FILED
U.S. Bankruptcy Appellate Panel
BAP Appeal No. 23-17 Docket No. 31 Filed: 03/21/2024 Page: 1Tenth
of the of 15Circuit
March 21, 2024
Anne Zoltani
NOT FOR PUBLICATION1
Clerk
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT
_________________________________
IN RE BRIAN HOBBS, BAP No. WO-23-017
Debtor.
__________________________________
Bankr. No. 22-10330
FIRST NATIONAL BANK & TRUST Adv. No. 22-01049
CO. WEATHERFORD, Chapter 7
Plaintiff - Appellant,
v.
BRIAN HOBBS,
OPINION
Defendant - Appellee.
_________________________________
Appeal from the United States Bankruptcy Court
for the Western District of Oklahoma
_________________________________
Submitted on the briefs.2
_________________________________
Before ROMERO, Chief Judge, SOMERS, and PARKER, Bankruptcy Judges.
_________________________________
1
This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and issue
preclusion. 10th Cir. BAP L.R. 8026-6.
2
After examining the briefs and appellate record, the Court has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. Bankr. P. 8019(b). The case is therefore submitted without oral
argument.
BAP Appeal No. 23-17 Docket No. 31 Filed: 03/21/2024 Page: 2 of 15
SOMERS, Bankruptcy Judge.
_________________________________
Bankruptcy courts establish deadlines to ensure prompt administration of
bankruptcy cases. Failure to meet those deadlines may result in dire consequences
affecting a party’s substantive rights. An appellant faced such consequences in the
adversary proceeding it initiated after its previous attorney failed to meet the deadline to
file a witness and exhibit list for trial—information imperative for meeting the appellant’s
burden of proof—because the attorney believed the parties were going to settle. Several
weeks after the deadline to file the witness and exhibit list, and upon learning no
settlement was going forward, the appellant filed a motion to extend deadlines including
the deadline to file the witness and exhibit list. Acknowledging neglect was apparent, the
Bankruptcy Court determined it was not excusable and denied the appellant’s motion to
extend the deadline. Finding no abuse of discretion, we affirm.
I. Background
Brian Matthew Hobbs (“Debtor”) initially filed a chapter 11 subchapter V case on
February 28, 2022.3 On June 21, 2022, the Bankruptcy Court entered an order converting
Debtor’s case to one under chapter 7,4 and shortly thereafter, on September 14, 2022,
First National Bank and Trust Company Weatherford (“Appellant”) filed an adversary
proceeding.
3
Bankr. ECF No. 1.
4
Bankr. ECF No. 109. Debtor received a discharge on September 21, 2022.
Bankr. ECF No. 141.
2
BAP Appeal No. 23-17 Docket No. 31 Filed: 03/21/2024 Page: 3 of 15
In its complaint, Appellant sought a determination that certain debt owed to it via
a guaranty given by Debtor should be declared nondischargeable under 11 U.S.C.
§ 523(a)(2)(B).5 Appellant also asked the Bankruptcy Court to declare the debt fully
secured, or, in the alternative, rescind the parties’ underlying transaction, and award
attorney fees and costs.6 Debtor initially appeared pro se in the adversary proceeding.
On January 19, 2023, the Bankruptcy Court entered a Scheduling Order setting
certain deadlines. Discovery was to be completed by April 19, 2023, and the following
paragraphs set out deadlines regarding witness and exhibit disclosures:
4. Deadline for all parties to file final lists of witnesses, including expert
witnesses, together with addresses and a brief summary of expected
testimony where witness has not been deposed: *April 28, 2023
5. Deadline for all parties to file final exhibit lists and to exchange any
exhibits not previously furnished to opposing counsel or pro se party,
including but not limited to all expert witness reports: *April 28, 2023
* The final lists of witnesses and exhibits shall be in the form of a pleading
filed with the Clerk of this Court and properly served on all parties in interest,
identifying the same as the party’s final lists of witnesses and exhibits. Except
for reasons of manifest injustice, no witness who is not identified on the final
list of witnesses shall be permitted to testify, and no exhibit that is not
identified on the final list of exhibits and is not exchanged as set forth above
shall be received into evidence.7
In addition, the deadline to file dispositive motions was set for May 12, 2023, and a trial
date was set for June 21, 2023. The Scheduling Order also stated: “Additional time for
5
Adversary Complaint at 7, in Appellant’s App. at 19-22.
