UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ In re: CHARLES C. WALDO; ETHANNE S. WALDO, Debtors.

---------------------------- CHARLES C. WALDO; ETHANNE S. WALDO, Appellants,

v. BANK OF NEW YORK MELLON TRUST COMPANY; OCWEN LOAN SERVICING, LLC, Appellees. No. 21-4050 (D.C. No. 2:20- CV-00238-DBB) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , EID , and ROSSMAN , Circuit Judges.

________________ _________________

* Oral argument would not help us , so we have d ecided the appeal based on the re cord and the pa rties’ briefs. See Fed. R. App. P. 34(a)(2)(C); Tenth Cir. R. 34.1(G). Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. See Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### May 27, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 12 This appeal involves property once owned by Charles and Ethanne Waldo. The Waldos obtained a mortga ge, which was secured by a deed of trust. The Waldos eventually defaulte d on the loan, tri ggering foreclosure proceedings. But the Waldos filed bankruptcy. In the bankruptcy proceedings, the Waldos unsuccessfully tried to prevent a creditor from enforcing the debt. Our appeal involves the aftermath of those bankruptcy proceedings.
I. The Waldos challenge the proof of claim involv ing the mortgage. In those bankruptcy pr oceedings, a proof of claim was filed by the Bank of New York Mellon Trust Comp any, NA, as Indenture Trustee for the IMC Home Equity Loan Owner Trust 1998-7, and Ocwen Loan Servicing, LLC. The Wal dos objected, but didn’ t deny arrearage on the mortgage. They instead questioned whether the bank and Ocwen could enforce the debt. The ba nkruptcy court overruled the Waldos’ objection and granted summary judgmen t to the bank and Ocwen. 1 The Waldos unsuccessfully move d to reopen and later sought reconsideration of the refusal to reopen, arguing that the bank and Ocwen

