Mark Nebel v. Lawrence Warfield ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK LOUIS NEBEL; AMY LEE No. 17-16350
NEBEL,
D.C. No. 3:16-cv-08240-GMS
Plaintiffs-Appellants,
v. MEMORANDUM*
LAWRENCE J. WARFIELD, Chapter 7
Trustee,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief Judge, Presiding
Submitted February 4, 2019**
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Before filing a Chapter 7 petition, Mark and Amy Nebel paid the fees for their
daughter to attend an out-of-state ballet camp and bought airline tickets for her. The
daughter attended the camp post-filing. The bankruptcy court ordered the Nebels to
*
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).
reimburse the estate the amount paid for the camp tuition and tickets. The court also
ordered turnover of 25% of any salary subsequently received by the Nebels from
their employer for paid time off (“PTO”) accrued as of the date of filing. The district
court affirmed the turnover order. We have jurisdiction of the Nebels’ appeal of the
district court order under 28 U.S.C. § 158(d)(1) and affirm.
1. The Nebels do not dispute on appeal that their contractual interests in the
tuition for the camp and airline tickets are property of the Chapter 7 estate. They
argue instead that because the tuition payment and airline tickets are non-refundable
and cannot be liquidated, they are of inconsequential value to the estate. But, the
absence of a third-party buyer for an estate asset does not establish that it has no
value. See Nichols v. Birdsell, 491 F.3d 987, 990 (9th Cir. 2007) (involving non-
transferable tax credits). Because the assets at issue in this case were in fact used by
the Nebels post-petition, the bankruptcy court did not err in treating their value as
the amount the Nebels paid for them. See Stoumbos v. Kilimnik, 988 F.2d 949, 956–
57 (9th Cir. 1993).
2. The Nebels do not dispute that the accrued PTO payments are assets of the
estate. See In re Reyerson, 739 F.2d 1423, 1425–426 (9th Cir. 1984) (holding that
pre-petition employment benefits are property of the estate). Instead, they argue that
the bankruptcy court should have ordered abandonment of these assets because their
maximum value was $2,297. But, the Nebels did not seek abandonment below. Nor
2
is abandonment mandated because collection of the assets might involve reopening
of the estate. The decision whether to order abandonment is left to the sound
discretion of the bankruptcy court. See Johnston v. Webster, 49 F.3d 538, 540 (9th
Cir. 1995). The court did not abuse that discretion here, as collection of the PTO, if
received, would impose minimal costs on the estate.
AFFIRMED.
3