6
Id. at 10-11, in Appellant’s App. at 22-23. The facts underlying Appellant’s
complaint are immaterial to the issue on appeal and need not be detailed herein.
7
Scheduling Order at 2, in Appellant’s App. at 75 (emphasis added).
3
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the performance of an act required or allowed to be done in this Order shall not be
granted except for good cause.”8
Several months passed with the Bankruptcy Court hearing nothing from the
parties. On April 24, 2023, Debtor emailed counsel for Appellant reminding counsel
about the deadlines from the Scheduling Order.9 On April 28, 2023, Debtor—still acting
pro se—filed both a witness and exhibit list and a motion seeking summary judgment.
About two and a half weeks later, on May 16, 2023, counsel for Debtor entered an
appearance in the adversary proceeding, and on May 18, 2023, Appellant filed a Motion
to Extend Deadlines in the Case, Including the Deadline to Respond to the Pending
Motion for Summary Judgment (the “Motion to Extend”).10
In the Motion to Extend, Appellant sought a ninety-day extension of all pretrial
deadlines and a fourteen-day extension to respond to the pending motion for summary
judgment. Appellant reported the parties had been in settlement negotiations “for several
months.”11 Appellant reported that on April 19, 2023, the parties had agreed to certain
8
Id. at 4, in Appellant’s App. at 77.
9
Debtor sent the following email communication to Appellant on April 24, 2023:
“I’m not sure you are aware but neither [counsel for Appellant] or I requested a
continuance from [the Bankruptcy Court] on the Adversarial Action proceedings while
you and I were working on a settlement; therefore, the court ordered deadlines still apply.
I had requested Discovery items from [counsel] and they were due no later than April 19.
I have not received anything. If you and I can’t complete this settlement very soon in
order to protect my best interests, I need to alert [the Bankruptcy Court] that [Appellant
and counsel] didn’t meet the Discovery deadlines [sic throughout].” Brian Hobbs’ Motion
for Summary Judgment Seeking an Order to Dismiss Plaintiff’s Adversarial Complaint,
Exhibit C, in Appellee’s App. at 18.
10
Motion to Extend, in Appellant’s App. at 78.
11
Id. at 1, in Appellant’s App. at 78.
4
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loan modifications, and in exchange, they agreed to execute an Agreed Journal Entry of
Judgment (the “Agreed Journal Entry”) that would resolve the adversary proceeding. The
first draft of the Agreed Journal Entry was exchanged on April 26, 2023. On both April
28 and May 4, 2023, the parties exchanged further emails about the terms of the Agreed
Journal Entry and Appellant alleged that “on May 11, 2023 it appeared . . . [the] case was
settled by all parties.”12 Counsel for Appellant requested the extension “in the interest of
justice,”13 but did not address Federal Rule of Bankruptcy Procedure 900614 or identify
“cause” to extend the deadlines. The only reason given for missing the deadlines was
Appellant’s belief the case was settled.
Debtor, now represented by counsel as noted above, opposed the Motion to
Extend. Debtor argued Appellant did not meet the Rule 9006(b)(1) excusable neglect
standard for extending expired deadlines, arguing Appellant’s focus on settlement rather
than meeting deadlines was a litigation choice, not excusable neglect, and noting the
proceeding had already been on file since September 2022, about eight months prior.
The Bankruptcy Court issued a ruling denying Debtor’s motion for summary
judgment, making that portion of Appellant’s request to extend the deadline for its
response moot, and set a hearing on the balance of the Motion to Extend for June 7, 2023.
At the hearing, Appellant again asserted it missed the deadline to file its witness and
12
Id. at 1-3, in Appellant’s App. at 78-80. The Motion to Extend also stated that
on May 12, 2023, counsel for Appellant believed the case was settled because all
documents to be signed had been “agreed upon.” Id. at 3, in Appellant’s App. at 80.
13
Id. at 4-5, in Appellant’s App. at 81-82.
14
All future references to Rule or Rules shall mean the Federal Rules of
Bankruptcy Procedure.
5
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exhibit lists because counsel believed the case was settled and sought a ninety-day
extension to prepare for trial. Appellant’s counsel also mentioned, for the first time, he
would be stepping down from the trial of the proceeding due to health concerns.
