### NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: DAVID EDWARD MYERS; MA RY ANN MYERS , Debtor s

. BAP No. NV

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Bk. No. 2 : 21

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MEMOR AN DUM ∗ DAVID EDWARD MYERS; MARY ANN MYERS , Ap pell a nt s , v. LVNV FUNDING, LLC , Appellee

. Appeal from the United States Bankruptc y Court for the District of Nevada Natalie M. Cox , Bankruptcy Judge, Pres iding

Before: LAFFER T Y, BRAND , and TAYLOR , Ban kruptcy Judges.

I N T R ODUCT ION
Ch a pter 13 1 d e btor s D avid Edward Myers and Mary Ann Myers appeal the bankruptcy court ’s order overruling their objection to the proof

∗ Th is d is p o s it i o n is n o t appropri a t e f or publicat ion

. Alt h ou g h it may be cited fo r wha t ever pe r su asi v e val ue it ma y ha ve, se e Fe d. R

. A p p

. P . 32. 1, it has n o p recedential

v al ue, see 9t h C ir. BA P R u l e 8 024

- 1.

1 Unl es s s p ec i fied ot her w ise, a ll cha p te r a nd secti on re f e rences are to t he B ankr u p tc y C ode, 1 1 U .S.C. §§ 10 1

– 1 53 2

. “ Rule ” ref erences a re to the Federal R ules o f Bankrup tcy Pro ce dur e

. 

# FILED

JUL 1 9 2022
SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT2 of claim filed by appellee LVNV Funding, LLC ( “ LVNV ” )

. Although
LVNV ’ s claim complied with Rule 3001 and was thus entitled to prima
fac ie vali d ity, we agree with Debtors that the documentation provided was
in sufficien t to enforce the d ebt under Nevada law. Accordingly, w e VACATE and REMAND

. FAC TS
Deb tors filed their c hapter 13 petition in March 2021

. Among their
scheduled debts was a non p riorit y unsecured debt to “ Citi Cards ” for $7,632 , which t hey categorized as “ disp uted. ” Shortly after Debtors ’ plan was confirmed, LVNV filed a proof of
claim for an unsecure d claim of $7 , 905.88 arising from charges made on a Citi Diamond Preferred Card

. The p roof of claim indicated that LVNV had

ac quired the claim from Resurgen t Acquisitions, LL C and was serviced by Resurgent Capital Services

. 2 Attached to the proof of claim was : (1) a document entitled “ Account Supplemental Data , ” which inclu ded th e names of the original and cur rent credit ors, a breakdown of the amounts due, and the date s of the last transaction and la st payment ; and (2) a lim i t ed power of attorney executed by L VNV g ranting R esur gent Capital
Services the authority to servi ce its account s

. De b t ors ’ counsel sent a written request to LVNV requesting
additional d ocumentation as req uired under Nevada law to enforc e a credit card debt

. Specifically, counsel requested : (1) the credit card3 application or evidence that the debtors incurred ch a rges on t he card and made payments ther eon; (2) periodic billing statements; and (3) authentication via an a ffida vit of the custodian of wr i tten records. He
also re quested a “ proper chain of title ” evid encing LVNV ’ s standing to
enforce the claim.
In res ponse, L V N V provided to Debtors ’ counsel five
unauthenticated account statements covering the perio d from No vember 20, 2020 through April 20 , 20 21 and a copy of the te rms and conditions of the credit card agreement

. LVNV also amended its proof of cl aim to
includ e a d ditional documentation related solely to LVNV ’ s standing to
enforce the claim

. Debtors filed an objection to LVN V ’s claim. They acknowledged that
L VNV had filed the acco unt statement required by Rule 3001 ( c ) (3) , but they argued that the addition al doc ume n tation did not comply with Nev ada
law . Debtors requested that the claim be amended to provide “ a copy of the writing upon wh ich it relies to enforce the underlying debt /C laim, provide a clea n and clear chain of ownership and/or title evidencing t hat
th is c laim is enforceable by the Cla imant prof f e ring its ownership, as well

as su pporting declarations . . .

