NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

FOR THE FIRST CIRCUIT

_______________________________

BAP NO. MS 22-033

_______________________________

Bankruptcy Case No. 21-30357-EDK

_______________________________

POLISH-AMERICAN CITIZEN’S CLUB INC. 

OF WILLIMANSETT, MASSACHUSETTS, 

d/b/a Pulaski Hall, d/b/a Pulaski Club, 

d/b/a Polish-American Citizens Club,

Debtor.

_______________________________

DAVID W. OSTRANDER, Chapter 7 Trustee,

Appellant,

v.

ELAINE DOWD, STANLEY GROMACKI, JR., 

MATTHEW ROMAN, JUNE MASSEE, MARIAN ZIELINSKI, 

FRANK MECKAY, and MITCHELL NOWAK,

Appellees.

_______________________________

Appeal from the United States Bankruptcy Court

for the District of Massachusetts

(Elizabeth D. Katz, U.S. Bankruptcy Judge)

_______________________________

Before

Godoy, Harwood, and Cary, U.S. Bankruptcy Appellate Panel Judges.

_______________________________

David W. Ostrander, Chapter 7 Trustee, on brief for Appellant.

Gregory A. Hession, Esq., on brief for Appellees.

_________________________________

June 27, 2023

_________________________________
2 

Godoy, U.S. Bankruptcy Appellate Panel Judge. 

After a trial, the bankruptcy court dismissed the chapter 7 petition filed by PolishAmerican Citizen’s Club Inc. of Willimansett, Massachusetts (the “Club”) because it was not 

duly authorized by a properly constituted board of directors. The chapter 7 trustee (the 

“Trustee”) moved for reconsideration and that request was denied. The Trustee appealed both 

orders. On appeal, the Trustee argues that the dismissal order was based on a clearly erroneous 

finding that the board of directors was not elected prior to the adjournment of the Club’s 2020 

annual meeting, and the bankruptcy court should have granted reconsideration to allow him to 

introduce additional evidence on the issue. He also challenges the court’s denial of his request to 

“condition” the dismissal upon the payment of “administrative expenses.” For the reasons 

discussed below, we AFFIRM both the dismissal order (including the denial of the Trustee’s 

request for payment of administrative expenses) and the order denying reconsideration. 

BACKGROUND1

The Club, a Massachusetts non-profit corporation, is a social club founded in 1927. 

It has about 500 shareholders, including the seven appellees (the “Appellees”). The Club owns 

real property located at 13 Norman Street, Chicopee, Massachusetts (the “Property”), where it 

conducted its club activities and operated a restaurant, bar, and hall rental business. Plagued by 

financial difficulties, the Club ceased active operations in October 2020 and closed the facility

altogether in early 2021. 

1

 Unless otherwise noted, all references to the “Bankruptcy Code” or to specific statutory sections are to 

11 U.S.C. §§ 101-1532. References to “Bankruptcy Rule” are to the Federal Rules of Bankruptcy 

Procedure and references to “Rule” are to the Federal Rules of Civil Procedure. 
3

I. The Bankruptcy Proceedings

A. The Chapter 7 Filing

On September 17, 2021, the Club filed a chapter 7 petition, signed by its president, 

Dorothy Wojtczak. The Trustee was appointed shortly thereafter, and, with the bankruptcy

court’s approval, employed his law firm to represent him in the case.2

 On September 28, 2021, 

upon the bankruptcy court’s request, the Club filed a corporate resolution (the “Resolution”) 

authorizing the filing of the bankruptcy case. The Resolution was signed by eight people 

purporting to be members of the Club’s board of directors (the “Board” or “Board of 

Directors”).3 

B. Appellees’ Motion to Dismiss 

About six months after the bankruptcy filing, after conducting Bankruptcy Rule 2004 

examinations of several directors and officers of the Club, the Appellees filed a motion to 

dismiss the petition (the “Motion to Dismiss”), asserting that the bankruptcy filing was not duly 

authorized by a properly constituted Board of Directors. Among other things, they alleged that

at least six of the eight individuals whose signatures appeared on the Resolution were not 

qualified Board members because they were not properly elected at the Club’s annual meeting 

held on February 23, 2020 (the “2020 annual meeting”).

4

 Accordingly, the Appellees argued, 

the Resolution was not valid, the petition was not authorized, and the case should be dismissed.

2

 Neither the Trustee nor his counsel submitted any fee applications in the bankruptcy case. 

3

 The signatories on the Resolution were: Dorothy Wojtczak, president; Carl Schreiber, vice president; 

Barbara Zabinska, director; Lucyna Wojtczak, director; Jordan Klofas, director; Anton Zamachaj, 

director; Mariola Jarzynska, director; and Rachel Ilnicki, director.

4

 It is undisputed that due to the COVID-19 pandemic and subsequent cessation of Club operations, no 

annual meeting or election of officers and directors was held after the 2020 annual meeting. 
4

C. Trustee’s Objection to Motion to Dismiss

The Club did not respond to the Motion to Dismiss. The Trustee, however, filed an 

objection. Relying primarily on an affidavit from Dorothy Wojtczak, the Club’s president, in 

which she attested that all persons whose signatures appeared on the Resolution were valid 

Board members, the Trustee countered that the bankruptcy filing was duly authorized. The 

Trustee further contended that the Club’s debts, which totaled more than $151,000, would “only 

be satisfied” by selling the Property, and that he had already spent considerable time and effort 

marketing the Property for sale. If he did not sell the Property through the bankruptcy case, the 

Trustee insisted, the City of Chicopee, which had moved for relief from stay to foreclose its tax 

lien on the Property, would likely conduct a “distress sale” which would net far less than his 

proposed sale.5

 For these reasons, the Trustee requested that the Motion to Dismiss be denied.

D. Trustee’s Motion for Sanctions

Shortly before the trial, the Trustee filed a motion (the “Sanctions Motion”) seeking to 

impose monetary sanctions against the Appellees and their counsel “for prosecuting baseless 

claims against the Bankruptcy Estate resulting in the Estate incurring substantial time and 

expenses defending [against] these allegations.” The Trustee asserted that the Appellees’ filing 

of numerous pleadings, including the Motion to Dismiss, was “an attempt to obstruct the 

Trustee’s administration of the case,” which caused administrative expenses to accrue at a 

substantial rate. 

5

 A few days after filing his objection to the Motion to Dismiss, the Trustee sought authority to sell the 

Property to a third party for $375,000. No objections were filed, and a combined trial with the Motion to 

Dismiss was scheduled for June 21, 2022. After trial, the bankruptcy court denied the motion to sell as 

moot due to the dismissal of the bankruptcy case.
5

That same day, the bankruptcy court denied the Sanctions Motion, without prejudice,

“for failure to articulate any legal basis for the relief requested” and “for failure to comply with 

Fed. R. Bankr. P. 9011(c),” which governs the imposition of sanctions for violations of Fed. R. 

Bankr. P. 9011(b) (setting forth certifications made by any party signing, filing, and submitting 

documents with the bankruptcy court). 

II. The Trial

The bankruptcy court conducted a three-day trial in June 2022. Dorothy Wojtczak, five 

of the Appellees, and several other shareholders were among the thirteen individuals who 

testified. We summarize only the testimony most relevant to this appeal.

A. Opening Statements

During his opening statement, the Appellees’ counsel argued that the petition should be 

dismissed as the evidence would show that most of the individuals who signed the Resolution

were not properly elected to the Board at the 2020 annual meeting in the manner required by the 

Club’s bylaws. He stated: “The meeting ended. There w[as] only a handful of people left and 

they remembered that they forgot to elect a board,” so the Club’s president “just appointed some 

people” to the Board. The Trustee countered that the evidence would show that all the 

individuals whose names appeared on the Resolution were valid Board members. 

