Opinion
NOT FOR PUBLICATION
Argued and Submitted at Pasadena, California: June 20, 2007
Appeal from the United States Bankruptcy Court for the District of Oregon. Bk. No. 97-62183. Honorable Albert E. Radcliffe, Bankruptcy Judge, Presiding.
Before: BRANDT, MONTALI, and HOLLOWELL, [ Bankruptcy Judges.
Hon. Eileen W. Hollowell, U.S. Bankruptcy Judge for the District of Arizona, sitting by designation.
MEMORANDUM
After the bankruptcy court overruled her objection to reclassification of a creditor's claim, debtor timely moved for reconsideration, which the bankruptcy court denied. She then filed a second reconsideration motion, which was also denied. Eighteen days later, and 38 days after entry of the order denying the first reconsideration motion, debtor moved to extend the time to appeal the underlying order and filed a notice of appeal. The bankruptcy court denied the motion; debtor moved for reconsideration of that order, which the bankruptcy court also denied. Debtor amended her notice of appeal to include the latter order. Only the last order is before us in this appeal. We AFFIRM.
I. FACTS
Geraldine Smith filed a chapter 13 petition on 16 April 1997; the case was converted to chapter 7 on 12 November 1999. Frank (now deceased) and Marie Webre filed a proof of claim, which was allowed in the chapter 13 in the amounts of $15,000 secured and $1352 unsecured. The $15,000 obligation was secured by a junior deed of trust on a condominium unit in Brookings, Oregon. In 2002 Webres amended their claim, adding interest and correcting what they asserted was a typographical error, increasing the total amount due to $20,898, and changing the status of the secured portion of the claim to unsecured. The bankruptcy court disallowed the adjustment in amount but allowed the reclassification of the claim without prejudice by order entered 4 March 2004.
Absent contrary indication, all " Code, " chapter and section references are to the Bankruptcy Code, 11 U.S.C. § § 101-1330 prior to its amendment by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109-8, 119 Stat. 23, as the case from which this appeal arises was filed before its effective date (generally 17 October 2005).
Thereafter Smith objected to the reclassification. The bankruptcy court overruled her objection, entering a letter ruling and order on 19 September 2005. Smith timely moved for reconsideration on 29 September 2005. The bankruptcy court denied this motion, entering a letter ruling and order on 10 March 2006. Ten days later, Smith moved for reconsideration of the 10 March order, which motion the bankruptcy court denied by order entered 29 March 2006.
On 17 April 2006 Smith moved for an extension of time to appeal the 19 September 2005 order, arguing that she had not received a copy of the 29 March order denying her second motion for reconsideration, and had not learned of its entry until she called the court on 11 April 2006. She concurrently filed a notice of appeal of the 19 September 2005 order. The bankruptcy court denied Smith's motion as untimely, entering its letter ruling and order on 9 May 2006. In its ruling, the bankruptcy court noted that the second motion for reconsideration did not toll the time to appeal the 19 September 2005 order, citing Wages v. IRS, 915 F.2d 1230, 1234 n.3 (9th Cir. 1990) and In re Brewster, 243 B.R. 51, 54-56 (9th Cir. BAP 1999).
On 19 May 2006 Smith moved for reconsideration of the 9 May order under FRCP 60(b)(1) and (6) and the First and Ninth Amendments to the Constitution. In her motion, Smith explained that she had mistakenly requested an extension of time to appeal the 19 September 2005 order when she should have requested an extension to appeal the 29 March order. She indicated her belief that appeal of the 29 March order would enable her to obtain review of the 19 September 2005 order. She again argued that she did not timely appeal the 29 March order because she did not receive a copy of it until after the appeal deadline had passed.
The bankruptcy court denied the motion, with a letter ruling and order on 29 June 2006. On 10 July 2006 Smith filed an amended notice of appeal to include the 29 June order. In the meantime, our clerk had dismissed the appeal as untimely. On Smith's motion, we reinstated the appeal, but limited its scope to review of the 29 June order denying Smith's FRCP 60(b) motion.
II. JURISDICTION
The bankruptcy court had jurisdiction via 28 U.S.C. § 1334 and § 157(b)(1) and (b)(2)(A) and (O), and we do under 28 U.S.C. § 158(c).
III. ISSUES
A. Whether we should grant Smith's request for judicial notice, and consider the supplemental excerpts filed with her reply brief; and
B. Whether the bankruptcy court abused its discretion in denying Smith's FRCP 60(b) motion.
IV. STANDARD OF REVIEW
We review the bankruptcy court's denial of a motion for reconsideration for abuse of discretion. In re Negrete, 183 B.R. 195, 197 (9th Cir. BAP 1995), aff'd, 103 F.3d 139 (9th Cir. 1996) (table).
