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FILED

SEP 29 2014

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NOT FOR PUBLICATION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: ) AP No. CC-13-1571-DTaSp

)

MICHAEL T. MEEHAN, ) Bk. No. 13-10054-ES

)

Debtor. ) Adv. Proc. No. 13-01208-ES

______________________________)

)

MICHAEL T. MEEHAN, )

)

Appellant, )

)

v. ) MEMORANDUM1

)

OCWEN LOAN SERVICING, LLC; )

WELLS FARGO BANK N.A., as )

Trustee for Option One )

Mortgage Loan Trust 2007-3 )

Asset Back Certificates, )

Series 2007-3, )

)

Appellees. )

______________________________)

Submitted Without Argument2

on September 18, 2014

Filed - September 29, 2014

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Erithe A. Smith, Bankruptcy Judge, Presiding

 

Appearances: Appellant Michael T. Meehan, pro se, on brief;

T. Robert Finlay, Nichole Glowin and Kathryn A.

FILED

SEP 29 2014

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 8013-1.

2 On June 5, 2014, this Panel entered an order deeming this

appeal suitable for submission on the briefs.
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Moorer of Wright Finlay & Zak, LLP, on brief for

appellees.

 

Before: DUNN, TAYLOR, and SPRAKER3, Bankruptcy Judges.

Appellant Michael T. Meehan, in his capacities as debtor and

as creditor and agent for himself (“Mr. Meehan”), appeals the

bankruptcy court’s dismissal of his adversary proceeding

(“Adversary Proceeding”) against Ocwen Loan Servicing, LLC, Wells

Fargo Bank, N.A., and others (collectively, “Appellees”). For

the reasons stated herein, we AFFIRM.

I. FACTUAL BACKGROUND

Mr. Meehan and the Appellees both have filed excerpts of

record, but their excerpts unfortunately are underinclusive in

terms of documents necessary to our review in considering the

merits of this appeal. We note that neither party provided us

with a copy of the bankruptcy court’s Order on Motion to Dismiss

(“Dismissal Order”), which is the order on appeal. We located

and reviewed the Dismissal Order and other relevant documents in

exercising our discretion to review the bankruptcy court’s

electronic dockets in the Adversary Proceeding and in

Mr. Meehan’s main chapter 7 case in the Bankruptcy Court for the

Central District of California (“Main Case”), and documents on

record therein.4 See O’Rourke v. Seaboard Sur. Co. (In re E.R.

3 Hon. Gary A. Spraker, Chief Bankruptcy Judge for the 

District of Alaska, sitting by designation.

4 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”

continue...

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Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v.

Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9

(9th Cir. BAP 2003).

Although in his opening and reply briefs, Mr. Meehan

discusses a lengthy history of events in relation to the

substantive disputes between him and his wife on the one hand and

the Appellees and their agents on the other, we limit the factual

narrative in this memorandum decision to facts relevant to

disposition of this appeal.

A. Background of the Dispute

On December 20, 2006, Pamela D. Lawson (“Ms. Lawson”)

obtained a loan in the amount of $582,250 (“Loan”) from Option

One Mortgage Corporation. The Loan was documented by a

promissory note (“Note”). Repayment of the Loan was secured by a

deed of trust (“Trust Deed”) on residential property (“Property”)

located in Costa Mesa, California. In the Trust Deed, the

Property is described as the “sole and separate property” of

Ms. Lawson. However, on December 29, 2006, Ms. Lawson

transferred the Property by Grant Deed to herself and Mr. Meehan

as joint tenants. Mr. Meehan is Ms. Lawson’s husband. 

Mr. Meehan never assumed any obligation to pay the Loan.

On March 25, 2009, a Notice of Default was recorded against

the Property. On April 30, 2009, American Home Mortgage

Servicing, Inc., as successor in interest to Option One Mortgage

Corporation, recorded an Assignment transferring the Loan and

4...continue

references are to the Federal Rules of Civil Procedure.

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Trust Deed to Wells Fargo Bank, N.A., as Trustee for Option One

Mortgage Loan Trust 2007-3 Asset Backed Certificates, Series

2007-3 (the “Trust”). On June 26, 2009, a Notice of Trustee’s

Sale was recorded, noticing a July 22, 2009 sale date for the

Property. Further complications ensued.

