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 2021-08

Olga Bordenyuk v. Richard Yanagi ( 2021 )


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  •                                  NOT FOR PUBLICATION                      FILED
UNITED STATES COURT OF APPEALS                     AUG 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: OLGA VLADIMIROVNA                           No.   20-60042
BORDENYUK,
BAP No. 20-1042
Debtor,
------------------------------                     MEMORANDUM*
OLGA VLADIMIROVNA BORDENYUK,
Appellant,
v.
RICHARD A. YANAGI, Chapter 7 Trustee;
BENJAMIN GALE,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Brand, Spraker, and Gan, Bankruptcy Judges, Presiding
Submitted August 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Olga Bordenyuk (“Bordenyuk”) appeals pro se the Bankruptcy Appellate
Panel’s (the “BAP”) decision affirming the bankruptcy court’s order approving the
Chapter 7 trustee Richard Yanagi’s (the “Trustee”) compromise with the personal
representative for the probate estate of Karen Stirling. We have jurisdiction under
28 U.S.C. § 158, and we affirm.
We review a decision by the BAP de novo. In re Arden,
    176 F.3d 1226
    ,
1227 (9th Cir. 1999). A bankruptcy court’s decisions to approve a compromise
and to deny a motion to alter or amend the judgment are reviewed for abuse of
discretion. In re A & C Properties,
    784 F.2d 1377
    , 1380 (9th Cir. 1986); In re
Clinton,
    449 B.R. 79
    , 82 (B.A.P. 9th Cir. 2011).
Bordenyuk waived her arguments that the bankruptcy court erred by
approving a settlement that was not “fair and equitable,” the settlement order did
not contain the proper findings to support the bankruptcy court’s decision, and the
bankruptcy court “ignored the fact that the probate order is probably void” because
it violated the stay. She presented these arguments for the first time to the BAP in
an unauthorized brief and the BAP did not consider these arguments. Accordingly,
we decline to entertain Bordenyuk’s challenges now. See Orr v. Plumb,
    884 F.3d 923
    , 932 (9th Cir. 2018) (“The usual rule is that arguments . . . omitted from the
opening brief are deemed forfeited.”); In re Burnett,
    435 F.3d 971
    , 975–76 (9th
Cir. 2006) (“Absent exceptional circumstances, issues not raised before the BAP
2
are waived.”).
Bordenyuk’s challenges to the bankruptcy court’s denial of her motion for
relief from the settlement order (“Reconsideration Motion”) are not properly
before the court because Bordenyuk failed to amend her notice of appeal to the
BAP to include the Reconsideration Motion and therefore the BAP did not
consider those challenges. See Fed. R. Bankr. Pro. 8002(b)(3); see also In re
Slimick,
    928 F.2d 304
    , 306 (“The untimely filing of a notice of appeal [to the BAP]
is jurisdictional.”); In re Burnett,
    435 F.3d at 975
    –76.
AFFIRMED.
3