Following the hearing, the Bankruptcy Court entered an Order Denying Plaintiff’s
Motion to Extend Deadlines in the Case (the “Order Denying Extension”) concluding
Appellant failed to establish excusable neglect to extend the deadlines under Rule
9006(b)(1) and failed to cite any Federal Rules of Bankruptcy Procedure or authority
allowing an extension. The Bankruptcy Court ordered the trial to go forward as
planned.15 At trial, the Bankruptcy Court barred Appellant from presenting evidence due
to its failure to meet the witness and exhibit list deadline, entered its Judgment (the
“Judgment”) in favor of Debtor, and dismissed the adversary proceeding with prejudice.16
This appealed followed.
II. Jurisdiction
The BAP has jurisdiction to hear timely filed appeals from “final judgments,
orders, and decrees” of bankruptcy courts within the Tenth Circuit, unless a party elects
to have the district court hear the appeal.17 Appellant timely filed an appeal of the
Judgment, which is a final order.18 No party has elected to have the district court hear the
appeal. Accordingly, this Court has jurisdiction to hear this appeal.
15
Order Denying Extension at 2, in Appellant’s App. at 88.
16
Judgment, in Appellant’s App. at 102-103.
17
28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8003, 8005.
18
Appellant appeals the Judgment and contends the Bankruptcy Court abused its
discretion by denying the Motion to Extend. The Order Denying Extension was an
interlocutory order that merged into the final judgment. See Koch v. City of Del City, 660
6
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III. Statement of Issues and Standard of Review
Appellant argues only one issue on appeal—whether the Bankruptcy Court abused
its discretion by denying the Motion to Extend.19 Under the abuse of discretion standard,
this Court will not disturb a bankruptcy court’s decision unless it “has a definite and firm
conviction that the lower court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.”20 An abuse of discretion occurs when “the
[trial] court’s decision is ‘arbitrary, capricious or whimsical,’ or results in a ‘manifestly
unreasonable judgment.’”21 “A clear example of an abuse of discretion exists where the
trial court fails to consider the applicable legal standard or the facts upon which the
F.3d 1228, 1237 (10th Cir. 2011) (“[O]nce a [trial] court enters a final order, its earlier
interlocutory orders merge into the final judgment and are reviewable on appeal.”). An
order and judgment dismissing an adversary proceeding with prejudice is a final order.
See Adelman v. Fourth Nat’l Bank & Tr. Co. (In re Durability, Inc.), 893 F.2d 264, 266
(10th Cir. 1990) (treating an order adjudicating all claims in an adversary proceeding as a
final order).
19
Appellant’s Opening Brief asserts three issues on appeal: “1. Whether the
district court erred in denying Appellant’s Motion to Extend[;] 2. Whether the district
court erred in barring Appellant from presenting any evidence at trial[;] and 3. Whether
the district court erred in entering Judgment in Debtor’s favor.” Appellant’s Opening
Br. 3. In briefing, however, Appellant’s only issue argued is whether the Bankruptcy
Court abused its discretion by denying the Motion to Extend, and therefore, any other
arguments are waived. Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (“Arguments
not clearly made in a party’s opening brief are deemed waived.”). All parties agree the
abuse of discretion standard applies. In re Centric Corp., 901 F.2d 1514, 1517 (10th Cir.
1990) (reviewing a lower court’s decision on a Rule 9006(b) motion for an abuse of
discretion) (citing In re Int’l Coating Applicators, Inc., 647 F.2d 121, 124 (10th Cir.
1981)).
20
In re Arenas, 535 B.R. 845, 849 (10th Cir. BAP 2015) (quoting Moothart v. Bell,
21 F.3d 1499, 1504 (10th Cir. 1994)).
21
Moothart, 21 F.3d at 1504–05 (quoting United States v. Wright, 826 F.2d 938,
943 (10th Cir. 1987)).
7
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exercise of its discretionary judgment is based.”22
IV. Analysis
A. Legal Standard Governing the Motion to Extend
Federal Rule of Bankruptcy Procedure 9006(b)(1) governs when a bankruptcy
court may enlarge the time to act under certain Rules. Specifically, a bankruptcy court
may, in its discretion, enlarge the time to meet certain deadlines.23 Rule 9006(b)(1)
allows for a court to enlarge the period after the time to act has expired “where the failure
to act was the result of excusable neglect.”24
The Tenth Circuit analyzes excusable neglect by first determining whether there
was neglect,25 and then analyzing whether it was excusable under the factors set out by
the Supreme Court in Pioneer Investment Services Company v. Brunswick Associates
Limited Partnership.26 These factors include: “(1) the danger of prejudice to opposing
parties; (2) length of delay in judicial proceedings and its impact; (3) the reason for the
delay, including whether it was in the control of the late-filer; and (4) whether the late-
22
Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1191 (10th Cir. 2018)
(quoting Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)).