On April 13, 2010, Power Default Services, Inc. recorded a

Notice of Rescission of the March 25, 2009 Notice of Default. 

A new Notice of Default was recorded on January 12, 2011,

alleging that Ms. Lawson had accrued $12,607.41 in arrears on the

Loan. On April 13, 2011, a Substitution of Trustee under the

Trust Deed was recorded, naming Power Default Services, Inc., as

trustee. On the same date, a new Notice of Trustee’s Sale of the

Property was recorded, setting May 4, 2011 as the foreclosure

sale date for the Property. There is no indication in the record

that a foreclosure sale of the Property actually took place on

that date.

On January 31, 2012, Ms. Lawson and Mr. Meehan filed a

complaint in the Orange County, California Superior Court for

declaratory and injunctive relief and to quiet title to the

Property based, in part, on allegations of fraudulent mortgage

documents (“State Court Lawsuit”). The defendants removed the

State Court Lawsuit to the United States District Court for the

Central District of California (“District Court”) on February 14,

2012. The defendants subsequently filed a motion to dismiss the

State Court Lawsuit under Civil Rules 8, 9(b), 12(b)(1) and

12(b)(6). Apparently, Ms. Lawson and Mr. Meehan did not file an

opposition to the defendants’ motion to dismiss. 

On March 27, 2012, the District Court granted the

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defendants’ motion to dismiss with leave to amend. However, in

the dismissal order, the District Court cautioned Ms. Lawson and

Mr. Meehan that if they did not file an amended complaint by the

April 9, 2012 deadline set by the District Court, the State Court

Lawsuit would be dismissed with prejudice.

When no amended complaint was filed by the deadline, the

District Court dismissed the State Court Lawsuit with prejudice

by order entered on April 24, 2012. A judgment dismissing the

State Court Lawsuit with prejudice as to all defendants was

entered by the District Court on May 2, 2012. There is no

indication in the record, and the parties do not assert, that any

appeal was taken from the dismissal of the State Court Lawsuit. 

Another Notice of Trustee’s Sale for the Property, setting a

foreclosure sale date of November 19, 2012, was recorded on

October 17, 2012. However, there is no indication in the record

that the Property in fact has been sold at a foreclosure sale at

any time.5

B. Mr. Meehan’s Chapter 7 Case

Mr. Meehan filed a petition for relief under chapter 7 on

January 3, 2013. His § 341(a) meeting was held on March 6, 2013,

and the chapter 7 trustee filed a “no asset” report on that same

day. 

On November 25, 2013, Mr. Meehan filed a Motion to Compel

Abandonment of [the Property] (“Motion to Abandon”) and a Notice

of Motion for Order Without Hearing with respect to the Motion to

5 In addition, Ms. Lawson apparently filed her own

chapter 7 case, but whatever occurred in her bankruptcy did not

resolve the issues that Mr. Meehan is raising before us.

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Abandon. Our review of the Main Case docket indicates that no

hearing has been set on the Motion to Abandon, and no action has

been taken on the Motion to Abandon by the bankruptcy court. 

Mr. Meehan has not yet received a discharge, and the Main Case

has not been closed.

C. The Adversary Proceeding

Mr. Meehan filed his complaint (“Complaint”) in the

Adversary Proceeding on June 18, 2013. In the prolix Complaint,

Mr. Meehan essentially seeks injunctive relief and to quiet title

to the Property against the claims of the defendants, including

the Appellees, compensatory damages in excess of $600,000,

punitive damages and attorneys fees. Appellees argue that the

Complaint asserts claims against them that are “similar – if not

identical” to the claims asserted by Ms. Lawson and Mr. Meehan in

the dismissed State Court Lawsuit. Appellees’ Brief, at 4-5. 

Whether that assertion is true or not ultimately is not material

to our disposition in this appeal. 

On July 22, 2013, Appellees filed a motion to dismiss

(“Motion to Dismiss”) the Adversary Proceeding on the ground,

among other things, that Mr. Meehan did not have standing to

pursue the claims stated in the Complaint. Mr. Meehan filed his

opposition (“Opposition”) to the Motion to Dismiss on August 29,

2013.6 In his Opposition, among other arguments, Mr. Meehan

6 Perhaps not understanding the import of the Motion to

Dismiss, on August 21, 2013, Mr. Meehan filed a request for entry

of default that ultimately was overruled by an order of the

bankruptcy court entered on November 5, 2013. Since no issue is

before us in this appeal with respect to Mr. Meehan’s efforts to

continue...

