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1This 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.

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1078-PaDKi

)

THI HO, ) Bk. No. LA-10-42200-RN

)

Debtor. ) Adv. No. LA-10-02686-RN

______________________________)

)

THI HO, )

)

Appellant, )

)

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

)

BANK OF AMERICA, N.A.; )

REGIONAL SERVICE CORPORATION; )

MILES, BAUER, BERGSTROM, )

WINTERS, LLP, )

)

Appellees. )

______________________________)

Submitted Without Oral Argument on September 23, 2011 

Filed – October 5, 2011

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Richard M. Neiter, Bankruptcy Judge, Presiding ____________________________

Appearances: Appellant Thi Ho, pro se, on brief; Chaise R.

Biven of Severson & Werson on brief for Appellee

Bank of America, N.A. ____________________________

Before: PAPPAS, DUNN and KIRSCHER, Bankruptcy Judges.

FILED

OCT 05 2011

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2

Unless specified otherwise, all chapter and section

references are to the 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 are to

the Federal Rules of Civil Procedure.

2

Chapter 72 debtor and appellant Thi Ho (“Ho”) appeals the

bankruptcy court’s orders dismissing her adversary proceeding

against appellees Bank of America, N.A. (“BANA”), Regional

Service Corporation (“RSC”) and Miles, Bauer, Bergstrom,

Winters, LLP (“MBBW”) and the court’s order denying Ho’s motion

for reconsideration of those dismissal orders. We AFFIRM.

FACTS

This is the second recent appeal from the Ho bankruptcy

case. The first appeal resulted in an unpublished decision

affirming the bankruptcy court's order granting BANA relief from

the automatic stay to pursue eviction of Ho from real property

("Property"). Ho v. Bank of America, N.A. (In re Ho), BAP case

no. CC-10-1363 (9th Cir. BAP, August 9, 2011). For clarity, this

earlier case is referred to as In re Ho I. 

The Underlying Foreclosure Sale

On May 13, 2008, Javier A. Romero and Yvelise Orta (the

“Borrowers”) purchased residential property in Downey, California

(the “Property”). The Borrowers financed purchase of the

Property with two loans from BANA, a first mortgage loan for

$850,000 and a second mortgage loan for $400,000. These loans

were secured by separate deeds of trust.

The Borrowers fell behind in payments and on September 9,

2009, a notice of default was recorded stating that they were
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BANA filed a Request for Judicial Notice with this Panel on

May 25, 2011, relating to a number of other state court

proceedings and documents involving the Borrowers, other third

parties, and Ho. BANA indicated in its request that the

documents would support its opening brief. Because BANA provided

no information about the documents requested or other

justification for notice, BANA’s request is DENIED.

3

$51,030.92 in arrears on the first loan. On December 14, 2009,

BANA recorded the substitution of RSC as trustee under the note.

That same day, RSC recorded a notice of trustee’s sale,

scheduling a foreclosure on the Property for December 31, 2009. 

The foreclosure sale was held on January 6, 2010, BANA was the

successful bidder, and a trustee’s deed upon sale was recorded on

January 14, 2010. All these documents were recorded in the

Official Records of Los Angeles County.

Ho’s name does not appear on any of the above documents

filed in the Official Records.

On April 27, 2010, the Borrowers and “Does 1-10" were given

a Notice to Vacate. This was followed on May 10, 2010, with a

summons and complaint initiating an unlawful detainer proceeding

in Los Angeles Superior Court. Bank of America v. Orta, et al.,

case no. 10C01936. Transcripts of the state court proceedings

are not in the record before us. An unlawful detainer judgment

was entered on July 14, 2010, and a writ of possession was

granted on July 22, 2010. In addition to the Borrowers, judgment

and the writ of possession were specifically awarded against Ho.3

 Ho appealed the unlawful detainer judgment to the California

Court of Appeals on September 24, 2010. That appeal is pending.
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Ho filed a voluntary petition under chapter 7 on August 2,

2010. 

