FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: KEITH BURNETT; In re:
SHELLY BURNETT,
Debtors, No. 04-15503
BAP No.
KEITH BURNETT; SHELLY BURNETT, NV-03-01189-
Appellants, RiKRy
v. OPINION
RESURGENT CAPITAL SERVICES,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Ryan, Klein, and Rimel, Bankruptcy Judges, Presiding
Argued and Submitted
December 8, 2005—San Francisco, California
Filed January 12, 2006
Before: Stephen S. Trott, Thomas G. Nelson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Trott
595
IN RE: BURNETT 597
COUNSEL
Geoffrey L. Giles, Reno, Nevada, for the appellants.
Matthew L. Johnson, Lavelle & Johnson, P.C., Las Vegas,
Nevada, for the appellee.
598 IN RE: BURNETT
OPINION
TROTT, Circuit Judge:
Keith and Shelly Burnett (the Burnetts) appeal a decision
of the Bankruptcy Appellate Panel (BAP), which reversed a
bankruptcy court’s disallowance of three claims asserted by
Resurgent Capital Services (Resurgent) in the Burnetts’ Chap-
ter 13 bankruptcy case. The BAP held that Resurgent, an
assignee creditor, was not required to disclose the amount it
paid for three assigned claims in order for the claims to be
allowed.
The Burnetts do not appeal that holding, but argue that the
BAP should not have reached the issue of whether the consid-
eration paid for the claims is relevant to the allowance of the
claims. The Burnetts assert the BAP should instead have held
that the bankruptcy court acted within its discretion when it
denied Resurgent’s motion to amend its order. They argue
also that the BAP improperly decided the case on an inade-
quate record and, at the very least, should have remanded for
further proceedings in the bankruptcy court.
We have jurisdiction pursuant to 28 U.S.C. § 158(d). How-
ever, we do not reach the merits of the Burnetts’ arguments
because they have waived all of the issues they raise in this
appeal. Therefore, we affirm the BAP’s decision.
FACTS AND PROCEDURAL HISTORY
A. Proceedings Before the Bankruptcy Court:
The Burnetts filed a voluntary Chapter 13 petition in the
United States Bankruptcy Court for the District of Nevada on
April 16, 2002. Resurgent is in the business of purchasing
debts from lenders after the debtors have filed bankruptcy;
Resurgent then files proofs of claim in the bankruptcy pro-
ceeding as an assignee creditor. In June of 2002, Resurgent
IN RE: BURNETT 599
purchased from GE Capital Corporation several debts on
which the Burnetts were the debtors.
Resurgent filed proofs of claim for three separate debts it
had purchased.1 The Burnetts filed objections to the three
proofs of claim, arguing that (1) the amounts stated in the
proofs of claim were different from those listed in their sched-
ules, (2) there was no evidence Resurgent was the owner of
the claims, and (3) there was no evidence of the price Resur-
gent paid for the claims. The Burnetts requested three pieces
of information: proof the debts were due and owing to the
assignor creditor, proof Resurgent actually purchased the
debts, and proof of the amount Resurgent paid for them.
Resurgent replied to the Burnetts’ objections, stating that it
purchased the accounts from GE Capital and requesting addi-
tional time to obtain documentation of the debts.
On September 18, 2002, U.S. Bankruptcy Judge Bert M.
Goldwater held a hearing on the objections to the claims. At
the time of the hearing, counsel for the Burnetts stated he
would not oppose a continuance if Resurgent’s counsel would
disclose all of the information requested by the Burnetts.
Counsel for Resurgent agreed that Resurgent would disclose
any information it could obtain from GE Capital, but that
there might be certain information that would not be avail-
able. The hearing was continued and eventually held on
November 20, 2002. Visiting Judge Thomas Glover disal-
lowed all three claims in an order dated December 3, 2002.
Judge Glover did not state his reasons for sustaining the debt-
ors’ objections, other than that good cause existed to do so.
