Summary
ruling challenges to reconsideration order were not before appellate court where appellant did not amend notice of appeal
Summary of this case from Parvizi v. United States ex rel. Dep't of Educ.Opinion
20-60042
08-06-2021
In re: OLGA VLADIMIROVNA BORDENYUK, Debtor, v. RICHARD A. YANAGI, Chapter 7 Trustee; BENJAMIN GALE, Appellees. OLGA VLADIMIROVNA BORDENYUK, Appellant,
NOT FOR PUBLICATION
Submitted August 4, 2021 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the Ninth Circuit BAP No. 20-1042 Bankruptcy Appellate Panel Brand, Spraker, and Gan, Bankruptcy Judges, Presiding
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Olga Bordenyuk ("Bordenyuk") appeals pro se the Bankruptcy Appellate Panel's (the "BAP") decision affirming the bankruptcy court's order approving the Chapter 7 trustee Richard Yanagi's (the "Trustee") compromise with the personal representative for the probate estate of Karen Stirling. We have jurisdiction under 28 U.S.C. § 158, and we affirm.
We review a decision by the BAP de novo. In re Arden, 176 F.3d 1226, 1227 (9th Cir. 1999). A bankruptcy court's decisions to approve a compromise and to deny a motion to alter or amend the judgment are reviewed for abuse of discretion. In re A &C Properties, 784 F.2d 1377, 1380 (9th Cir. 1986); In re Clinton, 449 B.R. 79, 82 (B.A.P. 9th Cir. 2011).
Bordenyuk waived her arguments that the bankruptcy court erred by approving a settlement that was not "fair and equitable," the settlement order did not contain the proper findings to support the bankruptcy court's decision, and the bankruptcy court "ignored the fact that the probate order is probably void" because it violated the stay. She presented these arguments for the first time to the BAP in an unauthorized brief and the BAP did not consider these arguments. Accordingly, we decline to entertain Bordenyuk's challenges now. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018) ("The usual rule is that arguments . . . omitted from the opening brief are deemed forfeited."); In re Burnett, 435 F.3d 971, 975-76 (9th Cir. 2006) ("Absent exceptional circumstances, issues not raised before the BAP are waived.").
Bordenyuk's challenges to the bankruptcy court's denial of her motion for relief from the settlement order ("Reconsideration Motion") are not properly before the court because Bordenyuk failed to amend her notice of appeal to the BAP to include the Reconsideration Motion and therefore the BAP did not consider those challenges. See Fed. R. Bankr. Pro. 8002(b)(3); see also In re Slimick, 928 F.2d 304, 306 ("The untimely filing of a notice of appeal [to the BAP] is jurisdictional."); In re Burnett, 435 F.3d at 975-76.
AFFIRMED.