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FILED

 MAR 7 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-13-1037-JuKiD

)

BEATRICE LUI, ) Bk. No. 12-55239

)

Debtor. ) Adv. No. 12-05220

______________________________)

)

MARGARET EVE-LYNNE MIYASAKI, )

)

Appellant, )

)

v. ) M E M O R A N D U M*

)

BEATRICE LUI, )

)

Appellee. )

______________________________)

Argued and Submitted on February 20, 2014

at San Francisco, California 

Filed - March 7, 2014

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable Stephen L. Johnson, Bankruptcy Judge, Presiding _________________________

Appearances: Paul G. McCarthy, Esq. argued for appellant

Margaret Eve-Lynne Miyasaki; Melanie Tavare, Esq.

argued for appellee Beatrice Lui. _________________________

Before: JURY, KIRSCHER, and DUNN, Bankruptcy Judges.

*

 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 8013-1.

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Judgment creditor Margaret Eve-Lynne Miyasaki (Appellant)

appeals from the bankruptcy court’s order dismissing her

nondischargeability complaint against chapter 131

 debtor

Beatrice Lui as untimely filed under Rule 4007(c). 

The bankruptcy court found that ¶ 6 in Appellant’s

objection to confirmation of debtor’s plan (Objection) filed

prior to the bar date set for the filing of nondischargeability

complaints did not substantially comply with the pleading

requirements for a complaint under Civil Rule 8(a).2 As a

result, her late-filed complaint did not relate back to the date

of her Objection. We agree and AFFIRM. 

I. FACTS

The facts are undisputed. On June 1, 2005, debtor executed

a $50,000 promissory note in favor of the late Richard Graber as

partial payment for real property located on Serena Way, Santa

Clara, California (property). Debtor was Graber’s daughter-inlaw.

On November 4, 2005, Graber, Appellant’s father, assigned

the note to her. The note was fully due and payable on June 1,

2010, in the amount of $65,000. Debtor made no payments on the

note. Appellant filed a state court collection action against

debtor and obtained a judgment in the amount of $89,558.67

1

 Unless otherwise indicated, all chapter and section

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

“Rule” references are to the Federal Rules of Bankruptcy

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

Civil Procedure.

2 Civil Rule 8(a) is applicable to adversary proceedings in

bankruptcy under Rule 7008.

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against her on March 20, 2012, which Appellant recorded as a

lien against the property on April 24, 2012.

Debtor filed her chapter 13 petition on July 13, 2012. 

Debtor listed Chase Bank NA (Chase) as holding the first and

second deeds of trust against the property with balances of

$484,128 and $50,164, respectively. Appellant’s judicial lien

was evidently third in priority; however, debtor listed

Appellant as an unsecured creditor in Schedule F with a claim in

the amount of $89,558.67.

On July 30, 2012, Appellant’s state court attorney, Paul

McCarthy, filed a proof of claim (POC) on her behalf which

asserted a secured claim in the amount of $89,558.67 against the

property and an unsecured claim for $2,822.10. Following the

filing of the POC, debtor sent notice of the meeting of

creditors to McCarthy which set October 26, 2012, as the

deadline to object to debtor’s discharge or to challenge

dischargeability of certain debts.

Debtor’s plan provided for monthly payments of $280 to the

chapter 13 trustee for arrearages on the first deed of trust and

zero percent payment to unsecured creditors.3

On August 24, 2012, Appellant filed an objection to

confirmation of debtor’s plan. Paragraph 6 of the Objection,

which is at issue in this appeal, stated:

3 Debtor also filed a motion to void Chase’s second deed of

trust lien, contending that it was wholly unsecured based on a

recent appraisal of the property at $440,000. According to

debtor, Chase’s second lien was voidable because the balance due

on its first deed of trust was greater than the value of the

property.

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Miyasaki’s claim arises from a $50,000 promissory note

that the debtor executed on June 1, 2005 as partial

payment for the property located . . . Serena Way,

Santa Clara, California. The note was originally made

to the late Richard Graber, the seller of . . . Serena

Way, and later assigned to Miyasaki. The due date of

the note was June 1, 2010 in the amount of $65,000. 

