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FILED

MAR 23 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NOT FOR PUBLICATION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-15-1258-FTaKu

)

CYNTHIA CYNKO ZIPSER, ) Bk. No. 14-12827-PC

)

Debtor. )

_____________________________ )

)

CYNTHIA CYNKO ZIPSER, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

OCWEN LOAN SERVICING, LLC, )

)

Appellee. )

______________________________)

Argued and Submitted on February 19, 2016

at Pasadena, California

Filed – March 23, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Peter H. Carroll, Bankruptcy Judge, Presiding

 

Appearances: Steven J. Krause of Ananda & Krause, APLC argued

for Appellant Cynthia Cynko Zipser; Leslie Marie

Klott of Law Offices of Les Zieve argued for

Appellee Ocwen Loan Servicing, LLC.

 

Before: FARIS, TAYLOR, and KURTZ, Bankruptcy Judges.

FILED

MAR 23 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

* 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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INTRODUCTION

Appellant/chapter 131 debtor Cynthia Cynko Zipser appeals

from the bankruptcy court’s order overruling her objection to

Appellee Ocwen Loan Servicing, LLC’s claim. The bankruptcy court

determined that Ocwen, as the person in possession of a note

endorsed in blank, was a person entitled to enforce the note. 

Ms. Zipser fails to identify any reversible error. Accordingly,

we AFFIRM.

FACTUAL BACKGROUND2

The facts are not in dispute. (In fact, in their respective

briefs, both Ms. Zipser and Ocwen copied virtually verbatim the

recitation of facts from the bankruptcy court’s Memorandum

Decision.)

In 2004, Countrywide Bank, a Division of Treasury Bank, N.A.

(“Countrywide”) lent $639,920.00 to Ms. Zipser and Daniel Zipser. 

The Zipsers executed an adjustable rate note (the “Note”) and a

deed of trust (the “Deed of Trust”) encumbering the Zipsers’ real

property located in Thousand Oaks, California (the “Subject

Property”).

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 Ms. Zipser presents us with a deficient record that is

just thirteen-pages long and includes only the court’s memorandum

decision, order, and a copy of the last page of the Note with the

blank endorsement. 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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The Note was endorsed in blank by Treasury Bank, N.A. and

transferred to Ocwen Loan Servicing, LLC, as servicer for

Christiana Trust, a division of Wilmington Savings Fund Society,

FSB, not in its individual capacity but as Trustee of ARLP

Trust 3 (“Christiana Trust”). Ocwen represents that, on behalf

of Christiana Trust, it is in actual and physical possession of

the Note and that Christiana Trust is the noteholder and

beneficiary under the Deed of Trust.

On November 15, 2010, the Zipsers filed for chapter 7

bankruptcy. The Zipsers disclosed that they owned the Subject

Property valued at $636,600 and encumbered by two liens totaling

$756,831. The Zipsers received their discharge on December 21,

2011, and the case was closed on November 18, 2013. 

On December 30, 2014, Ms. Zipser filed a chapter 13 petition

in the bankruptcy case from which this appeal arises. She stated

that she owned a community interest in the Subject Property

valued at “$0.00” and that secured claims encumbered the Subject

Property for “$0.00.” She did not identify any creditor holding

a lien against the Subject Property.3 She identified Ocwen as a

creditor with the notation “Notice Only.” 

Ms. Zipser’s proposed chapter 13 plan did not provide for

the payment of any secured claim except for a claim held by

JP Morgan Chase. The court confirmed the plan on March 19, 2015.

On May 11, 2015, Ocwen filed Claim #3 for $829,418.23

3 Ms. Zipser listed Countrywide as the holder of an

unsecured nonpriority claim in the amount of “$0.00.” She

included a notation identifying the Subject Property and stating

“Discharged - $639,920.00.”

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secured by the Deed of Trust on the Subject Property. Ocwen

represented that it services the underlying mortgage loan on the

Subject Property for Christiana Trust. It stated that Christiana

Trust “directly or through an agent has possession of the

promissory note and the promissory note is either made payable to

[Christiana Trust] or has been duly endorsed.”

