In re: U.S.A. Dawgs, Inc.

FILED
MAR 25 2019
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT

In re: BAP No. NV-18-1241-TaBKu

U.S.A. DAWGS, INC., Bk. No. 2:18-bk-10453-mkn

Debtor. Adv. No. 2:18-ap-01011-mkn

MOJAVE DESERT HOLDINGS LLC,

Appellant,

v. MEMORANDUM*

GEMCAP LENDING I, LLC,

Appellee.

Argued and Submitted on February 21, 2019
at Las Vegas, Nevada

Filed – March 25, 2019

Appeal from the United States Bankruptcy Court
for the District of Nevada

*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
 Honorable Laurel E. Babero, Bankruptcy Judge, Presiding

Appearances: Elizabeth E. Stephens of Sullivan Hill Lewin Rez & Engel
argued for Appellant; Todd Michael Lander of Freeman,
Freeman & Smiley LLP argued for Appellee.

Before: TAYLOR, BRAND, and KURTZ, Bankruptcy Judges.

INTRODUCTION

Shortly after filing a chapter 111 case, debtor U.S.A. Dawgs, Inc. filed

an adversary proceeding (the “Adversary Proceeding”) against its

prepetition financier, GemCap Lending I, LLC (“GemCap”). GemCap

asserted an approximately $3,900,000 claim against Debtor’s bankruptcy

estate, but in the Adversary Proceeding Debtor asserted claims for

damages, offset, and declaratory relief.

Eventually, Debtor and GemCap agreed, on the record, that GemCap

would have an allowed secured claim for $4,300,000 and that Debtor would

either promptly finalize a reorganization plan or liquidate its assets. Both

an unsuccessful proposed plan and the order approving the eventually

required asset sale provided for a GemCap secured claim in the amount

established in the oral agreement.

1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal
Rules of Bankruptcy Procedure.

2
 After the sale, and on the eve of a hearing on GemCap’s motion

seeking formal dismissal of the Adversary Proceeding, the purchaser of all

the estate’s assets sold claims against GemCap and another entity to

Mojave Desert Holdings LLC (“Mojave”). Mojave sought to delay the

hearing on the dismissal motion. But the bankruptcy court denied this

request and then dismissed the Adversary Proceeding with prejudice; it

held that Debtor and GemCap had reached an enforceable agreement that

liquidated GemCap’s claim and resolved all issues extant in the Adversary

Proceeding.

Mojave appeals both decisions. It argues that the bankruptcy court

abused its discretion in denying its continuance request, that the Debtor-

GemCap agreement on the record did not explicitly require dismissal of the

Adversary Proceeding, and that, if the oral agreement was a final

resolution of the Adversary Proceeding, the bankruptcy court erred by not

requiring Rule 9019 notice and a hearing. We disagree. Mojave bought the

claim with a dismissal motion pending; it does not credibly argue that the

bankruptcy court erred in adhering to the long established hearing

schedule. Similarly, the bankruptcy court did not err when it dismissed the

Adversary Proceeding based on an agreement between the Adversary

Proceeding’s parties that encompassed resolution of all issues raised in the

Adversary Proceeding.

We AFFIRM the bankruptcy court’s orders.

3
 FACTS

We start with the cast of characters:

! Double Diamond Distribution Ltd (“Double Diamond”) is a

Canadian company that develops and sells DAWGS Brand footwear.

! Debtor, USA Dawgs, Inc. is the United States distributor for DAWGS

Brand footwear.

! Steven Mann and his brother Barrie Mann are co-owners of Double

Diamond and the majority owners and officers of Debtor. Steven

Mann is Debtor’s president and CEO, while Barrie Mann is Debtor’s

secretary and treasurer.

! James Mann, Steven and Barrie Mann’s brother, formed Mojave to,

among other things, acquire litigation claims against GemCap.

! GemCap is an asset-based lender that provided prepetition financing

to Debtor.

Debtor filed a chapter 11 petition in January 2018. Eight days later,

GemCap filed a motion to dismiss, to appoint a trustee for bad faith, or, in

the alternative, for stay relief or for abstention.