The debtor made no payments on the note nor did she

offer to make payments. She represented herself in

the state collection proceedings and made it clear

that she had never intended to pay the promissory note

and had signed it to induce Mr. Graber to convery

[sic] . . . Serena Way to her. Miyasaki believes

that, accordingly, the debt was incurred through fraud

and is thereby non-dischargeable under 11 U.S.C.

section 523(a)(2). Miyasaki intends to file an

adversary proceeding on this issue.

On November 16, 2013, three weeks after the October 26,

2012 deadline for filing nondischargeability complaints,

Appellant filed her complaint seeking to except the debt owed to

her from discharge, alleging that debtor incurred the debt by

fraud. Debtor moved to dismiss the complaint as late filed

under Rule 4007(c). Appellant opposed, claiming that the

late-filed adversary complaint related back to ¶ 6 of her

Objection, which was filed on August 24, 2012, almost two months

before the October 26, 2012 deadline for filing dischargeability

complaints. In support of her relation-back theory, Appellant

maintained that ¶ 6 provided debtor with fair notice that

Appellant’s claim for nondischargeability was based on fraud,

and that debtor was not prejudiced by the three-week late filing

of the adversary complaint.

Debtor argued in response that ¶ 6 of Appellant’s Objection

failed to meet the criteria for a complaint under Civil Rule 8

and Rule 7008 because it did not (1) provide a basis for the

bankruptcy court’s jurisdiction; (2) make a demand for relief;

or (3) state whether the matter was core or non-core. According

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to debtor, application of the relation-back doctrine was not

warranted under the facts and thus Appellant’s complaint was

time barred.

At the January 14, 2013 hearing on the matter, the

bankruptcy court applied the relevant Ninth Circuit case law

construing the substantial compliance and relation back

doctrines and agreed with debtor. The court dismissed

Appellant’s adversary proceeding by order entered on January 17,

2013. Appellant timely appealed.

II. JURISDICTION

The bankruptcy court had jurisdiction over this proceeding

under 28 U.S.C. §§ 1334 and 157(b)(2)(A) and (I). We have

jurisdiction under 28 U.S.C. § 158. 

III. ISSUE

Whether the bankruptcy court erred by deciding that the

substantial compliance and relation back doctrines did not make

Appellant’s complaint timely.

IV. STANDARD OF REVIEW

Whether a pleading substantially complies with Civil

Rule 8(a) is a question of law which we review de novo. We also

review a Civil Rule 15(c)(2)4 relation-back decision de novo. 

Dominguez v. Miller (In re Dominguez), 51 F.3d 1502, 1508

(9th Cir. 1995); Classic Auto Refinishing, Inc. v. Marino

(In re Marino), 143 B.R. 728 (9th Cir. BAP 1992), aff’d, 37 F.3d

1354 (9th Cir. 1994).

4 Civil Rule 15 is applicable to adversary proceedings in

bankruptcy under Rule 7015.

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V. DISCUSSION

Rule 4007(c) provides:

A complaint to determine the dischargeability of any

debt pursuant to § 523(c) of the Code shall be filed

not later than 60 days following the first date set

for the meeting of the creditors held pursuant to

§ 341(a). The court shall give all creditors not less

that 30 days notice of the time so fixed in the manner

provided in Rule 2002. On motion of any party in

interest, after hearing on notice, the court may for

cause extend the time fixed under this subdivision.

The motion shall be made before the time has expired.

Rule 4007(c) is strictly construed in the Ninth Circuit. 

In re Marino, 37 F.3d at 1359. Here, there is no dispute that

McCarthy received notice of the October 26, 2012 deadline for

filing dischargeability complaints well in advance of the

deadline and that Appellant’s complaint against debtor was not

filed or served until three weeks after the bar date had passed.

A. The Substantial Compliance and Relation Back Doctrines

Although untimely, a bankruptcy court may consider a

nondischargeability complaint timely based on the doctrines of

substantial compliance and relation back of amended pleadings. 