Ms. Zipser filed an objection to Ocwen’s Claim #3

(“Objection”). She stated that Ocwen is asserting a “fraudulent

and invalid claim” at “the eleventh hour.” Essentially, she

argued that Ocwen had failed to show that it was the proper

holder of the Note, because it could not track the physical

transfer between Countrywide, Bank of America, and Ocwen and

because a note endorsed in blank does not provide the possessor

with a right to enforce it. Ms. Zipser relied upon Veal v.

American Home Mortgage Services, Inc. (In re Veal), 450 B.R. 897

(9th Cir. BAP 2011), and Kemp v. Countrywide Home Loans, Inc.

(In re Kemp), 440 B.R. 624 (Bankr. D.N.J. 2010).

Ocwen filed a written opposition to the Objection. In

summary, it argued that, as the holder of the Note that is

endorsed in blank, it is entitled to foreclose on the Subject

Property. Javier Rivera, a Contract Management Coordinator of

Ocwen, attested that “Ocwen as the duly authorized and acting

loan servicing agent on behalf of [Christiana Trust] has actual

and physical possession of the Note.” 

The court heard this matter on July 23, 2015 and

subsequently issued its Memorandum Decision overruling the

Objection. The court held that Ocwen had met its burden of proof

with respect to Claim #3. The court also held that, as a

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servicing agent for Christiana Trust and the party with actual

and physical possession of the Note, endorsed in blank and

secured by the Deed of Trust, “Ocwen had standing to file Claim

# 3 . . . .”

Ultimately, the court held that “Ocwen’s Claim # 3

establishes a valid secured claim. Ocwen is entitled to enforce

the Note under the UCC and California law. Ocwen possesses the

right to foreclose. . . . Debtor has not offered any evidence to

the contrary . . . .” 

The court thus overruled the Objection. Ms. Zipser timely

appealed. 

JURISDICTION

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

§§ 1334, 157(b)(1), and 157(b)(2)(A) and (B). We have

jurisdiction under 28 U.S.C. § 158.

ISSUE

Whether the bankruptcy court erred in overruling

Ms. Zipser’s objection to Ocwen’s Claim #3.

STANDARD OF REVIEW

Standing is a legal issue that we review de novo. 

Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 61

(9th Cir. 1994); Kronemyer v. Am. Contractors Indem. Co.

(In re Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP 2009).

We review “the bankruptcy court’s interpretation of the

Bankruptcy Code de novo and its factual findings for clear

error[.]” Hedlund v. Educ. Res. Inst. Inc., 718 F.3d 848, 854

(9th Cir. 2013) (quoting Miller v. Cardinale (In re DeVille),

361 F.3d 539, 547 (9th Cir. 2004)).

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DISCUSSION

A. The bankruptcy court did not err in overruling Ms. Zipser’s

Objection to Ocwen’s Claim #3.

Ms. Zipser contends Ocwen did not have the right to enforce

the Note, despite its undisputed possession of that Note endorsed

in blank. Unpersuaded by her arguments in support of that

contention, we hold that the bankruptcy court did not err in

overruling her Objection.

1. The bankruptcy court did not err in holding that Ocwen

is entitled to enforce the Note.

Ms. Zipser argues (in multiple iterations) that Ocwen failed

to establish that it is the party entitled to enforce the Note. 

None of these arguments is correct. 

We have repeatedly held that a possessor of a note endorsed

in blank is a party entitled to enforce the note and foreclose on

any collateral. See Zulueta v. Bronitsky (In re Zulueta),

No. NC-10-1459-HPaJu, 2011 WL 4485621, at *6 (9th Cir. BAP

Aug. 23, 2011), aff’d, 520 F. App’x 558 (9th Cir. 2013) (“A party

in physical possession of an endorsed-in-blank note qualifies as

a holder of a note under [California law]. Because [the

servicer] appeared at the Hearing with possession of the

endorsed-in-blank Note, it was a holder of the Note entitled to

enforce it.”); see also Allen v. U.S. Bank, N.A. (In re Allen),

472 B.R. 559, 565-67 (9th Cir. BAP 2012); In re Veal, 450 B.R. at

902, 910-11. 

In the present case, the bankruptcy court determined that

Ocwen had actual and physical possession of the Note, endorsed in

blank and secured by a deed of trust lien. The court held that,

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“[a]s the entity in actual possession of the Note endorsed in

blank and beneficiary under the Deed of Trust securing the Note,

Ocwen had standing to file Claim # 3 on May 11, 2015.”

