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FILED

FEB 17 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-15-1227-FCTa

)

CINEVISION INTERNATIONAL, ) Bk. No. 11-40813-TD

INC., )

)

Debtor. )

______________________________)

)

FRANK MAYOR; CINDY GUNADI, )

)

Appellants, )

)

v. ) MEMORANDUM*

)

EDWARD M. WOLKOWITZ, )

Chapter 7 Trustee, )

)

Appellee. )

______________________________)

Argued and Submitted on January 21, 2016

at Pasadena, California

Filed – February 17, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Thomas B. Donovan, Bankruptcy Judge, Presiding

 

Appearances: Andrew Edward Smyth argued for Appellants Frank

Mayor and Cindy Gunadi; Daniel J. Yourist argued

for Appellee Edward M. Wolkowitz.

 

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.
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Before: FARIS, CORBIT**, and TAYLOR, Bankruptcy Judges.

INTRODUCTION

Appellants Frank Mayor and Cindy Gunadi appeal from the

bankruptcy court’s order sanctioning them $99,745.24 for their

violation of the automatic stay and their failure to turn over

property belonging to the bankruptcy estate of Debtor Cinevision

International, Inc. (“Debtor” or “Cinevision”). They argue that

the court erred by disregarding evidence of their good faith and

subjective intent. The chapter 71 trustee, Appellee Edward M.

Wolkowitz, argues that Appellants knowingly tried to conceal the

property and circumvent the automatic stay. We hold that the

bankruptcy court did not err in sanctioning Appellants. 

Accordingly, we AFFIRM.

FACTUAL BACKGROUND2

Cinevision was a film production company in the business of

acquiring films in DVD format and offering those DVDs for

distribution to various companies. Mr. Mayor and Ms. Gunadi (who

are husband and wife) are the stockholders and officers of

** Honorable Frederick P. Corbit, Chief United States

Bankruptcy Judge for the Eastern District of Washington, sitting

by designation.

1 Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all

“Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037, and all “Civil Rule” references are

to the Federal Rules of Civil Procedure, Rules 1-86.

2 Appellants have failed to include all relevant documents

in their excerpts of record. We have exercised our discretion to

review the bankruptcy court’s docket, as appropriate. See Woods

& Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 725

n.2 (9th Cir. BAP 2008).

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Cinevision. Ms. Gunadi also owns the building housing

Cinevision’s operations.3

Cinevision filed a chapter 11 petition on July 19, 2011. 

The case was later converted to chapter 7, and the Trustee was

appointed to administer the estate.

In December 2010, a few months before Cinevision filed its

chapter 11 petition, Mr. Mayor formed a new company called

Cinevision Global, Inc. (“Cinevision Global”). He owns 100% of

its equity.

The Trustee conducted a site inspection of Mr. Mayor’s

business premises at 410 Bamboo Lane. He found 10,156 DVDs

hidden in an unlighted space. The Trustee learned that Mr. Mayor

was selling the DVDs through Cinevision Global’s online store. 

He also found various pieces of post-production film equipment

and determined that the DVDs and equipment belonged to

Cinevision.

The Trustee’s counsel informed Appellants that the DVDs and

equipment were property of the bankruptcy estate and demanded

that Appellants turn those items over to the Trustee. Counsel

3 The bankruptcy court found that Ms. Gunadi owns real

property located at 424 Bamboo Lane in Los Angeles, where

Cinevision operated its business. The record is unclear whether

Ms. Gunadi also owns or controls the real property at 410 Bamboo

Lane, which is described as Mr. Mayor’s office. At oral

argument, counsel for the Trustee stated that Ms. Gunadi owns the

real property at 410 and 424 Bamboo Lane, which is a single

building. Counsel for Appellants professed that he did not know

which, if any, of the properties Ms. Gunadi owns.

Additionally, Ms. Gunadi is an active member of the

California state bar. She represented herself and Mr. Mayor in

the adversary proceeding which gave rise to this appeal.