Shortly thereafter Debtor filed an adversary complaint against

GemCap. It alleged:

! Debtor was founded in June 2006 to distribute DAWGS footwear in

the United States. Eventually, it needed financing and contracted

with GemCap.

4
! The GemCap loan agreement provided for a revolving line of credit

secured by Debtor’s inventory and accounts receivable. The parties

amended the loan agreement seven times. GemCap received interest

at rates between 13% and 17% and collected significant fees.

! Debtor always maintained sufficient capital to secure the loan, and

initially GemCap consistently provided funding and advances.

! In mid-2017, GemCap began reduction of the borrowing base,

demanded additional information, and refused to provide customary

advances.

! GemCap then sought an eighth loan amendment; it contained

onerous demands and terms. Debtor signed the amendment under

duress.

! In January 2018, GemCap delivered a notice of default to Debtor,

accelerated all obligations, imposed the default interest rate, and

demanded that Debtor assemble collateral.

! Debtor disputed the notice of default.

! GemCap sent letters to Debtor’s customers directing them to send

payments to GemCap because of Debtor’s default.

! Debtor and GemCap then agreed to a standstill that terminated on

January 31, 2018 at noon. Debtor informed GemCap it would file a

chapter 11 petition once the standstill terminated.

! True to its word, Debtor filed bankruptcy on January 31, 2018 at 12:01

5
 p.m. It informed GemCap’s counsel of this at 12:16 p.m. Despite that

notice, GemCap filed a district court lawsuit against Debtor at 12:19

p.m.

! GemCap asserted that it was owed $3,895,104.83 on the petition date.

The Adversary Proceeding complaint then listed eight claims for

relief and requested a judgment: for damages; for punitive damages;

declaring that GemCap violated the automatic stay and for associated

damages; declaring that GemCap was not properly licensed in Nevada and

that the loan was void; sustaining Debtor’s objection to GemCap’s proof of

claim; determining the amount of GemCap’s claim; further reducing the

claim by offsets; for an accounting; for reasonable attorneys’ fees and costs;

and for pre and post-judgment interest.

GemCap responded with a motion seeking dismissal of the

Adversary Proceeding.

The main bankruptcy case was active and remained contentious;

various matters came on for hearing on May 10, 2018. From any reasonable

debtor’s perspective, this hearing was a minefield: GemCap opposed

Debtor’s request for use of its cash collateral; if use was authorized,

GemCap objected to Debtor’s proposed budget; an evidentiary hearing on

GemCap’s motion to dismiss or appoint a chapter 11 trustee was set to go

forward; and GemCap’s motion to dismiss the Adversary Proceeding

would be heard.

6
 Debtor’s counsel began the hearing by implicitly acknowledging peril

and agreeing to a rapid conclusion of the case. She stated an intention to

treat May 31, the date exclusivity terminated, as a hard date to commence

the plan process. She further noted that, given the contentious state of the

case, Debtor had filed a motion to approve a letter of intent with a new

lender, Optimal Investment Group (“Optimal”). GemCap thereafter

expressed its intent to make an offer for Debtor’s assets. The bankruptcy

court took a recess so the parties could attempt a negotiated resolution.

Two hours later, the parties returned to court and stated that,

although they needed the weekend to allow Optimal to contact its

principals, they had an agreement in principle:

MS. KOZLOWSKI: -- so that's it on the record.

So what -- the framework of the resolution of these motions
would be that GemCap would have an allowed claim of $4.3
million. The -- there would be a drop-dead date by which the
debtor must pay that $4.3 million, and that would be July 31. In
the ancillary litigation pending in California, there would be
stipulated judgments against the principals that would be held
pending payment on July 31, which could be recorded on July
31.

With regard to the plan process and the [Letter of Intent],
[Optimal] would agree to put funds in escrow by July 15th, and
again, all subject to conversations with their counsel and other
principals, but this is the framework we're hoping to effectuate.
We'd be looking for a confirmation hearing between June 15th

7
 and June 29th, subject to the Court's calendar. The parties
would work in good faith to move as expeditiously as possible
to confirmation.

If the plan is not confirmed on whatever that confirmation
hearing date is, GemCap would immediately be able to proceed
with a stalking horse bid procedures, which would be teed up.
So, for instance, if confirmation was on the 29th and Your
Honor denied confirmation of the plan, they would be able to
tee those up for the following day, effectively, is how it would
proceed.

