1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILED

APR 06 2015

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NOT FOR PUBLICATION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-14-1365-KiKuD

)

DANNY WAYNE PRYOR, ) Bk. No. 2:09-bk-23842-BR

)

Debtor. ) Adv. No. 2:09-ap-02322-BR

 )

)

DANNY WAYNE PRYOR, )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

ITEC FINANCIAL, INC., )

)

Appellee. )

______________________________)

Argued and Submitted on February 19, 2015,

at Los Angeles, California

Filed - April 6, 2015

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Barry Russell, Bankruptcy Judge, Presiding

 

Appearances: Appellant Danny Wayne Pryor argued pro se; Michael

D. Franco argued for appellee, ITEC Financial, Inc.

 

Before: KIRSCHER, KURTZ and DUNN, Bankruptcy Judges.

1 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.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Appellant, chapter 72 debtor Danny Wayne Pryor, appeals an

order denying his motion for relief from judgment under Civil

Rule 60(b)(1), (2), (3), (6) and (d)(3). In a prior proceeding,

the bankruptcy court: entered a default judgment; excepted from

discharge under § 523(a)(2)(A) the debt of appellee, ITEC

Financial, Inc.; and denied Pryor’s discharge under § 727(a)(2),

(3), (4) and (5) (“Judgment”). On appeal, the Panel affirmed the

bankruptcy court’s § 523(a)(2)(A) ruling but vacated the § 727

rulings for lack of evidence and remanded for entry of an amended

judgment. Pryor appealed the Panel’s decision to the Ninth

Circuit Court of Appeals, which affirmed. Several months later,

Pryor filed the instant motion before the bankruptcy court seeking

relief from the Judgment. We AFFIRM, in part, and VACATE and

REMAND, in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Panel’s Memorandum Decision issued on August 12, 2011, in

Case No. 10-1258, contains a more thorough background of this

appeal.

ITEC is engaged in the business of real estate investments,

construction and loan funding in Los Angeles. Pryor is a general

contractor and real estate developer. In 2006 and 2007, ITEC and

Pryor engaged in three real estate development projects owned by

Pryor. ITEC provided Pryor, either directly or through one of his

entities, various loans for the projects. 

2 Unless specified otherwise, all chapter, code and rule

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

the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The

Federal Rules of Civil Procedure are referred to as “Civil Rules.”

-2-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A. The underlying bankruptcy case and prior appeal

Pryor filed his first bankruptcy case under chapter 11 on

March 28, 2008. The bankruptcy court dismissed that case on

May 21, 2008, for cause under § 1112(b) and imposed a one-year bar

from filing another bankruptcy case. In violation of the order,

Pryor filed a chapter 7 case on March 9, 2009. The court promptly

dismissed that case on May 5, 2009.

On June 7, 2009, Pryor filed another chapter 7 case,

initiating the bankruptcy case involved in the prior appeal before

the Panel and this appeal. ITEC filed its complaint seeking

relief under §§ 523 and 727; Pryor filed his answer pro se. As a

sanction for Pryor’s failure to appear at a status conference or

comply with ITEC’s discovery requests, the bankruptcy court struck

his answer and entered a default. Pryor moved for reconsideration

of the order striking his answer; the bankruptcy court denied it. 

Pryor failed to appeal that order.

ITEC then moved for a default judgment, which Pryor untimely

opposed on the day of ITEC’s prove-up hearing. ITEC offered a

declaration from the president of ITEC, Nina Patel, and extensive

exhibits. Pryor’s untimely response failed to address any of the

representations contained in Patel’s declaration. However,

according to the Judgment, Pryor did offer extensive oral

argument.

The bankruptcy court entered the Judgment on July 30, 2010.

Pryor timely appealed the Judgment to the Panel. On August 12,

2011, the Panel issued its Memorandum Decision and judgment

affirming the Judgment on the § 523(a)(2)(A) claim, vacating the

Judgment on the § 727 claims and remanding the appeal to the

-3-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

bankruptcy court to enter an amended judgment. The Panel denied

Pryor’s motion for rehearing. Pryor timely appealed the Panel’s

§ 523(a)(2)(A) determination to the Ninth Circuit. ITEC did not

cross-appeal the Panel’s adverse ruling on the § 727 claims. On

October 23, 2013, the Ninth Circuit affirmed the Panel’s ruling

excepting ITEC’s Judgment from Pryor’s discharge under

§ 523(a)(2)(A). During the pendency of the appeals, the

bankruptcy court ordered the estate’s claims, if any, against ITEC

abandoned to Pryor.