A bankruptcy court necessarily abuses its discretion if it bases its decision on an erroneous view of the law or clearly erroneous factual findings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We reverse for abuse of discretion only when we have a definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached. S.E.C. v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001); In re Black, 222 B.R. 896, 899 (9th Cir. BAP 1998).
V. DISCUSSION
A. Request for Judicial Notice/Supplemental Excerpts
In her opening brief, Smith requests us to take judicial notice of the entire bankruptcy court file, and of a state court action she brought against Brookings Smuggler's Cove Homeowner's Association. She did not provide all of the case file in her excerpts of record. She submitted with her reply brief a copy of an order entered by the bankruptcy court on 15 July 2005 regarding the payment of $1352 of the Webre claim ($1352). The order provides that it does not resolve the allowance of the remaining $15,000 as an unsecured claim. Presumably Smith requests us to consider the order as well.
We deny these requests. Although we may take judicial notice of bankruptcy court files, In re E.R. Fegert, Inc., 887 F.2d 955, 957-58 (9th Cir. 1985), we see no reason to look beyond the excerpts provided by the parties, and Smith has not articulated one. The state court action is irrelevant to the issues in this appeal. Nor does the 15 July 2005 order have any bearing on the last reconsideration motion here on appeal. Even if we were reviewing the underlying order, the 15 July order expressly reserved the question of the allowance of the remaining $15,000 as unsecured and is thus irrelevant here.
B. Post-argument " correction"
Although this appeal was submitted at the conclusion of argument on 20 June 2007, Smith filed shortly thereafter a Correction of Statement at Hearing and Request for Judicial Notice in both this appeal(06-1190) and in appeal no. 06-1370. However, the " correction" only deals with the order entered 19 September 2005 in the main case, out of which this appeal arises, rather than something in the adversary proceeding out of which appeal no. 06-1370 comes. Indeed, in her " declaration of service" attached to her correction filed in this appeal on 11 July 2007, Smith acknowledges that she meant to file the correction only in this appeal, and not in appeal no. 06-1370.
Furthermore, as noted, this appeal is limited to the denial of her second motion for reconsideration of a later order, and not the 19 September 2005 order overruling her objection to reclassification of the Webre claim.
Her correction is, in essence, a post-argument brief, not authorized by the Rules, and we neither requested further briefing nor granted leave. Even if it were timely, Smith is simply wrong: first, the 19 September order does satisfy the " separate document" requirement of FRCP 58, applicable via Rule 9021 -- the order does not contain the court's findings and conclusions, which were in a separately-docketed letter ruling. See Corrigan v. Bargala, 140 F.3d 815, 818 (9th Cir. 1998). Smith cites no authority for her premise that references to other orders somehow violate the requirement, and we know of none. And even if the requirement had been violated, Smith's appeal would still be untimely -- FRCP 58, as amended in 2002, deems an order not set forth in a separate document final after 150 days. See In re Garland, 295 B.R. 347, 353 (9th Cir. BAP 2003), which period expired approximately two months before her 17 April 2006 notice of appeal.
Next, Rule 5003(a) does not require that the bankruptcy court's docket indicate " who won, " and again, Smith cites no authority for her assertion that the docket entry is inadequate.
As it is untimely and unauthorized, we decline to consider the " correction"; to the extent it might be construed as a motion to reconsider this panel's prior order limiting the scope of this appeal to the 29 June 2006 order, it is DENIED.
C. Merits
FRCP 60(b), applicable via Rule 9024, provides in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment. . . .
1. Excusable Neglect
" Neglect" includes " negligence, inadvertence, mistake, or carelessness, as well as . . . intervening circumstances beyond the party's control." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The determination of whether the neglect was excusable
is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.
Id. at 395 (citations and footnotes omitted).
The bankruptcy court found that Smith was neither mistaken nor neglectful in seeking an extension of time to appeal the 29 September 2005 order, as she was seeking review of that order. The court pointed out that the mistake was not in her original motion for extension but in her " current belief that review of the March 29, 2006 order is necessary to obtain review of the underlying order." Letter Ruling, 29 June 2006, page 2 (emphasis in original).
The court further concluded that Smith did not meet the Pioneer standard for excusable neglect, giving " considerable weight" to the reason for Smith's delay. Noting that " ignorance of the rules or mistakes construing the rules do not usually constitute 'excusable' neglect[, ]" Pioneer, 507 U.S. at 392, the court observed that Smith made a conscious decision to appeal the 29 September 2005 order, which was " totally within her control." Letter Ruling, page 2.
