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NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-13-1567-DKiKu

)

IRISON LOMONT JONES, ) Bk. No. 13-15206

)

Debtor. ) Adv. No. 13-1502

______________________________)

)

BRETT JONES-THEOPHILIOUS, )

)

Appellant, )

)

v. ) MEMORANDUM1

)

WESLEY HOWARD AVERY, CHAPTER 7)

TRUSTEE, )

Appellee. )

______________________________)

Submitted Without Oral Argument

on April 2, 2015

Filed - April 7, 2015

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Peter H. Carroll, Bankruptcy Judge, Presiding

 

Appearances: Appellant Brett Jones–Theophilious, pro se, on

brief.

 

Before: DUNN, KIRSCHER and KURTZ, Bankruptcy Judges.

FILED

APR 07 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

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.
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This is an appeal by a pro se non-debtor incarcerated

adversary proceeding defendant, Brett Jones-Theophilious

(“Mr. Jones-Theophilious”). Mr. Jones-Theophilious is the

brother of the debtor, Irison Lomont Jones (“debtor”).2 In the

adversary proceeding, the chapter 7 trustee (“Trustee”) obtained

entry of default against Mr. Jones-Theophilious. Mr. JonesTheophilious appeals the entry of default against him on the

ground that the Trustee did not properly serve him with the

complaint, the summons and the motion for entry of default.3 We

2 Unless otherwise indicated, all chapter and section

references are to the federal Bankruptcy Code, 11 U.S.C.

§§ 101-1532, and all “Rule” references are to the Federal Rules

of Bankruptcy Procedure, Rules 1001-9037. All “Civil Rule”

references as to the Federal Rules of Civil Procedure.

3 Before the bankruptcy court issued its decision on

Mr. Jones-Theophilious’ motion to set aside the default, the

Trustee filed a motion for entry of a default judgment against

him. (In the unilateral status report filed by the Trustee on

October 10, 2013, the Trustee claimed that the bankruptcy court

directed him to file the motion for default judgment.) On

November 8, 2013, the bankruptcy court entered an order denying

Mr. Jones-Theophilious’ motion to set aside the default and the

default judgment against him.

On appeal, Mr. Jones-Theophilious seems to challenge both

the entry of the default and the entry of the default judgment. 

To contest an entry of default, the aggrieved party must file a

motion under Civil Rule 55(c), which allows the bankruptcy court

to set aside a default for good cause shown. However, once a

default judgment has been entered (as it was here), the party

seeking relief must file a motion under Civil Rule 60(b). See

Civil Rule 55(c) and Rules 7055 and 9024. See also Katzir’s

Floor and Home Design, Inc. v. M-MLS.com, 394 F.3d 1143, 1147 n.1

(9th Cir. 2004)(“Once a default judgment has been entered . . .

the aggrieved party must proceed under [Civil] Rule 60(b) to have

the judgment set aside.”)(emphasis in original).

Although Mr. Jones-Theophilious filed a motion to set aside

(continued...)

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AFFIRM.

FACTS4

In or about October 2001, the debtor purchased his residence

located in Lancaster, CA (“Lancaster Property”). In July 2002,

he obtained a mortgage loan from Indymac Bank (“Indymac”),

secured by a trust deed against the Lancaster Property.

The debtor defaulted on the loan. After a notice of default

and election to sell was recorded, a trustee’s sale was scheduled

for April 16, 2010. 

Between April 2010 and August 2010, the debtor transferred

25% fractional interests in the Lancaster Property as “gifts” to

three friends/family members, including his brother, Mr. JonesTheophilious (collectively, “transferees”). When the debtor

3(...continued)

the default, as of March 30, 2015, he had not filed a motion to

set aside the default judgment. We therefore address his motion

to set aside the default only.

4 Mr. Jones-Theophilious did not provide any documents or

transcripts of hearings from the underlying adversary proceeding. 

Instead (as we describe in more detail below), he provided us

copies of envelopes bearing his address and a copy of his expired

driver’s license.

