Frank Romano v. Rudolph La Vecchia , 371 F. App'x 729 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: FRANK A. ROMANO; MARIA No. 08-60049
ROMANO,
BAP Nos. NV-08-1139-DHMo
Debtors, NV-08-1140-DHMo
NV-08-1142-DHMo
FRANK A. ROMANO; MARIA MEMORANDUM *
ROMANO,
Appellants,
v.
RUDOLPH LA VECCHIA; RUDOLPH
M. LA VECCHIA,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Montali, and Dunn, Bankruptcy Judges, Presiding
Submitted March 12, 2010 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HALL, NOONAN and CALLAHAN, Circuit Judges.
Frank and Maria Romano appeal the judgment of the Bankruptcy Appellate
Panel (“the BAP”) affirming the bankruptcy court’s order that the Romanos’
judgment against Rudolph LaVecchia and Rudolph M. LaVecchia was
unenforceable. We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1). We
affirm.
We review the decision of the BAP de novo and apply the same standard of
review that the BAP applied to the bankruptcy court’s ruling. In re Boyajian, 564
F.3d 1088, 1090 (9th Cir. 2009). We review the bankruptcy court’s conclusions of
law de novo and its findings of fact for clear error. In re Salazar, 430 F.3d 992,
994 (9th Cir. 2005).
Federal Rule 69, applicable in bankruptcy court through Rule 7069 of the
Federal Rules of Bankruptcy Procedure, provides that the procedures for execution
of a money judgment entered by a federal court are governed by the state where the
court is located. Fed. R. Civ. P. 69; Fed. R. Bankr. P. 7069. The parties do not
dispute that Nevada law applies.
Under Nevada law, a judgment expires six years after it is entered, unless the
judgment is renewed during the ninety-day period prior to its expiration. See Nev.
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Rev. Stat. §§ 17.214, 11.190(1)(a); Leven v. Frey, 168 P.3d 712, 715 (Nev. 2007)
(“[A] judgment expires by limitation in six years.”). Nevada requires “strict
compliance” with the “unambiguous” statutory procedures for renewal. See id. at
717-19.
The Romanos’ judgment against the LaVecchias, obtained in an adversary
proceeding, was entered by the bankruptcy court on September 18, 1995. The
Romanos filed an affidavit of renewal on April 5, 2002. They filed a second
affidavit of renewal on March 6, 2008. On April 17, 2008, the LaVecchias filed a
“Motion to Vacate the Affidavit of Renewal,” contending that the 2002 renewal
was untimely, so the judgment was no longer enforceable.
The Romanos concede that the 2002 renewal was untimely, but they contend
that the LaVecchias waived their right to assert that the judgment had expired.
They also assert that the bankruptcy court erred in relying on Rule 69 rather than
Rule 60(b) to resolve the LaVecchias’ motion. These arguments are without merit.
First, the LaVecchias did not waive their right to challenge the untimely
renewal. Nevada’s statutory scheme for judgment renewal does not require a
debtor to respond to a creditor’s renewal of a judgment. See Nev. Rev. Stat. §
17.214. The Romanos have cited no cases finding a duty on the part of a debtor to
challenge a creditor’s untimely renewal. Even if the LaVecchias were under a duty
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to act, they did so in a timely manner. As the BAP noted, the Romanos did not
undertake any collection activity on the judgment between the 2002 renewal and
the 2008 renewal, and “[t]he LaVecchias raised the failure to renew the Judgment
timely as they would an affirmative defense when the prospect of further collection
activity in Nevada by the Romanos was indicated by the Second [2008] Renewal.”
Second, the Romanos have cited no case precluding a bankruptcy court from
looking to Rule 69 to resolve a motion brought by a judgment debtor. Rule 69
directs federal courts to state law for the procedures governing “proceedings
supplementary to and in aid of judgment of execution” of a money judgment. Fed.
R. Civ. P. 69; In re Estate of Ferdinand E. Marcos Hum. Rts. Litig., 536 F.3d 980,
987-88 (9th Cir. 2008). The bankruptcy court was not required to treat the motion
to vacate the renewal affidavit as brought under Rule 60(b), which lists “Grounds
for Relief from a Final Judgment, Order, or Proceeding.” In Nevada, filing a
judgment renewal is a “ministerial act.” O’Lane v. Spinney, 874 P.2d 754, 755
(Nev. 1994). The renewal affidavit did not create a new judgment, nor did it
involve an order or proceeding such that Rule 60(b) would apply.
AFFIRMED.
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