That's generally the framework of where we are.

Hr’g Tr. (May 10, 2018) 23:14–24:13. Satisfied with the proposal, the

bankruptcy court continued the matters to May 17, 2018.

At the continued hearing, the bankruptcy judge again took a recess so

the parties could negotiate. When the parties returned, Debtor’s counsel

represented that the parties had reached a deal “again in principle.” Hr’g

Tr. (May 17, 2018) 26:3. The terms (the “May 17th Agreement”) were:

[F]irst, GemCap will have an allowed $4.3 million claim.
[Optimal] will fund escrow, $4.95 million, by June 15th. If the
money does not fund by June 15th, an auction process will be in
place. The parties will negotiate bid procedures in good faith
and will file the bid procedures motion by May 25th. Any
hearings on the bid procedures motion will be heard the first
week of June with briefing due June 4th and a hearing on --
pursuant to whatever the Court has available. . . . The payment
to GemCap will be made upon the effective date of the plan.
The confirmation date will remain July 6th. . . . If the plan is not

8
 confirmed, there will be an auction the day after the order
denying confirmation. There will be a July 31st drop-dead date
if there is no order confirming the plan, and the auction will
proceed that day. And, Your Honor, that’s subject to, obviously,
circumstances that are outside all parties’ controls. All of
today’s hearings will be continued to July 6th, and the
California litigation against the guarantors is not stayed.

Id. at 26:9–27:6. The bankruptcy court continued the hearing on all matters

to June 29th.

After the May 17th Agreement, the bankruptcy case moved forward

accordingly.

On May 22, 2018, GemCap filed its notice of credit bid “in connection

with its allowed secured claim of $4,300,000 . . . .”

On May 25, 2018, Debtor filed a motion to approve bidding

procedures and to authorize the sale of its assets free and clear, which

stated: “Debtor has agreed to an allowed secured claim in favor of GemCap

in the amount of $4.3M.”

Debtor then filed its chapter 11 plan and disclosure statement. It

placed GemCap in its own class and described GemCap as having an

allowed $4,300,000 claim. The disclosure statement, while describing the

chapter 11 process, described GemCap as aggressively opposing nearly

everything Debtor filed. But, it explained, Debtor and GemCap resolved

their then-pending disputes—which it had just described as including the

adversary complaint—through GemCap’s acceptance of a $4,300,000

9
payment to satisfy its claim in exchange for GemCap’s support of Debtor’s

reorganization.

Optimal, however, did not fund Debtor’s proposed reorganization

plan. So Debtor provided a notice of an auction that established a deadline

for bids, and the bankruptcy court entered an order approving bidding

procedures. The approved procedures provided that, if there were no

qualified bids, the GemCap credit bid would be the highest bid.

The day after bids were due, Double Diamond filed a motion to

remove litigation claims, including the Adversary Proceeding claims

against GemCap, from the list of assets being sold at the auction. In

opposition, GemCap argued that Double Diamond failed to object to the

May 17th Agreement even though Steven Mann and Barrie Mann (Debtor’s

and Double Diamond’s owners) were present in court.

The bankruptcy court heard the matter two days later. Double

Diamond’s counsel ignored the May 17th Agreement and, given Debtor’s

objection to GemCap’s claim in the Adversary Proceeding, questioned

GemCap’s ability to credit bid. Eventually, the following exchange

occurred between the bankruptcy judge and Double Diamond’s counsel:

THE COURT: But didn't the debtor make a deal in this case?

MR. RAANAN: No.

THE COURT: I mean, this was -- no, this was a negotiated
deal put on the record in front of me –

10
 MR. RAANAN: Yeah.

THE COURT: -- at a hearing.

MR. RAANAN: What was the deal, Your Honor? I looked at
the transcript. It doesn't say anything certainly about waiving
rights, you know, in terms of GemCap. It doesn't say a lot of
things. It does say that they agreed to the auction, but it doesn't
say anything about not having the ability to reconsider. And,
also, what kind of a deal was it?

THE COURT: Isn't a deal a deal?