Because we lack many of the relevant documents, we have

exercised our discretion to reach the merits of the appeal by

independently reviewing the bankruptcy court’s electronic docket

and the imaged documents attached thereto. See O’Rourke v.

Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957-58

(9th Cir. 1988); Atwood v. Chase Manhattan Mortg. Co.

(In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). We

also have done our best to reconstruct what happened at the

relevant hearings without the benefit of the missing transcripts. 

See Ehrenberg v. Cal State Fullerton (In re Beachport Entm’t),

396 F.3d 1083, 1087-88 (9th Cir. 2005).

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transferred the 25% interest to Mr. Jones-Theophilious on

April 15, 2010, Mr. Jones-Theophilious promptly filed a skeleton

chapter 13 bankruptcy petition (case no. 10-24540-VZ). Because

he failed to file the schedules, statement of financial affairs

(“SOFA”) and plan, the chapter 13 case was dismissed in early May

2010.

On February 28, 2013, the debtor filed his chapter 7

bankruptcy petition (main case no. 13-15206-SK). He converted

his chapter 7 case to chapter 13 on May 27, 2014.

The debtor did not list the Lancaster Property in his

original Schedule A. However, he claimed an exemption in the

Lancaster Property in his original Schedule C and named Indymac

as a secured creditor in his original Schedule D. The debtor did

not mention Mr. Jones-Theophilious in any of his original

schedules or in his SOFA. Although the debtor amended his

Schedule A, Schedule C and Schedule D, including the Lancaster

Property, he did not mention his or the transferees’ alleged

respective 25% interests in the Lancaster Property. He simply

listed the Lancaster Property in his amended schedules, implying

that he owned it 100%.

In April 2013, the Trustee began marketing the Lancaster

Property for sale. Meanwhile, on May 7, 2013, he initiated an

adversary proceeding against the transferees (adv. proc. no.

13-1502-SK), asserting numerous claims for relief.5

5 When the Trustee obtained an offer to purchase the

Lancaster Property, he moved to sell it free and clear of liens

under § 363(f) in January 2014. The bankruptcy court approved

(continued...)

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Among these claims for relief, the Trustee sought to enjoin

the transferees from transferring their interests in the

Lancaster Property and from filing further bankruptcy petitions.6

He also sought to avoid as fraudulent the debtor’s transfers of

the fractional interests in the Lancaster Property to the

transferees.

The Trustee also sought declaratory relief for various

determinations, including that: 1) the bankruptcy estate owned

the Lancaster Property; and 2) the transferees held no legal or

equitable interests in the Lancaster Property. He also sought:

1) to quiet title against the transferees; 2) turnover of the

Lancaster Property; and 3) authority to sell the fractional

interests in the Lancaster Property, including those of the

transferees, to the extent that they were co-owners.

5(...continued)

the sale, entering an order in February 2014 (“sale order”). The

debtor appealed the sale order (BAP No. CC-14-1069) and requested

a stay pending appeal. Both the bankruptcy court and the Panel

denied the debtor’s request for a stay pending appeal. 

The debtor vacated the Lancaster Property, allegedly

stripping it and doing $100,000 in damages in the process. The

sale fell through when the buyers withdrew their offer to

purchase. The appeal of the sale order later was dismissed as

moot on the Trustee’s motion.

6 On the same day he filed his complaint, the Trustee

separately moved for a preliminary injunction and a temporary

restraining order. 

The bankruptcy court entered a temporary restraining order

on May 8, 2013. It issued a preliminary injunction on May 22,

2013, enjoining the transferees from transferring their

fractional interests in the Lancaster Property. However, the

bankruptcy court denied the Trustee’s request to enjoin the

transferees from filing for bankruptcy.

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On May 8, 2013, the summons was issued, requiring the

transferees to file their answers to the complaint by June 7,

2013. On the same day, the Trustee filed a proof of service of

the summons and the complaint. In the proof of service, the

Trustee declared under penalty of perjury that, on May 8, 2013,

he served Mr. Jones-Theophilious the summons and complaint via

FedEx, next business day delivery, at his last known address. 