B. Shareholder Testimony

The Appellees introduced the testimony of June Massee, who had served as president of 

the Club for several years. She described the 2020 annual meeting as a “drunken brawl,”

explaining that after elections were held for the various officer positions, “chaos” ensued when a 

controversial financial report for 2019 was presented. Ms. Massee stated that “someone” then 

“said the meeting’s adjourned in a loud voice” and “almost everybody got up and left.” Ms. 

Massee believed the person who adjourned the meeting was Dorothy Wojtczak, who was known 
6

to abruptly end meetings when she did not like what she was hearing. No “director elections” 

had occurred before the meeting was adjourned, Ms. Massee stated. 

Kevin Juchno, who had been a member of the Club since 2016, also described the 2020 

annual meeting as “chaotic” and testified that no Board had been elected before the meeting was 

adjourned. He explained that after the meeting was adjourned, somebody realized that a board of 

directors had not been elected. Dorothy Wojtczak then asked him if he would like to be a Board 

member and “offered up a couple of other names” from the “handful” of people remaining. She 

“asked if anyone objected to these people being appointed as directors. Everyone said no, no 

objections. And she said okay, we have our board members.” Matthew Roman, a Club member 

for at least 50 years who served as a director, officer, and trustee, corroborated Mr. Juchno’s 

testimony, stating that after the meeting was adjourned, Ms. Wojtczak simply asked the few

remaining people whether they wanted to be on the Board and they agreed. Another former 

officer and trustee, Marian Zielinski, also testified that a large number of people left halfway 

through the meeting. There had been no election of Board members and so Dorothy Wojtczak 

simply chose the directors without any discussion. Rachel Ilnicki, a Club member who was 

working in the kitchen during the meeting, similarly explained that after a lot of people had left

the meeting, Dorothy Wojtczak simply asked her to be a director and she agreed. 

On direct examination by the Appellees, however, Dorothy Wojtczak insisted she did 

not simply “appoint” members of the Board when there was only a “handful” of people 

remaining. When questioned by the bankruptcy court as to how the directors were “chosen” 

at the 2020 annual meeting, she explained: 

[O]nce the election happens for the officers there is a hand vote, basically a question, 

who would like to become a director. . . , and whoever wants to be a director raises 

their hand. If there’s not enough directors, then you can ask on the floor, hey, so[]

and so[,] would you like to be a director?
7

All the individuals who signed the Resolution were “elected” in this manner at the 2020 annual 

meeting, Ms. Wojtczak stated. She also asserted that although the Club’s 1927 bylaws may have 

required an “election” of directors, the Club had “not run by these bylaws for many, many years” 

and there had “never been a vote to elect any directors” since she became a Club member. 

The Appellees, however, introduced conflicting testimony that before Dorothy Wojtczak 

became president in 2019, the Club conducted formal elections of directors. Matthew Roman 

explained that traditionally, when electing directors, a nominating committee made nominations 

for individuals to serve on the Board. Depending on how many director positions needed to be 

filled, there was either a ballot (by hand or paper) and the “highest vote getters” became 

directors, or, if the number of nominees did not exceed the number of positions to be filled, a 

motion would be made and seconded to accept the nominees as directors. Mitchell Nowak, who 

served as president of the Club for about 19 years, corroborated this testimony. 

The Trustee introduced several witnesses who testified that the Board members were 

chosen before the conclusion of the 2020 annual meeting. Anton Zamachaj testified that, after 

determining the number of director positions to be filled, “nominations” for directors were made 

from the floor and then the nominees were “elected” by a “voice vote.” He was nominated in 

this manner by his cousin, he explained, and no objections to any of the nominations were made. 

He further stated that the meeting was not adjourned before the election of the Board, insisting 

that the “mass exodus” occurred after the directors were elected. Alice Pasterczyk similarly

testified that the Board of Directors was “in place” before the 2020 annual meeting was 

adjourned. She could not recall, however, exactly how the Board members were selected, stating 

that her “recollection of specifics [of] that meeting [was] not quite there . . . .” 
8

C. Documentary Evidence

Both parties also introduced documentary evidence to support their respective positions. 

The Appellees repeatedly referenced the Club’s bylaws, which the witnesses agreed required the 

Club to conduct an “election” of directors by “written ballot.” They pointed to Dorothy 

Wojtczak’s handwritten notes of the 2020 annual meeting, which reflected tallied votes for the 

officer positions but none for the directors, as evidence that the officers were selected by ballot 

and the directors were not. The Appellees also emphasized that a Certificate of Change of 

Directors and Officers for the Club (the “Change of Directors Certificate”) filed with the 

Secretary of the Commonwealth in January 2021, indicated that the terms of the directors named 

therein expired in February 2021, well before the petition was filed.6

The Trustee, on the other hand, pointed to Ms. Wojtczak’s handwritten notes of the 2020 

annual meeting—which identified as new directors many but not all the individuals who signed 

the Resolution—as evidence that the individuals listed therein were elected to the Board at the 

2020 annual meeting and that the election occurred before the meeting was adjourned. He also 

claimed that the Change of Directors Certificate “confirmed” that all the individuals who signed 

the Resolution were directors of the Club. 

D. The Trustee’s Request for Payment of Administrative Expenses

Following closing arguments, the Trustee requested that dismissal of the petition be 

conditioned upon the Club’s payment of “administrative expenses” incurred in the case:

Your Honor, if you are . . . inclined to grant the motion to dismiss, . . . then I request 

that the dismissal be conditioned upon payment of the administrative expenses that 

have been incurred in this case. 

6

 The Change of Directors Certificate identified the following officers: Dorothy Wojtczak, President; 

Kevin Juchno, Treasurer; Heather Larsen, Clerk; Ronald Schwalm, Financial Secretary; and Carl 

Schreiber, Vice President; and the following directors: Mariola Jarzynska, Rachel Ilnicki, Jordan Klofas, 

Barbara Zabinska, Lucyna Wojtczak, and Anton Zamachaj. 
9 

The petition was filed about nine months ago. Since then, trustee and counsel to 

trustee have spent over 135 hours in this case in good-faith reliance on the validity of 

the bankruptcy filing. 

You heard testimony from Ms. June Massee that the club can get loans, grants, and 

even, apparently, substantial money contributions from the club members. . . . [I]f 

so then the club should have the ability and obligation to pay the administrative 

expenses incurred in this case as a condition of the dismissal. 

I ask that if the case is to be dismissed, that it be conditioned on the Court ordering 

the club to pay the administrative expenses and that the club grant a mortgage on the 

Chicopee real estate to secure payment in full, no later than one year after the date of 

dismissal. 

(emphasis added).7

 The bankruptcy court did not address or rule on the Trustee’s request but 

took the entire matter under advisement.

III. Dismissal Order

On July 18, 2022, the bankruptcy court entered an order dismissing the bankruptcy 

petition (the “Dismissal Order”), concluding that the bankruptcy filing was not duly authorized 

under applicable Massachusetts law because the Resolution was not signed by a “properly 

constituted Board.” See In re Polish-Am. Citizens Club Inc. of Willimansett, Mass., 642 B.R. 

204 (Bankr. D. Mass. 2022). The court explained: 

Pursuant to the [Club]’s by-laws, the [Club]’s officers (who are automatically 

members of the Board) and other Board directors are to be chosen by vote at an 

annual meeting. See Movants’ Ex. 1, Art. IV § 1 and Art. VI § 1. The by-laws 

further provide that the Board of Directors consist of not less than 5 and no more 

than 15 directors. See Movants’ Ex. 1, Art. IV § 1. 

