FILED
AUG 19 2014
1 NO FO PUBL A IO
T R IC T N
SUSAN M. SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. NC-13-1508-JuKuD
)
6 SIMONE ST. CLARE, ) Bk. No. NC-12-47701-MEH
)
7 Debtor. )
______________________________)
8 )
SIMONE ST. CLARE, )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M*
11 )
THE BANK OF NEW YORK MELLON )
12 FKA THE BANK OF NEW YORK, AS )
TRUSTEE FOR THE CERTIFICATE- )
13 HOLDERS OF THE CWALT, INC., )
ALTERNATIVE LOAN TRUST 2007- )
14 0A4 MORTGAGE PASS-THROUGH )
CERTIFICATES, SERIES 2007-0A4;)
15 UNITED STATES TRUSTEE; MARTHA )
G. BRONITSKY, Chapter 13 )
16 Trustee, )
)
17 Appellees. )
______________________________)
18
Argued and Submitted on July 24, 2014
19 at San Francisco, California
20 Filed - August 19, 2014
21 Appeal from the United States Bankruptcy Court
for the Northern District of California
22
Honorable M. Elaine Hammond, Bankruptcy Judge, Presiding
23 _________________________
24 Appearances: Michael James Yesk, Esq., argued for appellant
Simone St. Clare; Bernard Kornberg, Esq., of
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
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1 Severson & Werson, argued for appellee The Bank
of New York Mellon.
2 ________________________
3 Before: JURY, KURTZ, and DUNN, Bankruptcy Judges.
4 Chapter 71 debtor Simone St. Clare objected to proof of
5 claim (POC) 6-1 filed by Bank of America, N.A. (BANA) on behalf
6 of the Bank of New York Mellon (BONY)2 on the grounds that BANA
7 did not have standing to assert the claim on behalf of BONY and
8 that BONY did not have standing to enforce the note.
9 BANA filed amended claim 6-2 with a declaration asserting
10 that BANA was the loan servicer for BONY and thus had standing.
11 The bankruptcy court found that the declaration did not provide
12 sufficient evidence to establish the agency relationship between
13 BANA and BONY, thereby leaving enforcement of the note in
14 dispute. To resolve the factual and legal issues asserted, the
15 bankruptcy court entered a scheduling order on September 9,
16 2013, setting an evidentiary hearing (Scheduling Order) on
17 debtor’s claim objection. Debtor moved for reconsideration of
18 the bankruptcy court’s decision asserting that the court should
19 instead sustain her objection. The court denied her motion by
20 order entered on September 27, 2013 (Reconsideration Order).
21 On the same date, the bankruptcy court entered an order setting
22 a pre-trial conference (Pre-Trial Conference Order) in advance
23
24 1
Unless otherwise indicated, all chapter and section
references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
25 “Rule” references are to the Federal Rules of Bankruptcy
26 Procedure.
2
27 BONY was fka the Bank of New York, as Trustee for the
Certificate-holders of the CWALT, Inc., Alternative Loan Trust
28 2007-0A4 Mortgage Pass-through Certificates, Series 2007-0A4.
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1 of the evidentiary hearing.
2 Debtor’s notice of appeal (NOA) states that she is
3 appealing the Scheduling Order, the Reconsideration Order and
4 the Pre-Trial Conference Order. These orders simply set
5 deadlines for the filing of various papers at the bankruptcy
6 court in connection with debtor’s objection to claim 6-2 and
7 became final when the bankruptcy court entered an order
8 overruling debtor’s objection as moot after she converted her
9 case from chapter 13 to chapter 7. Debtor did not amend her NOA
10 to include this order or any other orders that were entered
11 subsequent to those designated in her NOA and she has made no
12 arguments in her opening brief that relate to the orders on
13 appeal. Accordingly, we AFFIRM.
14 I. FACTS
15 In January 2007, debtor obtained a loan from Countrywide
16 Bank, N.A. in the principal amount of $700,000, which was
17 evidenced by a note and secured by a deed of trust against her
18 property located in Benicia, California (Benicia Property).
19 Debtor was in default on the loan when she filed her
20 chapter 13 petition pro se on September 18, 2012. In Schedule A
21 she listed the Benicia Property as unencumbered by any secured
22 debt. Debtor listed no secured creditors in Schedule D.
23 On January 8, 2013, BANA filed claim 6-1 on behalf of BONY
24 asserting a secured claim against the Benicia Property in the
25 total amount of $805,232.85, including arrearages and other
26 charges in the amount of $105,643.82. Attached to the POC was
27 (1) an itemized statement of interest, fees, expenses and
28 charges; (2) a copy of the deed of trust; (3) the note and
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1 assignment of rents; and (4) and a corrective corporation
2 assignment of deed of trust.