B. Pryor’s motion to set aside the Judgment 

On April 23, 2014, Pryor moved the bankruptcy court to set

aside the Judgment under Civil Rule 60(b)(1), (2), (3), (6) and

(d)(3) (“Motion to Set Aside Judgment”). Although mostly

incomprehensible, the gist of Pryor’s motion alleges that ITEC

committed “extrinsic fraud” by failing to disclose to the

bankruptcy court that it failed to obtain a license to issue the

subject loans and that such loans contained usurious interest

charges and unenforceable provisions.

Pryor also contended that new evidence uncovered in the state

court trial now revealed ITEC’s unlicensed status and its

inability to conduct any actions requiring a license under the

laws of California, as set forth in Exhibit H in his Request for

Judicial Notice. Exhibit H consisted of Pryor’s motion for a new

trial filed in his state court action against ITEC, which

referenced the alleged new document obtained from the Department

of Real Estate (“DRE”) regarding Patel’s licensing history.

Pryor argued that the bankruptcy court entered the

$11 million judgment in favor of ITEC without knowing of the

-4-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

alleged fraud and thereby allowed ITEC to recover the judgment on

allegedly illegal and usurious loans as an exception to his

discharge. Thus, given the alleged voidness and unenforceability

of ITEC’s loans, Pryor argued the Judgment had to be set aside

under Civil Rule 60(b)(1), (2), (3), (6) and (d)(3).

ITEC opposed the Motion to Set Aside Judgment, contending

that: it had no merit; and it constituted a bad faith filing and

Pryor’s fourth attempt to defend against the allegations of the

dischargeability complaint. In addition to arguing that the

motion should be denied for being incomprehensible, ITEC argued

that Pryor failed to file the motion timely and failed to cite any

authority for vacating a judgment after two appeals. Furthermore,

the motion’s alleged “extrinsic fraud” involved an old and stale

issue; Pryor had raised this issue before the trial and appellate

courts. Each court determined the alleged “extrinsic fraud” claim

had no merit. ITEC additionally requested that the bankruptcy

court declare Pryor a vexatious litigant.

In reply, Pryor argued that he timely filed the Motion to Set

Aside Judgment because the one-year filing rule under Civil

Rule 60(c) did not start to run until the Ninth Circuit entered

its ruling on the Judgment on October 23, 2013. Pryor contended

that FRAP 41(a) and (c) and the Mandate entered by the Ninth

Circuit on May 15, 2014, failed to establish the finality of the

Judgment for purposes of Civil Rule 60 until October 23, 2013. 

Pryor criticized ITEC for failing to address the substantial

evidence establishing that ITEC committed fraud against him and

the bankruptcy court. Pryor did not oppose the vexatious litigant

request, stating only that “[n]ow ITEC would like this Court to

-5-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

label PRYOR vexatious.” In support of his reply, Pryor filed a

Request for Judicial Notice containing the Mandate from the Ninth

Circuit, a copy of the DRE document regarding Patel’s licensing

history, and the adversary docket report.

The bankruptcy court held a brief hearing on the Motion to

Set Aside Judgment on June 25, 2014, during which it ruled: 

I have read your motion, and as I indicated last time,

this is just not timely under Rule 60. It’s way -- you

seem to think that the remand of these things after an

appeal is a year. That is not true at all. You’re

talking about a judgment that was entered here a long

time -- has long since passed.

A lot of your stuff, quite frankly . . . Mr. Pryor, I’ve

seen your work before, it’s really incomprehensible. I

read through it and I can’t follow a lot of it. 

In addition, . . . I think that you have filed so many of

these things that I am going to declare you a vexatious

litigant. Your arguments are just way beyond anything

that’s reasonable.

Hr’g Tr. (June 25, 2014) 1:15-2:7. 

The bankruptcy court entered an order denying the Motion to

Set Aside Judgment and declaring Pryor a vexatious litigant on

July 7, 2014 (“Order”). Pryor timely appealed the Order.

II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334

and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158(b).

III. ISSUE

Did the bankruptcy court abuse its discretion when it denied

the Motion to Set Aside Judgment?

IV. STANDARD OF REVIEW

We review denials of motions for relief under Civil Rule 60

for an abuse of discretion. See United States v. Stonehill,

660 F.3d 415, 443 (9th Cir. 2011). Accordingly, we reverse where

-6-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the bankruptcy court applied an incorrect legal rule or where its

application of the law to the facts was illogical, implausible or

without support in inferences that may be drawn from the record. 

Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.

2010) (citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc)). An appeal from an order denying a Civil

Rule 60 motion raises only the merits of the order denying the

motion and does not raise the merits of the underlying judgment,

unless it is filed within the time period required by 8002(b)(4).3

See Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir. 1995).

V. DISCUSSION

Pryor contends the bankruptcy court abused its discretion in

denying the Motion to Set Aside Judgment as untimely. Pryor also

attempts to argue the underlying merits of the Judgment and

matters that have already been decided against him by the state

court. However, those matters are not properly before us. The

only issue relevant to this appeal is whether the bankruptcy court

abused its discretion in entering the Order.

