In Re: Salma Merritt v. Devin Derham-Burk ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SALMA MERRITT, No. 21-60000
Debtor, BAP No. 20-1026
------------------------------
MEMORANDUM*
SALMA MERRITT; DAVID MERRITT,
Appellants,
v.
DEVIN DERHAM-BURK, Chapter 13
Trustee; SPECIALIZED LOAN
SERVICING, LLC; U.S. BANK
NATIONAL ASSOCIATION, as Trustee for
the Certificateholders of Bear Stearns Arm
Trust, Mortgage Pass-Through Certificates,
Series 2006-2,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Taylor, Faris, and Brand, Bankruptcy Judges, Presiding
Submitted July 26, 2023**
*
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).
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.
Salma Merritt and David Merritt (Appellants) appeal the Bankruptcy
Appellate Panel’s (BAP) affirmance of the Bankruptcy Court’s order granting: (1)
the trustee’s motion to dismiss the bankruptcy case, and (2) Specialized Loan
Service, LLC and U.S. Bank National Association’s (Creditors) motion for in rem
relief from the automatic stay. We have jurisdiction under 28 U.S.C. § 158(d)(1).
We review the BAP’s decision de novo, In re Hutchinson, 15 F.4th 1229, 1232
(9th Cir. 2021), evaluating the underlying Bankruptcy Court order for abuse of
discretion. In re Jimenez, 613 B.R. 537, 543 (9th Cir. BAP 2020). We affirm.
Appellants contend that the Bankruptcy Court erred by considering Ms.
Merritt’s prior non-bankruptcy litigation when determining whether a scheme to
“delay, hinder, or defraud creditors” under 11 U.S.C. § 362(d)(4) exists. The
statute requires that the scheme “involve[] . . . multiple bankruptcy filings,” not
that the scheme solely consist of multiple bankruptcy filings. Id. Thus, the
Bankruptcy Court properly considered Ms. Merritt’s non-bankruptcy litigation
history.
Appellants assert that the Bankruptcy Court based its decision on “falsified
information” and “misrepresented common law and federal actions.” Appellants,
however, offered no support for these assertions beyond their own factual
narrative, which lacks evidentiary support. In any case, Appellants have waived
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these issues because they failed to raise them in the Bankruptcy Court. In re Mortg.
Store, Inc., 773 F.3d 990, 998 (9th Cir. 2014).
Appellants argue that the Bankruptcy Court failed to properly consider the
death of Ms. Merritt’s attorney during her first bankruptcy case. According to
Appellants, the Bankruptcy Court penalized Ms. Merritt for her attorney’s death by
granting the in rem relief and motion to dismiss. But the record supports the
finding that the Bankruptcy Court considered her attorney’s death. And the part of
the record demonstrating Ms. Merritt’s scheme to delay—the basis of the in rem
relief—has little do with her attorney’s death.
Appellants also appeal the Bankruptcy Court’s grant of Creditors’ motion to
reconsider the order directing Creditors and Appellants to participate in the
mortgage mediation modification program. But Appellants did not support their
challenge with any argument, and thus effectively abandoned the issue. Crime Just.
& Am., Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017) (issues not supported by
argument deemed abandoned).1
AFFIRMED.
1
While Appellants assert various other arguments in their opening brief, those
arguments lack evidentiary support and explanations as to their applicability to this
case, and we deem them abandoned. United States v. Kimble, 107 F.3d 712, 715
n.2 (9th Cir. 1997) (argument “not coherently developed” in briefs deemed
abandoned).
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