The [Club]’s last annual meeting was held in February 2020, attended by 92 

individuals according to the sign-in sheet. See Movants’ Ex. 4. The February 2020 

meeting was described by some witnesses as chaotic, a fiasco, and a joke. The Court 

credits the testimony of June Massee and Matthew Roman, as corroborated by the 

testimony of other witnesses, that although an election of officers was done by ballot 

7

 Significantly, although the Trustee had previously requested in the Sanctions Motion that the court 

impose an award of attorney’s fees and expenses against the Appellees as sanctions for having to defend 

against their various motions, including the Motion to Dismiss, his request at the end of trial was for the 

bankruptcy court to “condition” any dismissal upon the Club’s payment of “administrative expenses.” 
10

at the 2020 meeting, after the officers were elected but before the remaining Board 

directors were chosen, Wojtczak announced that the meeting was adjourned. At that 

time many people left. After the adjournment of the meeting, approximately 30 

people remained. Someone realized that the remaining Board directors had not yet 

been elected. At that point, Wojtczak essentially nominated several people to be 

directors, they agreed, and no one disagreed. 

According to the minutes of the February 2020 meeting prepared by Wojtczak, 

prior to the adjournment of the meeting, 4 officers had been elected by ballot. 

See Movants’ Ex. 6. Pursuant to the [Club]’s by-laws, those officers also 

constituted members of the Board. See Movants’ Ex. 1, Art. IV § 1. As to the 

remaining purported directors of the Board, the Court finds that they were not 

properly elected prior to the adjournment of the annual meeting as required by 

the by-laws. See Movants’ Ex. 1, Art. VI § 1. At the conclusion of the 2020 

meeting, therefore, there were only 4 properly elected Board members. However, 

the by-laws require the Board to consist of at least 5 members. See Movants’ Ex. 

1, Art. IV, § 1. No annual meetings were conducted to elect officers or directors 

of the Board after the February 2020 meeting. Accordingly, the Court finds and 

rules that the corporate resolutions were not signed by a properly constituted 

Board and the filing of the [Club]’s Bankruptcy Case was therefore not 

authorized. 

Id. at 207-08 (emphasis added) (footnotes omitted). 

In a footnote at the end of the decision, the bankruptcy court denied the Trustee’s request 

to condition dismissal upon payment of administrative expenses, stating: 

In addition to opposing dismissal of the Bankruptcy Case, the Trustee has also 

asked the Court to require the moving shareholders to reimburse the Trustee for 

his time and expenses incurred in the case in defending the shareholders’ various 

motions. The Trustee has cited to no authority in support of such a request, and 

the Court will not invoke its powers under 11 U.S.C. § 105(a) or its general 

equitable powers to award the Trustee reimbursement of his legal fees and 

expenses.

Id. at 208 n.5 (emphasis added). 

IV. The Trustee’s Request for Reconsideration 

A. Motion to Reconsider

Eleven days later, the Trustee filed a motion seeking reconsideration of the Dismissal 

Order under Rules 59(e) and 60(b) (the “Motion to Reconsider”). The Trustee argued that, 

because he did “not anticipate” that the bankruptcy court “would hinge its decision on whether 
11

the 2020 annual meeting had been adjourned before the election of directors,” reconsideration 

was warranted so he could introduce affidavits by six shareholders of the Club as “new 

evidence” regarding when the meeting was adjourned. The Trustee further emphasized that 

although the Club’s bylaws called for an election of directors by ballot, the “actual practice” was 

for the Club’s president to appoint directors as needed to constitute the Board. 

The Trustee also asked the court to reconsider the denial of his request to condition the 

dismissal of the petition upon the Club’s payment of administrative expenses to the Trustee and 

his counsel.8

 He argued that: (1) he acted in “good faith reliance” on the validity of the 

Resolution; (2) by the time the Motion to Dismiss was filed, he and his counsel had already spent 

over 61 hours of time in the case, and a motion to sell the Property had already been “in the 

works” for months; (3) the bankruptcy court had authority under § 105 to condition the dismissal 

upon payment of administrative expenses; and (4) his request was also supported by “analogous 

case law” under the equitable theory of quantum meruit citing, among others, In re Jankowski, 

382 B.R. 533 (Bankr. M.D. Fla. 2007) (awarding quantum meruit compensation to the trustee for 

carrying out his duties under § 704 before case was dismissed). 

B. Appellees’ Opposition to Motion to Reconsider

The Appellees opposed the Trustee’s request for reconsideration on the basis of “newly 

discovered evidence,” arguing that the information contained in the “new” affidavits “could have 

been learned earlier by reasonable diligence.” The Appellees also urged the bankruptcy court to

8

 In a footnote, the Trustee characterized his request as follows: 

Specifically, the Trustee requested that after the filing with the Court of an application for fees 

and expenses, and the Court’s review and allowance of same, that the [Club] grant a mortgage 

on its real estate located at 13 Norman Street, Chicopee, Mass., to secure payment of the 

allowed administrative expenses no later than one year from the date of dismissal.
12

deny reconsideration of the Trustee’s request for payment of administrative expenses. 

Emphasizing that the Trustee had offered no legal authority at trial to support his initial request, 

the Appellees asserted that his newly advanced theory of quantum meruit was unpersuasive as 

there was no evidence the Trustee had provided “valuable” services to the estate. 

C. Order Denying Reconsideration

After a hearing, the bankruptcy court entered an order denying the Motion to Reconsider 

(the “Order Denying Reconsideration”). The court explained that the question of whether the 

bankruptcy filing “was authorized by a duly elected Board of Directors was known to the Trustee 

prior to and during the trial,” and he “was given ample opportunity to raise any legal arguments 

in opposition to the Motion to Dismiss and specifically declined to file a posttrial brief to address 

any further legal arguments in light of testimony adduced at trial.” It also rejected the Trustee’s 

proffer of “new evidence” as he had failed to demonstrate it was previously unavailable to him 

through reasonable diligence. “As to the Trustee’s arguments regarding payment of his legal 

fees,” the court ruled, “the cases cited by the Trustee [we]re factually distinguishable and largely 

relied on specific provisions of the Bankruptcy Code in ruling that a Chapter 7 trustee was 

entitled to recovery and payment of fees.” 

V. The Appeal

This appeal followed. The Trustee’s requests to the bankruptcy court and the Panel for a 

stay pending appeal were denied. 

POSITIONS OF THE PARTIES

I. The Trustee

The Trustee’s sole challenge to the dismissal of the Club’s petition is that it was based 

on a clearly erroneous finding that the Board was not elected before the 2020 annual meeting 

was adjourned. He claims that the bankruptcy court erred by relying on the testimony of June 
13

Massee, Matthew Roman, Kevin Juchno, and Marian Zielinski, all of whom, he contended,

lacked credibility due to their “acrimonious” relationship with Dorothy Wojtczak and/or their 

“questionable recall” of the events that took place at the 2020 annual meeting. The bankruptcy 

court, the Trustee insists, should have focused instead on the conflicting testimony of Dorothy 

Wojtczak, Alice Pasterczyk, and Anton Zamachaj that the 2020 annual meeting was not 

adjourned until after the Board members were selected. He also points to the Change of 

Directors Certificate which, he claims, “confirms” that the individuals who signed the Resolution 

were valid Board members. Although the Change of Directors Certificate suggests that the 

directors’ terms expired in February 2021, he contends, because there was no annual meeting or 

election of a new Board in 2021, those directors “continued to serve” as set forth in Mass. Gen. 