The Trustee listed the address as 793 Beatrice, Veguita, NM 87062

(“793 Beatrice Address”). The Trustee filed a supporting

Declaration on the following day.

On June 13, 2013, the Trustee filed a request for entry of

default against Mr. Jones-Theophilious and the other transferees

for failing to file any answer or responsive pleading to the

complaint by the June 7, 2013 deadline. A notice of entry of

default was entered on June 14, 2013. The certificate of notice

reported that the notice of the entry of default had been sent by

first-class mail by the Bankruptcy Noticing Center (“BNC”) to

Mr. Jones-Theophilious at the 793 Beatrice Address.

On July 11, 2013, the Trustee filed a status report stating

that: 1) all of the transferees had been served with the

complaint and the summons; 2) none of the transferees had filed

answers to the complaint; and 3) default had been entered against

all of the transferees on June 14, 2013. He further disclosed

that he was in the process of preparing a request for entry of a

default judgment against the transferees. 

The status report included a proof of service. Notably, the

status report proof of service listed two addresses for

Mr. Jones-Theophilious, the 793 Beatrice Address and the

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following address: Prisoner Reg. No. 41299-069, FDC Detention

Center-Miami, Attn: Legal Documents, P.O. Box 019120, Miami, FL

33101. A status hearing was set for August 8, 2013, but was

continued to October 24, 2013.

On July 17, 2013, Mr. Jones-Theophilious filed a

declaration, which essentially was an answer to the complaint.7

Among his various arguments, Mr. Jones-Theophilious contended

that, as he had “received a package on 6-22-13 regarding this

matter, any hearing prior to that date [was] undue surprise, as

process had not been perfected.” 

Two days later, Mr. Jones-Theophilious filed a motion to set

aside the default (“First Motion to Set Aside Default”). In the

First Motion to Set Aside Default, he claimed that he had “just

received” the complaint and the summons in late June or early

July 2013. He contended that the default against him should be

set aside because the Trustee failed to serve the complaint and

7 The declaration was filed by a Brett Bin Isaac/Brett

Jones. At the top left-hand corner of the declaration was this

hand-written notation: “Ronald West (310) 466-7519.” (The

bankruptcy court clerk listed Mr. West as the filer of the

declaration on the adversary proceeding docket.) Below the

hand-written notation was the following text: “Brett (Counsel),

P.O. Box 393, New Mexico, Veguita.” 

At the outset of the declaration, Brett Bin Isaac

represented that he was “the Executor for the ESTATE ‘BRETT

JONES-THEOPHILIOUS ESTATE/TRUST.’” He further stated that “BRETT

JONES-THEOPHILIOUS is an unincorporated foreign corporation . . .

and under law is a legal entity and individual, not a natural

person.” Also, the declaration ended with “Brett Jones 1-308,

3-415 without recourse, all rights reserved.”

Based on these statements, we deduce that Mr. JonesTheophilious had written the declaration and presumably filed it

through Mr. West.

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summons properly on him by sending them through “regular mail,”

which was “not in compliance with Service of Process Rules.” 

Mr. Jones-Theophilious also informed the bankruptcy court of his

incarceration.8

On September 30, 2013, he filed another motion to set aside

the default (“Second Motion to Set Aside Default”). In it,

Mr. Jones-Theophilious argued that the Trustee failed to serve

the pleadings properly, which rendered the default entered

against him invalid. He further claimed that the bankruptcy

court lacked jurisdiction because of the Trustee’s improper

service of the pleadings. 