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argued that his title interest in the Property gave him standing

to pursue the claims in the Adversary Proceeding and that the

chapter 7 trustee had abandoned any interest in the Property. 

Appellees filed a reply (“Reply”) to the Opposition on

September 5, 2013, arguing that the estate had not abandoned

either the Property or the related claims asserted in the

Complaint.

A hearing (“Hearing”) was conducted by the bankruptcy court

on the Motion to Dismiss on November 14, 2013.7 Since Mr. Meehan

appeared pro se at the Hearing, the bankruptcy court went to

considerable pains to explain the basis for its ruling to him. 

First, the claims asserted in the Complaint arose prior to

Mr. Meehan’s chapter 7 filing; so, they were property of his

bankruptcy estate. “In other words, they belong to the

bankruptcy case or the bankruptcy estate.” Tr. of Nov. 14, 2013

hr’g, 2:9-10. “[U]nder the Bankruptcy Code, the Chapter 7

Trustee is the bankruptcy estate’s sole representative. It is

the Chapter 7 Trustee that prosecutes claims that belong to the

bankruptcy estate.” Id. at 2:19-22. 

The bankruptcy court went on to explain how claims could be

abandoned by the estate so that the debtor could prosecute them,

but in Mr. Meehan’s case, the claims in the Adversary Proceeding

6...continue

obtain a default judgment against the defendants in the Adversary

Proceeding, we do not address this matter further.

7 Apparently, the bankruptcy court posted a tentative

ruling on the motion prior to the Hearing, but it is not included

on the Adversary Proceeding docket, and the parties have not

included it in their excerpts of record for our review.

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had not been formally abandoned. 

So where we are right now, there has not been a formal

abandonment. Because the only way you can abandon

claims is either by a motion and an order by the Court

or closing of the case. Even if the Trustee, which the

Trustee I believe did in this case, files the report –

basically we call it a no-asset report where the

Trustee says there are no assets that I’m going to

administer in the case. Even that’s not sufficient to

constitute an abandonment. There either has to be a

motion and a hearing and an order or the case is

closed.

Tr. of Nov. 14, 2013 hr’g, 4:20-25 – 5:1-4.

The bankruptcy court went on to advise Mr. Meehan that, “If

the claims are abandoned back to you and they no longer belong to

the estate, in my view, this Court loses jurisdiction over those

claims because they no longer can [affect] the administration of

the case.” Tr. of Nov. 14, 2013 hr’g, 5:9-12. In moving to a

conclusion at the Hearing, the bankruptcy court emphasized that

it only was granting the Motion to Dismiss based on Mr. Meehan’s

lack of standing “because this is a Chapter 7, and the Chapter 7

Trustee is the only person who has standing to bring these

claims.” Tr. of Nov. 14, 2013 hr’g, 18:25 – 19:1-2.

The bankruptcy court entered the Dismissal Order on

December 2, 2013, dismissing the Adversary Proceeding with

prejudice based on Mr. Meehan’s lack of standing. Mr. Meehan

filed a premature notice of appeal on November 27, 2013 that we

have treated as timely. 

II. JURISDICTION

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

§§ 1334 and 157(b)(2)(K) and (O). We have jurisdiction under

28 U.S.C. § 158.

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III. ISSUE

Did the bankruptcy court err in dismissing the Adversary

Proceeding based on Mr. Meehan’s lack of standing?8

IV. STANDARDS OF REVIEW

We review a bankruptcy court’s decision to grant a motion to

dismiss an adversary proceeding complaint on the pleadings de

novo. Henry A. v. Willden, 678 F.3d 991, 998 (9th Cir. 2012);

Movesesian v. Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th

Cir. 2012) (en banc). Likewise, we review issues as to a party’s

standing de novo. Loyd v. Paine Webber, Inc., 208 F.3d 755, 758

(9th Cir. 2000); Aheong v. Mellon Mortg. Co. (In re Aheong),

276 B.R. 233, 238 (9th Cir. BAP 2002). De novo means that we

review a matter anew, as if no decision previously had been

rendered. Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009).