Resurgent eventually submitted to the bankruptcy court
three affidavits of sale by GE Capital, the assignor creditor,
containing information regarding the amounts owing on the
claims, as well as information confirming that Resurgent
1
The debts were for consumer goods purchased by the Burnetts from
Ethan Allen, The Home Depot, and J.C. Penney.
600 IN RE: BURNETT
owned the claims. Resurgent filed a motion to amend the
order disallowing the claims and to make additional findings
of fact on December 13, 2002. Resurgent did not disclose, and
has never disclosed, the amount it paid for the debts, claiming
such information is confidential and proprietary.
The motion to amend was heard on February 26, 2003,
again by Visiting Judge Glover. Resurgent asked the court to
amend its order disallowing the claims, based on the affidavits
of the assignor creditor. The judge denied the motion because
it was not until after the November 20 hearing that Resurgent
had provided any information regarding the claims.
B. Proceedings Before the Bankruptcy Appellate Panel:
Resurgent appealed to the BAP and presented four argu-
ments in its opening brief: (1) the bankruptcy court did not
engage in the requisite burden-shifting analysis and the bur-
den never shifted to Resurgent to prove the validity of the
claims; (2) Resurgent proved the validity of the claims even
if it had the burden to do so; (3) the bankruptcy court erred
in not making any findings of fact; and (4) the bankruptcy
court improperly treated the motion to amend and to make
additional findings of fact as a motion for reconsideration,
requiring a remand to the bankruptcy court.
Resurgent mentioned the issue of disclosure of the amounts
paid for the claims only twice in its opening brief to the BAP;
these were short conclusory statements that the amount paid
for an assigned claim is irrelevant. However, the Burnetts
dedicated a large portion of their answering brief to that issue.2
Indeed, the Burnetts’ argument to the BAP was not that the
bankruptcy court properly exercised its discretion in denying
2
The other arguments the Burnetts presented to the BAP were that
Resurgent promised certain information in open court and should have to
fulfill that promise, and that the appeal was moot. The Burnetts do not
assert either of these arguments in the current appeal.
IN RE: BURNETT 601
Resurgent’s motion to amend, as it is in this appeal, but that
the initial disallowance of the claims was proper because
Resurgent refused to disclose the consideration paid for the
claims and because the amounts of the claims asserted in the
proofs of claim were different from those in the debtors’
schedules. The Burnetts argued that the amount paid for a
claim is the true measure of the value of the claim and is of
central importance to the Chapter 13 process. At no point in
their brief to the BAP did the Burnetts assert that the BAP
should review only the denial of the motion to amend; all of
their arguments addressed the issues surrounding the underly-
ing proofs of claim and the December 3, 2002 order disallow-
ing them.3
While the transcript of the BAP oral argument was not
made a part of the record on appeal, the parties agree that dur-
ing that oral argument, counsel for the Burnetts conceded in
response to questioning by Judge Ryan that the main dispute
was over Resurgent’s refusal to disclose the amount it paid for
the claims, and that the issue of the discrepancies in the
amounts of the claims was “de minimis.” The BAP character-
ized this exchange as a clarification “that the sole remaining
dispute relates to Resurgent’s refusal to disclose its purchase
price and that there is no longer any dispute as to the validity
and amounts of the respective underlying debts or as to Resur-
gent’s status as assignee.” Resurgent Capital Servs. v. Burnett
(In re Burnett), 306 B.R. 313, 316 (B.A.P. 9th Cir. 2004).
While the BAP would normally remand a case where the
bankruptcy court refused to make findings of fact after being
asked to do so, the BAP found that “the record as clarified by
3
Resurgent touched briefly upon the denial of the motion to amend in
its opening brief to the BAP, but Resurgent argued only that the bank-
ruptcy court improperly treated the motion as a motion for reconsidera-
tion. Resurgent stated that the two motions were governed by different
standards and asked for a remand, but did not state what the different stan-
dards were or how the outcome should have been different. The Burnetts
did not address this issue in their brief to the BAP.