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advised Appellants that they were violating the automatic stay

and subject to sanctions. When Appellants did not respond to the

Trustee’s demand, the Trustee commenced an adversary proceeding

for turnover against Appellants. 

The Trustee subsequently learned that Appellants were in

possession of $10,500 in cash paid by DVD distributor MoMedia

International, Ltd., due to an account receivable owed to

Cinevision. The Trustee discovered that, after Cinevision filed

its bankruptcy petition, Mr. Mayor had instructed MoMedia to wire

the payment to his new company, Cinevision Global, and MoMedia

eventually complied.

The Trustee moved for summary judgment to recover the postproduction film equipment, the 10,156 DVDs, and the $10,500 cash

proceeds of the MoMedia account receivable. He argued that

Appellants “intentionally secreted” estate property, failed to

list the property on Cinevision’s schedules, and refused to turn

over the property to the Trustee upon demand. 

Appellants argued that Cinevision fully disclosed the assets

on its Schedules. Appellants contended that the DVDs were

worthless; they claimed that the distributor in possession of the

DVDs on the petition date would have destroyed them at

Cinevision’s expense had Mr. Mayor not paid to ship them to his

facility. Appellants argued that the post-production equipment

was leased by AIM Group LLC, Mr. Mayor’s personal holding

company, not Cinevision, and that AIM Group or Mr. Mayor, not

Cinevision, had paid off the unpaid balances owed on the leases. 

Moreover, they stated that the post-production film equipment had

little or no value. Finally, they argued that the MoMedia

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account receivable belonged to Cinevision Global, rather than

Cinevision.

On March 12, 2015, the bankruptcy court granted summary

judgment in favor of the Trustee. It held that the DVDs, postproduction equipment, and $10,500 account receivable proceeds

were property of the Debtor’s estate pursuant to § 541 and that

Mr. Mayor, Ms. Gunadi, and Cinevision Global failed to turn over

those assets as required by § 542(a). The bankruptcy court

granted a partial summary judgment holding that (1) the

defendants were required to turn over the $10,500; (2) genuine

issues of material fact exist as to the value of the DVDs and

post-production equipment; and (3) the court may order the

turnover of the DVDs and post-production equipment but not their

value. 

On May 15, the Trustee filed an application in the main

bankruptcy case (not the adversary proceeding) requesting that

the court issue an Order to Show Cause (“OSC”) why Appellants

should not be held in contempt for their willful violation of the

automatic stay. On June 1, the court issued the OSC, ordering

Appellants “to file a written explanation, if any, why they

should not be held in civil contempt for their knowing violation

of the automatic stay and turnover obligations (11 U.S.C.

§ 105(a) and 11 USC § 542(a)).”

Later that same day, and presumably before they realized

that the court had issued the OSC, Appellants filed an untimely

opposition to the issuance of the OSC. They largely repeated

their arguments in opposition to the motion for summary judgment

in the adversary proceeding.

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On June 10, Appellants filed their opposition to the OSC, in

which they requested that the court consider the documents filed

previously with their opposition to the issuance of the OSC and

attached Mr. Mayor’s supplemental declaration. 

At the hearing on the OSC, the court acknowledged

Appellants’ responses, but referred to the opposition to the OSC

as a “meaningless document,” since it incorporated a late-filed

opposition to the issuance of the OSC. The court further stated

that “(a) they failed to disclose in their schedules; (b) they

physically hid assets; (c) when requested later by the Trustee’s

representative to turn over the assets they declined to do so.” 

It considered the “detailed findings and conclusions” in the

adversary proceeding that “suggest[ed] to [the court] that the

sanctions sought for contempt are appropriate and reasonable

given the history of this case beginning back in 2011, converted

eight months later in 2012, hidden assets, informal requests

rejected, more formal written requests rejected, then litigated

. . . .” The court also found that Ms. Gunadi, as a principal of

Cinevision, participated in the evasion and disobedience.