Mr. Jones-Theophilious also alleged that the bankruptcy

court knew that he was in transit between prisons but failed to

ensure that he was served properly. He urged the bankruptcy

8 Along with the First Motion to Set Aside Default,

Mr. Jones-Theophilious filed a declaration, which essentially was

an amended or further answer to the complaint. See adv. proc.

docket no. 25. In it, he made a number of allegations, including

that: 1) Indymac lacked standing and did not have a valid claim

to the Lancaster Property because the promissory note had been

sold; 2) the Lancaster Property was covered by mortgage default

insurance; and 3) the bankruptcy court did not have subject

matter jurisdiction.

He also filed other documents, including: 1) a

“declaration,” titled “Official Laws of the United States and

P.L. 73.10, The Banking Act of 1933, #2 Stat. Ch. 48 (June 5, 6

1933 Act, 12 U.S.C. 411, 412," which set forth additional

arguments against Indymac; 2) an “affidavit,” titled “Affidavit

Maxim, Assets, ‘Show Me the Original Note,’ Proof of Payment in

Full, Right to Counter and Discovery,” which set forth more

arguments against Indymac, as well as a request for discovery;

and 3) an “affidavit,” titled “Reminder of Rules, as well as

Secured Right,” which informed the bankruptcy court that he was

in transit, presumably between prisons.

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court to hold a hearing on his motions. 

Mr. Jones-Theophilious included a change of address in his

Second Motion to Set Aside Default. He listed his new address as

P.O. Box 2005-41299069, Catano, Puerto Rico 00963.

The Trustee filed a response, contending that Mr. JonesTheophilious failed to show good cause to set aside the default.

On November 8, 2013, the bankruptcy court entered an order

denying the Second Motion to Set Aside Default.9 It determined

that Mr. Jones-Theophilious failed to demonstrate good cause for

setting aside the default pursuant to Civil Rule 55(c) in that he

did not provide any evidence showing: 1) that he did not engage

in the culpable conduct that led to the default; or 2) that he

had a meritorious defense to the Trustee’s claims. The

bankruptcy court also pointed out that it had determined earlier

that the Trustee had properly served the complaint and summons on

Mr. Jones-Theophilious at his address of record.10 A default

judgment in favor of the Trustee and against Mr. JonesTheophilious was entered on November 8, 2013.11

Mr. Jones-Theophilious appealed.

9 On the same day, the bankruptcy court entered an order

granting the Trustee’s motion for entry of a default judgment. 

It determined that the Trustee timely and properly served the

transferees and that the transferees failed to oppose the entry

of a default judgment.

10 The bankruptcy court ordered the Trustee to serve

Mr. Jones-Theophilious at the Puerto Rico prison address.

11 On November 9, 2013, the Trustee filed a notice of entry

of the default judgment against the transferees. The proof of

service listed all three addresses for Mr. Jones-Theophilious.

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JURISDICTION

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

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

§ 158.

ISSUE

Did the bankruptcy court abuse its discretion in denying

Mr. Jones-Theophilious’ Second Motion to Set Aside Default?

STANDARDS OF REVIEW

We review the bankruptcy court’s denial of a motion to set

aside a default under Civil Rule 55(c) for an abuse of

discretion. Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d

1108, 1110 (9th Cir. 2011); U.S. v. Signed Personal Check No. 730

of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010)(“Mesle”). 

We apply a two-part test to determine objectively whether the

bankruptcy court abused its discretion. United States v.

Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc). First,

we “determine de novo whether the bankruptcy court identified the

correct legal rule to apply to the relief requested.” Id. 

Second, we examine the bankruptcy court’s factual findings under

the clearly erroneous standard. Id. at 1262 & n.20. A

bankruptcy court abuses its discretion if it applied the wrong

legal standard or misapplied the correct legal standard or its

factual findings were illogical, implausible or without support

in the record. Trafficschool.com, Inc. v. Edriver Inc., 653 F.3d

820, 832 (9th Cir. 2011).

However, we review de novo the bankruptcy court’s

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determination that service of process was sufficient. Rubin v.

Pringle (In re Focus Media, Inc.), 387 F.3d 1077, 1081 (9th Cir.

2004).

