on July 8, 2016, are granted. The Clerk shall file the consolidated reply
brief submitted on July 8, 2016.
All other pending motions are denied.
AFFIRMED.
5 12-57203, 14-56441, & 14-56705