Within days, BANA moved for relief from the automatic stay

to allow it to enforce the unlawful detainer judgment and writ of

possession against Ho. In Re Ho I at 2. Following briefing from

both parties, the bankruptcy court held a hearing on the motion

for relief from stay on September 13, 2010. The court posted a

tentative ruling before the hearing, in which it found cause for

relief from stay under § 362(d)(1) based on the prepetition

foreclosure sale and writ of possession, and for relief under

§ 362(d)(2) because the debtor had neither equity in the Property

nor was it necessary for reorganization. Id. at 12. The court

entered its order granting relief from stay on September 16,

2010. Id. at 6. On appeal, the Panel affirmed the bankruptcy

court’s order on August 9, 2011.

The day before the hearing on relief from stay, September

13, 2010, Ho filed a complaint initiating the adversary

proceeding leading to this appeal. Ho’s complaint, much like her

brief in this appeal, is disjointed and difficult to follow. The

crux of the complaint seems to be that the foreclosure sale,

unlawful detainer action, subsequent unlawful detainer judgment

and writ of possession were improper, fraudulent, illegal and

invalid. All of Ho’s allegations in the complaint, however,

would appear to be premised on an alleged illegal foreclosure of

the Property conducted by RSC. Ho alleges in her complaint that,

“[t]he illegal foreclosure consisted of a scam which deployed a

false Substitution of Trustee over a deed of trust executed by
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defendant Regional Service Corporation. In this scam, no

assignment is actually executed by the authorized trustee, PRLAP

Inc.” Based on this purported “Fraudulent Substitution of

Trustee,” Ho alleges that the subsequent foreclosure sale and

BANA’s purchase of the Property were invalid because RSC had no

authority to conduct the sale. Further, since the foreclosure

was invalid, so too was the unlawful detainer proceeding because

BANA never obtained title to the Property. Ho’s various other

claims were procedural, generally seeking to overturn the

foreclosure and subsequent unlawful detainer.

RSC moved for dismissal under Civil Rule 12(b)(6) on

October 13, 2010. RSC argued that Ho failed to state a claim for

relief, based on Ho’s misunderstanding of the law regarding

substitute trustees. Further, RSC alleged that Ho did not have

standing because Ho’s claim to title by adverse possession of the

Property is not supported by the facts or legal authority.

MBBW, BANA’s attorney in the foreclosure and unlawful

detainer actions and defendant in the adversary proceeding, moved

for dismissal on October 14, 2010. MBBW argued that Ho did not

have standing because the claims asserted would belong to her

bankruptcy estate. Additionally, MBBW attempted to address each

of the state law claims asserted in the complaint, arguing that

Ho had only presented conclusory arguments devoid of facts.

BANA moved for dismissal under Civil Rule 12(b)(6) on

November 9, 2010. BANA argued that Ho did not have standing

because she was not the real party in interest, both on the

grounds that her chapter 7 trustee was the real party in interest
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to prosecute claims for her estate and that she could not

establish the elements of adverse possession. BANA also examined

the state law claims, generally asserting that they were

inconsistent with established law.

Ho responded to RSC’s and MBBW’s motions to dismiss on

November 2, 2010. In addition to generally defending her

positions in the complaint, Ho asserted two rights: first, that

as a pro se litigant she be treated with leniency; second, to the

extent that her complaint contains procedural errors, she be

allowed to amend the complaint. Ho also objected that she did

not have proper service of the motions to dismiss. 

On November 5, 2010, Ho filed a request for entry of default

against BANA because it had not made a timely appearance in the

Adversary Proceeding. 

On November 24, 2010, Ho moved to strike BANA’s motion to

dismiss for two reasons: first, BANA failed to respond to the

complaint by October 24, 2010; second, BANA lacked standing to

appear in the adversary proceeding.

After several continuances, the bankruptcy court held a

hearing on the three motions to dismiss on December 9, 2010. 

Before the hearing, the court posted its tentative ruling on the

motions. The tentative ruling included the following

determinations: (1) The complaint asserts a claim to recover

property of the estate under § 548. Ho does not have standing to

assert claims under § 548, which may only be asserted by her

chapter 7 trustee, and this claim may not be abandoned to the

debtor by the trustee. (2) Ho is barred by collateral estoppel
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from asserting the state law claims, which were already litigated

in the state court. (3) Ho does not have standing to assert the

state law claims because she was not a party to the deed of trust

for which she claims she was injured, and her argument that she

owned the Property by adverse possession was not proven. 

