Moushigian v. Marderosian

United States Court of Appeals
For the First Circuit

No. 13-2295

PAUL P. MOUSHIGIAN,

Plaintiff, Appellant,

v.

JOHN R. MARDEROSIAN, and ELIZABETH A. MARDEROSIAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Howard and Kayatta, Circuit Judges,
McCafferty,* District Judge.

Bruce H. Matson, with whom Paul G. Boylan and LeClairRyan,
P.C., were on brief, for appellants.
Henry C. Ellis, for appellees.

September 3, 2014

*
Of the District of New Hampshire, sitting by designation.
 McCAFFERTY, District Judge. Appellant Paul Moushigian

was a creditor of the Appellees, who were Chapter 7 debtors, until

the bankruptcy court granted them a discharge. Moushigian now

challenges two orders issued by the bankruptcy court after it

granted the discharge. Our review is plenary, “without formal

deference to the district court’s intermediate affirmance.”

Redondo Constr. Corp. v. P.R. Highway & Transp. Auth. (In re

Redondo Constr. Corp.), 678 F.3d 115, 120 (1st Cir. 2012). We

approach the bankruptcy court’s rulings of law de novo, see id.,

“but its factual findings are examined only for clear error,” id.

at 120-21. We affirm.

I. Background

Neither party disputes the recitation of the factual

background in the district court’s memorandum and order, Moushigian

v. Marderosian, No. 13-10137-FDS, 2013 WL 5564189 (D. Mass. Oct. 7,

2013). Accordingly, we will base our description of the facts

largely on that order.

Moushigian sued the Marderosians in state court in

Massachusetts. He asserted claims for, among other things,

embezzlement and fraud. Approximately seventeen months later, the

Marderosians filed for bankruptcy. The state court stayed

Moushigian’s action.

In the bankruptcy court, on July 25, 2012, Moushigian

filed a pleading titled: “Motion By Creditor for Relief from Stay

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and Related Relief” (“motion for relief from stay”). In it, he

sought three forms of relief: (1) a declaration from the bankruptcy

court “that [his] continued prosecution of [his] claim in the

Barnstable civil action [is] deemed sufficient to satisfy the

deadline established herein for commencement of an adversary

proceeding [pursuant to 11 U.S.C. § 523(a)] for challenge to

dischargeability of any debt so established” (for simplicity’s

sake, we will refer to this form of relief as “deeming relief”);

(2) relief from the automatic stay; and (3) a ten-day extension of

the August 6, 2012, deadline for filing a § 523(a) complaint, in

the event the bankruptcy court denied his request for relief from

the stay. This motion was unopposed.

On August 2, 2012, Moushigian filed another pleading in

the bankruptcy court titled “Request for Expedited Determination

and Related Relief” (“motion to expedite”). In it, he asked the

bankruptcy court for an expedited ruling on his motion for relief

from stay and also asked that the deadline for filing a § 523(a)

complaint be set at ten days “from the grant or denial of this

request.”

The bankruptcy court denied the motion to expedite on the

day it was filed, but added this to its order:

To the extent that Creditor Moushigian seeks
an extension of the deadline in which to file
a complaint objecting to the Debtor’s
discharge or the dischargeability of certain
debts, it is extended to September 27, 2012.

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 Any further request to extend that deadline
shall be made by a separate motion filed prior
to the expiration of the deadline.1

On August 21, the bankruptcy court ruled on Moushigian’s motion for

relief from stay in the following four-word margin order: “Relief

from stay granted.” Id. Hereafter, we will refer to the August 21

order as “the four-word order.” Moushigian let the September 27

deadline pass without filing either a motion to extend it or a

§ 523(a) complaint. On December 5, the bankruptcy court granted

the Marderosians a discharge.

Notwithstanding the discharge, Moushigian continued to

prosecute his action against the Marderosians in the state court.

The Marderosians, believing that their discharge effectively ended

Moushigian’s state-court action, challenged his continued

prosecution of it. On December 17, Moushigian returned to the

bankruptcy court and filed a pleading titled “Motion to Affirm

Order Granting Relief of Stay” (“motion to affirm”). In it,

Moushigian asked the bankruptcy court to rule that the discharge it

granted the Marderosians had no effect on his right to pursue his

claims against them in state court, pursuant to the relief he was

granted in the four-word order. On December 19, the bankruptcy

court ruled as follows:

1
The bankruptcy court’s extension to September 27 was
entirely consistent with Moushigian’s representation, in his motion
for relief from stay, that his state-court action would be ready
for trial within two months if the bankruptcy court were to grant
him relief from the stay.