A. The bankruptcy court did not abuse its discretion in denying

the Motion to Set Aside Judgment under Civil Rule 60(b)(1),

(2) or (3), but did abuse its discretion in denying it under

Civil Rule 60(d)(3). 

Pryor sought relief from the Judgment under Civil Rule

60(b)(1), (2), (3), (6) and (d)(3). His motion, however, at best

only sets forth any facts, argument or authority for relief under

Civil Rule 60(b)(2) (newly discovered evidence), (b)(3) (fraud)

and (d)(3) (fraud on the court). He made no allegations as to any

3 Rule 8002(b)(4), given a rule amendment effective

December 1, 2014, is now designated Rule 8002(b)(1)(D).

-7-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

mistake, inadvertence, surprise or excusable neglect on his behalf

under (b)(1); nor did he provide any basis for the “catch all”

relief under (b)(6). In his reply, Pryor failed to even mention

(b)(6). Pryor also fails to cite to, or make any argument for,

(b)(6) on appeal. Thus, his claim for relief under Civil

Rule 60(b)(6) is considered waived. Golden v. Chi. Title Ins. Co.

(In re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002) (arguments not

raised in the appellant’s opening brief are deemed waived).

Even if not waived, a movant under Civil Rule 60(b)(6) “is

required to establish the existence of extraordinary

circumstances, which prevented or rendered him unable to prosecute

an appeal.” Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir.

2012) (citation omitted). Because Pryor successfully prosecuted

two appeals of the Judgment, he cannot establish a claim for

relief under (b)(6). Further, Pryor had asserted claims for

“fraud on the court” and “newly discovered evidence,” which are

enumerated reasons in Civil Rule 60(b)(1)-(5). See Gonzales v.

Crosby, 545 U.S. 524, 528-29 (2005) (Civil Rule 60(b)(6) permits

relief when the movant shows any reason justifying relief from the

judgment other than those more specific circumstances set out in

Civil Rule 60(b)(1)-(5)). To the extent Pryor argues he had a

claim under Civil Rule 60(b)(1), as we explain more thoroughly

below, his claim was untimely.

Civil Rule 60(b), incorporated by Rule 9024, provides that

the court may relieve a party from a final judgment for several

reasons, including: (1) mistake, inadvertence, surprise or

excusable neglect; (2) newly discovered evidence that, with

reasonable diligence, could not have been discovered in time to

-8-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

move for new trial under Civil Rule 59(b); or (3) fraud (whether

extrinsic or intrinsic), misrepresentation, or misconduct by an

opposing party. A motion under Civil Rule 60(b) for reasons (1),

(2) and (3) must be filed no more than one year after entry of the

judgment. Civil Rule 60(c).

Pryor contends that the one-year limitation period for filing

a motion under Civil Rule 60(b)(1), (2) and (3) did not begin to

run until October 23, 2013, the day the Ninth Circuit entered its

ruling on the Judgment, as indicated by its Mandate issued on

May 15, 2014. He cites FRAP 41(a) and (c)4 as support for his

position. Pryor argues that he timely filed the Motion to Set

Aside Judgment within one year of October 23, 2013, and the

bankruptcy court erred by holding otherwise. We disagree.

In ruling that the Motion to Set Aside Judgment was untimely,

the bankruptcy court correctly denied the motion as to Pryor’s

claims under Civil Rule 60 (b)(1), (2) and (3). The one-year

limitation period is not tolled during an appeal. Nevitt v.

United States, 886 F.2d 1187, 1188 (9th Cir. 1989). In Nevitt,

the movant had appealed an adverse district court judgment, which

was affirmed by the Ninth Circuit. Id. About one month after the

Ninth Circuit’s affirmance of the judgment and two years after the

judgment was initially entered by the district court, the movant

filed a motion for relief from judgment under Civil Rule 60(b)(2)

4 FRAP 41(a) and (c) provides:

(a) Contents. Unless the court directs that a formal mandate

issue, the mandate consists of a certified copy of the

judgment, a copy of the court’s opinion, if any, and any

direction about costs.

. . . .

(c) Effective Date. The mandate is effective when issued.

-9-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in the district court, which it denied. Id. On appeal, the Ninth

Circuit determined that the pendency of an appeal does not toll

the one-year period for a motion under Civil Rule 60(b)(1), (2) or

(3). Id. See also The Tool Box, Inc. v. Ogden City Corp.,

419 F.3d 1084, 1088-89 (10th Cir. 2005) (holding same). Thus, the

movant’s motion was untimely, filed two years after the judgment,

and the district court lacked jurisdiction to consider it. Id. 