On July 8, the court issued its Order and Judgment finding

Appellants in contempt of court for violating the automatic stay

and awarding the Trustee $99,745.24 in attorneys’ fees. 

Appellants timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334, 157(b)(1), and 157(b)(2)(E). We have jurisdiction under

28 U.S.C. § 158.

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ISSUES

(1) Whether the bankruptcy court erred in sanctioning

Appellants for their failure to turn over property of the

Debtor’s estate. 

(2) Whether the Trustee is entitled to recover attorneys’

fees incurred in defending against Appellants’ appeal.

STANDARD OF REVIEW

“[W]hether property is property of the estate, and

procedures for recovering property of the estate are questions of

law reviewed de novo.” White v. Brown (In re White), 389 B.R.

693, 698 (9th Cir. BAP 2008). Similarly, “[w]hether the

automatic stay provisions of 11 U.S.C. § 362(a) have been

violated is a question of law reviewed de novo.” Eskanos &

Adler, P.C. v. Leetien, 309 F.3d 1210, 1213 (9th Cir. 2002)

(citing Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission),

98 F.3d 1147, 1150 (9th Cir. 1996)). However, whether a party

has willfully violated the automatic stay is a question of fact

reviewed for clear error. Id. (citing McHenry v. Key Bank

(In re McHenry), 179 B.R. 165, 167 (9th Cir. BAP 1995)). The

amount of sanctions imposed for a willful violation of the stay

is reviewed for an abuse of discretion. In re McHenry, 179 B.R.

at 167.

DISCUSSION

A. The bankruptcy court did not err in sanctioning Appellants

for their willful refusal to turn over estate property.

1. Sections 542 and 362 require creditors and other

entities to turn over property of the bankruptcy

estate.

“[T]he failure to return property of the estate with

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knowledge of the bankruptcy is a violation of both the automatic

stay and of the turnover requirements of the Bankruptcy Code.” 

Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 432 B.R. 812,

822 (9th Cir. BAP 2010), disapproved on other grounds in later

appeal, 473 B.R. 802 (D. Nev. 2012), aff’d, 764 F.3d 1168 (9th

Cir. 2014) (quoting Abrams v. Sw. Leasing & Rental, Inc.

(In re Abrams), 127 B.R. 239, 242–43 (9th Cir. BAP 1991))

(emphasis in original).

Section 542 governs turnover: 

(a) Except as provided in subsection (c) or (d) of this

section, an entity, other than a custodian, in

possession, custody, or control, during the case, of

property that the trustee may use, sell, or lease under

section 363 of this title, or that the debtor may

exempt under section 522 of this title, shall deliver

to the trustee, and account for, such property or the

value of such property, unless such property is of

inconsequential value or benefit to the estate.

§ 542(a) (emphases added). “[T]he turnover provisions of the

Bankruptcy Code are to be self-effectuating, subjecting to

sanctions a party that willfully fails to comply.” In re Mwangi,

432 B.R. at 823 (citing In re Abrams, 127 B.R. at 242-43).

The refusal to turn over property rightfully belonging to

the bankruptcy estate also violates the automatic stay under

§ 362(a)(3), which provides: 

(a) Except as provided in subsection (b) of this

section, a petition filed under section 301, 302, or

303 of this title, or an application filed under

section 5(a)(3) of the Securities Investor Protection

Act of 1970, operates as a stay, applicable to all

entities, of -

. . . 

(3) any act to obtain possession of property of

the estate or of property from the estate or to

exercise control over property of the estate[.]

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§ 362(a)(3). “[T]he knowing retention of estate property

violates § 362(a)(3).” In re Mwangi, 432 B.R. at 823 (citing

In re Del Mission Ltd., 98 F.3d at 1151). 

2. The court properly sanctioned Appellants pursuant to

its civil contempt authority under § 105(a).

Appellants argue that the bankruptcy court lacked authority

to sanction them.4 We disagree.