We may affirm the bankruptcy court on any ground supported

by the record. See ASARCO, LLC v. Union Pac. R. Co., 765 F.3d

999, 1004 (9th Cir. 2014); Shanks v. Dressel, 540 F.3d 1082, 1086

(9th Cir. 2008).

DISCUSSION

Civil Rule 55, made applicable in bankruptcy proceedings

through Rule 7055, provides that a default may be entered against

a party when that party fails to plead or otherwise defend an

action. Civil Rule 55(a). Under Civil Rule 55, the bankruptcy

court has “considerable leeway as to what it may require as a

prerequisite to the entry of a default judgment.” Televideo

Sys., Inc. v. Heiddenthal, 826 F.2d 915, 917 (9th Cir. 1987). 

Where a default has been entered, the bankruptcy court should

accept as true all allegations in the complaint, except those

relating to damages. Id. at 917.

“The determination as to whether a default . . . shall be

set aside rests in the sound discretion of the trial court.” 

Madsen v. Bumb, 419 F.2d 4, 6 (9th Cir. 1969)(citations omitted). 

Under Civil Rule 55(c), the bankruptcy court may set aside an

entry of default for good cause. To determine whether good cause

exists to set aside a default under Civil Rule 55(c), the

bankruptcy court must consider three factors: 1) whether the

defaulting party engaged in culpable conduct that led to the

default; 2) whether the defaulting party had no meritorious

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defense; or 3) whether reopening the default judgment would

prejudice the other party (“Civil Rule 55(c) factors”). Mesle,

615 F.3d at 1091. “This test is disjunctive, such that a finding

that any one of the factors is true is sufficient for the court

to refuse to set aside the default.” Id. The defaulting party

invoking Civil Rule 55(c) bears the burden of demonstrating that

these factors favor setting aside the default. See TCI Group

Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001).

The bankruptcy court based its denial of the Second Motion

to Set Aside Default on the first and second Civil Rule 55(c)

factors. Mr. Jones-Theophilious does not appear to challenge the

bankruptcy court’s determinations on either of the first two

Civil Rule 55(c) factors, providing a solid basis for affirming

the decision of the bankruptcy court. Instead, he seeks to set

aside the default by arguing in essence lack of due process and

lack of personal jurisdiction.12 We address each of his

arguments in turn.

1. Lack of due process

Mr. Jones-Theophilious first argues that the default should

be set aside because the bankruptcy court violated his right to

12 Mr. Jones-Theophilious’ arguments are rambling and

confusing. We construe his pro se appeal brief liberally. See

Keys v. 701 Mariposa Project, LLC (In re Keys), 514 B.R. 10, 15

n.3 (9th Cir. BAP 2014)(citations omitted). However, our

indulgence in that regard is not unlimited. “We will not

manufacture arguments for an appellant, and a bare assertion does

not prove a claim . . . . As the Seventh Circuit in [United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)] stated

aptly: ‘[j]udges are not like pigs, hunting for truffles buried

in briefs.’” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

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due process by failing to hold a hearing on his First Motion to

Set Aside Default and/or Second Motion to Set Aside Default,

despite his request.

“Due process only requires a meaningful hearing appropriate

to the nature of the case.” Jordan v. City of Lake Oswego,

734 F.2d 1374, 1376 (9th Cir. 1984), citing Bell v. Burson,

402 U.S. 535, 540 (1971). Within the context of a motion brought

under Civil Rule 55(c), a bankruptcy court “is not required to

set aside the default and may conduct such hearings as it deems

necessary pursuant to [Civil] Rule 55(b)(2).”13 Kubrick v. FDIC

(In re Kubrick), 171 B.R. 658, 662 (9th Cir. BAP 1994).