In implementing this rule, the Ninth Circuit noted that allowing

an appeal to toll the one-year limit “would unduly impair the

finality of judgments for appellate proceedings may take months

and even years to complete.” Nevitt, 886 F.2d at 1188 (citation

omitted).

Accordingly, the one-year limitation period for Pryor’s

claims for relief under Civil Rule 60(b)(1), (2) and (3) began to

run when the Judgment was entered on July 30, 2010. It did not

begin to run from the date of the Ninth Circuit’s decision

reviewing the Judgment. Thus, the bankruptcy court correctly

determined the untimeliness of Pryor’s motion with respect to

these claims as Pryor filed his motion nearly four years later on

April 23, 2014. Contrary to Pryor’s argument, FRAP 41 has no

effect on this rule. All FRAP 41 establishes is when a Ninth

Circuit judgment is final for purposes of filing an appeal to the

United States Supreme Court; it does not determine when a judgment

is final for purposes of a motion for relief from judgment under

Civil Rule 60(b).

Nonetheless, Pryor also sought to set aside the Judgment for

“fraud on the court” under Civil Rule 60(d)(3). Such fraud

“embraces only that species of fraud which does or attempts to,

-10-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

defile the court itself, or is a fraud perpetrated by officers of

the court so that the judicial machinery can not perform in the

usual manner its impartial task of adjudging cases that are

presented for adjudication.” Latshaw v. Trainer Wortham & Co.,

452 F.3d 1097, 1104 (9th Cir. 2006) (quotations and citations

omitted) (applying Civil Rule 60(b)). “Fraud on the court should

be read narrowly, in the interest of preserving the finality of

judgments.” Id. (quoting Toscano v. Comm’r, 441 F.2d 930, 934

(9th Cir. 1971)).

The Ninth Circuit places a high burden on a plaintiff seeking

relief from a judgment based on fraud on the court. Id. See

Stonehill, 660 F.3d at 443 (burden of proof is a “clear and

convincing” standard). The type of fraud asserted here must

involve egregious conduct, such as an unconscionable plan or

scheme designed to improperly influence the court in its decision. 

Latshaw, 452 F.3d at 1104 (citing Abatti v. Comm’r, 859 F.2d 115,

118 (9th Cir. 1988); Toscano, 441 F.2d at 934). “Mere

nondisclosure of evidence is typically not enough to constitute

fraud on the court, and “’perjury by party or witness, by itself,

is not normally fraud on the court.’” Stonehill, 660 F.3d at 444

(citing Levander v. Prober (In re Levander), 180 F.3d 1114, 1119

(9th Cir. 1999)). 

The bankruptcy court only ruled that Pryor untimely filed his

Motion to Set Aside Judgment. As a result, the court incorrectly

applied a standard of law as to his claim for relief under Civil

Rule 60(d)(3). Motions to set aside judgments for “fraud on the

court” have no time limit. Wood v. McEwen, 644 F.2d 797, 801 (9th

Cir. 1981); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 640

-11-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

n.10 (N.D. Cal. 1978) (no statute of limitations for fraud on the

court), aff’d, 645 F.2d 699 (9th Cir. 1981); C. Wright, A. Miller

& M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2870 at 574-75 (2012).

Further, a claim under Civil Rule 60(d)(3) may not be limited only

to “extrinsic” fraud, but may also include claims for “intrinsic”

fraud. See Kalt v. Hunter (In re Hunter), 66 F.3d 1002, 1005 (9th

Cir. 1995) (questioning additional holding in Wood that

independent actions for “fraud on the court” can be maintained

only for extrinsic fraud, a distinction previously abolished in

Civil Rule 60(b)).

Accordingly, because the bankruptcy court applied an

incorrect standard of law as to Pryor’s claim for relief under

Civil Rule 60(d)(3), it abused its discretion. Ahanchian,

624 F.3d at 1258.

B. Pryor does not contest the vexatious litigant determination. 

In the Order, the bankruptcy court designated Pryor as a

vexatious litigant. Pryor did not explicitly contest ITEC’s

request that he be declared a vexatious litigant; he does not

contest the bankruptcy court’s ruling on appeal. Thus, Pryor

waived this issue and we do not address it. In re Choo, 273 B.R.

at 613. 

VI. CONCLUSION

The bankruptcy court correctly determined that Pryor untimely

filed his Motion to Set Aside Judgment under the time limitations

imposed under Civil Rule 60(b)(1), (2) and (3). However, it

abused its discretion in denying his motion on his claim for

“fraud on the court” under Civil Rule 60(d)(3). Accordingly, we

AFFIRM the Order, in part, and VACATE and REMAND it, in part. On

-12-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

remand, the bankruptcy court must determine whether Pryor is

entitled to any relief under Civil Rule 60(d)(3).

-13-