(4) Even if the court considered the state law claims, Ho’s

arguments are purely conclusory and cannot survive a Civil Rule

12(b)(6) challenge. (5) The state law claims were abandoned by

the trustee and she could pursue them in state court. Based on

the tentative dismissal of Ho's Complaint, the bankruptcy court

stated that it would deny Ho's pending motions to strike BANA’s

motion to dismiss as moot and would not reach Ho's pending

request for entry of default against BANA. 

At the hearing on December 9, 2010, BANA, RSC and MBBW were

each represented by counsel and Ho appeared pro se. Ho was asked

by the bankruptcy court to address the issue of standing as

discussed in the tentative ruling. Ho noted that the State

Court's Order had been appealed, and the appeal was pending. 

She further made a request to amend her fraud claim. In

response, the bankruptcy court asked her if the claims she

asserted in the Complaint were any different from the claims she

already had asserted in State Court. Ho was not able to

articulate any differences, but she reiterated her request to be

allowed to amend her Complaint. The bankruptcy court ultimately

denied her request to amend the complaint as futile because she

did not have standing and stated that it would grant all three

Motions to Dismiss.
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In her opening brief on appeal, Ho states that she also

argued in the motion for reconsideration that “the trustee,

Howard Ehrenberg, has abandoned the estate . . ..” Appellant’s

Opening Brief at 6. In fact, that argument is not made in the

Motion for Rehearing.

8

 The order granting the motions to dismiss of BANA and MBBW

was entered on December 21, 2010. The order granting RSC’s

motion was entered on January 20, 2011.

On December 20, 2010, Ho moved for rehearing of the orders

dismissing the adversary proceeding under “Rule 8015.” In her

motion, Ho argued that the bankruptcy court erred in relying on

collateral estoppel to support dismissal of the Adversary

Proceeding in that the State Court’s Order was on appeal and

consequently not final. Ho further argued that the bankruptcy

court should revisit its ruling on standing “because the debtor

is in Common Law Adverse Possession, and the said issue is not at

issue in the adversary case . . . .”4

BANA, RCS and MBBW filed oppositions to the motion for

reconsideration. All three opposition pleadings implicitly

agreed with Ho that the bankruptcy court could not rely on

collateral estoppel in its decision to dismiss. However, all

three oppositions pointed out that Ho’s motion did not address

the standing issue or that the state law claims failed to state a

claim for relief.

The bankruptcy court scheduled a hearing on the

reconsideration motion for January 13, 2010. Again before the

hearing, the court posted its tentative ruling. The tentative

ruling conceded error in the oral ruling regarding collateral
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estoppel and now ruled that it did not apply in this proceeding. 

But the bankruptcy court reaffirmed its earlier rulings that Ho

did not have standing because she was not a party to the deed of

trust and failed to prove elements of adverse possession. 

Further, the court reaffirmed its finding that Ho had merely

asserted conclusory arguments in her state law claims and thus

failed to survive the Civil Rule 12(b)(6) challenge.

Finally, the court noted that RSC’s opposition to

reconsideration had pointed out a fundamental flaw in Ho’s

complaint. Ho contended that RSC was not the authorized trustee

of record, nor did it have the original trustee’s permission to

execute a foreclosure of the Property. However, Cal. Civ. Code

§ 2934a provides that a lender may at any time appoint a

successor trustee by recording that substitution in the Official

Records of the county where the property is located. Ho has

never disputed that BANA is the lender under the deeds of trust. 

BANA’s substitution of RSC for the original trustee, PRLAP, Inc.,

was recorded in the Official Records of Los Angeles County on

December 14, 2009. Cal. Civ. Code § 2934a(d) goes on to state

that a recorded substitution “shall constitute conclusive

evidence of the authority of the substituted trustee.”

A transcript of the hearing on January 13, 2011 is not in

the excerpts of record or the bankruptcy court docket. On

February 2, 2011, the bankruptcy court entered its order denying

the motion for reconsideration, but providing that the order of

January 20, 2011 granting the motion to dismiss was amended “to

state that collateral estoppel does not apply in this instance.” 
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Ho filed a timely appeal on February 15, 2011.

JURISDICTION

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

§§ 1334 and 157(b)(2)(A), (H), (K) and (O). We have jurisdiction

under 28 U.S.C. § 158.