MR. RAANAN: No. Your Honor, there is no such thing as,
you know, going up on the record and saying I'll agree to sell it
and we're stuck with it. Number one, there was no motion.

THE COURT: And -- right. And then we have a bid
procedures motion and then we approve the procedures and
everyone's on the same page.

Hr’g Tr. (June 28, 2018) 20:22–21:16. GemCap’s counsel then argued that,

from GemCap’s perspective, it had negotiated a deal resolving the dispute

and, in reliance on that deal, had allowed Debtor to consume millions of

dollars of its cash collateral.

The bankruptcy judge ruled orally, stating:

I appreciate the argument. I've certainly looked at this and
considered it very carefully. I believe that the agreement that
was reached on May 17th regarding the bid procedures, as well
as the bid-procedures motion and the bid-procedures order at
Docket Entry 383, should be enforced.

11
 I adopt all of the arguments and points and authorities that
have been made against the motion with respect to the judicial
estoppel, inconsistent statements; a deal is a deal. The
negotiations, the consideration, the detrimental reliance, all of
those points raised by GemCap, as well as Crocs, but we will be
here tomorrow and we will go to auction as set forth in the
bid-procedures order.

So if someone would prepare an appropriate order.

Id. at 53:13–54:1. Double Diamond’s counsel requested clarification:

MR. RAANAN: Yeah. Your Honor, in light of the arguments
that, number one, there are objections to the GemCap's claim in
the adversary proceeding, there has been no 9019 motion, and
therefore, no opportunity for the Court to consider any kind of
settlement of those claims. Would GemCap still be allowed to
credit bid? If the answer is no, okay. If the answer is yes, how
much? How do we decide what their credit bid is?

THE COURT: GemCap's credit bid is in accordance with the
credit bid that they put on file with the Court.

MR. RAANAN: So Your Honor is adopting the –

THE COURT: I am allowing them to proceed as proposed.

MR. RAANAN: Is their claim allowed then? Considered to be
allowed, or –

THE COURT: Based upon the agreement that was put on the
record on May 17th, their claim is allowed.

MR. RAANAN: So what does that -- where does that leave the

12
 adversary proceeding claim that says that it's being objected to?
Does that mean it's been resolved now?

THE COURT: It means it's been continued to –

MS. BROWN: July 6th, Your Honor.

Id. at 54:17–56:13.

The sale proceeded the next day. Optimal’s counsel informed the

bankruptcy court and parties that James Mann, the brother of Debtor’s

officers, approached him about purchasing the GemCap claims; but

Optimal clarified that its bid was not contingent on the resale. The

bankruptcy court approved the bid and the backup bid and directed the

parties to submit an order. It thereafter entered an order denying Double

Diamond’s motion to remove the litigation assets from the sale for the

reasons stated on the record and an order approving the sale (the “Sale

Order”).

The Sale Order confirmed that the prevailing bidder was Dawgs

Holdings LLC, a Delaware LLC and provided that GemCap’s lien would

attach to the cash proceeds “up to its Allowed Secured Claim of

$4,300,000.00, with the same validity, force, and effect that such claim has

now against the Assets or their proceeds.” Dawgs Holding LLC was an

entity formed by Optimal.

The hearing on the motion to dismiss the Adversary Proceeding was

now scheduled to proceed, but, three days before the hearing date, Mojave,

13
the entity created by James Mann, sought a continuance based on its recent

purchase of the litigation claims from Dawgs Holding LLC. The

bankruptcy court considered the continuance request and proceeded to the

merits of the dismissal. After hearing argument, the bankruptcy judge

provided an oral ruling:

Thank you. Based upon the Court's prior rulings, starting with
the May 19th agreement with respect to the dollar amount of
GemCap's claim and as reiterated in the argument on June 12th,
I found an enforceable agreement with respect to the dollar
amount of the GemCap claim such that the claims set forth in
the adversary proceeding should be dismissed. So for the
reasons set forth in the May 17th agreement, as reiterated on
June 22nd, and somewhat law of the case, in this case the
adversary proceeding will be dismissed.

Hr’g Tr. (Aug 6, 2018) 17:16–24. The bankruptcy judge clarified that the

dismissal was with prejudice.