Laws ch. 155D, § 8.05(e) (providing that “[d]espite the expiration of a director’s term, he shall 

continue to serve until his successor is elected and qualified”).9

The Trustee also argues that the bankruptcy court “should have allowed” the Motion to 

Reconsider. He reiterates his arguments below that he was not given “fair notice” of the 

Appellees’ allegation that the 2020 annual meeting was adjourned prior to the election of 

directors, and he should have been allowed to “provide new evidence . . . regarding this issue.” 

9

 We question the Trustee’s reliance on Mass. Gen. Laws ch. 155D, § 8.05(e), as that provision does not 

appear to apply to “[special] purpose” corporations such as the Club, which is governed by Mass. Gen. 

Laws ch. 180. Even if this statute were applicable, however, it would have no bearing on the outcome of 

this appeal. The Trustee raises the “director holdover” provision to argue that the directors who were 

elected in 2020 continued to serve at the time the Resolution was signed. Having determined that the 

directors were not properly elected during that meeting, the bankruptcy court never reached this issue. 

Moreover, the Trustee did not raise the “director holdover” statute to argue that, even if the directors were 

not validly elected at the 2020 annual meeting, then the directors who were elected at the 2019 annual 

meeting continued to serve at the time the petition was filed. Even if he had raised this argument, 

however, there is nothing in the record showing that any of the individuals (except for one) who signed 

the Resolution were elected as directors in 2019. 
14

Finally, the Trustee contends that the bankruptcy court, as a court of equity, should 

have “conditioned” the dismissal of the case on the Club’s payment of administrative expenses

incurred by the Trustee and his counsel. The Trustee emphasizes, as he did in the Motion to 

Reconsider, that he had relied in good faith upon the Resolution as authority for the Club’s 

bankruptcy filing and that, given the time he and his counsel had spent administering and 

prosecuting the case, it would have been “just and equitable” for the court to allow

administrative expenses. Other than a brief reference to § 105, the Trustee does not cite any 

other legal authority to support his position. 

II. The Appellees

The Appellees counter that the bankruptcy court committed no error when it dismissed 

the Club’s petition because the Board was not duly elected and, thus, had no legal authority to 

sign the Resolution. Emphasizing that the Panel must give “due regard to the trial court’s 

opportunity to judge the credibility of witnesses,” the Appellees assert that although there was 

some conflicting evidence as to whether the Board was properly elected at the 2020 annual 

meeting, the Trustee does not point to any “significant error” in the bankruptcy court’s 

credibility determinations and weighing of the evidence. As the bankruptcy court’s “decision 

about what testimony and documents to credit was amply supported by the evidence,” the court’s 

findings “should stand,” they argue.

The Appellees also argue that the bankruptcy court correctly denied the Motion to 

Reconsider, as the Trustee had due notice of their allegation that the Board was not properly 

elected at the 2020 annual meeting. Further, the Appellees contend, the bankruptcy court 

correctly determined that the “new evidence” proffered by the Trustee “could have been known 

at the time of the original hearing by exercise of reasonable diligence, and should have been 

presented prior to the ruling . . . .” 
15

Finally, the Appellees urge us to “[d]eny the Trustee’s request for fees.” They highlight 

that the Trustee cited no legal authority to support his initial request at the conclusion of the trial, 

nor has he cited any legal authority for that request in his appellate brief, other than a brief 

reference to § 105. Moreover, they contend, the Trustee does not explain “how his activities 

benefitted the Debtor, its estate, or its creditors.” 

In the prayer for relief set forth at the end of their brief, the Appellees also ask us to 

award them “attorneys fees and costs, based on the Trustee filing a frivolous appeal, without 

reasonable legal or factual grounds to do so.” 

APPELLATE JURISDICTION

We have jurisdiction to hear appeals from final orders of the bankruptcy court. 

See 28 U.S.C. § 158(a)-(c); see also Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582, 

587 (2020). A bankruptcy court order dismissing a chapter 7 bankruptcy petition is a final order. 

Asociación de Titulares de Condominio Castillo v. DiMarco (In re Asociación de Titulares de 

Condominio Castillo), 581 B.R. 346, 354 (B.A.P. 1st Cir. 2018). Because the Dismissal Order is 

final, the Order Denying Reconsideration is also a final order. See id. (“A bankruptcy court 

order denying a motion to alter a judgment under Rule 59(e) or to set aside a judgment under 

Rule 60(b) is a final order ‘if the underlying order is final and together the orders end the 

litigation on the merits.’”) (citation omitted). Therefore, we have jurisdiction to review both 

orders.

STANDARDS OF REVIEW

We review the bankruptcy court’s findings of fact for clear error and its conclusions of 

law de novo. Jeffrey P. White & Assocs., P.C. v. Fessenden (In re Wheaton), 547 B.R. 490, 496 

(B.A.P. 1st Cir. 2016). Typically, a bankruptcy court’s dismissal of a chapter 7 petition is 

reviewed for an abuse of discretion. See In re Eldorado Canyon Props., LLC, 505 B.R. 601, 603 
16

(B.A.P. 1st Cir. 2014). Here, however, the bankruptcy court dismissed the chapter 7 petition 

because it was not duly authorized by a properly constituted board of directors. Whether a 

corporate agent had the requisite authority to file a bankruptcy petition on the corporation’s 

behalf is a legal question which is reviewed de novo. See Keenihan v. Heritage Press, Inc., 

19 F.3d 1255, 1258 (8th Cir. 1994); Squire Ct. Partners Ltd. P’ship v. Centerline Credit 

Enhanced Partners LP Series J (In re Squire Ct. Partners Ltd. P’ship), 574 B.R. 701, 705 (E.D. 

Ark. 2017). If the corporate agent lacked authority to file a bankruptcy petition, the court has no 

discretion and must dismiss the petition. Price v. Gurney, 324 U.S. 100, 106 (1945) 

The Trustee argues that the bankruptcy court’s determination that the bankruptcy filing 

was unauthorized was based on an erroneous factual finding. We review the court’s factual 

findings for clear error. See Nevor v. Moneypenny Holdings, LLC, 842 F.3d 113, 117 (1st Cir. 

2016) (“In the aftermath of a bench trial, we review the [trial] court’s factual findings for clear 

error.”) (citation omitted). Under the clearly erroneous standard, factual findings will be set 

aside “only if, on the entire evidence, [the reviewing court is] left with the definite and firm 

conviction that a mistake has been committed.” Id. (citation and internal quotation marks 

omitted). “[I]f there are a couple of plausible ways to view the evidence, the judge’s preference 

for one over the other cannot be clear error.” Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41, 

45 (1st Cir. 2013) (citation omitted); see also Anderson v. City of Bessemer City, 470 U.S. 564, 

574 (1985). 

An order denying a motion for reconsideration is reviewed for abuse of discretion. 

Rodriguez Camacho v. Doral Fin. Corp. (In re Rodriguez Camacho), 361 B.R. 294, 299 (B.A.P. 

1st Cir. 2007). Typically, a bankruptcy court’s decision on whether to award compensation to a 

chapter 7 trustee or the trustee’s counsel is also reviewed for abuse of discretion. See Michel v. 

Beard (In re Beard), 45 F.3d 113, 118 (6th Cir. 1995) (stating that “the statutory framework 
17

allows the courts a rather broad measure of discretion to allow ‘reasonable compensation’ to a 

Chapter 7 . . . bankruptcy trustee”) (citing 11 U.S.C. §§ 105(a), 326(a), 330(a)); Daikin Mia. 