602 IN RE: BURNETT
the parties is sufficient to enable us to decide the controlling
question” of the relevance of the consideration paid for the
claims. Id. at 317. The BAP found also that the Burnetts did
not seriously question Resurgent’s status as assignee and that
their complaint about the amounts of the claims was not meri-
torious because the discrepancies in the amounts actually
favored the Burnetts. Id. at 317 n.8. The BAP reversed the
bankruptcy court, with one judge dissenting. The majority, in
an opinion by Judge Rimel, held that the amount paid for an
assigned claim is irrelevant, as a matter of law, to the allow-
ance of the claim. Id. at 319.
Judge Ryan dissented, asserting that the bankruptcy court
properly shifted the burden to Resurgent to prove the validity
of its claims once the debtors filed an objection to the claims
that contradicted the amounts claimed and questioned the
ownership of the claims, and that the bankruptcy court prop-
erly disallowed the claims when Resurgent failed to provide
documentation of the claims. Id. at 320-21 (Ryan, J., dissent-
ing). With respect to the bankruptcy court’s denial of the
motion to amend, the dissent noted Resurgent had not alleged
that the affidavits of sale were newly discovered evidence or
that a denial of the motion would result in manifest injustice.
Id. at 321. Judge Ryan would have held that the bankruptcy
court acted within its discretion in denying the motion to
amend. Id. at 322. The Burnetts timely filed their Notice of
Appeal on March 4, 2004.
STANDARD OF REVIEW
We review decisions of the BAP de novo. Hanf v. Summers
(In re Summers), 332 F.3d 1240, 1242 (9th Cir. 2003). “When
a decision of the bankruptcy court is on appeal from the BAP,
we independently review the bankruptcy court’s decision.”
County of Santa Cruz v. Cervantes (In re Cervantes), 219
F.3d 955, 959 (9th Cir. 2000).
IN RE: BURNETT 603
DISCUSSION
The Burnetts have not appealed the issue actually decided
by the BAP: that the amount paid by a creditor for an assigned
claim is irrelevant, as a matter of law, to the allowance of the
creditor’s claim. Rather, the Burnetts argue on appeal that the
BAP should not have reached that issue in the first place.
They argue that the BAP should instead have decided that the
bankruptcy court did not abuse its discretion in denying the
motion to amend because Resurgent did not produce evidence
supporting the amounts or the ownership of the claims until
after the claims were disallowed. They argue also that Resur-
gent failed to provide a necessary transcript to the BAP and
the BAP, therefore, improperly decided the case on an inade-
quate record. Alternatively, they argue that the opinion of the
BAP should be vacated and the case remanded to the bank-
ruptcy court because the record is deficient as to what infor-
mation the Burnetts requested and what information
Resurgent agreed to provide. In contrast to the Burnetts’ brief
to the BAP, which asserted arguments concerning the initial
disallowance of the claims, the Burnetts’ brief in the current
appeal asserts arguments aimed at the denial of the motion to
amend. None of the Burnetts’ current arguments were pre-
sented to the BAP.
[1] Absent exceptional circumstances, issues not raised
before the BAP are waived. Moldo v. Matsco, Inc. (In re
Cybernetic Servs., Inc.), 252 F.3d 1039, 1045 n.3 (9th Cir.
2001). In re Cybernetic Servs., Inc. involved the priority of a
secured creditor’s interest in a patent over that of the trustee.
Id. at 1044. In that case, we refused to consider the issue of
whether the trustee held the status of an “unsatisfied execu-
tion creditor,” rather than a hypothetical lien creditor, under
11 U.S.C. § 544(a)(2). Id. at 1045 n.3. The trustee did not
present that issue to the BAP and did not allege any excep-
tional circumstances that would justify our considering the
issue, nor could we find any evidence of such circumstances
in the record. Id.