Appellants first contend that § 362(h)5 does not provide a

basis for the Trustee to recover actual damages, since the

Trustee is not an “individual.” But the Trustee never sought

sanctions under § 362(h). Rather, the Trustee contends that

“§ 542(a) provided the right of the return of estate property,

while 11 U.S.C. § 105(a) provided the remedy for the failure to

do so.” He also argues that the courts have the power to enter

civil contempt orders and impose civil contempt sanctions.

The Trustee is correct. In Knupfer v. Lindblade

(In re Dyer), 322 F.3d 1178 (9th Cir. 2003), the Ninth Circuit

stated that, even though a trustee may not recover under

§ 362(h), “we have held that the Trustee may be entitled to

recovery for a violation of the automatic stay ‘under section

4 They also argue that the bankruptcy court did not specify

the legal basis for its imposition of sanctions, but this is

patently false; the bankruptcy court cited §§ 105(a) and 542(a)

as the bases for the OSC.

5 Following extensive revisions to the Bankruptcy Code in

2005, § 362(h) is now codified as § 362(k). It provides that “an

individual injured by any willful violation of a stay provided by

this section shall recover actual damages, including costs and

attorneys’ fees, and, in appropriate circumstances, may recover

punitive damages.”

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105(a) as a sanction for ordinary civil contempt.’” Id. at 1189

(quoting Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th

Cir. 1995)). The court went on to state that “[t]he standard for

finding a party in civil contempt is well settled: The moving

party has the burden of showing by clear and convincing evidence

that the contemnors violated a specific and definite order of the

court.” Id. at 1190-91 (quoting Renwick v. Bennett

(In re Bennett), 298 F.3d 1059, 1069 (9th Cir. 2002)). “[T]here

can be no doubt that the automatic stay qualifies as a specific

and definite court order.” Id. at 1191. 

The Ninth Circuit held that § 362(h) and § 105(a) require

the same mental state as a basis for sanctions. It stated:

Under both statutes, the threshold question regarding

the propriety of an award turns not on a finding of

“bad faith” or subjective intent, but rather on a

finding of “willfulness,” where willfulness has a

particularized meaning in this context:

“[W]illful violation” does not require a

specific intent to violate the automatic

stay. Rather, the statute provides for

damages upon a finding that the defendant

knew of the automatic stay and that the

defendant’s actions which violated the stay

were intentional.

Id. at 1191 (quoting In re Pace, 67 F.3d at 191).

In the present case, the bankruptcy court exercised its

civil contempt authority “to remedy a violation of a specific

order (including ‘automatic’ orders, such as the automatic stay

or discharge injunction)[,]” see id. at 1196, by sanctioning

Appellants for their violation of the automatic stay and awarding

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the Trustee his attorneys’ fees and costs.6 Appellants never

denied, and the court found, that (1) Appellants knew of the

automatic stay, and (2) Appellants’ acts were intentional. As

such, the court did not err in concluding that Appellants were

liable for sanctions due to their “willful breach of the

automatic stay and knowing failure to turn over Property

belonging to the Bankruptcy Estate[.]” 

Appellants argue that sanctions are impermissible in the

absence of an explicit finding of bad faith. Appellants are

incorrect. “[T]he propriety of an award turns not on a finding

of ‘bad faith’ or subjective intent, but rather on a finding of

‘willfulness[.]’” In re Dyer, 322 F.3d at 1191; see McComb v.

Jacksonville Paper Co., 336 U.S. 187, 191 (1949) (because civil

contempt serves a remedial purpose, “it matters not with what

intent the defendant did the prohibited act”); In re Mwangi,

432 B.R. at 824 (“Whether the party believes in good faith that

it had a right to the property is not relevant to whether the act

was ‘willful’ or whether compensation must be awarded.” (citation

omitted)). Appellants’ good faith might be relevant if the court

had awarded sanctions pursuant to its inherent powers.7 But the

6 Appellants do not seek review of the amount of the

sanctions.

