By Ryan C. Wood
There are numerous “standards of review” regarding bankruptcy and appellate matters. Some standards are wobblers, abuse of discretion, clear erroneous, based on what legal standard? For bankruptcy attorneys it can be challenging identifying how the Bankruptcy Court got it wrong so to speak.
Bankruptcy Court’s Conclusions of Law – DE NOVO REVIEW
The bankruptcy court’s conclusions of law are de novo review. Parks v. Drummond (In re Parks), 475 B.R. 703, 706 (9th Cir. BAP 2012). We also review de novo questions of standing. Motor Veh. Cas. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 677 F.3d 869, 879 (9th Cir. 2012). Under de novo review, we “consider a matter anew, as if no decision had been made previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).
Compliance With A Statute General Question of Fact
The bankruptcy court’s factual finding whether a statute is complied with is a general question of law which the bankruptcy court reviews for clear error. Ashford v. Consol. Pioneer Mortg. (In re Consol. Pioneer Mortg.), 178 B.R. 222, 225 (9th Cir. BAP 1995)
Dismissal Lack of Subject Matter
DE NOVO We review a dismissal based on lack of subject matter jurisdiction de
novo. Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
De novo review means that we review the matter anew, as if the
bankruptcy court had not previously decided it. Francis v. Wallace (In re
Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).
Equitable Mootness – De Novo Review
We review questions of equitable mootness de novo. See Todeschi v. Juarez (In re Juarez), 603 B.R. 610, 619–20 (9th Cir. BAP 2019), aff’d, 836 F. App’x 557 (9th Cir. 2020); Rosenstein & Hitzeman, AAPLC v. Eliminator Custom Boats, Inc. (In re Eliminator Custom Boats, Inc.), 2019 WL 4733525, at (9th Cir. BAP Sept. 23, 2019).
What is Equitable Mootness? Equitable mootness is a “judge made abstention doctrine.” Rev Op Grp. v. ML Manager LLC (In re Mortgs. Ltd.), 771 F.3d 1211, 1214-15 (9th Cir. 2014). Equitable mootness asks whether the court equitably should exercise its power to hear and resolve the dispute. See id. It permits appellate courts to “dismiss appeals of bankruptcy matters when there has been a comprehensive change of circumstances so as to render it inequitable for this court to consider the merits of the appeal.” Id. at 1214 (cleaned up) (quoting Motor Vehicle Cas. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 677 F.3d 869, 880 (9th
Cir. 2012)).
This doctrine fosters the public policy interest in the finality of bankruptcy court judgments and also protects parties not directly involved in the bankruptcy court litigation but whose interests would be adversely by reversal. See id. at 1218; In re Thorpe Insulation Co, 677 F.3d at 882.
More like we judges made up law, a doctrine, to make sure a wrong is never righted and the creditors that did nothing or sided with the side that won keep whatever money they received and deal conferred via confirmation of a plan of reorganization. In a Chapter 11 context, too much money has been disbursed already for refunds to be required and redistribute the money properly under the law. That is too much work and not fair the parties that received the money. So the party that says, hey this is wrong, spends their own money to get a better deal or at the very least a fair deal under the Bankruptcy Code get told sorry, too much water under the bridge for us to unwring the bell, so no matter how egregious the bankruptcy court’s conduct and nonsensical decisions are made, appeal is equitably moot. Public policy see dictates us appellate judges make sure the wrong is never made right, it is just too much work now. Somehow this is good for the public. I doubt there are any bankruptcy attorneys that would agree with that statement. How about getting it right each and every time no matter what? Can you at least fake it? Nope. We must make doctrine, admittedly made by Judges, not the legislature, that provides when we can dump an appeal more or less saying it is too much work to get this right now. I will have to use that one. Sorry, client, it is too much work to get this right for you based upon my own doctrine that does not exist outside of my mind’s eye. Not scrutinized via hours of debate and consideration by the humans that get paid to make law, the legislature, but my own usurp of the system…….. because?
Evidentiary rulings for abuse of discretion, and then reverse only if any error would have been prejudicial to the appellant. Van Zandt v. Mbunda (In re Mbunda), 484 B.R. 344, 351 (9th Cir. BAP 2012), aff’d, 604 F. App’x 552 (9th Cir. 2015).
A bankruptcy court abuses its discretion if it applies an incorrect legal standard or its factual findings are illogical, implausible, or without support in the record. TrafficSchool.com v. Edriver, Inc., 653 F.3d 820, 832 (9th Cir. 2011).