Overseas, Inc. v. Lee, Schulte, Murphy & Coe, P.A. (In re Daikin Mia. Overseas, Inc.), 868 F.2d 

1201, 1208 (11th Cir. 1989) (“The determination of attorneys’ fees in a bankruptcy proceeding is 

normally left to the sound discretion of the bankruptcy judge unless the bankruptcy judge abuses 

his discretion.”) (citation omitted). We may set aside a bankruptcy court’s discretionary ruling if 

the court “relie[d] upon an improper factor, neglect[ed] a factor entitled to substantial weight, or 

consider[ed] the correct mix of factors but ma[de] a clear error of judgment in weighing them.” 

Mercado v. Combined Invs., LLC (In re Mercado), 523 B.R. 755, 761 (B.A.P. 1st Cir. 2015) 

(quoting Bacardí Int’l Ltd. v. V. Suárez & Co., 719 F.3d 1, 9 (1st Cir. 2013)). 

DISCUSSION

I. The Bankruptcy Court Did Not Err in Dismissing the Chapter 7 Petition

A. Dismissal of Chapter 7 Petition for Lack of Corporate Authority 

Section 707(a) provides that the bankruptcy court “may” dismiss a chapter 7 case “for 

cause.” See 11 U.S.C. § 707(a). The Bankruptcy Code does not define “cause,” but courts have 

held that “[c]ause for dismissal exists where a business entity lacks authority to file a bankruptcy 

petition.” In re Or. Homes, LLC, No. 13-33349, 2014 WL 4794861, at *2 (Bankr. N.D. Ohio 

Sept. 25, 2014) (citing, among others, Price, 324 U.S. at 106); see also In re Innocenti, LLC, 

No. 15-30690 HLB, 2016 WL 3483228, at *3 (Bankr. N.D. Cal. June 20, 2016). Although the 

bankruptcy court typically has discretion to determine whether cause exists to dismiss a chapter 7 

petition, see Wilk Auslander LLP v. Murray (In re Murray), 900 F.3d 53, 57 (2d Cir. 2018), “if 

the [bankruptcy court] finds that those who purport to act on behalf of the corporation have not 

been granted authority by local law to institute the proceedings, it has no alternative but to 

dismiss the petition.” Price, 324 U.S. at 106; see also In re Real Homes, LLC, 352 B.R. 221, 225 
18

(Bankr. D. Idaho 2005) (“It is generally accepted that a bankruptcy case filed on behalf of an 

entity by one without authority under state law to so act for that entity is improper and must be 

dismissed.”) (citations omitted). “The burden of demonstrating cause for dismissal for lack of 

authority to file is on the movant.” In re Curare Lab. LLC, 642 B.R. 787, 802 (Bankr. W.D. Ky. 

2022) (citation and internal quotation marks omitted); see also In re Quad-C Funding LLC, 

496 B.R. 135, 142 (Bankr. S.D.N.Y. 2013) (holding that party seeking dismissal for lack of 

authority to file the petition bears the burden of proof). 

 B. Massachusetts Law and the Club’s Bylaws

State law typically governs a corporation’s authority to file a bankruptcy petition. See

Hager v. Gibson, 188 B.R. 194, 197 (E.D. Va. 1995) (“If the corporation is incorporated under 

state law, then the . . . court must look to state law to decide whether the authority to file 

bankruptcy existed.”), aff’d, 108 F.3d 35 (4th Cir. 1997); see also Thompson v. Daluise (In re 

Wet-Jet Int’l, Inc.), 235 B.R. 142, 148 (Bankr. D. Mass. 1999) (“The source of a corporation’s 

authority to file a bankruptcy petition is found in state law, not in the Bankruptcy Code.”)

(citation omitted). Here, the bankruptcy court concluded that Chapter 180 of the Massachusetts 

General Laws (“Chapter 180”) applies to the Club, “since the stated purpose of the [Club] 

corresponds to the purposes defined in Chapter 180, § 4(a), (f), and (i) (namely, the [Club] was 

formed for any civic, educational, charitable, benevolent purposes, athletic purposes, and for the 

establishment and maintenance of places for reading rooms, libraries or social meetings).” 

Neither party challenges that determination and, based on the record before us, we discern no 

error. 

Chapter 180 does not specifically address who has the authority to file a bankruptcy case 

on behalf of a corporation subject to its provisions. Sections 6A and 17 of Chapter 180, 

however, grant a corporation the power to determine the duties and powers of the officers and 
19

directors through its bylaws. See Mass. Gen. Laws ch. 180, § 6A (providing that “[a] 

corporation may prescribe by its by-laws the manner in which and the officers and agents by 

whom its purposes may be accomplished”) and § 17 (providing that “[t]he by-laws shall contain 

clear and distinct provisions relative to . . . the titles, duties, powers and tenure of the officers of 

the corporation and their election and removal”). 

There is no dispute that the Club is governed by its original bylaws, which were enacted

when the Club was formed in 1927.10 Article IV, § 2 of the Club’s bylaws, entitled “Directors,” 

provides, in relevant part:

The Board of Directors shall transact all business of the Club and may exercise

all powers of the corporation except such as are conferred by the law or by these

by-laws upon the stockholders. It shall make rules and regulations to govern its 

own meetings, it may fill vacancies, choose standing and special committees of its 

own number for facilitating the work and welfare of the Club. 

. . . . 

One-third Directors of the Board shall constitute a quorum at any meeting of the 

Board. 

(emphasis added). 

While the bylaws do not explicitly reference the filing of a bankruptcy petition or 

explicitly confer authority for the filing of such petitions, the act of filing a bankruptcy petition 

may properly be viewed as an act “facilitating the work and welfare of the Club” within the 

meaning of the bylaws, to the extent that bankruptcy would promote the proverbial “fresh start” 

of the Club. See In re Wolf, 739 F. App’x 165, 169 (3d Cir. 2018) (“Bankruptcy allows 

individuals and corporations to recover from difficult circumstances, and provides a fresh start to 

10 Although there was some testimony at trial suggesting that the original 1927 bylaws may have been 

amended, there is no evidence in the record as to the nature of any such amendments (other than an 

amendment prohibiting more than one family member from serving on the Board) or when or how they 

were made. The record reflects that the bankruptcy court considered the 1927 bylaws to be controlling 

and no challenges to that determination have been made in this appeal. Moreover, both parties agreed at 

oral argument that the Club is governed by the 1927 bylaws. Therefore, we also consider the 1927 

bylaws to be the controlling document for the Club. 
20

those who need it.”). Additionally, as the Massachusetts bankruptcy court has recognized, 

“[s]tatutes with similar language [authorizing the board of directors to conduct the business of 

the corporation] have been held to authorize the board of directors to file a petition in 

bankruptcy.” In re N2N Com., Inc., 405 B.R. 34, 41 (Bankr. D. Mass. 2009) (quoting In re 

Arkco Props., Inc., 207 B.R. 624, 628 (Bankr. E.D. Ark. 1997)). Further, the Club’s bylaws do 

not explicitly restrict the authority of the Board to file a bankruptcy petition and there is no 

authority in the bylaws that would permit anyone, other than the Board of Directors, to authorize 

the filing of a bankruptcy petition. Therefore, the validity of the filing of the Club’s chapter 7 

petition was “fully dependent” on whether the Resolution authorizing that filing was made by a 

“duly elected, properly constituted Board of Directors.” See In re Wet-Jet Int’l, Inc., 235 B.R. at 

148 (stating that where only the board of directors has authority to file a bankruptcy petition, the 

“validity” of a bankruptcy filing is “fully dependent” on whether the filing was authorized by a 

“duly elected, properly constituted Board of Directors”). 