Stated differently, a bankruptcy court has discretion as to

whether to hold a hearing on a Civil Rule 55(c) motion. Here,

the bankruptcy court exercised its discretion under Civil

Rule 55(b)(2) when it apparently declined to hold a hearing and

ruled on the motion papers with respect to the First Motion to

Set Aside Default and/or the Second Motion to Set Aside Default

filed by a party incarcerated out of state.14 By exercising

discretion as authorized under Civil Rule 55(b)(2), the

13 Civil Rule 55(b)(2) provides, in relevant part, that “the

court may conduct hearings or make referrals . . . when to enter

or effectuate judgment . . . .” (Emphasis added.)

14 The Trustee asserted that the bankruptcy court ruled on

the Second Motion to Set Aside the Default at a status conference

held on September 24, 2013. See adv. proc. docket no. 40. We

cannot determine from the docket whether the bankruptcy court

actually held a hearing on the Second Motion to Set Aside the

Default on that date. Based on our review of the docket, a

status hearing was scheduled for October 24, 2013, not

September 24, 2013. See adv. proc. docket no. 30.

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bankruptcy court did not violate Mr. Jones-Theophilious’ right to

due process and did not abuse its discretion. Mr. JonesTheophilious’ due process argument therefore is without merit.

2. Lack of personal jurisdiction

“A federal court does not have jurisdiction over a defendant

unless the defendant has been served properly under [Civil

Rule 4] [made applicable through Rule 7004].” Direct Mail

Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d

685, 688 (9th Cir. 1988). Civil Rule 4 “‘should be liberally

construed so long as a party receives sufficient notice of the

complaint.’” Id., quoting United Food & Comm. Workers Union v.

Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). However,

there must be substantial compliance with Civil Rule 4, otherwise

“‘neither actual notice nor simply naming the defendant in the

complaint will provide personal jurisdiction.’” United Food,

840 F.2d at 688, quoting Benny v. Pipes, 799 F.2d 489, 492 (9th

Cir. 1986).

Mr. Jones-Theophilious contends that the bankruptcy court

lacked personal jurisdiction over him because he was outside the

boundaries/limits of its district, as he was incarcerated in

Puerto Rico. Recognizing the reality that many interested

parties in a bankruptcy case may not be local, bankruptcy court

jurisdiction extends nationwide. See Rule 7004(d) (“The summons

and complaint and all other process except a subpoena may be

served anywhere in the United States.”). As noted by Collier’s, 

“United States” is not defined for purposes of the

subsection. Inasmuch as the bankruptcy court is a unit

of the district court by 28 U.S.C. § 151, however,

“United States” would presumably comprise every

jurisdiction in which a district court is located,

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which includes Puerto Rico, Guam and the Virgin

Islands.

10 Collier on Bankruptcy ¶ 7004.05 (Alan N. Resnick and Henry J.

Sommer, eds. 16th ed. 2014). Mr. Jones-Theophilious’ argument

lacks merit.

Alternatively, he asserts that the bankruptcy court lacked

personal jurisdiction over him because the Trustee improperly

served the pleadings on him by sending them via regular mail,

which did not comply with “service of process rules.” He does

not provide the specific service of process rule(s) that the

Trustee allegedly failed to follow, but he insists that the

Trustee had to do more than send the pleadings by first-class

mail (e.g., obtain a signature acknowledging receipt).

Contrary to Mr. Jones-Theophilious’ arguments, the Trustee

properly served the pleadings on him pursuant to Rule 7004. 

Rule 7004(b)(1) allows service to be made “by first class mail

postage prepaid . . . [u]pon an individual other than an infant

or incompetent, by mailing a copy of the summons and complaint to

the individual’s dwelling house or usual place of abode or to the

place where the individual regularly conducts a business or

profession.” 

Service of a complaint and summons pursuant to Rule 7004(b)

“‘is effective to establish personal jurisdiction over the person

of any defendant with respect to a . . . civil proceeding arising

under the Code,’ so long as the exercise of jurisdiction is

consistent with the Constitution and laws of the United States.” 

Morris v. Peralta (In re Peralta), 317 B.R. 381, 386 (9th Cir.