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 Granted in part. On August 21, 2012, the
Court granted relief from stay for [the]
purpose of continuing a civil action pending
in the Barnstable Superior Court which the
movant contended would form the basis of a
nondischargeable debt pursuant to 11 U.S.C.
§§ 523(a)(2) and/or (a)(4). That order did
not grant any other relief.

To the extent that the movant proposed to
later return to this Court for a determination
of the dischargeability of any judgment
obtained in the Barnstable Superior Court
action, the Court had previously construed
this as a request for an extension of the
deadline to file complaints objecting to the
Debtors’ discharge or the dischargeability of
certain debts, and, on August 2, 2012, entered
an order granting a limited extension of the
deadline to September 27, 2012. The order
expressly stated that “[a]ny further request
to extend that deadline shall be made by a
separate motion filed prior to the expiration
of the deadline.” The movant failed to file a
timely [request for an] extension and the
deadline expired. See Fed. R. Bankr. P.
4004(b)(1). No timely objections having been
filed, the Debtors received a discharge on
December 5, 2012.

Moushigian moved the bankruptcy court to reconsider its order on

his motion to affirm, invoking that court’s equity powers, as

codified at 11 U.S.C. § 105(a). The bankruptcy court denied

Moushigian’s motion to reconsider.

II. Discussion

Having described what actually happened in the bankruptcy

court, we begin our discussion by outlining three readily available

actions that Moushigian could have taken to achieve his goal of

continuing to pursue his state-law claims for fraud and

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embezzlement while protecting his § 523(a) claim in the bankruptcy

court. Moushigian’s first option, to which he was alerted by the

bankruptcy court’s order on his motion to expedite, was to move for

an additional extension of the deadline for filing a § 523(a)

complaint when it became evident that his state-court action would

not be resolved before September 27. As a second option,

Moushigian could have filed a § 523(a) complaint in the bankruptcy

court before the September 27 deadline, along with a motion asking

the bankruptcy court to abstain from hearing that proceeding until

after his state-court action reached its conclusion. See 28 U.S.C.

§ 1334(c) (describing circumstances under which bankruptcy courts

may abstain from hearing certain proceedings).2 Finally,

Moushigian could have removed his state-court action to the

bankruptcy court, see 28 U.S.C. §§ 1334(b) and 1452(a), and asked

the bankruptcy court to resolve his state claims first and then use

the resolution of those claims as a basis for ruling on his

§ 523(a) complaint. Rather than following any of those three

paths, Moushigian asked the bankruptcy court for what we are

calling “deeming relief.”

Based upon his understanding that the bankruptcy court’s

four-word order, “[r]elief from stay granted,” either granted him

2
This appears to be the path followed by the creditor in In
re Saunders, 103 B.R. 298, 299 (Bankr. N.D. Fla. 1989), which is
the only case Moushigian cites as support for his argument that the
district court committed a legal error by denying his motion to
affirm.

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the “deeming relief” he sought, or was so ambiguous that it

reasonably misled him into believing that the court had awarded him

“deeming relief,” Moushigian now challenges the district court’s

affirmance of the bankruptcy court’s order on his motion to affirm

and its affirmance of the bankruptcy court’s denial of his motion

for reconsideration. Moushigian makes arguments based on

construing the four-word order and the equity provisions of the

bankruptcy code.3 We address each in turn.

A. Construing the Four-Word Order

Moushigian’s primary argument is that the bankruptcy

court granted him “deeming relief” in the four-word order, and then

took that relief away in the orders he challenges here. The four-

word order, however, did not grant Moushigian’s request for

“deeming relief.”

If the four-word order had said “motion granted,” rather

than “[r]elief from stay granted,” then we would be more persuaded

by Moushigian’s theory that the order on his motion to affirm took

back “deeming relief” that had previously been granted to him in

the four-word order. Rather than understanding the phrase

“[r]elief from stay granted” to mean only what it says, Moushigian

3
There is a vague suggestion in Moushigian’s brief that his
right to due process was violated when the bankruptcy court denied
his motion to affirm without conducting a hearing. We note that
Moushigian’s motion did not include a request for a hearing but,
regardless, any due-process argument Moushigian may be making is so
undeveloped that it is waived. See United States v. Caparotta, 676
F.3d 213, 218 (1st Cir. 2012).

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reads that order as granting relief not identified in its words.

Moushigian’s construction of the four-word order is not tenable.