To determine whether the Resolution was signed by a “duly elected, properly constituted 

Board of Directors,” we again turn to Massachusetts law and the Club’s bylaws. Section 6A of 

Chapter 180 provides that a “corporation may by its by-laws determine . . . the tenure of office of 

the directors and officers and the manner of their selection and removal[.]” Mass. Gen. Laws 

ch. 180, § 6A. Article V, § 1 of the Club’s bylaws requires the Club to hold an annual meeting 

of its stockholders, and Article VI, § 1, which outlines the “order of business” to be conducted at 

the annual meetings, includes the “[e]lection of directors and other officers” as an agenda item. 

Article IV, § 1, entitled “Officers,” further provides: 

The officers of this Club shall be a Board of not less than five (5) and not more 

than fifteen (15) directors, a President, a Vice-President, a Treasurer, [a] Clerk, 

and a Financial Secretary, all of whom shall belong to the Board of Directors. 
21

All the above officers shall be chosen by ballot at the annual meeting, with the 

exception of the President and the Vice-President, who shall be chosen by the 

Directors at the first meeting of the Board.

All officers shall hold office for one year and until their successors are chosen and 

qualified. 

The bankruptcy court interpreted these provisions to mean there must be at least five and no 

more than fifteen members of the Board of Directors—which automatically include the 

president, vice president, treasurer, clerk, and financial secretary—and all “officers . . . and other 

Board directors” must be “chosen by vote” at the annual meeting. In re Polish-Am. Citizens 

Club Inc. 642 B.R. at 207. The bankruptcy court’s interpretation of the Club’s bylaws has not 

been disputed. 

The bankruptcy court ultimately concluded that only the four officers who were elected 

by ballot at the 2020 annual meeting (Dorothy Wojtczak as president, Carl Schreiber as vice

president, Joe Martino as treasurer, and Ron Schwalm as financial secretary) were valid

members of the Board under the Club’s bylaws and that the remaining purported directors “were 

not properly elected prior to the adjournment of the annual meeting as required by the by-laws.” 

Id. Specifically, it found, based on the testimony of June Massee, Matthew Roman, Kevin 

Juchno and Marian Zielinski, that: 

[A]lthough an election of officers was done by ballot at the 2020 meeting, after 

the officers were elected but before the remaining Board directors were chosen, 

Wojtczak announced that the meeting was adjourned. At that time many people 

left. After the adjournment of the meeting, approximately 30 people remained. 

Someone realized that the remaining Board directors had not yet been elected. At 

that point, Wojtczak essentially nominated several people to be directors, they 

agreed, and no one disagreed. 

 

Id. The bankruptcy court then ruled that, because the bylaws require the Board to have at least 

five members, and only the four officers were properly elected, there was not a properly 

constituted Board and the Club’s bankruptcy case was unauthorized. Id.
22

C. No Reversible Error

The Trustee’s sole argument on appeal with respect to the dismissal of the Club’s petition 

is that the bankruptcy court made a clearly erroneous finding that the 2020 annual meeting “was 

adjourned prior to the election of the directors.” Underlying the Trustee’s argument is an 

assumption that the bankruptcy court’s determination as to the validity of the so-called “election”

of directors was based solely on when the meeting was adjourned and not the manner in which 

the “election” was conducted. This assumption ignores the import of the bankruptcy court’s 

determination that the directors “were not properly elected” under the Club’s bylaws. When 

considering Massachusetts law and the Club’s bylaws, the bankruptcy court concluded that the 

bylaws required all officers and other Board members “to be chosen by vote” at the annual 

meeting, a determination which has not been challenged on appeal. The court found, however, 

that only four officers were elected by ballot at the 2020 annual meeting, and the remaining 

directors were simply selected by Ms. Wojtczak without a formal ballot or vote. Therefore, the

bankruptcy court’s conclusion regarding the validity of the Resolution was based both on when

the meeting was adjourned and on the manner in which the remaining directors were selected. 

There was much testimony at trial to support the bankruptcy court’s finding that the

directors were not properly elected by formal vote or ballot before the adjournment of the 2020 

annual meeting as required by the bylaws. June Massee testified that after the officers and 

trustees were elected, the meeting was “adjourned,” and no Board of Directors had been elected

before the adjournment. Her testimony was corroborated by at least two shareholders—Kevin 

Juchno and Matthew Roman—both of whom testified that no Board members were elected 

before the meeting was adjourned and that, after the majority of shareholders had left, Dorothy 

Wojtczak simply named people to serve on the Board from those remaining. There were also 

several other shareholders, including Marian Zielinski and Rachel Ilnicki, who did not expressly 
23

state that the meeting had been adjourned, but did say that after the officers were elected, most of 

the shareholders left, and Ms. Wojtczak then selected the Board members without a formal vote.

Even Dorothy Wojtczak testified that the directors were not elected by formal vote or 

ballot at the 2020 annual meeting, stating: “There is no official vote for board of directors.

It is a . . . hand vote, or nomination of . . . the board, on the floor.”11 Although Ms. 

Wojtczak insisted it had been many years since the Club’s directors were formally elected 

by ballot, there was nothing in the record from which the court could have concluded that 

the provisions of the Club’s bylaws requiring an “election” of directors had been altered or 

amended by shareholder vote at an annual meeting as required under Article VIII, § 3 of the 

Club’s bylaws.12 Further, even if the bylaws could be amended by a course of conduct over 

time—as the Trustee seems to suggest without offering any legal support—several longstanding shareholders testified that before Ms. Wojtczak became president in 2019, the Club 

did, in fact, conduct a formal election process for the Board members, but that process was 

no longer followed under Ms. Wojtczak’s leadership. 

In rendering its decision, the bankruptcy court “credit[ed] the testimony of June Massee

and Matthew Roman, as corroborated by the testimony of other witnesses” such as Kevin Juchno 

and Marian Zielinski. The Trustee, however, argues that these witnesses lacked credibility and

contends the bankruptcy court should have relied instead on conflicting testimony from Dorothy 

Wojtczak, Alice Pasterczyk, and Anton Zamachaj, who testified that the 2020 annual meeting 

11 Ms. Wojtczak’s testimony was consistent with the minutes of the Club’s annual meeting in 2019, 

which reflected tallied votes for the officers but indicated the directors were selected by “hand vote” at 

that meeting. 

12 Article VIII, § 3 of the bylaws provides: “The[se] by-laws may be changed, amended or new ones 

added at any meeting of the stockholders regularly called, notified and held, as provided by these by-laws, 

by affirmative vote of two-thirds of all stockholders present and voting.” 
24

was not adjourned until after the Board members were selected. Because of this conflicting 

evidence, the Trustee argues, the court’s determination that the 2020 annual meeting 

was adjourned prior to the election of the directors “was clearly erroneous and should be 

reversed . . . .” 

The Trustee, however, has not demonstrated that the bankruptcy court’s view of the 

evidence was implausible and, therefore, clearly erroneous. See Anderson, 470 U.S. at 573-74. 