7 The Ninth Circuit has held that, unlike in the case of

sanctions pursuant to § 105(a), a finding of bad faith is

required for sanctions pursuant to a court’s inherent power: 

Before imposing sanctions under its inherent

sanctioning authority, a court must make an explicit

finding of bad faith or willful misconduct. In this

context, “willful misconduct” carries a different

(continued...)

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bankruptcy court relied on § 105(a), not its inherent powers. 

Therefore, the court did not have to make a finding of bad faith

or inquire into Appellants’ intentions.

Appellants also argue that the Trustee cannot compel them to

turn over property until the court has determined that the

property must be turned over. Appellants again misinterpret

their duties regarding turnover. Section 362(a)(3) does not

require an order of the court. Rather, “to effectuate the

purpose of the automatic stay, ‘the onus to return estate

property is placed upon the possessor[.]’” In re Mwangi,

432 B.R. at 823 (internal citation omitted). “It has long been

the determination of this panel that the turnover provisions of

the Bankruptcy Code are to be self-effectuating, subjecting to

sanctions a party that willfully fails to comply.” Id. (citing

In re Abrams, 127 B.R. at 242-43). Appellants could have turned

to the bankruptcy court for guidance regarding the disposition of

the property, but they failed to do so. Instead, Appellants

willfully violated the automatic stay by unilaterally deciding

that they need not turn over the property. See id. at 823-24 (A

creditor declining to release funds to the debtor “could have

sought direction from the bankruptcy court, by way of a motion

for relief from stay or otherwise, regarding the account funds;

it did not. Instead, it chose to hold the funds until a demand

7(...continued)

meaning than the meaning employed in the context of

determining whether an individual is entitled to

damages under § 362(h) or a contempt judgment under

§ 105(a) for an automatic stay violation. 

In re Dyer, 322 F.3d at 1196 (internal citation omitted).

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was made for payment that it alone deemed appropriate.”). 

The bankruptcy court did not err in sanctioning Appellants

for their willful violation of the automatic stay and their

failure to turn over property of the bankruptcy estate. 

3. The bankruptcy court did not ignore the facts and

arguments presented by Appellants in response to the

OSC. 

Appellants argue that the bankruptcy court erred by not

considering the arguments raised in response to the OSC. The

record does not support this contention. 

Although the court characterized Mr. Mayor’s declaration as

a “meaningless document,” the court in its oral ruling addressed

the arguments raised by Appellants’ counsel in his “papers”:

And although as you say, Mr. Smyth, as your papers say,

that the -- that Mr. Mayor and Ms. Gunadi acted in good

faith to assert what they thought was the case, I find

nothing supporting that viewpoint in Judge Zurzolo’s

findings or conclusions of law. I find the opposite,

that their claims were dismissed out of hand in

detailed findings and conclusions.

(Emphasis added.) The bankruptcy court did not disregard

Appellants’ opposition to the OSC.

We also note that the court allowed Appellants’ counsel to

argue at length during the hearing on the OSC. Counsel had ample

opportunity to raise relevant oral arguments before the court. 

Moreover, even if the bankruptcy court erred in not

considering Mr. Mayor’s declaration and other written

submissions, such error is harmless. Appellants contend that

Mr. Mayor’s declaration would have established Appellants’

subjective belief that they were entitled to the property and did

not have to turn it over. However, as discussed above, a

creditor’s good faith or subjective intent is not relevant to the

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award of sanctions under § 105(a). See In re Dyer, 322 F.3d at

1191. 

4. The court did not err in sanctioning Ms. Gunadi.

Appellants argue that the evidence does not support an award

of sanctions against Ms. Gunadi. We reject this argument.

The Trustee argues that the court decided in the adversary

proceeding that Ms. Gunadi was responsible and that the doctrines

of collateral estoppel and res judicata preclude relitigation of

that ruling. But the bankruptcy court never entered a final

judgment in the adversary proceeding that could have preclusive

effect. See Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525,

528 (9th Cir. 1998) (“The ‘doctrine of res judicata bars a party

from bringing a claim if a court of competent jurisdiction has

rendered a final judgment on the merits of the claim in a

previous action involving the same parties or their privies.’”