We review for clear error findings that an injury is willful and malicious. See Gee v. Hammond (In re Gee), 173 B.R. 189, 192 (9th Cir. BAP
A factual finding is clearly erroneous if it is illogical, implausible, or without support in the record. Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
In an appeal from a § 727 denial of discharge: (1) the bankruptcy court’s determinations of the historical facts are reviewed for clear error; (2) the court’s selection of the applicable legal rules under § 727 is reviewed de novo; and (3) the court’s application of the facts to those rules requiring the exercise of judgments about values animating the rules is reviewed de novo. Searles v. Riley (In re Searles), 317 B.R. 368, 373 (9th Cir. BAP 2004), aff’d, 212 F. App’x 589 (9th Cir. 2006). “De novo review requires that we consider a matter anew, as if no decision had been made previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014). Factual findings are clearly erroneous if they are illogical, implausible, or without support in the record. Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). If two views of the evidence are possible, the trial judge’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). We give especially great deference to the bankruptcy court’s determinations of witnesses’ credibility. An appellate court must “give singular deference to a trial court’s judgments about the credibility of witnesses. That is proper, we have explained, because the various cues that ‘bear so heavily on the listener’s understanding of and belief in what is said’ are lost on an appellate court later sifting through a paper record.” Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017) (citations omitted). An attack
We review de novo the bankruptcy court’s decisions to grant summary judgment and to except a debt from discharge. Plyam v. Precision Dev., LLC (In re Plyam), 530 B.R. 456, 461 (9th Cir. BAP 2015). “De novo review requires that we consider a matter anew, as if no decision had been made previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014)
“We also review de novo the bankruptcy court’s determination that issue preclusion was available. If issue preclusion was available, we then review the bankruptcy court’s application of issue preclusion for an abuse of discretion.” In re Plyam, 530 B.R. at 461 (quoting Black v. Bonnie Springs Fam. Ltd. P’ship (In re Black), 487 B.R. 202, 210 (9th Cir. BAP 2013)).
To determine whether the bankruptcy court has abused its discretion, we conduct a two-step inquiry: (1) we review de novo whether the bankruptcy court “identified the correct legal rule to apply to the relief requested” and (2) if it did, we consider whether the bankruptcy court’s application of the legal standard was illogical, implausible, or without support in inferences that may be drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
Bankruptcy Court’s Legal Conclusions
We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code and state law, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff’d, 241 F. App’x 420 (9th Cir. 2007). De novo review requires that we consider a matter anew, as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988).
Affirming Lower Bankruptcy Court
“We may affirm on any ground fairly supported by the record.” Jimenez v. ARCPE 1, LLP (In re Jimenez), 613 B.R. 537, 543 (9th Cir. BAP 2020).
Grant of Summary Judgment
We review de novo a bankruptcy court’s decision to grant summary judgment. Wood v. Stratos Prod. Dev. (In re Ahaza Sys., Inc.), 482 F.3d 1118, 1123 (9th Cir. 2007). “De novo review requires that we consider a matter anew, as if no decision had been made previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).
Motion to Dismiss FCRP 12(b)(6)
To survive a Federal Rule Civil Procedure 12(b)(6) dismissal motion, a complaint must present cognizable legal theories and sufficient factual allegations to support those theories. See Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). A complaint must contain more than “an unadorned, the-defendant-unlawfully[1]harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up).
Appeals and seeking to redress an abuse of discretion or clear error is challenging for bankruptcy lawyers. Where does the money come from when the client has no money to pay for justice? Where is the equal access to justice for bankruptcy filers?
Imposition of Sanctions
We review for an abuse of discretion the bankruptcy court’s imposition of sanctions, including referral to a disciplinary panel, under both Rule 9011 and under its inherent sanctioning authority. See Cuevas v. Chandler (In re Cuevas), BAP Nos. CC-15-1032-KuKiTa, CC-15-1353-KuKiTa, 2016 WL 5845670, at *3 (9th Cir. BAP Oct. 5, 2016); see also Shalaby v. Mansdorf (In re Nakhuda), 544 B.R. 886, 898 (9th Cir. BAP 2016), aff’d, 703 F. App’x 621 (9th Cir. 2017).
Motion For Clarification
Motion for clarification under Civil Rule 60(a) or 60(b)(6), made applicable in bankruptcy proceedings pursuant to Rule 9024, for abuse of discretion. See Garamendi v. Henin, 683 F.3d 1069, 1077 (9th Cir. 2012); Determan v. Sandoval (In re Sandoval), 186 B.R. 490, 494 (9th Cir. BAP 1995).
Evidentiary Rulings
We review evidentiary rulings for abuse of discretion and reverse if the exercise of discretion is both erroneous and prejudicial.” Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013). To be considered on a motion for summary judgment, the evidence must be admissible. See Civil Rule 56(c), (e (1) (requiring the party asserting a fact to support that fact with admissible evidence).
Bankruptcy Court’s Authority to Enter Final Order
Whether the bankruptcy court has authority to enter a final order is an issue we review de novo. See Hasse v. Rainsdon (In re Pringle), 495 B.R. 447, 455 (9th Cir. BAP 2013). We also review de novo a bankruptcy court’s decision to grant an anti-SLAPP motion. Restaino v. Bah (In re Bah), 321 B.R. 41, 44 (9th Cir. BAP 2005). Under de novo review, we “consider a matter anew, as if no decision had been made previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).
Award of Attorney’s Fees and Costs Under Anti-SLAPP
We review the bankruptcy court’s award of attorney’s fees and costs under the anti-SLAPP statute for abuse of discretion. Graham-Sult v. Clainos, 756 F.3d 724, 751 (9th Cir. 2014). A bankruptcy court abuses its discretion if it applies an incorrect legal standard or its factual findings are illogical, implausible, or without support in the record. TrafficSchool.com v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