8 In the Dismissal Order, the bankruptcy court dismissed

the Adversary Proceeding with prejudice because even if the

claims asserted in the Complaint were abandoned pursuant to

§ 554, the bankruptcy court would not have jurisdiction to hear

them, and Mr. Meehan would have to pursue the claims in a

“nonbankruptcy court of appropriate jurisdiction to the extent

allowed by such nonbankruptcy court.” Mr. Meehan does not argue

any issue with respect to the bankruptcy court’s dismissal of his

claims “with prejudice” either in his opening brief or in his

reply brief. Accordingly, that issue is waived. See Christian

Legal Soc. v. Wu, 626 F.3d 483, 487-88 (9th Cir. 2010); Wilcox v.

C.I.R., 848 F.2d 1007, 1008 n.2 (9th Cir. 1988) (even pro se

litigants must brief their arguments on appeal, or they are

waived); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 737 (9th

Cir. 1986) (“The Court of Appeals will not ordinarily consider

matters on appeal that are not specifically and distinctly argued

in appellant’s opening brief . . . .”) (citing Int’l Union of

Bricklayers and Allied Craftsmen Local No. 20 v. Martin Jaska,

Inc., 752 F.2d 1401, 1404 (9th Cir. 1985)); Jodoin v. Samayoa

(In re Jodoin), 209 B.R. 132, 143 (9th Cir. BAP 1997).

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The fact findings underlying a bankruptcy court’s decision

on standing are reviewed for clear error. American-Arab AntiDiscrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir.

1991). A bankruptcy court clearly errs in its fact findings if

they are illogical, implausible or without any support in the

evidentiary record before it. TrafficSchool.com, Inc. v. Edriver

Inc., 653 F.3d 820, 832 (9th Cir. 2011). 

V. DISCUSSION

A party seeking to prosecute claims before a federal court

bears the burden to establish that it has standing to assert

those claims. Allen v. Wright, 468 U.S. 737, 750-51 (1984). In

order for a debtor in a chapter 7 bankruptcy case to have

standing to prosecute claims in an adversary proceeding, the

debtor, rather than the bankruptcy estate, must own the claims. 

Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). When a

bankruptcy case is filed, an estate is created that is comprised

of “all legal or equitable interests of the debtor in property as

of the commencement of the case.” § 541(a)(1). “The scope of

section 541 is broad, and includes causes of action.” Sierra

Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707

(9th Cir. 1986) (citing United States v. Whiting Pools, Inc.,

462 U.S. 198, 205 & n.9 (1983)). As noted by the bankruptcy

court at the Hearing, the claims asserted by Mr. Meehan in the

Complaint all arose prior to his bankruptcy filing. Accordingly,

those claims became property of his bankruptcy estate when he

filed for relief under chapter 7. 

Under § 323, the trustee, and not the debtor, is the

representative of the bankruptcy estate with the capacity to sue

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and be sued. See § 323(a) and (b); and Stoll v. Quintanar

(In re Stoll), 252 B.R. 492, 495 (9th Cir. BAP 2000). “Only a

trustee may pursue a cause of action belonging to the bankruptcy

estate.” Id. The debtor can pursue such claims only if they are

abandoned by the estate. See § 554; Carroll v. JP Morgan Chase

Bank, 2014 WL3361990 (5th Cir. July 10, 2014) (unpublished); 

Hernandez v. Downey Sav. & Loan Assoc., 2009 WL 704381 at *4

(S.D. Cal. 2009); 3 Collier on Bankruptcy ¶ 323.03[1] (Alan N.

Resnick and Henry J. Sommer eds., 16th ed. 2014) (“After

appointment of a trustee, a debtor no longer has standing to

pursue a cause of action that existed at the time the order for

relief was entered.”).

Under § 554, property of the estate can be abandoned in

three ways. Upon motion of the trustee, after notice and a

hearing, property that is burdensome to the estate or that is of

inconsequential value, can be abandoned. See § 554(a). The

Main Case docket reflects that although a “no asset” report was

filed reflecting the trustee’s view that no assets were available

for administration, the trustee never moved to abandon any

assets, including the claims asserted by Mr. Meehan in the

Adversary Proceeding. 