The bankruptcy court did not err, in its order on Moushigian’s

motion to affirm, by ruling that its four-word order had not

granted Moushigian the “deeming relief” he requested in his motion

for relief from stay.4

Moushigian next argues, in the alternative, that the

four-word order was ambiguous because it did not expressly address

his request for “deeming relief.” If, indeed, the four-word order

were as ambiguous as Moushigian now claims it to be, he could have

asked for clarification when it was issued, but he did not. That

said, in Moushigian’s view, the ambiguity in the four-word order

resulted from the bankruptcy court’s failure to make the findings

of fact and conclusions of law required by Rule 52(a) of the

Federal Rules of Civil Procedure. Moushigian is mistaken.

In the principal opinion upon which Moushigian relies,

the Second Circuit explained that “[u]nder the rules governing

proceedings in the bankruptcy courts, Rule 52(a) of the Federal

Rules of Civil Procedure applies to the resolution of a dispute

over a request for relief from the automatic stay.” Mazzeo v.

4
It is also worth noting that “[u]nlike former Bankruptcy
Rule 701, requests for relief from an automatic stay do not
commence an adversary proceeding.” Fed. R. Bankr. P. 7001 advisory
committee’s note (1983). That is yet another reason why the four-
word order cannot be construed as granting Moushigian the “deeming
relief” he requested.

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Lenhart (In re Mazzeo), 167 F.3d 139, 142 (2d Cir. 1999) (citations

omitted). The instant case, however, involved no dispute over a

request for relief from the automatic stay; Moushigian’s motion for

relief from stay was unopposed and granted. Thus, the ruling that

Moushigian now challenges is not a ruling on a request for relief

from a stay but, rather, the ruling on his request for “deeming

relief.” Nothing in Mazzeo suggests that a ruling on such a purely

straightforward procedural issue must be accompanied by findings of

fact and conclusions of law under Rule 52(a). The rule on its face

only applies to judgments entered in actions tried to the court and

rulings granting or refusing interlocutory injunctions (which

Mazzeo quite understandably regards a ruling refusing to set aside

the automatic stay to be).5

B. Moushigian’s Equity Argument

In his motion for reconsideration of the bankruptcy

court’s order denying his motion to affirm, Moushigian asked for

the following relief:

5
Moushigian also relies on the unpublished opinion in Harris
v. Appleberry (In re Appleberry), 397 B.R. 544, 2008 WL 4174062
(B.A.P. 10th Cir. 2008). Like Mazzeo, Appleberry involved a
bankruptcy court’s decision to deny relief from the automatic stay.
Thus, Appleberry is no more supportive of Moushigian’s position
than Mazzeo is. Appleberry, however, relied on two bankruptcy
cases involving decisions on matters other than relief from the
automatic stay, but neither case involved any of the disputed
issues in this case. See Velde v. First Int’l Bank & Trust (In re
Y-Knot Constr., Inc.), 369 B.R. 405 (B.A.P. 8th Cir. 2007)
(remanding order approving compromise of claims); Kopp v. All Am.
Life Ins. Co. (In re Kopexa Realty Venture Co.), 213 B.R. 1020
(B.A.P. 10th Cir. 1997) (same).

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 [C]reditor, Paul Moushigian, requests that
this Court issue an order pursuant to 11 USC
§ 105(a) affirming the previously granted
relief from stay and permitting Moushigian to
pursue the state court claims authorized by
Order dated August 21, 2012 for the purpose of
establishing grounds for this Court’s
consideration of the dischargeability of the
subject debt or, in the alternative, that the
deadline for Moushigian’s filing of a
complaint for denial of discharge in this
Court be extended until a date 10 days after
the allowance of this motion . . . .

The bankruptcy court denied Moushigian’s motion with these words:

“Denied. See Fed. R. Bankr. P. 4004(b), 9006(b)(3).”6 Moushigian

now argues that the bankruptcy court erred by failing to exercise

its equitable powers, under 11 U.S.C. § 105(a), to provide him

relief from the confusion he experienced as a result of the

purportedly ambiguous phrasing of the four-word order. We do not

agree.

With regard to the equity powers of the bankruptcy court,

the Bankruptcy Code provides, in pertinent part: “The court may

issue any order, process, or judgment that is necessary or

appropriate to carry out the provisions of this title.” 11 U.S.C.

6
Rule 9006(b)(3) provides that the enlargement of time to
object to a discharge is governed by Rule 4004(b). Rule 4004(b)
provides that a motion to enlarge the time for objecting to a
discharge must be filed before the deadline for objecting has
expired, unless the motion is based upon facts sufficient to
support revocation of the discharge that the creditor did not know
before the deadline for objecting. Id. In addition, Rule 4007(c)
provides that a motion to enlarge the time for filing a complaint
to obtain a determination regarding the dischargeability of a debt
must be filed before the deadline for filing a complaint has
expired.