The court expressed skepticism regarding Smith's good faith, noting that her four previous appeals of orders with intervening tolling motions indicated that she knew that underlying orders are themselves appealable, and knew the effect of a tolling motion on the time to appeal. Id. at 3. The court concluded:
[o]ur system of jurisprudence should not be a never-ending battle, where if a litigant misses the mark after conscious deliberation, she should easily be given license to reload and fire again. On balance, even if there was neglect in appealing the underlying order instead of the March 29, 2006 order, I do not find it " excusable."
Id.
Smith asserts in her reply brief that she acted in good faith, and offers to take a lie detector test to prove this. But the time to make this argument, or offer evidence of good faith, has passed. Arguments not raised in the bankruptcy court or in appellant's opening brief are deemed waived. U.S. v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
2. Any Other Reason Justifying Relief
To obtain relief from judgment under FRCP 60(b)(6) for " any other reason justifying relief, " the moving party must establish that exceptional or extraordinary circumstances prevented her from prosecuting her case. Community Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002); see also In re Negrete, 183 B.R. 195, 197 (9th Cir. BAP 1995), aff'd, 103 F.3d 139 (9th Cir. 1996) (table). " The party must demonstrate both injury and circumstance beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion." Community Dental, 282 F.3d at 1168 (citation omitted). The bankruptcy court found that Smith had not established exceptional circumstances, because her choice to appeal the 29 September 2005 order and her failure to monitor the docket were within her control. Letter Ruling, page 5. This finding is not clearly erroneous.
3. Rule 8002(c)(2)
The bankruptcy court went on to rule that even if it were to reconsider the motion to extend, it would not find excusable neglect under Rule 8002(c)(2). That rule provides in relevant part:
A request to extend the time for filing a notice of appeal must be made by written motion filed before the time for filing a notice of appeal has expired, except that such a motion filed not later than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. . . .
Smith filed her extension motion on 17 April 2006, more than ten days but less than 20 days after entry of the order denying her second motion for reconsideration on 29 March 2006. The motion could be granted on a showing of excusable neglect under Rule 8002(c)(2), but Smith's reason for missing the appeal deadline was that she did not receive a copy of the order in time. As pointed out by the bankruptcy court, this is not excusable neglect -- a party has an affirmative duty to monitor the docket. In re Warrick, 278 B.R. 182, 187 (9th Cir. BAP 2002).
Smith's only relevant argument on appeal is her contention that she did not fail to monitor the case, but missed the appeal because she was busy litigating in state court and did not have access to PACER. The bankruptcy court correctly ruled that this circumstance was not excusable neglect, and that Smith had not shown any other exceptional or extraordinary circumstances justifying relief from judgment.
4. Other Arguments
Smith's other arguments are, for the most part, irrelevant and/or unsupported by the record. Her opening brief sets forth her disputes with her condominium's homeowner's association and relating to the Webres' claim. She accuses the bankruptcy court of bias and of misconduct in engaging in ex parte contacts with a state representative whom she alleges is supporting the interests of the homeowners' association. She points to no evidence to support these allegations.
She also complains about the reclassification because Webres never moved for reconsideration under Rule 3008, and argues that she did not receive due process because there was never an evidentiary hearing on the issue of reclassification of Webres' claim. She does not identify any specific instance in which she was denied a fair hearing. The bankruptcy court initially reclassified the claim without prejudice to give parties an opportunity to object. Smith did so, and the bankruptcy court considered her objection before making a final ruling.
She further argues that (1) the statute of limitations has expired on Webres' claim; (2) she cannot be held personally liable on the claim because she received a discharge; and (3) that the 19 September 2005 order was never effective or final. She contends it was incorrectly docketed because it did not indicate " who won." Smith cites no authority and offers no coherent analysis of any of these contentions.
Smith contends that Webres lacked standing to reclassify their claim because they assigned their rights in the deed of trust in 1996. She raised standing arguments in her motion for reconsideration filed 29 September 2005, and the bankruptcy court rejected them because that issue had previously been decided against Smith.
Nor does she articulate any connection between any of these arguments and the order on appeal. Finally, Smith has made no coherent arguments respecting the First or Ninth Amendments to the Constitution, or any possible violations of them. We need not consider these issues. In re Jodoin, 209 B.R. 132, 143 (9th Cir. BAP 1997).
VI. CONCLUSION
We deny Smith's requests for judicial notice, and disregard the supplemental excerpt submitted with her reply brief and her post-argument " correction."
The bankruptcy court did not abuse its discretion in denying Smith's second motion for reconsideration on 29 June 2006, which is the only order before us in this appeal. Accordingly, we AFFIRM.
All " Rule" references are to the Federal Rules of Bankruptcy Procedure, and all " FRCP" references are to the Federal Rules of Civil Procedure.