The bankruptcy court conducted a trial over the course of three days, heard testimony from 13 

witnesses, and admitted 11 exhibits into evidence. It had the opportunity to observe the 

demeanor of the witnesses, assess their credibility, and weigh all the testimonial and 

documentary evidence presented. Without question, there was conflicting evidence supporting 

the Trustee’s allegations that the directors were selected before the 2020 annual meeting was 

adjourned. But the existence of conflicting evidence, standing alone, is insufficient to establish 

that the bankruptcy court’s finding was clearly erroneous. See Goat Island S. Condo. Ass’n, Inc. 

v. IDC Clambakes, Inc. (In re IDC Clambakes, Inc.), 727 F.3d 58, 65 (1st Cir. 2013) (declining 

to find clear error where there was sufficient evidence to support two plausible but conflicting 

findings). Further, there was ample evidence in the record to support a finding that even if the 

directors were selected before the meeting adjourned, they were not elected by formal ballot as 

required by the bylaws. Thus, the bankruptcy court’s finding that the directors were not 

“properly elected” before the meeting was adjourned was “plausible” based on the entire record 

before the bankruptcy court and we could not overturn it even if we might have weighed the 

evidence differently. Devila Vicenty v. San Miguel Sandoval (In re San Miguel Sandoval), 327 

B.R. 493, 505-06 (B.A.P. 1st Cir. 2005). Affording the bankruptcy court the “due deference” to 

which it is entitled when weighing the evidence, see Fed. R. Civ. P. 52(a)(6), we are not left with 

“the definite and firm conviction that a mistake has been committed.” Nevor, 842 F.3d at 117. 
25

Having concluded that the bankruptcy court’s factual findings were not clearly erroneous, 

it necessarily follows that the bankruptcy court did not err in ruling that the Club’s bankruptcy 

filing was not authorized by a duly elected Board of Directors and in dismissing the unauthorized 

petition. See Price, 324 U.S. at 106. 

II. The Bankruptcy Court Did Not Abuse its Discretion in Denying Reconsideration 

of the Dismissal Order 

We turn, now, to the bankruptcy court’s denial of the Trustee’s request for 

reconsideration of the Dismissal Order under Rules 59(e) and 60(b). On appeal, the Trustee 

reiterates his assertion in the Motion to Reconsider that he had not been given “fair notice” of the 

Appellees’ allegation that the 2020 annual meeting was adjourned prior to the election of 

directors and argues that the Motion to Reconsider “should have been allowed” so that he could 

provide “new evidence” regarding this issue. For the reasons discussed below, we conclude that 

the Trustee has not satisfied his burden of demonstrating that the bankruptcy court’s denial of 

relief under Rules 59(e) and 60(b) constituted an abuse of discretion. 

It is well settled in the First Circuit that to prevail under Rule 59(e), the moving party 

“must either clearly establish a ‘manifest error of law or fact’ or must present ‘newly discovered 

evidence.’” La Trinidad Elderly LP SE v. Loíza Ponce Holdings LLC (In re La Trinidad Elderly 

LP SE), 627 B.R. 779, 804 (B.A.P. 1st Cir. 2021) (citation omitted); see also Aybar v. CrispinReyes, 118 F.3d 10, 16 (1st Cir. 1997). “The filing of a Rule 59(e) motion,” however, “does not 

afford the movant an opportunity to introduce evidence that was previously available.” Mancini 

v. City of Providence, 909 F.3d 32, 48 (1st Cir. 2018) (citation omitted). Therefore, “[a] party 

asking a court to reconsider its judgment on this basis must show ‘that [it] could not in the 

exercise of reasonable diligence have obtained [the] new evidence earlier.’” City of Mia. Fire 

Fighters’ & Police Officers’ Ret. Tr. v. CVS Health Corp., 46 F.4th 22, 36 (1st Cir. 2022) 
26

(citation omitted). This means that “when a party is made aware that a particular issue will be 

relevant to its case but fails to produce readily available evidence pertaining to that issue, the 

party may not introduce that evidence to support a Rule 59(e) motion.” In re Ortiz Arroyo, 

544 B.R. 751, 757 (Bankr. D.P.R. 2015) (citation omitted). 

The court may also relieve a party from a final judgment under Rule 60(b)(2) if the party

presents “newly discovered evidence that, with reasonable diligence, could not have been 

discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). As 

with Rule 59(e), “a party who seeks relief from a judgment based on newly discovered evidence 

[under Rule 60(b)(2)] must, at the very least, offer a convincing explanation as to why he could 

not have proffered the crucial evidence at an earlier stage of the proceedings.” Fisher v. Kadant, 

Inc., 589 F.3d 505, 513 (1st Cir. 2009) (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 19-20 

(1st Cir. 2002)). 

The Trustee has not offered any cogent reason why he could not, in the exercise of 

due diligence, have obtained the evidence contained in the six affidavits before the entry of 

the Dismissal Order or why he could not have anticipated the premise underlying the Motion 

to Dismiss. It is clear from both the joint pretrial memorandum and the Appellees’ opening 

statement at trial that the Appellees were challenging the validity of the election of the 

Board of Directors. As the Club’s bylaws require that the Board members be elected by 

ballot at the annual meeting—a determination by the bankruptcy court that the Trustee does 

not dispute on appeal—the Trustee could have, and should have, produced any and all 

evidence to refute the evidence proffered by the Appellees to establish that the Board

members were not validly elected during the 2020 annual meeting. The Trustee did not 

argue, or demonstrate, that the “new” evidence he was seeking to proffer through the 
27

affidavits was “previously unavailable” to him and that he could not have discovered the 

evidence earlier “in the exercise of due diligence.” 

In fact, the Trustee admitted in connection with the Motion to Reconsider that the six 

affiants “‘could’ have testified at the prior hearings” on the Motion to Dismiss, but that, “[o]ut 

of respect for the Court’s time,” he would not present “numerous witnesses [to] testify to the 

same effect . . . .” Therefore, by his own admission, the Trustee’s failure to introduce the 

evidence earlier was a strategic litigation choice, not the result of unavailability of evidence. 

And, in any event, courts have held that new evidence “which at best is merely cumulative” of 

previously submitted evidence or which merely “corroborat[es]” prior allegations does not 

satisfy Rule 60(b)(2). See Giroux v. Fed. Nat’l Mortg. Ass’n, 810 F.3d 103, 107 (1st Cir. 2016) 

(citation and internal quotation marks omitted). 

We conclude, therefore, that the bankruptcy court did not abuse its discretion in rejecting 

the Trustee’s belated effort to produce additional evidence regarding the adjournment of the 

2020 annual meeting after the entry of the Dismissal Order by way of a Motion to Reconsider. 

III. The Bankruptcy Court Did Not Abuse its Discretion by Declining to Condition 

Dismissal of the Bankruptcy Case on the Payment of Administrative Expenses

Incurred by the Trustee and his Counsel

The Trustee’s final argument on appeal is that the bankruptcy court should have 

“conditioned” the dismissal of the bankruptcy petition on the Club’s payment of at least a portion 

of the “administrative expenses” incurred by the Trustee and his counsel in the administration of 

the estate. As in his initial request in the proceedings below, the Trustee does not cite any 

statutory authority to support his argument, except for a brief reference to § 105. When 

requesting payment of administrative expenses, however, he repeatedly references the number 

of hours he and his counsel had collectively spent administering the estate, marketing the 

Property for sale to maximize payments to creditors, and defending the Appellees’ motions. 
28

Under § 503(b)(2), both the Trustee’s compensation and his counsel’s fees and expenses 

incurred in the administration of the bankruptcy estate would constitute “administrative 

expenses,” if allowed. See 11 U.S.C. § 503(b)(2) (providing that “compensation and 

reimbursement awarded under [§] 330” are “allowed administrative expenses”); Law v. Siegel, 

571 U.S. 415, 422 (2014) (recognizing that reasonable attorney’s fees incurred by the trustee 

“were indubitably an administrative expense”); Boldt v. Crake (In re Riverside-Linden Inv. Co.), 

945 F.2d 320, 324 (9th Cir. 1991) (recognizing allowed trustee’s fees are administrative 

expenses under § 503(b)(2)). Therefore, we construe the Trustee’s request for payment of 

administrative expenses as one for allowance and payment of both his compensation and his 

counsel’s fees and expenses. 

A. Statutory Provisions Governing Compensation for Chapter 7 Trustees and 

Professionals 

Requests for payment of compensation and expenses by the estate are governed by § 330, 

which provides that the bankruptcy court “may award to a trustee . . . or any professional persons 

employed under § 327 . . . reasonable compensation for actual, necessary services rendered.” 