In re Marino, 37 F.3d 1354 (finding no substantial compliance);

In re Dominguez, 51 F.3d at 1510 (finding substantial compliance

and relation back); Markus v. Gschwend (In re Markus), 313 F.3d

1146, 1150-51 (9th Cir. 2002) (finding no substantial

compliance). The Ninth Circuit’s application of these doctrines

to the underlying facts in each of the foregoing cases is

instructive.

In Marino, the creditor received timely written notice of

the bankruptcy and the bar date for filing claims under

§ 523(c). The creditor’s counsel filed an “Opposition to Sale”

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before the bar date and told the debtor’s attorney that the

creditor intended to file a nondischargeability complaint. The

complaint was filed nine days late. The debtor filed an answer

asserting the bar date as an affirmative defense and moved to

dismiss the complaint. The bankruptcy court dismissed the

complaint. On appeal, this Panel and the Ninth Circuit

affirmed. In discussing whether the “Opposition to Sale” and

the documents filed with it substantially complied with

requirements of a complaint, the Ninth Circuit noted that Civil

Rule 8(a) requires a pleading that states a claim for relief to

“include a demand for judgment for the relief the pleader

seeks.” 37 F.3d at 1357. The court found no language in the

opposition or documents filed with it that demanded a judgment

of nondischargeability as required by Rule 8(a). In addition,

the court noted that the opposition was not captioned as a

pleading, did not include the correct file number as required by

Rules 7(a) and 10(a) or satisfy the additional requirement of

Rule 7008(a) that in an adversary proceeding before a bankruptcy

judge, a complaint shall contain a statement that the proceeding

is core or non-core. Id. 

The Ninth Circuit emphasized that the purpose of a pleading

is to give the defendant fair notice of the plaintiff’s claim

and the grounds for the claim. Id. “However, the policy of

construing pleadings liberally does not justify the conclusion

that any document filed in a court giving some notice of a claim

satisfies the requirements of the Federal Rules.” Id. In the

end, the court found that the opposition and the documents filed

with it did not satisfy the requirements for a complaint. 

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Accordingly, because the later filed complaint had nothing to

relate back to, it was not timely filed. 

In Dominguez, the Ninth Circuit reached a different result.

There, debtor filed its chapter 11 petition and subsequently the

trustee filed a plan. In response to the trustee’s plan,

creditors filed a “Memorandum Re: Relationship between Order

Confirming Trustee’s Plan and Debtor’s Discharge,” in which they

alleged that confirmation of the trustee’s plan should be denied

because the plan satisfied all the statutory requirements for

nondischargeability under § 1141(d)(3).5 Creditors did not file

a timely nondischargeability complaint. Creditors’ counsel took

the position that an adversary complaint was unnecessary based

on his belief that § 1141(d)(3) prohibited the debtor’s

discharge as a matter of law. 51 F.3d at 1505. 

At the confirmation hearing, the bankruptcy court deferred

its decision on the creditors’ memorandum and directed them to

submit their argument as a declaratory judgment action. The

court also suggested that Rule 4004(a) barred the creditors from

objecting to the debtor’s discharge because they had not filed a

5

 1141(d)(3) provides:

The confirmation of a plan does not discharge a debtor

if--

(A) the plan provides for the liquidation of

all or substantially all of the property of

the estate; 

(B) the debtor does not engage in business

after consummation of the plan; and 

(C) the debtor would be denied a discharge

under section 727(a) of this title if the

case were a case under chapter 7 of this

title.

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complaint by the date of the confirmation hearing. The

creditors responded by filing a complaint, after the

confirmation hearing. In response, the debtor asserted

Rule 4004(a) as an affirmative defense. The bankruptcy court

dismissed the creditors’ complaint. 

This Panel reversed, finding that the creditors'

pre-confirmation memorandum was sufficient to satisfy the

requirements of a timely complaint on the basis that it clearly

challenged the debtor’s right to a discharge and contained

factual allegations and some evidence in support of those

allegations. On further appeal, the Ninth Circuit affirmed the

Panel, concluding that the post-confirmation hearing complaint

related back to the creditors’ memorandum filed before the

hearing. Id. at 1510. 