The order that followed granted GemCap’s motion to dismiss with

prejudice based on: first, the bankruptcy court’s prior ruling that the

May 17, 2018 Agreement was enforceable; and second, the findings of fact

and conclusions of law placed on the record at the hearing on the dismissal

motion itself. The bankruptcy court also entered an order denying the

motion to continue the hearing.

Mojave timely appealed both orders.

14
 JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(2)(B), (C), (M). We have jurisdiction under 28 U.S.C. § 158.

ISSUES

Did the bankruptcy court abuse its discretion when it denied

Mojave’s continuance motion?

Did the bankruptcy court err when it dismissed the Adversary

Proceeding?

STANDARD OF REVIEW

We review de novo the bankruptcy court’s dismissal with prejudice

of the Adversary Proceeding. But we review the bankruptcy court’s

“enforcement of a settlement agreement for [an] abuse of discretion.”

Golden v. California Emergency Physicians Med. Grp., 782 F.3d 1083, 1089 (9th

Cir. 2015); Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987). We also review

for an abuse of discretion the bankruptcy court’s decision to deny a

continuance. See United States v. 2.61 Acres of Land, More or Less, Situated in

Mariposa Cty., State of Cal., 791 F.2d 666, 671 (9th Cir. 1985).

A bankruptcy court abuses its discretion if it applies the wrong legal

standard, misapplies the correct legal standard, or makes factual findings

that are illogical, implausible, or without support in inferences that may be

drawn from the facts in the record. See TrafficSchool.com, Inc. v. Edriver Inc.,

653 F.3d 820, 832 (9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d

15
1247, 1262 (9th Cir. 2009) (en banc)).

DISCUSSION

Mojave argues on appeal: first, the bankruptcy court should have

granted its motion to continue the hearing; second, the May 17th

Agreement did not require dismissal of the Adversary Proceeding; and

third, the bankruptcy court should have required a Rule 9019 motion if the

May 17th Agreement was a settlement of the Adversary Proceeding. We

disagree on all theories.

A. The bankruptcy court did not abuse its discretion when it
denied Mojave’s request to continue the hearing.

“The decision to grant or deny a requested continuance lies within

the broad discretion of the [trial] court, and will not be disturbed on appeal

absent clear abuse of that discretion.” United States v. Flynt, 756 F.2d 1352,

1358 (9th Cir. 1985). Indeed, a court’s denial of continuance will not be

overturned unless it is arbitrary or unreasonable. 2.61 Acres of Land, More or

Less, Situated in Mariposa Cty., State of Cal., 791 F.2d at 671. Here, we discern

no abuse of the bankruptcy court’s broad discretion to manage its own

calendar.

The bankruptcy judge, in exercising this discretion, could take into

account the multiple prior continuances of the hearing and the fact that the

time for opposition had passed. She could also rely on her extensive

knowledge of the history of the case. She was entitled to conclude that

16
Mojave acquired the Adversary Proceeding claims as they existed in the

hands of the Debtor and that nothing necessitated that she provide Mojave

with an opportunity for objection or a right to be heard beyond those

available to the Debtor. And given all of the above, she was entitled to

conclude that the hearing would proceed. Indeed, the family relationship

between Mojave’s founder, James Mann, and the Debtor’s control persons,

Steven and Barrie Mann, underscores that Mojave was not a stranger to the

Debtor, its bankruptcy, and the Adversary Proceeding claims before the

acquisition and that the optics and equities did not support continuance.

We acknowledge that case law suggests four relevant factors a court

should weigh before considering a continuance. And we also acknowledge

that the bankruptcy court did not explicitly discuss these factors. But our

review of the record does not suggest any basis for reversal even if we

focus on these factors here.

The first factor is the appellant’s diligence in preparing a defense

before the hearing. Id. In its brief, Mojave claims that it was diligent

because it sought a continuance as soon as it closed the purchase, but the

record makes clear that James Mann (Mojave’s founder) was contemplating

the purchase over a month earlier. Mojave was not an outside purchaser

surprised by the pendency of the dismissal motion hearing, and it cannot

demonstrate relevant and sufficient diligence here. This factor, at best, is

neutral.