3 On February 26, 2013, debtor amended her Schedule A to
4 state that the Benicia Property was encumbered by a secured
5 claim in the amount of $715,000. On the same day, she filed an
6 adversary proceeding against BANA, BONY, and others seeking to
7 avoid the lien against the Benicia Property and quiet title
8 (Adv. No. 13-04045). BONY moved to dismiss the complaint on
9 Civil Rule 12(b)(6) grounds. The bankruptcy court granted
10 debtor leave to amend her complaint. Instead of amending her
11 complaint, debtor voluntarily dismissed the adversary proceeding
12 without prejudice on May 29, 2013.
13 Prior to dismissal of the adversary proceeding, on May 13,
14 2013, debtor filed an objection to BONY’s POC. Debtor argued
15 that the POC did not contain evidence that BANA, as loan
16 servicer, had the right to file the POC on behalf of BONY and
17 that BONY did not have standing to enforce the note. In
18 response, BONY argued that BANA, by virtue of its servicing
19 rights with BONY — the holder of the claim — had standing to
20 file the POC on BONY’s behalf. BONY pointed out that the POC
21 did not label BANA as the creditor and copies of the deed of
22 trust and note bearing an endorsement in blank along with the
23 assignment assigning the beneficial interest under the deed of
24 trust to BONY were attached to the POC.
25 At the first hearing on debtor’s objection to BONY’s POC,
26 the bankruptcy court sustained debtor’ objection on the ground,
27 among others, that BONY had not established that BANA had
28 authority to file the POC on its behalf. Due to the
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1 deficiencies, the court gave BONY time to file an amended POC
2 and continued the hearing to September 5, 2013.
3 On August 14, 2013, BANA filed an amended POC on behalf of
4 BONY designated as claim 6-2. Attached to the POC was the
5 declaration of Peter Murphy, Assistant Vice President of BANA,
6 who declared that BANA, as servicer for BONY, “has the right to
7 enforce the Note on behalf of Movant.”
8 At the September 5, 2013 hearing, the bankruptcy court
9 found that Murphy’s declaration was insufficient evidence to
10 establish the agency relationship between BANA and BONY, thereby
11 leaving enforcement of the note in dispute. To resolve the
12 factual and legal issues asserted, the bankruptcy court entered
13 the Scheduling Order setting an evidentiary hearing for
14 November 5, 2013.
15 Meanwhile, at a September 12, 2013 hearing on debtor’s
16 objection to claim 8-1, also filed by BANA, the bankruptcy court
17 decided that debtor’s arguments regarding BANA’s standing to
18 enforce the note in claim 8-1 were without merit, overruled her
19 objection, and concluded that BANA’s claim 8-1 was secured and
20 allowed in the amount of $1,894,662.21. After allowing BANA’s
21 secured claim, the bankruptcy court found debtor’s liquidated
22 secured debt was no longer subject to dispute. The court thus
23 concluded that debtor was over the debt limit stated in § 109(e)
24 and no longer eligible for chapter 13 relief. The bankruptcy
25 court stated its intent to dismiss the case within ten days of
26 the hearing unless debtor requested conversion of the case to
27 either chapter 7 or 11 and entered the order
28 (Conversion/Dismissal Order) consistent with its decision.
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1 Debtor moved for reconsideration of this order, which the
2 bankruptcy court denied.
3 Debtor also moved for reconsideration of the Scheduling
4 Order arguing that the bankruptcy court should instead sustain
5 her objection to POC 6-2 because it was not entitled to prima
6 facie validity. The court denied her motion in the
7 Reconsideration Order entered on September 27, 2013. On the
8 same date, the bankruptcy court entered the Pre-Trial Conference
9 Order setting a pre-trial conference for October 9, 2013, which
10 was continued to October 18, November 11 and, finally to
11 November 25, 2013.
12 On October 8, 2013, debtor filed a NOA listing the
13 Scheduling Order, the Reconsideration Order and the Pre-Trial
14 Conference Order as the orders appealed from.
15 On November 7, 2013, debtor voluntarily converted her case
16 from chapter 13 to chapter 7 due to the bankruptcy court’s
17 ruling that debtor was no longer eligible for chapter 13 once it
18 allowed secured claim 8-1 filed by BANA in an amount over $1.8
19 million. See BAP No. 13-1507.
20 On November 25, 2013, debtor’s counsel failed to appear at
21 the pre-trial conference in connection with claim 6-2. On the
22 next day, the bankruptcy court entered an order overruling
23 debtor’s objection to claim 6-2 due to lack of prosecution. The
24 order states in pertinent part: “Upon consideration of Debtor’s
25 objection, and the pleadings and files in this case, and the
26 failure of Debtor to appear, Debtor’s Objection to BONY’s proof
27 of claim No. 6-2 is overruled due to lack of prosecution.”