Finally, in Markus, the Ninth Circuit considered whether a

“Motion to Object to Debtors [sic] Discharge and Convert the

Chapter 7 Case to Chapter 13” was a complaint, albeit a

deficient one, under Rule 7008(a). In examining the content of

the motion, the Ninth Circuit found that it was “aimed at

converting Markus’s case from Chapter 7 to Chapter 13.” 

313 F.3d at 1150. The court found that the document failed to

identify any code section or criteria for nondischargeability

nor did it set forth any facts having to do with a claim for

relief based on nondischargeability. Consequently, the

appellate court concluded that it was not like the document in

Dominguez where the main deficiency was that it was captioned a

“Discharge Memorandum” rather than a “complaint” but otherwise

cited the statutory criteria for nondischargeability, referenced

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specific sections of the examiner’s report as support for

allegations that the criteria were satisfied, and stated the

claim for relief by asserting that the confirmation order could

not discharge the debtor’s debts. Id. The court found that

instead, the document was “more like” the “Opposition to Sale”

which it had deemed insufficient in Marino, “which also failed

to demand a judgment of nondischargeability, was not captioned

as a pleading, and contained no statement that the proceeding

was core or non-core.” Id. In the end, the Ninth Circuit found

that the document, even if construed as meeting the requirements

for a complaint, could not relate back because the motion

pointed a completely different direction than the later filed

complaint. Therefore, the complaint did not relate back to the

motion and was untimely. Id. at 1150-51.

B. Analysis

The forgoing cases teach that application of the

substantial compliance doctrine is concerned with notice and not

just “some notice,” but notice that substantially complies with

the requirements of the Federal Rules of Bankruptcy Procedure. 

In re Markus, 313 F.3d at 1150 (framing the “dispositive

question” as whether the timely filed pleading put the debtor on

notice that the creditor was objecting to her discharge);

In re Marino, 37 F.3d at 1357 (the policy of construing

pleadings liberally does not justify the conclusion that any

document filed in a court giving some notice of a claim

satisfies the requirements of the Federal Rules). 

The type of notice required for nondischargeability

complaints based on fraud is set forth in Civil Rules 8 and 9,

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made applicable to bankruptcy proceedings under Rules 7008 and

7009. Generally, under Civil Rule 8(a), a complaint must

contain (1) a short and plain statement of the grounds for the

court’s jurisdiction; (2) a short and plain statement of the

claim showing that the pleader is entitled to relief; and (3) a

demand for the relief sought. “[T]he main purpose of the

complaint is to provide notice of what plaintiff's claim is and

the grounds upon which the claim rests . . . . [the] plaintiff

must at least set forth enough details so as to provide a

defendant and the court with a fair idea of the basis of the

complaint and the legal grounds claimed for recovery.” Acequia,

Inc. v. Clinton (In re Acequia, Inc.), 34 F.3d 800, 814 (9th

Cir. 1994). Rule 7008(a) imposes the additional requirement

that the complaint contain a statement that the proceeding

before a bankruptcy judge is core or non-core. 

When fraud is alleged, Civil Rule 9(b) requires more. 

Under that rule, “a party must state with particularity the

circumstances constituting fraud.” Kearns v. Ford Motor Co.,

567 F.3d 1120, 1124 (9th Cir. 2009). 

[Civil] Rule 9(b) demands that the circumstances

constituting the alleged fraud be specific enough to

give defendants notice of the particular misconduct 

. . . so that they can defend against the charge and

not just deny that they have done anything wrong. 

Averments of fraud must be accompanied by ‘the who,

what, when, where, and how’ of the misconduct charged. 

A party alleging fraud must ‘set forth more than the

neutral facts necessary to identify the transaction.’ 

Id. at 1124–25. “Fraud can be averred either directly, by

specifically averring fraud, or indirectly, by alleging facts

that, if true, would necessarily constitute fraud even if the

word ‘fraud’ is not used.” Id. at 1124. “[M]ere conclusory

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allegations of fraud are insufficient.” Moore v. Kayport

Package Express, 885 F.2d 531, 540 (9th Cir. 1989).

