NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
DEC 16 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: ROUHEL FEINSTEIN, No. 20-56279
Debtor, D.C. No. 2:19-cv-10534-SVW
______________________________
TAMMY R. PHILLIPS; TAMMY R MEMORANDUM*
PHILLIPS, A PROFESSIONAL LAW
CORPORATION,
Appellants,
v.
ROUHEL FEINSTEIN,
Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted November 15, 2022**
Pasadena, California
Before: NGUYEN and H.A. THOMAS, Circuit Judges, and FITZWATER, ***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
Appellants-Creditors Tammy R. Phillips and Tammy R. Phillips, A
Professional Law Corporation (“Creditors”) appeal the district court’s judgment
affirming the bankruptcy court’s order allowing Appellee-Debtor Kevan Harry
Gilman (“Gilman”) to claim a homestead exemption under California Code of
Civil Procedure section 704.730. As the parties are familiar with the facts and
procedural history of this case, we do not provide a detailed accounting here.
Reviewing the bankruptcy court’s conclusions of law de novo and factual findings
for clear error, In re Hawkeye Ent., LLC, 49 F.4th 1232, 1235–36 (9th Cir. 2022),
we affirm.
We first considered this case in 2018. See In re Gilman, 887 F.3d 956 (9th
Cir. 2018) (“Gilman I”). In Gilman I, we held that for Gilman’s residential
property to qualify for a homestead exemption under California law, he would
have to show that two things were true on the day he filed a bankruptcy petition:
(i) that he was residing in the relevant property, and (ii) that he intended to
continue residing in the property. See id. at 965–66. We then remanded for the
bankruptcy court to make a factual finding concerning Gilman’s intent. Id. at 966.
On remand, the bankruptcy court found that Gilman had the requisite intent
on the day he filed his bankruptcy petition and that he therefore qualified for a
homestead exemption at the time of filing. See In re Gilman, 608 B.R. 714, 721
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(Bankr. C.D. Cal. 2019) (“Gilman II”). The district court affirmed that decision,
and Creditors filed the instant appeal.
Gilman died while the appeal was pending. Gilman’s executor, Rouhel
Feinstein, argues that Gilman’s death rendered his estate ineligible for a homestead
exemption and that this appeal is therefore moot. Feinstein is mistaken. The
exemption issue is still live. See Fed. R. Bankr. P. 1016 (stating, in part, that when
a debtor dies, “the estate shall be administered and the case concluded in the same
manner, so far as possible, as though the death . . . had not occurred”).
Though Feinstein does not address any of the issues Creditors raise in this
appeal, all of Creditors’ arguments fail.
Creditors raise arguments concerning (i) the appropriate amount of the
homestead exemption, and (ii) Gilman’s intent before the petition date. Both
arguments rest on the assumption that the homestead exemption was triggered not
by Gilman’s filing of the bankruptcy petition in 2011, but by Creditors’ recording
of abstracts of judgment against the relevant property in 2007. We reject this
assumption. When we considered Gilman I in 2018, we accepted—and Creditors
did not dispute—the bankruptcy court’s conclusion that Gilman’s bankruptcy
petition had triggered an automatic homestead exemption. 887 F.3d at 965. We
have no reason to revisit that conclusion here, and Creditors have forfeited any
challenge to it. See In re Cellular 101, Inc., 539 F.3d 1150, 1155 (9th Cir. 2008).
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Creditors also urge us to find that Gilman did not intend to continue living in
the relevant property on the day he filed his bankruptcy petition. The bankruptcy
court considered the factual arguments raised by Creditors and rejected them. See
Gilman II, 608 B.R. at 721 & n.4. The record does not show that the court clearly
erred in reaching its conclusion. See In re Hawkeye, 49 F.4th at 1236.
Creditors’ remaining arguments also fail:
(i) Gilman did not lose his right of possession when he agreed to sell the
property, see Wilson v. Sanchez, 254 P.2d 594, 597 (Cal. Dist. Ct.
App. 1953) (holding that under California law, a seller retains the
right of possession until legal title passes to the purchaser, unless the
parties agree otherwise);
(ii) the bankruptcy court did not abuse its discretion in declining to reduce
the exemption amount based on unclean hands, since (a) Creditors
failed to bring analogous case law to the bankruptcy court’s attention,
and (b) Creditors did not show they were prejudiced by Gilman’s
alleged misconduct, see Kendall-Jackson Winery, Ltd. v. Superior Ct.,
90 Cal. Rptr. 2d 743, 749 (Ct. App. 1999) (stating that relief under the
unclean hands doctrine depends on the existence of analogous case
law, the nature of the alleged misconduct, and the relationship of the
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misconduct to the alleged injuries), as modified on denial of reh’g
(Jan. 3, 2000);
(iii) the bankruptcy court did not abuse its discretion in declining to deny
the homestead exemption based on equitable estoppel, since
(a) Gilman’s statement that he intended to sell the property was not a
misrepresentation, and (b) Creditors did not explain how they relied
on any such misrepresentation, see Behnke v. State Farm Gen. Ins.
Co., 127 Cal. Rptr. 3d 372, 387 (Ct. App. 2011) (noting that the
elements of a valid equitable estoppel claim include a knowing
misrepresentation of the material facts, intention to induce the reliance
of an ignorant party, and reliance);
(iv) Eleven U.S.C. Section 365(a) did not preempt the exemption in this
case, since that statute concerns a trustee’s right to “assume or reject
any executory contract or unexpired lease of the debtor,” but there is
no evidence that the trustee in this case desired to proceed with the
sale of Gilman’s property and was precluded from doing so by
California’s homestead law; and
(v) the bankruptcy court did not abuse its discretion in denying Creditors’
request to move for summary judgment on remand, see Fed. R. Bankr.
4
P. 7056; Fed R. Civ. P. 56(b) (providing that bankruptcy courts have
discretion to fix the timing of summary judgment motions).
Creditors’ motion to enlarge the record is denied for failure to comply with
Federal Rule of Appellate Procedure 27(a)(2)(A), which provides that “[a] motion
must state with particularity the grounds for the motion . . . and the legal argument
necessary to support it.”
AFFIRMED.
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