In Re: CERY BRADLEY PERLE ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: CERY BRADLEY PERLE, No. 11-60000
Debtor,
BAP No.
10-1048
CERY BRADLEY PERLE,
Appellant, OPINION
v.
ALFONSO FIERO,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kirscher, and Lynch, Bankruptcy Judges, Presiding
Argued and Submitted
December 7, 2012—Pasadena, California
Filed August 2, 2013
Before: Sandra S. Ikuta and Jacqueline H. Nguyen,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Burns
*
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
2 IN RE: PERLE
SUMMARY**
Bankruptcy
The panel affirmed the Bankruptcy Appellate Panel’s
ruling that an arbitration debt was nondischargeable in
bankruptcy under 11 U.S.C. §§ 523(a)(3) and 523(a)(6).
The panel held that the creditor’s challenge to the
dischargeability of the debt was not filed within 60 days of
the first date set for the creditors meeting but nonetheless was
timely because the chapter 7 debtor did not adequately
identify the debt on his Schedule E, and the creditor did not
have notice or actual knowledge of the bankruptcy. The
panel held that the creditor’s lawyer’s knowledge could not
be imputed to the creditor on an agency theory when the
lawyer learned of the bankruptcy during his representation of
another client and after the completion of his representation
of the creditor in relation to the debt.
COUNSEL
Janine R. Menhennet (argued), Solana Beach, California;
Joseph Darrell Palmer, Law Offices of Darrell Palmer, Solana
Beach, California, for Defendant-Appellant.
Leslie Schwaebe Akins, Leslie Schwaebe Akins, A Law
Corporation, Carlsbad, California, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE: PERLE 3
OPINION
BURNS, District Judge:
Under the bankruptcy rules, a creditor has a limited
window of time in which to challenge the dischargeability of
certain kinds of debts. That window stays open, though, if
the creditor doesn’t receive adequate notice of the bankruptcy
from the debtor. The question in this case is whether the
creditor’s lawyer’s knowledge of the bankruptcy constitutes
notice to the creditor. In the abstract, it well might. But here
there’s a wrinkle: The lawyer learned of the debtor’s
bankruptcy during his representation of another client, and
although the lawyer continued to represent the creditor on
other matters, he no longer represented the creditor in relation
to the debt at issue. On these facts, we hold that it stretches
the agency principle too far to impute the lawyer’s knowledge
of the debtor’s bankruptcy to the creditor.
I. Factual Background
Cery Bradley Perle filed for bankruptcy under Chapter 7
of the Bankruptcy Code in 2001. Among Perle’s outstanding
debts was a $350,000 arbitration award to Fiero Brothers, a
New York securities dealer. The award was made in 1998 by
a National Association of Securities Dealers (NASD)
arbitration panel, which found that Perle had committed
securities fraud. Fiero Brothers was represented in the
arbitration by a New York-based lawyer named Martin
Russo, but Russo did not continue to represent Fiero Brothers
in the matter after the arbitration. Instead, Fiero Brothers
retained California counsel to confirm the award in the
California Superior Court and to obtain an enforceable
judgment against Perle. Russo did, however, continue to
4 IN RE: PERLE
represent Fiero Brothers in other unrelated matters after the
arbitration.
In his bankruptcy filing, Perle didn’t list Fiero Brothers or
the $350,000 arbitration award as such on his Schedule E, a
form on which a Chapter 7 debtor is required to list creditors
with unsecured priority claims. Instead, he listed
“NASD/NASD Regulation” as the creditor on the arbitration
debt, and said that the amount of the debt was “unknown.”
He also reported that the debt was incurred in 1999 (rather
than 1998), and that the consideration for it was
“Arbitration.” At the top of the Schedule E, there was a space
to identify the type of priority claims listed below. Perle
wrote “Taxes, Governmental Debts.” Finally, although Perle
listed specific creditors to whom he owed other NASD
arbitration awards on his Schedule F, a form for nonpriority
claims, he did not name Fiero Brothers on that form either.