Paragraph 6 of Appellant’s Objection does not substantially

comply with the above criteria for a nondischargeability

complaint based on fraud. In examining the content of her

Objection as a whole, we find that its purpose appears “clearly

aimed” at defeating confirmation of debtor’s plan and not at

objecting to debtor’s discharge. The leading paragraphs relate

to confirmation issues: in ¶ one, Appellant alleged that the

plan ran afoul of § 1325(a)(5)(B)(ii) by not providing her with

distributions with a value equal to the allowed amount of her

claim and in ¶ two, she agreed with the trustee’s objection to

the plan that it did not comply with the requirements of

§ 1325(a)(6) in that it did not provide for arrears and/or

on-going payments to junior lienholders on the property. The

bulk of her remaining allegations relate to the valuation of the

property and the inaccuracies or incomplete nature of

information contained in debtor’s petition. We construe these

allegations as addressing Appellant’s perception that the

treatment of her claim under the plan was unfair.

Only at the end of her Objection in ¶ 6 does Appellant

mention debtor’s alleged fraud, that the debt was

nondischargeable under § 523(a)(2), and that she intended to

file an adversary proceeding on this issue. However, ¶ 6 does

not make up for Appellant’s failure to file a timely

nondischargeability complaint. Although Appellant mentions

§ 523(a)(2) as a basis for her nondischargeability claim, we

conclude that ¶ 6 does not contain enough details to provide

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debtor with a fair idea of the basis for Appellant’s claim and

the legal grounds claimed for recovery for several reasons. 

First, Appellant fails to differentiate between

§ 523(a)(2)(A) and (B) and the justifiable reliance or

reasonable reliance standards of those sections. Although

counsel argued at the hearing on this matter that Appellant’s

fraud claim could only be under § 523(a)(2)(A), even in that

case she does not mention facts showing Graber’s reliance on

debtor’s misrepresentations at all. 

Second, the neutral and conclusory facts as alleged do not

meet the standard for pleading a fraud claim with the

particularity required under Civil Rule 9(b). See Dominguez,

51 F.3d at 1508 (explaining that within the context of

bankruptcy, courts construe deficient pleadings liberally, if

the pleading substantially complies with requirements of a

complaint under Civil Rule 9(b) by providing “fair notice of

what the plaintiff’s claim is and the grounds upon which it

rests.”); see also Kearns, 567 F.3d at 1124; Moore, 885 F.2d at

540. 

Next, it does not appear that Appellant makes a demand for

relief in the Objection pertaining to the nondischargeability of

the debt. See In re Marino, 37 F.3d at 1357 (noting that there

was no language in the Opposition or documents filed with it

that demands judgment of nondischargeability as required by

Civil Rule 8(a)). Instead, Appellant states in ¶ 6 that she

intended to file an adversary proceeding based on her legal

conclusion that debtor committed fraud. 

Finally, there is no statement that the proceeding was core

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or non-core as required under Rule 7008(a). Id. at 1357. 

Although counsel argued at the hearing that implicitly the

matter could only be core because Appellant alleged the debt was

nondischargeable under § 523(a), the Marino court found it

significant that this requirement for a complaint was lacking. 

We cannot simply stretch the substantial compliance doctrine to

fit the notice requirements for a complaint through implication,

especially when faced with the strict deadline under

Rule 4007(c) for filing complaints objecting to the

dischargeability of specific debts.

Due to these deficiencies, we conclude that ¶ 6 of

Appellant’s Objection is closer to the documents in Markus and

Marino than Dominguez. Because this paragraph was inadequate to

put debtor on notice of the claim against her, we agree with the

bankruptcy court’s assessment that ¶ 6 did not substantially

comply with the requirements for a nondischargeability

complaint. Therefore, Appellant’s complaint filed on

November 16, 2013, did not relate back to ¶ 6 of Appellant’s

Objection. As her complaint was untimely filed under Rule

4007(c), dismissal was proper. 

VI. CONCLUSION

For the reasons stated, we AFFIRM.

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