On motion or request of the debtor or any other party in

interest, after notice and a hearing, the court may order the

trustee to abandon property of the estate that is burdensome or

of inconsequential value. See § 554(b). As noted above,

Mr. Meehan filed in the Main Case the Motion to Abandon, that

arguably would apply with respect to the claims he asserted in

the Adversary Proceeding, and a Notice of Motion for Order

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Without Hearing with respect to the Motion to Abandon. However,

the Main Case docket further reflects that no order has been

entered granting or otherwise considering the Motion to Abandon.9

Finally, property of the estate that is not administered at

the time that a bankruptcy case is closed is abandoned to the

debtor. See § 554(c). However, Mr. Meehan’s chapter 7 case has

not been closed. 

In the absence of any of the actions contemplated in

§§ 554(a), (b) or (c), “unless the court orders otherwise” (which

likewise has not occurred here), estate property is not abandoned

and remains property of the estate. See § 554(d). The

bankruptcy court so found, and we see no error in the bankruptcy

court’s fact findings. In these circumstances, the trustee, as

representative of the bankruptcy estate, had standing to

prosecute the claims asserted in the Complaint as the real party

in interest, and Mr. Meehan, as the debtor, did not have

standing. See Civil Rule 17, particularly Civil Rule

17(a)(1)(G), applicable with respect to adversary proceedings in

bankruptcy under Rule 7017.

9 Part of Mr. Meehan’s problem in seeking relief in the

Motion to Abandon may have been his request to have the motion

granted without a hearing, contrary to the requirements of

§ 554(b). In addition, the “Mailing List” for the Motion to

Abandon reflects that it was mailed to the Appellees and their

counsel and the chapter 7 trustee, but it does not reflect

service on all parties in interest in the Main Case. The Ninth

Circuit has held that “there is no abandonment without notice to

creditors.” Sierra Switchboard Co. v. Westinghouse Elec. Corp.,

789 F.2d at 709 (citing 4 Collier on Bankruptcy ¶ 554.01 at 554-3

(15th ed. 1985), and In re Tucci, 47 B.R. 328, 331 (Bankr. E.D.

Va. 1985) (party proposing abandonment must give notice)).

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But, Mr. Meehan argues that he has standing independent of

his position as debtor, as his own agent and/or as a creditor of

the estate. Appellant’s Opening Brief at 7. Mr. Meehan’s

argument is somewhat confusing in that he goes on to argue that

he has standing “as a natural person and UCC 1 holder” of all

property rights of himself as debtor and as appellant in this

appeal. Appellant’s Opening Brief at 8. In any event, whatever

the merits of Mr. Meehan’s arguments that he may have standing to

pursue claims in other contexts in his capacity as agent or

creditor for himself where he has no standing personally (and we

have our doubts), his argument does not work in this case.

An agent is no more than the representative of the

principal, and the principal here is Mr. Meehan, i.e., a

chapter 7 debtor. An agent is “[o]ne who represents and acts for

another under the contract or relation of agency.” Black’s

Online Legal Dictionary (2d ed.). Mr. Meehan as agent has no

more standing to assert the Adversary Proceeding claims than does

Mr. Meehan as debtor. Without abandonment of the claims pursuant

to § 554, Mr. Meehan has no standing to pursue them either as

principal or as agent.

Creditors in a bankruptcy case do not have standing to

assert claims based on an alleged injury that is common to all

creditors and is derivative from claims of the debtor. 

In re Stoll, 252 B.R. at 495-96. In the Complaint, the only

basis for standing asserted by Mr. Meehan is his interest as “a

lawful title owner” of the Property. His status as a creditor is

not even mentioned. Based on the factual assertions and

arguments made in Mr. Meehan’s briefs, we can only assume that

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Mr. Meehan’s alleged claims as a creditor are derivative from his

claims as a title owner of the Property, claims that belong to

his bankruptcy estate.

At its core, Mr. Meehan’s argument is that because the

chapter 7 trustee has not adequately investigated his claims and

does not believe enough in the validity of his claims to pursue

them, his “verifiable and proven property rights” are adequate to

confer standing on him to prosecute the Complaint in the

Adversary Proceeding. As a matter of law, the bankruptcy court

determined otherwise, and we conclude that the bankruptcy court

did not err in determining that Mr. Meehan had no standing to

pursue the claims stated in the Complaint in the absence of

abandonment of the subject claims under § 554. We perceive no

error in the bankruptcy court’s entry of the Dismissal Order on

that basis.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM the Dismissal Order. 

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