. ”
LVNV filed a res ponse , arguing that Debtor s ’ objec ti on did not overcome the prima facie validity of its claim and that the documentation
pr ovided wa s sufficient under N evada law to establish Debtor s ’ li abil ity

2 The documentation also showed that the original cre ditor was Citibank, N. A.4 and to show that LVNV w as enti tled to enforce the debt

. LVNV als o pointed out that Debtors did n ot dispute that LVNV was the proper en tity to file the claim, nor did they dispute th at the y ma de c harges on the

a ccount.
After hear ing argument and taking the matter under advisement, the
court announced orally on the record at a subsequent hearing that it would
overrule t he objection “ f or all the reasons set forth in [LVNV ’ s] oppositio n [. ] ” The cou r t entered its order on December 28, 2021, and
Debtor s timely ap pealed. J U RIS D ICTI ON
Th e ba nkru p tcy court h a d ju r isdicti o n un de r 2 8 U.S.C. § § 13 34 and
15 7 (b)(2 ) ( B )

. W e h a ve jurisd ic tion u nder 28 U .S .C

. § 158.
I SSUE
Did the bankruptcy court er r in o verr uli n g Debtor s ’ objection to
LVNV ’ s claim ?
S TA N DARD S OF R EVIEW
We r eview the bankruptcy court ’ s inter preta t ion of statutes and rules
d e novo. Heath v. Am. Expres s Travel Related Serv s . Co. , Inc. ( In re Heath ) , 331
B. R. 424, 428 ( 9 th Cir. BAP 200 5 ). Whe ther co m pliance with a given statute or rule has been established is ge nerally a question of fact that we review
for clear error. Id. at 4 28

- 29. De novo review means we examine the matter anew, as if it had not been decided previou sly

. Francis v. Wal lace ( In r e
F r ancis) , 505 B.R. 914, 917 (9th Cir. BAP 2014).5 DISC USS I O N
Rule 3001 (f) provides that “ [a ] proof of claim executed and filed in
accordance with these rules shal l constitute prima facie evidence of the
validi ty and amount of the claim. ” Rule 3001 (c) ( 3) req u ires that, when a
claim is b ased on an open
- end or revolving consumer cr edit agreement th at
is not secured by real property,
a statement shall be filed with the proof of claim, in cluding all of the following information that applies t o t he account: (i) th e n a me of the entity from whom t he creditor purchased the account; (ii) the name of the entity to whom the debt was owed at the time of an account holder ’ s last transact ion on the account; (iii) the date of an account holder ’ s last tra nsa ction; (iv) the date of the la st p aym e nt on the account; and (v) the d ate on which the account was charged to prof it and loss. It is undi sputed that LVNV provided the informatio n required under
Rule 30 01

. Indeed, Debtors concede that the cl aim was prima facie valid , and they no longer dis pute LV N V ’ s standing to enforce its claim

. Th e burden th us shifted to Debtor to come forward with ev ide nce sufficient to negat e the prim a facie validity of the c laim

. Ashford v. Consol

. Pionee r Mortg. (In re Consol

. Pi one er Mortg.) , 17 8 B. R. 222, 226 ( 9 t h Ci r. BA P 1995) , aff ’ d , 91
F.3d 1 51 ( 9 th Cir. 1996). Alter nati vely, they had the burden to s how that the
claim should be disallowed on one of the grounds set forth in § 502

. See Campbell v. Veri zon Wireless S

- CA (In re Campbell) , 336 B.R. 430, 435

- 36 ( 9 th6 Cir

. BAP 2005) (acknowledging that § 502( b)(1) requires disallowance of claims that are unenforceable under applicable law but rejecting contention
tha t “ applicable law ” includes Rule 3001). For purposes of this appeal, the
relevant sub section s of § 502 provi de : ( a) A claim or interest, proof of which is filed under section 501
o f this title, is deemed allowed, unless a party in interest, including a creditor of a g eneral partner in a partnership that is a debtor in a case under c hapter 7 of this title, objec t s

. ( b ) Except as provided in subsections (e)(2), (f), (g), (h) and (i) o f this section, i f such objection to a claim is made, the court, after notice and a hear ing, shall determin e the amount of such claim in lawful currency o f the United States as of the d ate of the filing of the pe tition, and shall allow such claim in such
a mount, except to the extent that

-- (1) such claim is unenforceable against the debtor an d property of the d ebtor, under any agreement or applicable law fo r a reason other than because s uch claim is contingent or unmatured [.] 11 U.S.C. § 502.
Debt ors contend that the cla im is unenforceable pursuant to § 502(b) (1) because the documen tation p rovided by LVN V was insufficient

t o estab lish a right to enforce its claim under state law . Neva d a Rev i sed
Stat ute s § 97A.160, entitle d “ Records required i n action to colle ct debt: Establishment of liability and amount; authentication; retention ” p rovides, in relevant p art:
1. Notwit hstanding the provisions of chapter 52 of NRS, in any action brought to co l lect a d ebt owed to an issuer:7 (a) The issuer may establish that th e cardholder is contractually liable for the debt owed by submitting the wri tten app lication for a credit card acc ount submitted to the issuer by the cardholder or evidence that th e c ard h older in cur red charges on the account and made payments thereo n

. (b) The amount owed may be established by photocopies of: (1) The periodic b illing s tatements prov ided by the issuer; or (2) Information stored by the issuer on a computer, micro f il m, m icrofich e o r optical disc which indicate the amount of the debt owed

. 2. The content of such records must be authenticated : (a) Pursuant to the procedu res set forth in NRS 52.450 to 52.480, inclusive; or (b) By the submission of a written affidav i t suf f icient t o
e stablish: (1) The affiant as the custodian of the writte n re cords offered as evidence; (2) That the written records offered as evi dence
we re made in the ordinary course of the issue r ’ s business; and (3) That the written records are t ru e a n d correc t

c opies of the records retained by the issuer.