604 IN RE: BURNETT
In their opening brief in this appeal, the Burnetts assert the
BAP should have reviewed the denial of the motion to amend,
rather than the initial disallowance of the claims:
The issue before the BAP really amounted to[,] did
Judge Glover properly rehear the matter? And not[,]
should . . . the proof of claim have been denied to
begin with? This crucial distinction was ignored by
the majority, but noted in the dissent.
The BAP simply ignored what was before it, pre-
ferring to launch into a lengthy explanation about
why one of the debtors’ grounds for objection[,] the
price paid, was erroneous. This was vastly more than
what was required to decide the case in question, as
the dissent notes.
Appellants’ Opening Brief at 10-11 (filed June 24, 2004).
[2] However, while faulting the BAP for reviewing the ini-
tial disallowance of the claims instead of the denial of the
motion to amend, the Burnetts ignore the fact that they did not
present any argument to the BAP regarding the motion to
amend; all of their arguments addressed the initial disallow-
ance of the claims. Resurgent’s arguments also were aimed
primarily at the initial disallowance of the claims. The only
argument Resurgent made concerning the motion to amend
was that a remand was required so the bankruptcy court could
consider the motion under a different standard.
[3] Because none of the Burnetts’ current arguments were
presented to the BAP, the Burnetts have waived these argu-
ments unless there are exceptional circumstances that indicate
we should exercise our discretion to consider them. “One
‘exceptional circumstance’ is when the issue is one of law and
either does not depend on the factual record, or the record has
been fully developed.” El Paso v. Am. W. Airlines, Inc. (In re
Am. W. Airlines, Inc.), 217 F.3d 1161, 1165 (9th Cir. 2000)
IN RE: BURNETT 605
(holding, in a bankruptcy case on appeal from the district
court, that an issue of statutory construction not raised in the
district court could be considered on appeal). The Burnetts do
not allege that the issues they ask us to decide do not depend
on the record or that the record is fully developed. In fact, the
Burnetts explicitly argue that the record before the BAP was
deficient, requiring reversal or remand. The Burnetts do not
explain why they did not raise these issues below, nor do they
allege any exceptional circumstances. See In re Cybernetic
Servs., Inc., 252 F.3d at 1045 n.3.
At oral argument before this Court, counsel for the Burnetts
argued that, because we are to undertake a de novo review of
the bankruptcy court’s decision, the Burnetts’ failure to pre-
sent their current arguments to the BAP is irrelevant. It is true,
of course, that we conduct an independent review of the bank-
ruptcy court’s decision when that decision is on appeal from
the BAP. In re Cervantes, 219 F.3d at 959. However, it is also
true that an issue is waived if not presented to the BAP, unless
exceptional circumstances exist to justify consideration of the
issue. In re Cybernetic Servs., Inc., 252 F.3d at 1045 n.3. The
Burnetts failed to make their current arguments to the BAP
and now ask us to reach issues presented for the first time on
appeal. We decline to do so.
[4] Before the BAP, the Burnetts conceded that only two
issues remained: the amount Resurgent paid GE Capital for
the claims and the amounts of the claims themselves. The
Burnetts further conceded that the latter issue was de minimis.
We are confident that this issue is now resolved, as counsel
for Resurgent stated at oral argument that Resurgent would
stipulate to the amounts of the claims listed on the Burnetts’
schedules.
CONCLUSION
[5] Until the BAP rendered its decision, the Burnetts relied
on the argument that they were entitled to information regard-
606 IN RE: BURNETT
ing the amount paid for the claims. They never put forth their
current arguments until this appeal. They do not assert, nor do
we find, any exceptional circumstances that would justify an
exercise of discretion to consider those arguments. Because
the Burnetts have waived all of the issues they raise in this
appeal, the judgment of the BAP is
AFFIRMED.