Two months after Perle filed for bankruptcy, Corsair
Capital Partners, a private equity firm, filed a
nondischargeability complaint against Perle relating to a
default judgment that it had obtained against him. Corsair
was represented in the bankruptcy matter by Russo, the same
lawyer who had previously represented Fiero Brothers in the
arbitration. Although Russo was obviously aware of Perle’s
bankruptcy, and was still representing Fiero Brothers in other
matters, he never informed Fiero Brothers of the pending
Perle bankruptcy.
In March 2002, Perle received a general discharge of his
debts and his bankruptcy was closed. Over four years later,
IN RE: PERLE 5
in September 2006, Fiero Brothers1 filed a motion to reopen
Perle’s bankruptcy in order to challenge the dischargeability
of the arbitration award. The bankruptcy court granted the
motion, and subsequently declared the arbitration debt
nondischargeable. That determination was upheld by the
Bankruptcy Appellate Panel. Perle appeals.
II. Timeliness of Fiero Brothers’ Challenge
Perle’s first argument is that Fiero Brothers’ challenge to
the dischargeability of the arbitration debt was untimely.
Under Federal Rule of Bankruptcy Procedure 4007(c), a
creditor generally has 60 days from the first date set for the
creditors meeting to file a nondischargeability complaint for
certain kinds of debts. Fiero Brothers’ nondischargeability
complaint was obviously late, and by years. But there is an
exception to the 60-day rule. Under 11 U.S.C. §§ 523(a)(3)
and (a)(6), debts that result from a debtor’s willful and
malicious acts that injure others remain nondischargeable if
they are not listed in the debtor’s schedules “in time to permit
. . . timely filing of a proof of claim and timely request for a
determination of dischargeability of such debt . . . , unless
such creditor had notice or actual knowledge of the case in
time for such timely filing and request.” The bankruptcy
court relied on this exception to find that Perle’s debt to Fiero
Brothers was nondischargeable.
Perle doesn’t quibble that his debt to Fiero Brothers is of
the type that is nondischargeable under 11 U.S.C.
1
Fiero Brothers had assigned the arbitration award to Alfonso Fiero,
who individually filed the challenge to the dischargeability of the debt in
the bankruptcy court. For simplicity, we refer to Fiero Brothers as the
creditor throughout this opinion.
6 IN RE: PERLE
§§ 523(a)(3) and (a)(6). To get around the exception, he must
therefore establish either that he adequately identified the
debt on his Schedule E, or if not, that Fiero Brothers
nonetheless had notice or actual knowledge of his
bankruptcy. He maintains he has established both.
A. Perle’s Schedule E
The information about the arbitration award debt that
Perle listed on his Schedule E was patently inaccurate.
Although Perle tries to downplay it, the description he
provided was so nebulous that it was impossible to tell that it
was Fiero Brothers to whom he was actually indebted. For
example, although the arbitration panel ruled unambiguously
that Perle was liable to Fiero Brothers in the amount of
$350,000.00, Perle didn’t name Fiero Brothers on the
Schedule E nor did he list the amount. Instead, he incorrectly
reported the debt was owed to “NASD/NASD Regulation,”
and he stated the amount was “unknown.” He also misstated
the date the debt had been incurred, listing it as 1999 even
though the arbitration panel made the award in 1998. On top
of all of that, the award was neither a “tax” nor a
“governmental debt,” as Perle represented on the top of the
Schedule E.
Perle argues that because the arbitration panel’s ruling
was titled “NASD Regulation, Inc.,” he reasonably believed
that the debt was owed to the NASD and not to Fiero
Brothers. We doubt it. The arbitration panel’s ruling was
actually titled “Award,” and “NASD Regulation, Inc., Office
of Dispute Resolution” was a mere subheading on the panel’s
written judgment. Regardless, Perle had testified in the 1998
arbitration and knew that it was Fiero Brothers, not the
NASD, who had obtained the award against him. Moreover,
IN RE: PERLE 7
Perle listed other creditors to whom he owed NASD
arbitration awards by their names on his Schedule F, which
suggests that he knew exactly how to list Fiero Brothers on
his bankruptcy schedules but chose not to.