23
Fed. R. Bankr. P. 9006(b)(1) (Except in circumstances not present here, “when
an act is required or allowed to be done at or within a specified period by these rules or
by a notice given thereunder or by order of court, the court for cause shown may at any
time in its discretion . . . on motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of excusable neglect.”).
24
Id.
25
See, e.g., Jennings v. Rivers, 394 F.3d 850, 856-57 (10th Cir. 2005) (observing
excusable neglect applies to situations where “failure to comply with a . . . deadline is
attributable to negligence”) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 394 (1993)).
26
See, e.g., In re Lang, 414 F.3d 1191, 1200 (10th Cir. 2005) (citing Pioneer, 507
U.S. at 380).
8
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filer acted in good faith.”27 Notably, the reason for delay remains an important factor in
determining whether neglect is excusable;28 however, the determination is ultimately an
equitable one “taking account of all relevant circumstances surrounding the party’s
omission.”29 Nevertheless, excusable neglect is not an easy standard to meet.30
B. The Bankruptcy Court’s Analysis and Arguments of the Parties
Here, the Bankruptcy Court engaged in the two-step inquiry to determine whether
Appellant’s failure to file a timely witness and exhibits list constituted excusable neglect.
The Bankruptcy Court first determined neglect was apparent and then analyzed whether it
was excusable under the four Pioneer factors.31 Appellant challenges the Bankruptcy
Court’s application of those factors.
Regarding the first Pioneer factor, the Bankruptcy Court determined there was a
danger of prejudice to Debtor given he had been in bankruptcy since the previous year.
Regarding the second factor, the length of the delay and its potential impact on judicial
27
Pioneer, 507 U.S. at 395.
28
City of Chanute, Kan. v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th Cir.
1994); Jennings, 394 F.3d at 856-57.
29
Pioneer, 507 U.S. at 395. See, e.g., Lang v. Lang (In re Lang), 305 B.R. 905
(10th Cir. BAP 2004), aff’d, 414 F.3d 1191 (10th Cir. 2005) (finding the press of
business did not constitute excusable neglect for failure to timely file a notice of appeal);
In re Scherer, No. 12-81208-TLM, 2022 WL 802588, at *3 (Bankr. E.D. Okla. Mar. 16,
2022) (unpublished) (finding counsel’s failure to adhere to filing deadline due to
inadvertence insufficient to meet the excusable neglect standard).
30
City of Chanute, Kan., 31 F.3d at 1046 (observing that although an excusable
neglect analysis remains an elastic concept, that “is not to say that the test for excusable
neglect is not a strict one”). See also In re Franco, No. 03-13492 TR7, 2019 WL
1207862, at *4 (Bankr. D.N.M. Mar. 12, 2019) (unpublished) (“Despite the ‘elastic’
nature of excusable neglect, it is not an easy standard to meet.”).
31
There was no dispute between the parties as to whether there was neglect.
9
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proceedings, the Bankruptcy Court also found that factor in Debtor’s favor as the trial
was set for two weeks from the hearing on the Motion to Extend and granting the
extension would move the trial well into the fall. Regarding the third factor, the reason
for delay and whether the delay was in the control of the movant, the Bankruptcy Court
found this factor also weighed in favor of Debtor because Appellant was in control of
filing its own witness and exhibits lists on time. The Bankruptcy Court also emphasized
that Debtor, proceeding pro se through much of the pre-trial litigation, was able to
complete the requirements set forth in the Scheduling Order. Finally, the Bankruptcy
Court determined the fourth factor, whether the movant acted in good faith, was neutral,
concluding it did not appear Appellant acted in bad faith in any way. Accordingly, the
Bankruptcy Court determined Appellant’s neglect was not excusable.
On appeal, Appellant, through new counsel, shifts its arguments somewhat.