28 Debtor’s attorney filed an emergency motion for
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1 reconsideration, which the bankruptcy court granted by order
2 entered on December 5, 2013. That order stated: “The debtor’s
3 Motion is granted. The November 25, 2013 Order Overruling
4 Debtor’s Objection to Claim No. 6-2 is hereby voided.” The
5 status conference was continued to December 16, 2013.
6 At the December 16, 2013 status conference, the bankruptcy
7 court overruled debtor’s objection to claim 6-2 as moot due to
8 the conversion of debtor’s case.
9 On December 19, 2013, the Panel issued an order stating
10 that the finality issues raised in this appeal were satisfied by
11 the bankruptcy court’s December 16, 2013 order finding debtor’s
12 objection to claim 6-2 as moot, but noted that if debtor sought
13 to challenge the bankruptcy court’s rulings in that order she
14 needed to file an amended NOA. Debtor did not amend her NOA.
15 Debtor’s efforts to obtain a stay pending appeal were
16 denied by both the bankruptcy court and this Panel. The
17 chapter 7 trustee has since filed a report of no distribution
18 and debtor received her discharge on February 12, 2014.
19 II. JURISDICTION
20 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
21 §§ 1334 and 157(b)(2)(A), (N) and (O). We have jurisdiction
22 under 28 U.S.C. § 158.
23 III. ISSUE
24 Debtor states the issue on appeal is whether the bankruptcy
25 court erred in overruling her objection to BONY’s claim 6-2.
26 However, debtor’s NOA did not designate any order appealed from
27 which overruled her objection to BONY’s claim 6-2. Therefore,
28 we have rephrased the issue to conform to the orders appealed
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1 from: Did the bankruptcy court err by scheduling an evidentiary
2 hearing on debtor’s objection to claim 6-2 and denying debtor’s
3 motion for reconsideration of that order?
4 IV. STANDARDS OF REVIEW
5 A bankruptcy court’s decision whether to hold an
6 evidentiary hearing is reviewed for an abuse of discretion.
7 Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1139 (9th Cir.
8 2004). A bankruptcy court’s denial of a motion for
9 reconsideration is also reviewed for an abuse of discretion.
10 Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070, 1073
11 (9th Cir. 2000); Sewell v. MGF Funding, Inc. (In re Sewell),
12 345 B.R. 174, 178 (9th Cir. BAP 2007).
13 In determining whether the court abused its discretion we
14 first determine de novo whether the trial court identified the
15 correct legal rule to apply to the relief requested and then, if
16 the correct legal standard was applied, we determine whether the
17 court’s application of that standard was “(1) illogical,
18 (2) implausible, or (3) without support in inferences that may
19 be drawn from the facts in the record.” United States v. Loew,
20 593 F.3d 1136, 1139 (9th Cir. 2010).
21 V. DISCUSSION
22 In her opening brief, debtor states that she is challenging
23 the bankruptcy court’s November 25, 2013 order overruling her
24 objection to claim 6-2. However, debtor filed her NOA on
25 October 8, 2013, well before the November 25, 2013 order.
26 Further, she never amended her NOA to include this order or the
27 bankruptcy court’s subsequent ruling issued on December 16,
28 2013, which overruled debtor’s objection to claim 6-2 on
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1 mootness grounds. As a result, we do not consider matters which
2 were ruled upon in either the November 25 or December 16, 2013
3 orders.
4 Moreover, the bankruptcy court entered the November 25,
5 2013 order overruling debtor’s objection because debtor’s
6 counsel failed to appear at the hearing. Subsequently, the
7 bankruptcy court granted debtor’s motion for reconsideration of
8 the November 25, 2013 order. In that order, the court stated
9 that the November 25, 2013 order overruling debtor’s objection
10 to claim no. 6-2 “is hereby voided.” Since the bankruptcy court
11 voided the November 25, 2013 order, it follows that even if
12 debtor had appealed from this order there is no decision for us
13 to vacate, reverse, or remand stemming from that order.
14 Debtor’s NOA states that she is appealing the Scheduling
15 Order, the Reconsideration Order and the Pre-Trial Conference
16 Order. However, she makes no arguments in relation to those
17 orders in her opening brief. Arguments not specifically and
18 distinctly made in the appellant’s opening brief are deemed
19 waived. Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4
20 (9th Cir. 2010); see also Wilcox v. C.I.R., 848 F.2d 1007, 1008
21 n.2 (9th Cir. 1988) (holding that even pro se litigants must
22 brief arguments on appeal, or they will forfeit them).
23 VI. CONCLUSION
24 For the reasons stated, we AFFIRM.
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