1 The bankruptcy court conducted a he aring and issued a written order. We don’t know whether the bankruptcy court provided an or al explanation because the bankruptcy court’s docket contains no transcript or audio recording of the hearing. We thus lack any explanation from the bankruptcy court for its rulings. But the Waldos never properly appealed the bankruptcy court’s denial of their objection or grant of summary judgment to the ba nk and Ocwen. Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 23 had no right to enforce th e debt. In making this argument, the Waldos again questioned the proof of claim, insisting that the mortgage contract was no longer valid, Oc wen no longer serviced the loan, a nd the bank entity (that filed th e proof of claim) no longer existed.
II. The bankruptcy court denies the motions to reopen and reconsider. To decide the motion to reopen, th e bankruptcy cour t considered how long the case had been closed, the possible relief fo r the Waldos, the strength of the fraud allegations, the similarity between the current allegations and earlier allegations, the potential for another court to hear the issues raised in th e motion, the prejudice to Ocwen and the bank, and the prejudice to the Wa ldos if the case were to remain closed. The bankruptcy court concluded that these factors weighed against the Waldos, so the court denied their motion to reopen. The Waldos asked the ba nkruptcy court to reconsider, but the court treated the request as a motion to alter or amend a judgment and denied relief. The district court affirmed , and the Waldos appeal.
III. Article III Standing Before reviewing the ba nkruptcy court’s ruli ngs, we assess Article III standing, which entails a jurisdictional issue. See Lee v. McCardle (In re Peeples) , 880 F.3d 1207, 1212 (10th Cir. 2018). Th e Waldos deny that Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 34 the bank has Article III stan ding in the appeal. But it is the Waldos, not the bank, who have invoked fe deral jurisdiction. So it ’s the Waldos who must show Article III standing. See Spokeo, Inc., v. Robins , 578 U.S. 330, 338 (2016). The Waldos do ha ve Article III standing , and no one contends otherwise. We need not addre ss whether the bank had Article III standing in the bankruptcy court. The ba nk’s standing in bankrup tcy court could bear on summary judgment, but th e Waldos didn’t proper ly appeal the summaryjudgment ruling.
IV. Discretion to Reopen or Reconsider The bankruptcy court did not err in declining to reopen the proceedings or to reconsider that ruling.
A. Standard of Review Despite the district court’s ruli ng, we independently review the bankruptcy court’s decisi ons without deferring to the district court’s analysis. WD Equip., LLC v. Cowen (In re Cowen) , 849 F.3d 943, 947 (10th Cir. 2017). In conducting this review, we appl y the abuse–of– discretion standard. See Nelson v. C ity of Albuquerque , 921 F.3d 925, 929 (10th Cir. 2019) (motion to a lter or amend the judgment); Woods v. Kenan (In re Woods) , 173 F.3d 770, 778 (10th Cir. 1999 ) (motion to reopen). The bankruptcy court abuses its discretion if the decision is “arbitrary, capricious, whimsical, or ma nifestly unreasonable.” Rocky Mountain Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 45 Christian Church v. Bd. of Cnty. Comm’rs , 613 F.3d 1229, 1239 (10th Cir. 2010) (internal quotation marks omitted).
B. Motion to Reopen In seeking reopening, the Waldos presented numerous theories. Most stemmed from alleged trickery by the bank and Ocwen in filing the proof of claim in bankr uptcy court. Duration. The Waldos contend that the bankruptcy court focused too heavily on how long the case had been closed . The bankruptcy court did label the passage of time the “most infl uential” factor. S uppl. R. at 549. And the Waldos correctly say that no time bar prevents th e setting aside of a judgment for fraud on the court. United States v. Buck , 281 F.3d 1336, 1341–42 (10th Cir. 2002). But the passage of time is a proper factor for a bankruptcy court to cons ider when deciding whether to reopen a case. See Redmond v. Fifth Third Bank , 624 F.3d 793, 798 (7th Cir. 2010). The bankruptcy court di d not treat the passage of ti me as conclusive; the court considered this as just one of several factors. In doing so, the court acted within its discretion. See id. Prejudice. The bankruptcy court also act ed within its discretion when finding that reop ening would prejudice Oc wen and the bank by forcing them to relitigate the validit y of their proof of claim. In the Waldos’ view, Ocwen and th e bank shouldn’t have participated in this case, so reopening the cas e would not have prejudiced them. The Waldos’ Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 56 argument ignores the interest of Ocwen and the bank in defending their judgment. Although the Waldos downplay the expected costs for Ocwen and the bank, the bankrupt cy court could reasonably consider those costs prejudicial. Consideration of the Waldos’ arguments. The Waldos assert that the bankruptcy court igno red their arguments and evidence. We disagree. The bankruptcy court denied the Waldos’ motion to reopen and explained the decision. The Waldos do not point to anything in the record showing that the bankruptcy court igno red any arguments or evidence. Standing. The Waldos imply that the ba nkruptcy cour t overlooked their challenge to Article III standing for Oc wen and the ba nk. But the Waldos’ motion to reopen did not challenge Article III standing of Ocwen or the bank.
Fraud on the court. The motion instead attacked the grant of summary judgment based on fraud on the cour t. In arguing that Ocwen and the bank had committe d a fraud on the court, th e Waldos asserted that “there was never the requis ite [s]tanding to file a [c]laim.” Suppl. R. at 539. Rejecting this assertion, the ba nkruptcy court point ed out th at the Waldos had already raised near ly identical ch allenges. This characterization fell with in the bankruptcy court’s discretion, and the Waldos have not shown an abuse of disc retion in the denial of their motion to reopen. Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 67 C. Motion to Reconsider Nor did the bankru ptcy court err when denying the Waldos’ motion to reconsider. The bankruptcy court could reconsider when the controlling law has changed, new evidence becomes availabl e, or correction is needed because of a clear error or manifest injustice. Servants of Paraclete v. Does , 204 F.3d 1005, 1012 (10t h Cir. 2000). Applying these factors, the bankruptcy court concluded that nothing had substantially changed since the ruling on the mo tion to reopen. The Waldos argue that the bankruptcy court i gnored some of their arguments. We disagree. The court said that it had considered all of the arguments, and we have no r eason to think otherwise. Granted, the bankruptcy court did not address the Waldos’ references to Article III standing. Bu t even if these referen ces had constituted an argument based on a lack of Article III standing, the bankruptcy court would have acted within its discreti on by declining to consider the argument: The Waldos had not presented the argumen t in their motion to reopen, and the bankruptcy court didn’t need to consider arguments that could have been presented earlier. See Banister v. Davis , 140 S. Ct. 1698, 1708 (2020). The Waldos contend that the at torney for Ocwe n and the bank “should not have been allowed to participate” in th e proceedings. Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 78 Appellant’s Opening Br. at 3a. 2 For this contention, the Waldos cite perceived deficiencies in the a ttorney’s entry of appearance:
1. The attorney neve r filed an entry of ap pearance for Ocwen or its successor.
2. The attorney’s appear ance form identified the bank by its old name. This argument is invali d under Federal Rule of Bankruptcy Procedure 9010(b): “An atto rney appearing for a party in a case und er the Code shall file a notice of appearan ce with the atto rney’s name, office address and telephone number, unless th e attorney’s appearance is otherwise noted in the record.” This rule applies because the reco rd otherwise clarifies that the attorney represente d both Ocwen and the ba nk. For example, the attorney’s brief for summary judgment identifies the clients as Ocwen and the bank under its new name. So any pe rceived deficiencies in the entry of appearance wouldn’t matter. 3 For this contention, the Waldos have not shown that the bankruptcy court ab used its discreti on when denying reconsideration.

2 The attorney did not participate in the proceedings related to the motion to reopen, so we understand th is argument to addr ess the denial of reconsideration.

3 We deny the Waldos’ re quest to strike the en try of appearance filed here by counsel for Ocwe n and the bank. The entry of appearance complies with Tenth Circuit Rule 46.1. Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 89 D. The Waldos’ Additional Arguments The Waldos challenge the bankrupt cy court’s award of attorney’s fees. The bankruptcy cour t ordered the fees more than a month after the Waldos had filed their notice of ap peal. The Waldos did not file a supplemental notice of ap peal, a step necessary to give us “jurisdiction over an attorneys’ fees issue that becomes final su bsequent to the initial notice of appeal.” EEOC v. Wal-Mart Stores, Inc. , 187 F.3d 1241, 1250 (10th Cir. 1999). So we lack jurisdiction to consider the award of attorney’s fees. The Waldos make several claims that appear to challenge the bankruptcy court’s ruling on summary judgment. Bu t that ruling isn’t at issue, so we cannot c onsider the Waldos’ cha llenge to the grant of summary judgment. See Lang v. Lang (In re Lang) , 414 F.3d 1191, 1195-96 (10th Cir. 2005). The Waldos allege many problems wi th the district court’s analysis. They argue, fo r example, that the district court erred by ignoring evidence and by taking judici al notice of several documents. We have independently reviewed the bankruptcy court’s rulings, disr egarding the documents noticed by the district court, and we find no abuse of discretion. Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 910 Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 21-4050 Document: 010110689967 Date Filed: 05/27/2022 Page: 10