Ellett v. Stanislaus, 506 F.3d 774 (9th Cir. 2007), is
instructive. In that case, a Chapter 13 debtor notified the
California Franchise Tax Board of his bankruptcy but
misstated the final digit of his social security number so that
the board couldn’t conveniently locate his records and file a
timely proof of claim. Id. at 776–77. Although the board
could have identified the debtor with only a little diligence,
we held that it had no responsibility to; the burden was on the
debtor, in the first instance, to list the information correctly.
Id. at 781. Perle’s serial mischaracterization of known details
of the 1998 arbitration award was far more egregious than the
apparently inadvertent transposition of a single digit of a
social security number in Ellett. We conclude that Perle’s
Schedule E did not provide Fiero Brothers with proper notice
of his bankruptcy.
B. Fiero Brothers’ Imputed or Actual Knowledge
Fiero Brothers’ challenge to the dischargeability of the
debt may still have been untimely if it nonetheless “had
notice or actual knowledge of the [bankruptcy]” in time to file
a timely nondischargeability complaint. 11 U.S.C.
§ 523(a)(3). This leads to Perle’s alternative argument, which
is that Russo’s knowledge and awareness of the bankruptcy
should be imputed to Fiero Brothers on an agency theory.
Ordinarily, a lawyer is a client’s agent and, consistent with
agency law, clients “are considered to have notice of all facts
known to their lawyer-agent.” Ringgold Corp. v. Worrall,
8 IN RE: PERLE
880 F.2d 1138, 1141–42 (9th Cir. 1989). But the agency
principle doesn’t neatly fit this case.
Russo had stopped representing Fiero Brothers in relation
to the dispute with Perle more than three years before Perle
filed for bankruptcy. In fact, well before Perle initiated his
bankruptcy, Fiero Brothers retained California counsel who
were unaffiliated with Russo to pursue the debt.
“[O]rdinarily, an attorney-client relationship is terminated
once representation is completed.” Damron v. Herzog,
67 F.3d 211, 213 (9th Cir. 1995). And, generally speaking,
a lawyer’s authority to represent a client ends “because the
lawyer has completed the contemplated services.”
Restatement (Third) of the Law Governing Lawyers § 31
(2000). Here, the “contemplated services” that Russo
performed for Fiero Brothers consisted of handling the
arbitration. Once the arbitration ended, Russo no longer
represented Fiero Brothers with respect to it. He did continue
to handle other unrelated matters for Fiero Brothers, but this
is of little significance considering that a lawyer’s
representation of a client is subject-matter specific.
Additionally, Russo learned of Perle’s bankruptcy on
behalf of a different client, Corsair, who was contesting the
dischargeability of its own debt. This distinguishes Perle’s
case from two cases on which he relies, Lompa v. Price (In
re: Price), 871 F.2d 97 (9th Cir. 1989) and In re Linzer,
264 B.R. 243 (E.D.N.Y. 2001). In both of those cases, the
lawyer who received notice of the debtor’s bankruptcy was
still representing the creditor in relation to the debt that was
owed. Here, in contrast, Russo received notice of Perle’s
bankruptcy as Corsair’s counsel, not as Fiero Brothers’.
IN RE: PERLE 9
Perle has identified no case, nor are we able to find one,
that imputes to a client knowledge that his lawyer gained
while representing a different client. In fact, the authority is
to the contrary. In Maldonado v. Ramirez, 757 F.2d 48 (3rd
Cir. 1985), the Third Circuit held that “an attorney given
notice of the bankruptcy on behalf of a particular client is not
called upon to review all of his or her files to ascertain
whether any other client may also have a claim against the
bankrupt.” Id. at 51. We agree with this statement, and think
that a contrary rule would impose an undue burden on
counsel. Because Russo no longer represented Fiero Brothers
on the debt matter when Perle filed for bankruptcy, and
learned of the bankruptcy filing only in the course of
representing a different client, we are unwilling to impute the
notice or actual knowledge of Perle’s bankruptcy filing that
he had to Fiero Brothers.
We affirm the BAP’s ruling that the arbitration debt was
nondischargeable under §§ 523(a)(3) and 523(a)(6) of the
Bankruptcy Code. Because we find that the debt was
nondischargeable under these sections, we don’t reach the
question whether it was also nondischargeable under
§ 523(a)(19).
AFFIRMED.