Ms. Zipser emphasizes Ocwen’s failure to demonstrate an

unbroken chain of possession of the Note and argues that this

failure renders its claim unenforceable. As we have previously

held, the possessor of a note endorsed in blank is entitled to

enforce it under California Commercial Code § 3205(b). There is

no requirement that the holder of a note endorsed in blank must

additionally prove that it properly came into possession of the

note. As the holder of the Note endorsed in blank, Ocwen was

entitled to enforce the Note and had standing to assert Claim #3.

The bankruptcy court did not err.4

In fact, the UCC makes clear that the holder of a note

includes anyone in possession of a note, even if he came by it

4 Ms. Zipser also fails to offer any admissible evidence of

any problem with the various assignments of the Note. She

insists that she provided the bankruptcy court with the

fifty-page declaration of a Countrywide executive, which

allegedly proves that it was Countrywide’s policy to retain

possession of the notes at the time of sale. However, she does

not provide a copy of the declaration in her excerpts of record,

and we could not locate the declaration in the bankruptcy court’s

docket.

The Kemp decision, attached to the Objection, references a

Countrywide officer’s declaration concerning its lending

practices in that case. See In re Kemp, 440 B.R. at 628-29. 

Ms. Zipser cannot rely on a summary of that declaration as

evidence in the present case.

In any event, Ocwen has provided declaration testimony that

it is in actual and physical possession of the Note in question. 

Ms. Zipser has failed to rebut that evidence and satisfy her

burden of proof.

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through involuntary transfer: 

Negotiation always requires a change in possession of

the instrument because nobody can be a holder without

possessing the instrument, either directly or through

an agent. But in some cases the transfer of

possession is involuntary and in some cases the person

transferring possession is not a holder. . . .

[N]egotiation can occur by an involuntary transfer of

possession. For example, if an instrument is payable

to bearer and it is stolen by Thief or is found by

Finder, Thief or Finder becomes the holder of the

instrument when possession is obtained. In this case

there is an involuntary transfer of possession that

results in negotiation to Thief or Finder.

Cal. Com. Code § 3201 cmt. 1 (emphasis added). Thus, Ms. Zipser

is patently incorrect that a holder must prove an unbroken chain

of custody as a prerequisite to enforcing a note. 

 Ms. Zipser relies on Rivera v. Deutsche Bank National Trust

Co. (In re Rivera), BAP No. NC-13-1615-KuPaJu, 2014 WL 6675693

(9th Cir. BAP Nov. 24, 2014), for the proposition that a

claimant’s failure to prove the chain of possession deprives it

of a right to assert a claim. But Rivera was decided in a

different factual and procedural context. In Rivera, the debtor

filed a complaint alleging specific facts indicating that the

endorsement on a note was a sham and void. The defendants filed

a motion to dismiss under Civil Rule 12. Noting that “[w]e must

accept the truth of the Riveras’ well-pled allegations indicating

that the . . . endorsement on the note was a sham and, more

generally, that neither [the secured creditor nor the servicer]

ever obtained any valid interest in the Riveras’ note or the loan

repayment rights evidenced by that note,” id. at *7, we held that

the bankruptcy court erred in dismissing some of the claims

stated in the complaint. In this case, the pleading standards of

Civil Rule 12 do not apply; instead, on an objection to a claim,

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Ms. Zipser had the burden of offering evidence that the blank

endorsement is a sham or void. The bankruptcy court was not

required to accept Ms. Zipser’s bald allegations as true. We

discern no error in the bankruptcy court’s conclusion that the

endorsement and assignment are valid.

Similarly, Ms. Zipser misconstrues our holding in Veal. We

held in Veal that neither the bank nor its servicer had standing

to enforce the note because they did not produce the original

note or the relevant endorsement and did not prove that they had

possession of the note. See In re Veal, 450 B.R. at 917-18, 921. 

Contrary to Ms. Zipser’s assertion, Veal does not stand for the

propostion that, under California law, a possessor of a note

endorsed in blank must always prove an unbroken chain of

transfers. As such, Veal does not aid Ms. Zipser’s case. 

Kemp is also inapposite. In that case, the court held that

the bank lacked authority to enforce the note, because (1) the

bank did not have and never had possession of the note, and

(2) there was no proper endorsement of the note. See In re Kemp,

440 B.R. at 630. We are not presented with the same situation in

this case. Accordingly, Kemp is not relevant to our analysis.