. . . Nev. R ev. Stat. § 97A.160 (emphasis added)

. Nevada law provides that no ju dgment shall be ent ered in fa vor of the purchase r of credit card de bt unless that purchase r has satisfied “ the

s ta nda r ds of proof set forth in sub sections 1 and 2 of NRS 97A.160. ” Nev.
Rev. Stat. § 97A.16 5.8 Debtors argue that the documentation provided by LVNV was
inade quat e under Ne vad a law because LVNV did not produce either an
aut henticated written credit card a pp lic a tion or authenticated evi den ce that Debtors incurred charges on the account and made p ayment s thereon

. They are corre ct

. A s noted, LVN V provided copies of account st a tements for the period beginning Novembe r 20, 2020 and end ing April 20, 2021. The

e ar li e s t statement showed a beginning balance of $ 7,5 7 4.18 and a $176.30 payment posted December 14, 202 1

. But there was no evidence of any of the charges making up the begin ning balance or who made them. Moreover, the statements were not authenticated by a c u st o dian of written
records , but even if th ey had been, they were insufficient

. Neverthel ess,
LVN V argued in the bankrupt cy court that its documenta tion sa tisfied the requirements of Ne v ada Revised Sta tutes § 97 A.160 ( 1)(a) , and the bankruptcy court overr ul ed t he objection “ for all the reasons set forth in
the opposition

. ” Th is was error.
LVNV ’ s arguments on appeal misconstrue the issue. LVN V argues that failure to provide documentat ion to suppor t a claim is insuffi ci ent,
with out more, to over come a c laim ’ s pr i m a facie validity , citing I n re Campbel l , 336 B

. R. 4 30 ; In re Heath , 331 B. R. 424 ; In re Or ozco , No. 2:13

- bk

15745

- NB, 20 17 WL 31267 97 (Bankr. C.D. Cal. Jul. 21, 201 7) ; I n re Jo hnson , 2012 WL 5430952 ( Bankr. D. Idaho Nov. 7, 2012) ; In re Herron , 381 B

. R

. 1 84 (Bankr. D. Md. 2008) ; In re Shaff ner , 320 B.R . 870, 876 ( Bankr. W. D. Mich.9 2005) ; In re Ke mmer , 315 B.R. 706 (E.D. Ten n. 2004); In r e Cl uff , 313 B. R. 3 23 (Ban kr. D. Utah 2004) , af f

’ d sub nom. Clu ff v. eCast Settlement , No. 2:04

- CV

978 TS, 2006 WL 2 8 2 00 0 5 (D. Utah Sept. 29, 2006) ; and In re Taylor , 28 9 B.R. 379, 384 (B ankr. N.D. Ind. 2003)

. In all the se cases, th e courts held that
failure to co mply with Rule 300 1 is not a sufficient ground for disallowing a claim. Rather, a claim may be disallowe d o nl y f o r one of th e enum erated grounds set forth in § 5 02 (b)

. But Debtors did not object to LVNV ’ s claim on the g round that it did

not comply with Rule 3001. Rather, they argued tha t the claim was unenforceab le under Nevada law, which is a ground for disa l lo w an c e under § 502(b). LVNV argue s that this argument is a “ red

- herr ing and underhanded attempt to escap e Ni nth Circuit pre cedent that failure to file
documents is not grounds to disallow a claim under Section 502(b). ” LVNV
also points out tha t Debto rs d o n o t d eny opening the Citibank accou nt and making c har ges on it or otherwise deny liability for the claim , nor d id they
pro vid e any substantive evi dence to refute its prima facie validity

. But
LVNV does not directly address the real issue, which is the en f or c ea b ility
of the claim under Nevad a law . Despite the ir assertions to the contrary,
LVNV d id not provide the documentation required to enforce its claim under applicable law

.10 C O N C LUS ION
F o r these reasons, the b ankruptcy c ourt e rr ed in overruling Deb tor s ’

o bj e ction to LVNV ’ s claim

. W e th ere fore VACATE and R EMAND for
f urther proceedings as the bankruptcy court deems appropriate.