See 11 U.S.C. § 330(a). Compensation is reasonable if, among other things, “the services were 

necessary to the administration of, or beneficial at the time at which the service was rendered 

toward the completion of, a [bankruptcy] case . . . .” See 11 U.S.C. § 330(a)(3)(C). 

Consequently, the fact that a case “was ultimately dismissed does not [automatically] render the 

trustee’s [or his counsel’s] efforts unnecessary.”13 In re Jankowski, 382 B.R. at 545. 

13 Although dismissal does not render a trustee’s efforts unnecessary, § 326(a) limits a chapter 7 

trustee’s “reasonable” compensation under § 330 (but not that of his counsel) “to a percentage of the 

funds disbursed by the trustee.” Checks Cashed for Less v. Kipperman, No. 11cv2383 BTM(WVG), 

2012 WL 2723027, at *3 (S.D. Cal. July 9, 2012). Thus, if, as here, a chapter 7 case is dismissed before 

the trustee distributes any funds, “the plain language of § 326(a) directs that . . . the trustee’s maximum 

compensation . . . [is] $0.” In re Mingledorff, No. 12-41543-EJC, 2015 WL 3897374, at *5 (Bankr. S.D. 

Ga. June 23, 2015). Some courts, however, eschew a strict reading of § 326(a) and award compensation 

to chapter 7 trustees in unadministered cases based on equitable considerations. See, e.g., In re 
29

Court approval is mandatory for all awards of compensation and fees from the estate, and 

trustees and professionals seeking such compensation are required to submit fee applications 

setting forth a detailed explanation of the services rendered, time expended, expenses incurred, 

and the amounts requested. See Fed. R. Bankr. P. 2016(a) (providing that entities seeking 

compensation “shall” file applications which are subject to a noticed hearing prior to allowance 

or payment of fees); In re Par 5 Prop. Invs., LLC, No. 21-22404-A-11 MF-2, 2022 Bankr. 

LEXIS 3045, at *21 (Bankr. E.D. Cal. Oct. 26, 2022) (recognizing that § 330 is implemented 

by Bankruptcy Rule 2016, which requires professionals to file applications for compensation); 

see also Scotiabank de P.R. v. Burgos (In re Plaza Resort at Palmas, Inc.), 741 F.3d 269, 276 n.9 

(1st Cir. 2014) (recognizing, in a different statutory context, that “shall” is a “mandatory verb”).

B. Review of the Bankruptcy Court’s Ruling

Here, although the Trustee and his counsel sought to “condition” dismissal on the Club’s 

payment of “administrative expenses” they incurred in the administration of the estate, they did 

so through an oral request made at the end of trial, and not through a formal motion or 

application. They never filed fee applications detailing the compensation requested as required 

by Bankruptcy Rule 2016(a) or requested additional time to do so. Nor did the Trustee at any 

point cite § 330 as the legal basis for his requested relief. The bankruptcy court having denied 

his request for attorney’s fees and costs as sanctions against the Appellees due, in part, to his 

failure to cite any supporting legal authority, the Trustee was clearly on notice that any further 

request for payment of attorney’s fees and expenses should identify the relevant legal basis for 

Jankowski, 382 B.R. at 542-45 (applying quantum meruit principles to award compensation to chapter 7 

trustee for carrying out his duties before case was dismissed). Here, however, the bankruptcy court did 

not reach the question of whether the Trustee and his counsel were entitled to compensation under § 330 

or whether the Trustee’s compensation was limited by § 326(a) as they failed to follow the mandatory 

procedural requirements for requesting such relief, as discussed below.
30

the requested relief. The Trustee also failed to make clear, in his oral request at the close of trial, 

that he was not seeking payment of attorney’s fees and expenses from the Appellees—as asserted 

in the Sanctions Motion—but rather compensation from the estate. 

The bankruptcy court appears to have misconstrued the Trustee’s verbal request at the 

end of trial as a renewed request to impose monetary sanctions against the Appellees in the 

amount of his attorney’s fees and expenses incurred in defending against their various motions, 

as set forth in his initial Sanctions Motion, rather than a new request for compensation under 

§ 330. This interpretation of the Trustee’s request is at odds with the record. We conclude, 

however, that the mischaracterization is harmless, as the court had no obligation (or authority) to 

consider an oral request for compensation in the absence of a formal fee application as mandated 

by Bankruptcy Rule 2016(a). Nor was the bankruptcy court required to delay the dismissal of 

the case to afford the Trustee and his counsel an opportunity to file fee applications so that the 

court could evaluate whether they were entitled to compensation, in whole or part, under §§ 330 

and 326, or to remind them of their obligation to do so. The bankruptcy court has “a rather broad 

measure of discretion” when considering whether to award compensation to a chapter 7 trustee 

or the trustee’s professionals. See In re Beard, 45 F.3d at 118. Under these circumstances, we 

conclude that the bankruptcy court did not abuse its discretion in denying the Trustee’s request to 

condition the dismissal upon payment of administrative expenses incurred by the Trustee and his 

counsel.14 

14 Despite this conclusion, we recognize that it may have been possible for the Trustee and/or his counsel 

to file fee applications with the bankruptcy court despite the dismissal of the bankruptcy case. We do not 

opine, however, on the bankruptcy court’s jurisdiction to consider any such fee application in the absence 

of a specific retention of jurisdiction in the Dismissal Order, whether an award of compensation and 

expenses would have been warranted under §§ 330 and 326(a), or whether the Trustee and his counsel 

would have been able to recover any allowed compensation and expenses from the Club. 
31

IV. Appellees’ Request for Attorney’s Fees and Costs for a Frivolous Appeal 

In their brief, the Appellees ask us to award them attorney’s fees and costs, “based on the 

Trustee filing a frivolous appeal, without reasonable legal or factual grounds to do so.” 

Although the Appellees do not cite any legal authority for this relief, we construe their request as 

one for damages and costs for a frivolous appeal under Bankruptcy Rule 8020 (providing that if 

the “BAP determines that an appeal is frivolous, it may, after a separately filed motion . . . , 

award just damages and single or double costs to the appellee”) (emphasis added). Bankruptcy 

Rule 8020 expressly requires that sanctions be requested by a “separately filed motion.” See id. 

This requirement “is strict, and failure to comply results in the denial of the request for 

sanctions.” Reyes Rivera v. Bracetty Matos (In re Reyes Rivera), 494 B.R. 101, 107 (B.A.P. 1st 

Cir. 2013); see also Sirikanjanachai v. Town of Hingham (In re Sirikanjanachai), 628 B.R. 562, 

571 (B.A.P. 1st Cir. 2021) (denying appellee’s request for costs under Bankruptcy Rule 8020 due 

to its “failure to comply with the rule’s separate motion requirement”). As the Appellees did not 

file a separate motion, their request for attorney’s fees and costs is DENIED.

15 

CONCLUSION

For the reasons set forth above, we AFFIRM the Dismissal Order, including the 

bankruptcy court’s denial of the Trustee’s request to condition the dismissal on payment of 

administrative expenses incurred by the Trustee and his counsel. We also AFFIRM the Order 

Denying Reconsideration. The Appellees’ request for reimbursement of attorney’s fees and 

costs is DENIED.

15 The Appellees may still seek reimbursement of their costs in the bankruptcy court under Bankruptcy 

Rule 8021. See Fed. R. Bankr. P. 8021 (providing that certain costs of appeal are taxable in bankruptcy 

court against appellant if judgment is affirmed); see also In re Sirikanjanachai, 628 B.R. at 571 n.8.