Appellant contends its failure to comply with the Scheduling Order deadlines was
excusable neglect for two reasons: (i) Appellant’s prior counsel was experiencing health
concerns, and (ii) Appellant reasonably believed the case had settled. Appellant argues
the Pioneer factors weigh in its favor. First, Appellant contends the deadline extensions
will not prejudice Debtor because he will have adequate time to prepare for trial and,
given his knowledge of the loan at issue, allowing Appellant’s claims to proceed would
not prejudice Debtor. Appellant also asserts any prejudice to Debtor is self-inflicted
because he represented to Appellant he would accept Appellant’s settlement offer.
10
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Second, Appellant contends the length of delay would be “essentially non-
existent”32 as no additional discovery was needed, and Appellant has engaged successor
counsel who is ready to try the case immediately. Third, Appellant argues the reason for
delay weighs in Appellant’s favor because the delay was due to things outside its
control—both its prior counsel’s health issues and belief the parties reached a settlement
agreement. Fourth, Appellant submits there is no dispute over whether Appellant acted in
good faith. Finally, after presenting its analysis under the Pioneer factors, Appellant
contends public policy favors settlements and compromises, and thus, Appellant should
not be penalized for negotiating a settlement in good faith.33
Debtor contends the Bankruptcy Court did not abuse its discretion in concluding
Appellant did not demonstrate excusable neglect. Debtor notes he reminded Appellant of
the Scheduling Order deadlines, so it is incorrect to assert prejudice is self-inflicted.
Debtor also contends Appellant’s argument that the length of delay would be minimal
because it secured successor counsel to go forward with trial immediately is unpersuasive
because that was not presented to the Bankruptcy Court at the time it analyzed the
circumstances and entered the Order Denying Extension. Debtor does not dispute
Appellant’s good faith conduct, but asserts Appellant improperly relied on the good faith
belief the parties were going to settle.
32
Appellant’s Opening Br. 9.
33
Although this Court agrees with this general proposition, the Bankruptcy
Court’s denial of the Motion to Extend filed three weeks after the deadline is not a
penalty for negotiating a settlement in good faith and Appellant provides no authority to
convince this Court otherwise.
11
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C. The Bankruptcy Court did not Abuse its Discretion in Denying the Motion
to Extend
The Bankruptcy Court did not abuse its discretion in denying the Motion to
Extend. The only argument presented in the Motion to Extend was that Appellant failed
to meet the Scheduling Order deadlines because it believed the matter was settled.
Nevertheless, Appellant failed to present evidence of a reasonable belief of a settlement
agreement to the Bankruptcy Court. The record shows while the parties were negotiating
a settlement between at least April 19, 2023, and the time the Motion to Extend was filed
on May 18, 2023, there was never a firm agreement in place, and, rather, the pro se
Debtor himself informed Appellant of the need to meet the deadlines within the
Scheduling Order. Appellant’s failure to follow the Scheduling Order and the Rules
governing the adversary proceeding while it negotiated a settlement was a litigation
choice; one that ultimately proved costly.
Further, the Scheduling Order indicated that “[e]xcept for reasons of manifest
injustice,” failure to identify witnesses or exhibits by the April 28, 2023 deadline would
result in exclusion from evidence.34 In addition, the Scheduling Order warned the parties
additional time would not be granted for deadlines set by the Scheduling Order “except
for good cause.”35 Despite these warnings, Appellant did not show good cause or address
this standard at all at the Bankruptcy Court.36 Appellant did not miss the deadline to file
34
Scheduling Order at 2, in Appellant’s App. at 75.
35
Id. at 4, in Appellant’s App. at 77.
36
This case is unlike the facts presented in Pioneer, wherein the Supreme Court
noted that if a movant was “prevented from complying” with a deadline “by an act of
God or some other circumstance beyond their control” then a court “plainly” could find
12
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its witness and exhibit lists by a day, or a week; rather, the Motion to Extend was filed
three weeks after the deadline had passed.
On appeal, Appellant focuses on its prior counsel’s health concerns as the primary
reason for the missed deadline; however, the record does not show the Bankruptcy Court
was apprised of the health issues prior to the hearing. Instead, the health issues were
mentioned only in passing at the hearing.37 Appellant’s counsel did not present his health
concern as a reason for delay to the Bankruptcy Court in the Motion to Extend, nor did he
analyze the Pioneer factors to show excusable neglect due to those health issues.