17
 The second factor is whether the need for a continuance could have

been met if the continuance had been granted. Id. Mojave argues that a

short continuance would have allowed Mojave to decide what course of

action it wanted to take in connection with the Adversary Proceeding and

would have avoided the appeal. This characterization is disingenuous.

Again, the record makes clear that Mojave knew about the hearing on the

motion to dismiss before the purchase. Mojave does not articulate with

reasonable specificity how a two week continuance would have made any

difference. This factor does not support continuance.

The third factor is whether granting a continuance would

inconvenience the court and the opposing party. Id. Mojave dismisses

GemCap’s articulated inconvenience, the time and expense of attending yet

another hearing. We disagree. GemCap was entitled to have its lead

counsel from Los Angeles present at hearings, and it would be harmed by

this additional expense. This factor does not support continuance.

The fourth factor is prejudice. Id; Khan v. Rund (In re Khan), BAP

No. CC-11-1542-HPaD, 2012 WL 2043074, at *9 (9th Cir. BAP June 6, 2012).

Mojave argues that it was prejudiced because it could have taken any

number of actions regarding the asset it purchased before dismissal with

prejudice. For instance, it says, citing Stern v. Marshall, 564 U.S. 462 (2011),

it could have asked the bankruptcy court to consider whether it had

jurisdiction to hear the argument on the motion to dismiss because it was

18
now an action between two non-debtors; or it could have sought to dismiss

or otherwise transfer the action to another forum; or it could have even

sought reconsideration of prior determinations. We disagree for two

reasons. First, Mojave cannot show prejudice as a result of the timing of the

hearing because it never argues that it lacked knowledge of the upcoming,

potentially case-dispositive hearing when it purchased the

Adversary Proceeding claims. It assumed the risk that the bankruptcy

court would exercise its considerable discretion to go forward on the

hearing date. And, perhaps more importantly, given the bankruptcy

court’s conclusion that the Adversary Proceeding claims were fully

resolved by the May 17th Agreement, a determination that we affirm, there

was no prejudice in reaching the decision at a scheduled hearing as

opposed to after a two week continuance.

In sum, the bankruptcy court did not abuse its discretion in denying

the request for a continuance.

B. The bankruptcy court correctly concluded that the May 17th
Agreement required dismissal of the Adversary Proceeding.

Mojave, carefully listing all twelve terms, argues that the May 17th

Agreement did not include or require dismissal of the Adversary

Proceeding. Mojave is technically correct: the parties did not identify the

Adversary Proceeding in their agreement nor did they expressly state that

it would be dismissed. But this omission is not fatal; nor does it require

19
reversal of the bankruptcy court’s decision.

To start, the bankruptcy court dismissed the Adversary Proceeding

with prejudice for two reasons: first, it found an enforceable agreement;

and second, it incorporated by reference the reasons it gave at the June 28th

hearing. At that hearing, the bankruptcy court agreed with GemCap that

judicial estoppel applied. On appeal and despite identifying the standard

of review for the application of judicial estoppel (abuse of discretion),

Mojave never argues that the bankruptcy court’s application of judicial

estoppel was erroneous. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d

778, 782 (9th Cir. 2001). This works either a waiver or forfeiture. Orr v.

Plumb, 884 F.3d 923, 932 (9th Cir. 2018) (“The usual rule is that arguments

raised for the first time on appeal or omitted from the opening brief are

deemed forfeited.”); McKay v. Ingleson, 558 F.3d 888, 891 (9th Cir. 2009)

(“Because this argument was not raised clearly and distinctly in the

opening brief, it has been waived.”). More to the point, it is a separate,

undisputed ground to affirm the bankruptcy court’s decision.

Nor can Mojave be heard to complain about the application of

judicial estoppel, as we are unable to find a reason why it should not apply

in the present case. Judicial estoppel “is an equitable doctrine that

precludes a party from gaining an advantage by asserting one position, and

then later seeking an advantage by taking a clearly inconsistent position.”

