FILED
NOT FOR PUBLICATION
OCT 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CYNTHIA CYNKO ZIPSER, No. 16-60027
Debtor, BAP No. 15-1258
______________________________
CYNTHIA CYNKO ZIPSER, MEMORANDUM*
Appellant,
v.
OCWEN LOAN SERVICING, LLC,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kurtz, Taylor, and Faris, Bankruptcy Judges, Presiding
Argued and Submitted October 3, 2017
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and N.R. SMITH, Circuit Judges.
Appellant Cynthia Zipser (Zipser) appeals the decision of the Bankruptcy
Appellate Panel (BAP) affirming the bankruptcy court’s overruling of Zipser’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
objection to a secured claim asserted by Appellee Ocwen Loan Servicing, Inc.
(Ocwen) during Zipser’s Chapter 13 bankruptcy proceedings.
Zipser has the burden on appeal of demonstrating error in the bankruptcy
court’s decision. Although her brief includes many citations to authority, it is not a
model of clarity. She has not identified any error in the authority relied on by the
bankruptcy court in making its decision. And little of the authority she cites is on
point. The best we can tell, she challenges Ocwen’s standing to file the proof of
claim and the bankruptcy court’s ultimate decision to deny her objection to
Ocwen’s proof of claim without an evidentiary hearing. Neither claim has merit.
The bankruptcy court properly applied California law in holding that Ocwen
had standing to enforce its claim as the possessor of a promissory note endorsed in
blank. See Spencer v. Sterling Bank, 63 Cal. App. 4th 1055, 1059 (1998)
(articulating that “[w]hen indorsed in blank, an instrument becomes payable to the
bearer and may be negotiated by transfer of possession alone until specially
indorsed”) (citation omitted); see also Cedano v. Aurora Loan Servs., LLC (In re
Cedano), 470 B.R. 522, 526 n.2 (9th Cir. B.A.P. 2012) (explaining that, under
California law, if “the Note is endorsed in blank . . . whoever has possession may
enforce the Note”). Ocwen presented sufficient evidence establishing its authority
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to pursue the claim against Zipser based on its actual possession of the promissory
note. See id.
Zipser fails to demonstrate that the bankruptcy court abused its discretion in
overruling her objection to the proof of claim. Bitters v. Networks Elec. Corp. (In
re Networks Elec. Corp.), 195 B.R. 92, 96 (B.A.P. 9th Cir. 1996). The bankruptcy
court applied the proper burden of proof. Ocwen’s proof of claim “constitute[d]
prima facie evidence of the validity and amount of the claim” and Zipser had the
burden to “come forward with sufficient evidence and show facts tending to defeat
the claim by probative force equal to that of the allegations of the proofs of claim
themselves.” Lundell v. Anchor Constr. Specialists, Inc. (In re Lundell), 223 F.3d
1035, 1039 (9th Cir. 2000) (citations and internal quotation marks omitted).
However, Zipser failed to present any evidence supporting her challenge to the
validity of Ocwen’s claim. Thus, Zipser’s assertion that Ocwen failed to
demonstrate the chain of possession of the promissory note, even if true, is
immaterial and would not render the bankruptcy court’s decision an abuse of
discretion.
The record does not reflect that Zipser requested an evidentiary hearing. In
any event, Zipser fails to demonstrate that an evidentiary hearing was warranted
under the facts of this case in which Ocwen sufficiently demonstrated that it had
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standing to enforce the promissory note. As a result, the bankruptcy court did not
abuse its discretion in failing to conduct an evidentiary hearing because “there was
[an] adequate factual basis for the bankruptcy court’s decision” and “[a]dditional
evidentiary support [was] unnecessary.” Zurich Am. Ins. Co. v. Int’l Fibercom,
Inc. (In re Int’l Fibercom, Inc.), 503 F.3d 933, 946 (9th Cir. 2007).
The decision of the bankruptcy court is AFFIRMED.
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