BAP 2004)(citing Rule 7004(f)). “The mailing of a properly

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addressed and stamped item creates a rebuttable presumption that

the addressee received it. A certificate of mailing raises the

presumption that the documents sent were properly mailed and

received.” Id. (citations omitted). See also Jorgenson v. State

Line Hotel, Inc. (In re State Line Hotel, Inc.), 323 B.R. 703,

709 n.5 (9th Cir. BAP 2005)(“The mailbox presumption is that mail

properly addressed, stamped, and deposited in an appropriate

receptacle creates a rebuttable presumption of its receipt, and

service by mail is complete upon mailing. See Rule 7005; [Civil

Rule] 5(b). A presumption of receipt is established by showing

of proper mailing. Mere denial of receipt is insufficient to

rebut the presumption; clear and convincing evidence is

required.”) See Moody v. Bucknum (In re Bucknum), 951 F.2d 204,

207 (9th Cir. 1991); In re Peralta, 317 B.R. at 386.

Here, the Trustee stated in the proof of service of the

complaint and in his supporting Declaration that he served the

adversary proceeding complaint and the summons on Mr. JonesTheophilious via FedEx, next day business delivery, at his last

known address, the 793 Beatrice Address. The Trustee served

Mr. Jones-Theophilious pursuant to Rule 7004(b)(1), which created

a rebuttable presumption that Mr. Jones-Theophilious received the

pleadings. 

Mr. Jones-Theophilious claims that the 793 Beatrice Address

is not a “legal address on file with [the] local and regional

government.” He alleges that his address of record was

473 Beatrice Avenue, Veguita, New Mexico 87062 (“473 Beatrice

Address”). However, he did not present any evidence showing that

the 793 Beatrice Address was invalid or incorrect or that the

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473 Beatrice Address was his “address of record.” (Notably,

Mr. Jones-Theophilious demonstrated that he received service of

the summons and complaint by filing the First Motion to Set Aside

Default.) He did not provide clear and convincing evidence to

the bankruptcy court to rebut the presumption that he received

the summons and complaint.

Mr. Jones-Theophilious further argues that the Trustee

improperly served the pleadings by mailing them to the incorrect

address. As part of his scanty excerpts of record, he provides

copies of envelopes listing his address as P.O. Box 393, Veguita,

NM 87062 and a copy of his driver’s license listing his address

as 473 Beatrice Ave., Veguita, NM 87062.

We cannot make any factual determinations on evidence that

was not before the bankruptcy court. See Oyama v. Sheehan

(In re Sheehan), 253 F.3d 507, 512 n.5 (9th Cir. 2001)(“Evidence

that was not before the lower court will not generally be

considered on appeal.”). We therefore decline to consider these

documents.15

We also note that Mr. Jones-Theophilious did not submit any

corroborating evidence to the bankruptcy court showing that the

793 Beatrice Address was not his address. Aside from his various

“affidavits” and “declarations,” he provided no other documentary

evidence, such as a recent utility bill or a current driver’s

15 We do note that the Trustee did not file the complaint

against Mr. Jones-Theophilious until May 7, 2013, but the stamps

on the envelopes submitted by Mr. Jones-Theophilious are dated

between May 16, 2012 and May 25, 2012, and the driver’s license

has an expiration date of December 31, 2012.

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license.

He further contends that the Trustee was required to obtain

a signature acknowledging receipt of the pleadings to effect

service properly. Rule 7004(b)(1) does not set forth such a

requirement. It simply requires the Trustee to send the

pleadings via first-class mail to Mr. Jones-Theophilious’

dwelling, usual place of abode or to a place where “this

individual regularly conducts a business or profession.”

Because Mr. Jones-Theophilious did not rebut by clear and

convincing evidence the presumption that he received the

pleadings once the Trustee effected service pursuant to

Rule 7004, his arguments again lack merit.

CONCLUSION

The bankruptcy court did not abuse its discretion in denying

Mr. Jones-Theophilious’ request to set aside the default against

him. We AFFIRM.

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