Hamilton, 270 F.3d at 782. In the Ninth Circuit, judicial estoppel is restricted

20
to cases where the court relied on the previous inconsistent position. Id. at

783. Here, Debtor took the position that GemCap had a liquidated secured

claim of $4,300,000 in various filings; as a result of this position, Debtor

induced GemCap to support Debtor’s chapter 11 efforts instead of

opposing them at every turn, GemCap allowed use of its cash collateral,

and the bankruptcy court relied on this position when it vacated an

evidentiary hearing, continued various hearings, and entered orders

approving the sale and its procedures. We see no abuse of discretion where

the bankruptcy court found that the Debtor was judicially estopped from

denying that the May 17th Agreement resolved all issues related to the

amount and quality of the GemCap claim and in further finding that this

determination also bound Mojave when it acquired the Adversary

Proceeding claims from the Debtor as a subsequent transferee.

Even when we proceed to the arguments Mojave does raise, we see

no error. Mojave wrongly supposes that the bankruptcy court found that

the May 17th Agreement, by its express terms, required dismissal. But that

is not what the bankruptcy court said. The bankruptcy court concluded

that the May 17th Agreement liquidated GemCap’s claim and, as a result,

the Adversary Proceeding, which was filed to determine the amount of

GemCap’s claim, was resolved.2 A summary review of the Adversary

2
The parties did not, for instance, agree that GemCap’s claim would be
(continued...)

21
Proceeding complaint and case proceedings confirms the correctness of this

analysis.

! As alleged in the Adversary Proceeding complaint, the lending

relationship between Debtor and GemCap faltered and both accused

the other of breach. Debtor filed bankruptcy, and GemCap asserted a

claim. Debtor filed the Adversary Proceeding to determine the

amount, based on the alleged mutual breaches, owed to GemCap.

! As the chapter 11 proceeded, Debtor and GemCap reached an

agreement: GemCap would have a $4,300,000 allowed secured claim.

In exchange, GemCap would support Debtor’s chapter 11 plan,

which provided for GemCap’s claim in that amount. Debtor also

agreed that, if reorganization failed, it would sell its assets and pay

GemCap’s agreed claim from the proceeds. And this is the agreement

that Debtor discussed, first, in its chapter 11 plan and related

disclosure statement and, second, in its sale motion. It consistently

said that GemCap had a $4,300,000 allowed secured claim.

! Thus, when reorganization failed and the asset sale proceeded, the

accompanying Sale Order stated that GemCap had an allowed

secured claim of $4,300,000.

2
(...continued)
provisionally allowed for voting, plan confirmation, or sale purposes. They agreed that
it would be an allowed, liquidated, secured claim.

22
 As a result, the bankruptcy court properly dismissed the Adversary

Proceeding with prejudice because the Debtor and GemCap had already

resolved the ultimate issue for decision, the amount of GemCap’s claim. In

doing so, the bankruptcy court stated that it was enforcing the May 17th

Agreement, which liquidated the amount of GemCap’s claim.3 This was not

an abuse of discretion.

C. Mojave and all creditors had adequate notice of the terms of
the May 17th Agreement.

Mojave next argues that the bankruptcy court should have required a

Rule 9019 motion with notice to all creditors before finally approving the

May 17th Agreement. Mojave never articulates why this might be an issue

until its reply appellate brief where it posits that the lack of notice violated

due process rendering the “settlement” void.

To start, Mojave is wrong: notice is not always required. Rule 9019

states that “after notice and a hearing, the court may approve a

compromise or settlement.” Fed. R. Bankr. P. 9019(a). But the Rule goes on

to state: notice shall be given “as provided in Rule 2002 . . . .” Fed. R. Bankr.

P. 9019(b). Rule 2002, in turn, provides for twenty-one days’ notice for a

“hearing on approval of a compromise or settlement of a controversy . . .

unless the court for cause shown directs that notice not be sent . . . .” Fed. R.

3
At oral argument, Mojave was unable to articulate what in the Adversary
Proceeding remained to be resolved after the parties entered into the May 17th
Agreement.

23
Bankr. P. 2002(a)(3). The Rules, thus, expressly allow a bankruptcy court to

waive the requirement of notice on all creditors.

Mojave then imprudently relies on In re Kong (one of our

unpublished, non-precedential decisions) for its due process argument.