Additionally, Appellant’s insistence the trial can proceed immediately has no
bearing on whether the Bankruptcy Court abused its discretion in denying the Motion to
Extend. Appellant asked the Bankruptcy Court for a ninety-day extension of all deadlines
several weeks after the trial exhibit and witness list deadline and the Bankruptcy Court
determined such time would greatly prejudice Debtor. Debtor had been in bankruptcy for
well over a year and the trial date had been set since January 2023. Following the
directive in Pioneer, the Bankruptcy Court considered the facts before it and applied the
Pioneer factors to determine Appellant did not meet the demanding standard to show
excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 394 (1993). In Pioneer, an unusual and inconspicuous notice was given of a bar date
and combined with no evidence of prejudice to the debtor or to judicial administration
and no indication of bad faith, the finding of excusable neglect was supported. Id. at 397-
98. Here, the Bankruptcy Court gave explicit notice of the deadlines ultimately missed,
and the consequences of missing those deadlines.
37
Transcript of June 7, 2023 Hearing on Motion to Extend at 8:2-4, in Appellant’s
App. at 111. At the hearing, counsel simply stated his intent to hand off the case to
someone else for trial because of health reasons with no further explanation. Id.
13
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excusable neglect. No abuse of discretion occurred because the decision was not
arbitrary, whimsical, or capricious, nor did it result in a manifestly unreasonable
judgment.
For comparison, the Tenth Circuit concluded it was an abuse of discretion to find
excusable neglect when the reason given for the delay “was simply that defense counsel
confused the filing deadlines for civil and criminal appeals.”38 This Court has affirmed a
bankruptcy court’s conclusion that no excusable neglect was shown when a deadline was
missed due to the press of other business.39 But on the other end of the spectrum, this
Court affirmed a bankruptcy court’s finding of excusable neglect where counsel received
the court’s decision after half of the appeal time had run and the client was out of state,
and it was “hard to imagine” any prejudice.40 The Bankruptcy Court’s decision in this
case is well within the bounds of this case law sampling. As the Tenth Circuit noted:
[T]he reviewing court is often called upon to review “judgment calls” . . .
based on its own view of facts in that particular case. Each case is different,
and must be so treated. There are very few right and wrong answers in this
arena. Our task, however, is made more manageable by the fact that we only
look to see if definite, clear or unmistakable error occurred below. Many
times we may find something less than this including uncertainty as to the
rightness of the district court’s action, or perhaps outright disagreement with
the court’s action. However, only if we find a complete absence of a
reasonable basis and are certain that the district court’s decision is wrong do
we reverse. Here we simply cannot say that a failure to provide relief
constitutes an abuse of discretion.41
38
United States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004).
39
Lang v. Lang (In re Lang), 305 B.R. 905, 910 (10th Cir. BAP 2004) (also
concluding “dismissal of an appeal is not the type of prejudice that will support a finding
of excusable neglect”).
40
Berger v. Buck (In re Buck), 220 B.R. 999, 1004 (10th Cir. BAP 1998).
41
Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1147 (10th Cir. 1990).
14
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While we agree with the Bankruptcy Court’s decision, a reasonable jurist could have
made a different decision. Regardless, the decision made was well within the Bankruptcy
Court’s discretion.
Because the Bankruptcy Court did not abuse its discretion by denying the Motion
to Extend, this Court also concludes the Bankruptcy Court did not err in barring
Appellant from presenting any evidence at trial nor did it err in entering judgment in
Debtor’s favor.42 Appellant initiated the adversary proceeding. Appellant had the burden
of proof on its claim.43 Appellant was responsible for meeting the deadlines set by the
Scheduling Order. Appellant had the burden to show excusable neglect warranted
extending those deadlines after they had passed. Simply put, Appellant failed to meet its
litigation burdens. Thus, we are not left with a definite and firm conviction that the
Bankruptcy Court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances and determine the Bankruptcy Court did not abuse its
discretion.
V. Conclusion
The Bankruptcy Court analyzed the facts presented in denying the Motion to
Extend. For the foregoing reasons, we AFFIRM the Bankruptcy Court.
42
See In re Arenas, 535 B.R. 845, 849 (10th Cir. BAP 2015).
43
Bellco First Fed. Credit Union v. Kaspar (In re Kaspar), 125 F.3d 1358, 1359
(10th Cir. 1997) (creditor bringing claim under § 523(a)(2)(B) had burden to show all
elements of claim).
15