ISSUES

Whether Ho had standing to prosecute the claims asserted in

the Complaint.

Whether the bankruptcy court abused its discretion in

declining to enter a default judgment against BANA.

Whether the bankruptcy court abused its discretion in its

reconsideration rulings.

STANDARDS OF REVIEW

Standing is a legal issue that we review de novo. Loyd v.

Paine Webber, Inc., 208 F.3d 755, 758 (9th Cir. 2000); Kronemyer

v. Am. Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915,

919 (9th Cir. BAP 2009). We review the bankruptcy court’s

dismissal of an adversary proceeding under Civil Rule 12(b)(6)

de novo. N.M. State Inv. Council v. Ernst & Young LLP, 641 F.3d

1089, 1094 (9th Cir. 2011); Transcorp/Avant v. Pioneer

Liquidating Corp. (In re Consol. Pioneer Mortg. Entities),

205 B.R. 422, 424 (9th Cir. BAP 1997). A dismissal of an

adversary complaint without leave to amend is reviewed de novo. 

Id.; Polich v. Burlington North., Inc., 942 F.2d 1467, 1472 (9th

Cir. 1991). De novo review means that the reviewing court does

not defer to the trial court’s rulings but freely considers the

matter anew, as if no decision had been rendered in the trial
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court. Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009).

Denial of a request for entry of a default judgment is

reviewed for an abuse of discretion. Eitel v. McCool, 782 F.2d

1470, 1471 (9th Cir. 1986); Valley Oak Credit Union v. Villegas

(In re Villegas), 132 B.R. 742, 744 (9th Cir. BAP 1991).

Orders granting or denying reconsideration are reviewed for

abuse of discretion. Arrow Elecs., Inc. v. Justus (In re

Kaypro), 218 F.3d 1070, 1073 (9th Cir. 2000).

In applying an abuse of discretion standard, we first

"determine de novo whether the [bankruptcy] court identified the

correct legal rule to apply to the relief requested." United

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). 

If the correct legal rule was applied, we then consider whether

its "application of the correct legal standard was (1) illogical,

(2) implausible, or (3) without support in inferences that may be

drawn from the facts in the record." Id. (internal quotation

marks omitted). Only in the event that one or more of these

three apply are we then able to find that the bankruptcy court

abused its discretion. Id.

DISCUSSION

I.

Ho did not have standing to pursue the claims in the complaint.

 Standing is a “threshold question in every federal case,

determining the power of the court to entertain the suit.” Warth

v. Seldin, 422 U.S. 490, 498 (1975); Thomas v. Mundell, 572 F.3d

756, 760 (9th Cir. 2009). Standing has both constitutional and

prudential dimensions. Elk Grove Unified Sch. Dist. v. Newdow,
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542 U.S. 1, 11 (2004); Chandler v. State Farm Mut. Auto. Ins.

Co., 598 F.3d 1115, 1121-22 (9th Cir. 2010); Veal v. Am. Home

Mortg. Serv., Inc. (In re Veal), 450 B.R. 897, 906 (9th Cir. BAP

2011). The bankruptcy court correctly determined that Ho lacked

standing to bring the claims in the complaint under both the

constitutional and prudential dimensions.

A. Constitutional Standing

The irreducible constitutional minimum for standing contains

three elements, and the party asserting standing bears the burden

of proof as to all three elements. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (emphasis added).

First, the plaintiff must prove that he suffered an

"injury in fact," i.e., an "invasion of a legally

protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not

conjectural or hypothetical," Id. at 560 (citations,

internal quotation marks, and footnote omitted).

Second, the plaintiff must establish a causal

connection by proving that her injury is fairly

traceable to the challenged conduct of the defendant.

Id. at 560-61, Third, the plaintiff must show that her

injury will likely be redressed by a favorable

decision. Id. at 561.

Chandler, 598 F.3d at 1122 (citing Lujan, 504 U.S at 560-61). 