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§ 105(a). We, in turn, have elaborated upon the purpose and scope

§ 105(a):

Although not “‘a roving commission to do
equity,’” see Bessette [v. Avco Fin. Servs.,
Inc.], 230 F.3d [439,] 444 [(1st Cir. 2000)]
(quoting Noonan [v. Sec’y of Health & Human
Servs. (In re Ludlow Hosp. Soc’y, Inc.)], 124
F.3d [22,] 27 [(1st Cir. 1997)]), we have
recognized that a court “is well within its
authority under § 105(a) . . . to enforce a
specific code provision, . . .” see id. at 444
(citation omitted). . . . Finally, although
§ 105(a) “does not itself create a private
right of action . . . a court may invoke
§ 105(a) ‘if the equitable remedy utilized is
demonstrably necessary to preserve a right
elsewhere provided in the Code.’” Id. at 444-
45 (quoting Noonan, 124 F.3d at 28).

Ameriquest Mortg. Co. v. Nosek (In re Nosek), 544 F.3d 34, 43-44

(1st Cir. 2008) (footnote omitted). That said,

§ 105(a) may not be invoked where the result
of its application would be inconsistent with
any other Code provision or it would alter
other substantive rights set forth in the
Code. See Bessette, 230 F.3d at 445; In re
Jamo, 283 F.3d 392, 403 (1st Cir. 2002); see
also In re Padilla, 389 B.R. 409, 430 (Bankr.
E.D. Pa. 2008) (“The essence of the boundary
of § 105(a) equity power is that the provision
cannot provide the basis for requested relief
that would either (1) create a new substantive
right or (2) conflict with another provision
of the Bankruptcy Code.”).

Id. at 44.

We need not decide whether the bankruptcy court had the

power under § 105(a) to grant Moushigian’s request. It suffices to

say that we see no abuse of discretion in the bankruptcy court’s

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refusal to relieve Moushigian of the consequences of his own

mistake. Cf. Patriot Portfolio, LLC v. Weinstein (In re

Weinstein), 164 F.3d 677, 686 (1st Cir. 1999) (noting that we

“review the bankruptcy court’s discretionary decision to reopen the

case and reconsider its prior decision for an abuse of

discretion”).

The relief Moushigian sought in his motion for

reconsideration amounts to relief from his counsel’s erroneous

belief that the bankruptcy court’s four-word order satisfied the

deadlines established in the order on his motion to expedite. To

correct that error, the bankruptcy court would have had to exercise

exactly the sort of “roving commission to do equity” that we

rejected in Nosek, 544 F.3d at 43. Moreover, if we were to endorse

the application of § 105(a) to the circumstances of this case,

turning that statute into an automatic safety valve for errors by

counsel, we would render the deadlines in the Bankruptcy Rules

unduly unpredictable. This, in turn, would seriously undermine the

finality of discharges and other bankruptcy court actions. That,

obviously, is not what § 105(a) is for. The bankruptcy court

committed no error of law by denying Moushigian’s motion for

reconsideration.

Finally, in an argument that is entirely undeveloped,

Moushigian contends that the exceptions to discharge set out in 11

U.S.C. §§ 523(a)(2) and (4) are so historically and socially

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important that they express a “bankruptcy policy” that supports the

restoration of his ability to prosecute a § 523(a) complaint. But,

Moushigian cannot explain how the importance of those statutory

exceptions to discharge is sufficient to overcome the bankruptcy

policies favoring the orderly and timely disposition of § 523(a)

claims. Those policies are expressed in: (1) the 60-day deadline

for filing complaints contesting discharge under §§ 523(a)(2) and

(4), see Fed. R. Bankr. P. 4007(c); (2) the requirement that a

motion to extend the deadline for filing such a complaint shall be

filed before the deadline expires, see id.; (3) our own holding

that a creditor who fails to “commence a timely adversary

proceeding to determine dischargeability” under §§ 523(c)(2) or (4)

waives the nondischargeability issue, see Whitehouse v. LaRoche,

277 F.3d 569, 576 (1st Cir. 2002); and (4) the bankruptcy court’s

order requiring Moushigian to move the court for an extension of

the September 27 deadline for filing a § 523(a) complaint. In

short, Moushigian’s policy argument is unpersuasive.

III. Conclusion

The orders of the district court are affirmed.

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