Yang Jin Co., Ltd. v. Miller (In re Kong), BAP No. CC-15-1371-KiTaL, 2016

WL 3267588 (9th Cir. BAP June 6, 2016). In In re Kong, the debtor, chapter 7

trustee, and a potential purchaser appeared at a sale hearing. Id. at *3. The

debtor and chapter 7 trustee negotiated a settlement during a recess and

read the terms into the record. Id. The bankruptcy court then approved the

settlement under Rule 9019 and stated that it was not concerned about

there being any other creditors who would care about the agreement. Id. at

*4. But there was a concerned creditor; it appealed. Id.

On appeal, we vacated and remanded. Id. at *9. In doing so, we

emphasized that Rule 9019’s notice requirements were not mandatory and

were subject to waiver by the bankruptcy court. Id. at *8. This was because,

in part, the purpose of the notice provision “is to provide parties with a

pecuniary interest in the settlement an opportunity to object to a settlement

agreement that is unsatisfactory.” Id. at *7. And so we explained: “While

bankruptcy courts have discretion to reduce or eliminate the notice period

for settlements or compromises, that discretion is limited.” Id. at *8 (citing

cases). For a bankruptcy court to dispense with formal notice requirements,

“generally some exigent circumstance existed where the court needed to

24
act quickly or providing notice to all creditors was unduly burdensome.”

Id. Those circumstances, we concluded, were not present in that case: there

were no exigent circumstances; creditors had no notice whatsoever; the

trustee had noticed the hearing as a sale subject to overbid and not as a

settlement; and the purchaser who attended the hearing was prohibited

from overbidding. Id. at *9.

In re Kong does not support Mojave’s position, and Mojave, who was

not a creditor, is not comparable to the Kong appellant.

Here, Debtor’s creditors had sufficient notice of the salient terms of

the May 17th Agreement and opportunities for opposition. Debtor

provided notice that GemCap’s claim was allowed at $4,300,000 in its plan

and disclosure statement and referred to GemCap’s credit bid in its motion

to sell. No creditor or other party objected to the motion to sell on that

basis. And the bankruptcy court accordingly granted the sale motion and

determined, in the Sale Order, that GemCap’s claim was $4,300,000.

Further, Mojave lacks standing to complain about lack of notice.4 It

purchased the GemCap claims from a prevailing bidder. So it acquired

only the prevailing bidder’s interests. Cf. Trejos v. VW Credit, Inc. (In re

Trejos), 374 B.R. 210, 215 (9th Cir. BAP 2007) (“An assignee typically ‘steps

into the shoes’ of an assignor.”). And the prevailing bidder’s interest was

limited by the terms of the Sale Order which explicitly states that

4
Mojave’s standing to question the May 17th Agreement is also suspect.

25
GemCap’s allowed secured claim was $4,300,000. Mojave has not, did not,

and cannot appeal the Sale Order, which is now final.

Finally, Mojave never argues that approving the May 17th

Agreement was an abuse of discretion under Rule 9019. Although the

bankruptcy court did not clearly and distinctly articulate the relevant

factors,5 the bankruptcy judge saw fit to enforce the settlement. Given the

considerable complexity involved and the associated expense in resolving

the litigation and given that the May 17th Agreement allowed Debtor to

proceed with either a chapter 11 plan or liquidation that might provide

funds to unsecured creditors, we see no abuse of discretion and will not

second guess the bankruptcy judge’s decision.

CONCLUSION

Based on the foregoing, we AFFIRM the bankruptcy court’s orders.

5
Rule 9019 gives the bankruptcy court considerable latitude in approving a
compromise or settlement: it may approve a compromise if it is fair and equitable. Fed.
R. Bankr. P. 9019(a); Woodson v. Fireman’s Fund Ins. Co. (In re Woodson), 839 F.2d 610, 620
(9th Cir. 1998). The four relevant factors are: “(a) The probability of success in the
litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the
complexity of the litigation involved, and the expense, inconvenience and delay
necessarily attending it; (d) the paramount interest of the creditors and a proper
deference to their reasonable views in the premises.” Martin v. Kane (In re A & C Props.),
784 F.2d 1377, 1381 (9th Cir. 1986).

26