Furthermore, Ms. Zipser failed to offer evidence of any

defect in the endorsement. She complains that the court did not

require Ocwen “to authenticate the original Note endorsement

. . . .” But negotiated instruments are presumed authentic under

California law.5 Similarly, under Rule 902(9) of the Federal

5 Section 3308(a) of the California Commercial Code states: 

(continued...)

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Rules of Evidence, the Note is self-authenticating and does not

require extrinsic evidence to prove its authenticity.6

Ms. Zipser has not put forth any evidence disputing the

authenticity or validity of the endorsement. As such, it is

undisputed that the endorsement is valid.

Ms. Zipser’s only argument against the validity of the

endorsement is that “[t]he original Note was payable to

‘Countrywide Bank, A DIVISION of Treasury Bank, N.A.’ A division

is not a legal entity in California and therefore Countrywide

5(...continued)

In an action with respect to an instrument, the

authenticity of, and authority to make, each signature

on the instrument is admitted unless specifically

denied in the pleadings. If the validity of a

signature is denied in the pleadings, the burden of

establishing validity is on the person claiming

validity, but the signature is presumed to be authentic

and authorized unless the action is to enforce the

liability of the purported signer and the signer is

dead or incompetent at the time of trial of the issue

of validity of the signature.

Cal. Com. Code § 3308(a).

6 Federal Rule of Evidence 902(9) provides, in relevant

part: 

The following items of evidence are

self-authenticating; they require no extrinsic evidence

of authenticity in order to be admitted:

. . .

(9) Commercial Paper and Related Documents. 

Commercial paper, a signature on it, and related

documents, to the extent allowed by general

commercial law. 

Fed. R. Evid. 902(9).

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Bank and Treasury Bank N.A. were the same payee.” This does not

invalidate the endorsement. Treasury Bank signed the blank

endorsement. Even if Countrywide Bank was not a separate entity

from Treasury Bank, Treasury Bank was an entity that could sign

the endorsement. Accordingly, Ms. Zipser has failed to establish

that the endorsement is void.7

Thus, as the holder of the Note, Ocwen is entitled to

enforce it. The bankruptcy court did not err in overruling

Ms. Zipser’s Objection.

2. The bankruptcy court did not improperly shift the

burdens of proof between Ms. Zipser and Ocwen.

Ms. Zipser also argues in various ways that the bankruptcy

court improperly shifted the burden of proof to her, even though

Ocwen did not meet its initial burden. 

As the bankruptcy court correctly stated, a proof of claim

is deemed allowed unless a party in interest objects. See

§ 502(a). If a creditor properly files a proof of claim, the

7 Ms. Zipser contended at oral argument that, because she

received a letter from Bank of America and a credit report

stating that the loan had been paid off, the Note is in dispute. 

Because Ms. Zipser did not make this argument in her appellate

briefs and did not include the relevant documents in her meager

excerpts of record, she has waived this argument. 

Even if Ms. Zipser had preserved the argument, it would not

help her case, because it rests on a mischaracterization of the

documents. The letter does not say that the Note was paid off;

rather, it acknowledges that the debt was discharged in

Ms. Zipser’s chapter 7 case. The credit report (which is

inadmissible hearsay) says that the “terms” of the loan are

“PAID,” but also says “DEBT INCLUDED IN OR DISCHARGED THRU

BK . . . .” Thus, neither document suggests any problem with the

Note or the endorsement.

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burden shifts to the objecting party to present evidence to

overcome the prima facie case. The objector must come forward

with evidence or “facts tending to defeat the claim by probative

force equal to that of the allegations of the proofs of claim

themselves.” Lundell v. Anchor Constr. Specialists, Inc.,

223 F.3d 1035, 1039 (9th Cir. 2000). If the objector produces

sufficient evidence, then the burden reverts to the claimant to

prove the validity of the claim by a preponderance of evidence. 

Id. 

Ms. Zipser concedes that, “[a]bsent an objection, a proof of

claim constitutes prima facie evidence where it adheres to the

requirements of Rule 3001.” Her only argument appears to be

that, because Ocwen did not establish that it is a “person

entitled to enforce the Note,” the court should not have shifted

the burden to her.