(citation omitted)); Fed. Deposit Ins. Corp. v. Jenson

(In re Jenson), 980 F.2d 1254, 1257 (9th Cir. 1992) (“To be given

preclusive effect, a judgment must be a final adjudication of the

rights of the parties and must dispose of the litigation on the

merits.”).

The bankruptcy court entered both an order granting the

motion for summary judgment and a separate judgment. But both

documents speak of a “partial summary adjudication.” The court

denied judgment for the value of the property “absent further

adjudication to determine the value of the Non-Monetary Estate

Property.” The bankruptcy court never decided the issue of value

and did not formally dismiss the balance of the Trustee’s

complaint. Because the judgment did not dispose of all claims as

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to all parties, it is not a final judgment with preclusive

effect.

About a month after it entered the order and partial summary

judgment, the bankruptcy court entered a minute order stating

that “[t]he complaint filed in the above case has been disposed

of,” and providing that “[s]ince it appears that no further

matters are pending that require this adversary proceeding [to]

remain open, it is ordered that this adversary proceeding is

closed.” The “closing” of the adversary proceeding is an

administrative step, not a final judgment on the merits that

would have preclusive effect.

Even if the rulings in the adversary proceeding lack

preclusive effect, the bankruptcy court did not err in relying on

them. The bankruptcy court’s holding in the adversary proceeding

that Mr. Mayor, Ms. Gunadi, and Cinevision failed to turn over

the DVDs, the post-production equipment, and the $10,500 as

required by § 542(a) became law of the case. See United States

v. Lummi Nation, 763 F.3d 1180, 1185 (9th Cir. 2014) (“Under the

doctrine, a court is generally precluded from reconsidering an

issue previously decided by the same court, or a higher court in

the identical case.” (internal citations omitted)).

Contrary to Appellants’ contentions, the bankruptcy court

did not sanction Ms. Gunadi merely because she is an officer of

Cinevision. While the bankruptcy court did focus primarily on

Mr. Mayor’s actions, the court also found that Ms. Gunadi was to

blame. The court stated at the hearing on the OSC: 

So it seems to me somewhat inappropriate for a

principal of a debtor who filed a Chapter 11 bankruptcy

petition later converted to Chapter 7 to . . .

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challenge the Trustee’s right to turn over of assets,

as well as to fail to properly disclose assets. As I

understand it, Mr. Mayor was licensed at some point by

the - as a member of the California Bar and then

Ms. Gunadi’s papers on Mr. Mayor’s behalf were filed by

her as a member of the California Bar. 

That seems to me to be a violation of her

responsibility as a principal of the debtor to aid in

the turnover as opposed to resisting turnover and/or

concealing assets. So it seems to me that the

responsibility is joint and several with respect to any

sanction to be awarded in this case and I don’t see a

valid basis for excusing Ms. Gunadi from that

responsibility.

(Emphasis added.) The court concluded that the “record of

misconduct, non-cooperation, non-fulfillment of statutory duties

. . . which both Mr. Mayor and Ms. Gunadi share . . . indicate

that there should be a joint and several responsibility on the

part of Mr. Mayor and Ms. Gunadi with respect to defiance of a

court order, defiance of a statute.” The record amply supports

these factual findings.

The court also had a basis to find that Ms. Gunadi actively

concealed the property, because the post-production film

equipment was under the custody and control of Ms. Gunadi. The

Trustee pointed out that the film equipment was located at the

Debtor’s business address that was “owned and controlled by

Mr. Mayor’s wife, Cindy Gunadi.” The court subsequently found

that the equipment was located at Cinevision’s offices at that

address. The bankruptcy court properly found that, when

Ms. Gunadi failed to turn over the property within her control,

she willfully violated §§ 362 and 542.