The bankruptcy court correctly stated the parties’

respective burdens of proof. As discussed above, the bankruptcy

court properly held that Ocwen had established a valid secured

claim. The burden then shifted to Ms. Zipser, who failed to

provide sufficient evidence to rebut Claim #3. Accordingly,

because Ms. Zipser could not come forward with “facts tending to

defeat the claim[,]” see id., the court held that Ocwen had

stated a valid claim. We find no error in the court’s holding. 

B. The bankruptcy court did not err in not holding an

evidentiary hearing on the Objection.

Second, Ms. Zipser argues that the bankruptcy court erred in

not holding an evidentiary hearing on Ocwen’s right to enforce

the Note. Although Ms. Zipser identifies this issue as one of

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her primary issues on appeal, she does not identify where in the

record she requested the evidentiary hearing. She only asserts

in her opening brief that “Debtor requested an Evidentiary

Hearing[,]” but does not provide any citation to the record. We

have independently reviewed the bankruptcy court’s docket, and we

found no such request. Because Ms. Zipser elected not to provide

the Panel with a copy of the hearing transcript, we cannot

determine whether she made an oral request.

In her reply brief, Ms. Zipser argues for the first time

that her bankruptcy counsel, Mr. Steven J. Krause, called the

court prior to the hearing on the Objection and spoke with a

clerk in the judge’s chambers to request an evidentiary hearing. 

He says that the clerk said that he would place a note in the

file. 

We are unpersuaded by this late argument. First,

Mr. Krause’s request to the clerk is not in the record (and the

clerk’s statement is hearsay), and Ms. Zipser cannot introduce

new evidence to augment the record on appeal. See Graves v.

Myrvang (In re Myrvang), 232 F.3d 1116, 1119 n.1 (9th Cir. 2000)

(Except in rare cases where “the interests of justice demand it,

an appellate court will not consider evidence not presented to

the trial court[.]” (citations and internal quotation marks

omitted)). Second, even accepting Mr. Krause’s statement as

true, an ex parte communication with the court’s staff is not a

proper way to request an evidentiary hearing.

Furthermore, even if Ms. Zipser had properly preserved this

error on appeal, the bankruptcy court did not abuse its

discretion. Ms. Zipser does not explain what evidence she would

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have offered at an evidentiary hearing and how it might have

altered the outcome. Ms. Zipser presents absolutely no authority

requiring the bankruptcy court to hold an evidentiary hearing

based on the facts of this case. 

As such, we do not find any reversible error in the

bankruptcy court’s decision to not hold an evidentiary hearing. 

C. The Panel will not consider Ms. Zipser’s final two points,

which are not supported by any cogent argument.

Finally, two of Ms. Zipser’s arguments (that the court erred

when it sustained Ocwen’s objections to the Zipsers’ direct

testimony and that the court erred by overruling Ms. Zipser’s

objection to Ocwen’s proof of claim) are each nothing more than a

heading and a one-sentence statement of law. Ms. Zipser does not

offer any reasoned argument as to the supposed errors, nor does

she identify where the errors are found in the record.

As a general rule, a party’s brief “must make specific

references to the relevant portions of the record. Opposing

parties and the court are not obliged to search the entire

record, unaided, for error.” Tevis v. Wilke, Fleury, Hoffelt,

Gould & Birney, LLP (In re Tevis), 347 B.R. 679, 686 (9th Cir.

BAP 2006) (internal citations omitted). Moreover, we “will not

consider a matter on appeal that is not specifically and

distinctly argued in [an] appellant’s opening brief. Id. at 690

(citing Affordable Housing Dev. Corp. v. Fresno, 433 F.3d 1182,

1193 (9th Cir. 2006); Price v. Lehtinen (In re Lehtinen),

332 B.R. 404, 410 (9th Cir. BAP 2005)).

Ms. Zipser’s final two arguments are neither “specifically

and distinctly argued” nor do they “make specific references to

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the relevant portions of the record.” Moreover, Ms. Zipser’s

decision to not provide us with a copy of the hearing transcript

deprives us of the opportunity to review the court’s alleged

error in sustaining Ocwen’s objection to direct testimony. As

such, we will not consider these points of alleged error.

CONCLUSION

For the reasons set forth above, we conclude that the

bankruptcy court did not err in overruling Ms. Zipser’s Objection

to Claim #3. Accordingly, we AFFIRM.

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