Thus, the bankruptcy court did not err in sanctioning

Ms. Gunadi.

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5. The court did not err in considering the findings made

in the adversary proceeding.

Appellants argue that the bankruptcy court erred in relying

upon the factual findings from the motion for summary judgment in

the adversary proceeding, because the evidentiary standard

differs between a motion for summary judgment and a motion for

sanctions. We will not address this issue for two reasons.

First, Appellants first addressed this issue in their reply

brief. This is improper. See Smith v. Marsh, 194 F.3d 1045,

1052 (9th Cir. 1999) (“on appeal, arguments not raised by a party

in its opening brief are deemed waived”); Eberle v. City of

Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (“It is well

established in this circuit that [t]he general rule is that

appellants cannot raise a new issue for the first time in their

reply briefs.” (citation and internal quotation marks omitted));

Rule 8014(a)(8) (An appellant’s brief must include “the argument,

which must contain the appellant’s contentions and the reasons

for them, with citations to the authorities and parts of the

record on which the appellant relies.”).

Second, Appellants did not adequately present this issue to

the bankruptcy court. See Ezra v. Seror (In re Ezra), 537 B.R.

924, 932 (9th Cir. BAP 2015) (“[F]ederal appellate courts will

not consider issues not properly raised in the trial

courts. . . . An issue only is ‘properly raised’ if it is raised

sufficiently to permit the trial court to rule upon it.”

(internal citations omitted)). 

Appellants’ papers mentioned the argument only in a garbled

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and unfinished paragraph in their opposition to the OSC.8 At the

hearing on the OSC, Appellants’ counsel mentioned the issue only

in a single sentence before the court ruled and again after the

judge had begun to render his oral ruling. Appellants never

offered any legal authority in support of their position. The

bankruptcy court did not err. 

B. The Trustee is not entitled to attorneys’ fees on appeal.

The Trustee requests that we award him his attorneys’ fees

in defending against this appeal, claiming that a successful

party may be awarded fees when the opposing party has acted in

bad faith, vexatiously, wantonly, or oppressively. He argues

that Appellants have acted to vex and annoy, because the “appeal

is nothing other than a collateral attack on the Adversary

Action’s Judgment.”

We are unable to provide the Trustee the relief he seeks. 

Section 105(a) does not authorize an award of attorneys’ fees on

appeal, and “the only authority for awarding discretionary

appellate fees in bankruptcy appeals is [Civil] Rule 38.” 

In re Del Mission Ltd., 98 F.3d at 1154. Rule 8020(a), which

8 The relevant portion of Appellants’ incomplete objection

reads:

Plaintiff now is requesting an OSC re contempt on the

basis that the granting of the partial summary judgment

indicates that “clear and convincing evidence” supports

a finding of contempt of court for failure to turn over

assets of the estate. This, in spite of the fact, that

the standard for granting a summary judgment does not

require that the evidence be “clear and

Appellants did not mention or expand upon this argument in the

remainder of their opposition.

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conforms to Civil Rule 38, states: “If the district court or BAP

determines that an appeal is frivolous, it may, after a

separately filed motion or notice from the court and reasonable

opportunity to respond, award just damages and single or double

costs to the appellee.” Rule 8020(a) (emphasis added).

In the present case, the Trustee requests an award of

attorneys’ fees on appeal in his answering brief, not in a

“separately filed motion.” “A request made in an appellate brief

does not satisfy [Civil] Rule 38.” In re Del Mission Ltd.,

98 F.3d at 1154 (citing Gabor v. Frazer, 78 F.3d 459, 459-60 (9th

Cir. 1996)). Thus, we deny the Trustee’s request for attorneys’

fees on appeal.

CONCLUSION

For the reasons set forth above, we conclude that the

bankruptcy court did not err in sanctioning Appellants for their

refusal to turn over property of the bankruptcy estate. 

Accordingly, we AFFIRM.

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