The bankruptcy court found that Ho failed to satisfy both the

first and second elements of standing. The court found that BANA

clearly established by documentary evidence that Ho was not a

party to the Deeds of Trust for which she claims to be injured by

the foreclosure. Since she was not a party to the security

instruments that the Appellees allegedly wrongfully foreclosed,

the bankruptcy court reasoned that she did not suffer an injury

in fact from the alleged fraudulent foreclosure of those Trust
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Deeds to obtain title to the Property. The court found that Ho

failed to negate that position. The court also found that, even

assuming that the foreclosure had been fraudulent, the only

parties injured by the foreclosure were the Borrowers, not Ho.

The only link with the Property, the foreclosure and the

resulting “injury” that Ho asserts is her claim to ownership by

adverse possession of the Property. In her Complaint, Ho

asserted that she was not indebted to any of the Appellees and

that she was the owner of the Property by Adverse Possession. In

her Motion for Rehearing, Ho asserted that her claim to the

Property was based on “common law adverse possession,” and she

did not plead any statutory right to adverse possession.

However, her claim is without any basis in law. The

California Supreme Court has held a party must establish a claim

to adverse possession under California statutes. See Sorensen v.

Costa, 196 P.2d 900, 903-04 (Cal. 1948) (“A person claiming title

to property by adverse possession must establish his claim under

either section 322 or under sections 324 and 325 of the Code of

Civil Procedure.”) (emphasis added). In other words, under

California law, there is no common law right to claim property by

adverse possession. 

California Code of Civil Procedure § 325(b) provides that

In no case shall adverse possession be considered

established under the provision of any section of this

code, unless it shall be shown that the land has been

occupied and claimed for the period of five years

continuously, and the party or persons, their

predecessors and grantors, have timely paid all state,

county, or municipal taxes that have been levied and

assessed upon the land for the period of five years

during which the land has been occupied and claimed. 
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Payment of those taxes by the party or persons, their

predecessors and grantors shall be established by

certified records of the county tax collector.

The California courts strictly enforce Cal. Code Civ. P.

§ 325(b). Nielson v. Gibson, 178 Cal. App.4th 318, 340 (Cal. Ct.

App. 2010). In the absence of evidence that the party claiming

title to property by adverse possession has paid taxes on the

subject property, such party’s adverse possession claim fails. 

Mehdizadeh v. Mincer, 46 Cal. App. 4th 1296, 1305 (Cal. Ct. App.

1996) (“Mehdizadeh could not claim adverse possession of the

disputed property because he did not pay taxes on it.”). There

was no evidence that Ho paid any taxes on the Property, or

complied with any other provision of Cal. Code Civ. P. § 325(b),

in the bankruptcy court or in this appeal. As the bankruptcy

court summarized, "the Complaint is wanting of facts that would

demonstrate existence of adverse possession in order to establish

standing."

In sum, the bankruptcy court found that Ho was not a party

to the Deeds of Trust and foreclosure proceeding from which she

claims she was injured. To the extent that Ho claims ownership

of the Property by adverse possession, the court determined that

Ho had not asserted facts in the complaint or any subsequent

pleading sufficient to prove the elements of title by adverse

possession. In short, Ho has not established that she suffered

an injury in fact in her complaint and pleadings. Thus, the

bankruptcy court did not err in concluding that Ho had not met

her burden of proof to establish constitutional standing to bring

any of the claims in the complaint. On that basis alone, we can
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confidently affirm the decision of the bankruptcy court

B. Prudential Standing for § 548 Claim

The court also determined that Ho had not met her burden of

proving prudential standing to assert the claim under § 548. One

aspect of prudential standing is the doctrine that a movant must

assert its own legal rights, and may not assert the legal rights

of others. Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11

(2004); Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 960

(9th Cir. 2011); In re Veal, 450 B.R. at 907.

Although the complaint itself deals exclusively with state

law claims, the adversary proceeding cover sheet filed with the

complaint indicated that Ho was attempting to recover property

under § 548. Section 548(a)(1) restricts the scope of the

section to actions by the trustee to avoid fraudulent transfers

to bring funds back into the bankruptcy estate. A trustee is the

legal representative of the bankruptcy estate and as such has the

capacity to sue and be sued. § 323; Joseph v. Joseph (In re

Joseph), 208 B.R. 55, 60 (9th Cir. BAP 1997). Only a trustee may

pursue a cause of action belonging to the bankruptcy estate. 

Stoll v. Quintanar (In re Stoll), 252 B.R. 492, 495 (9th Cir. BAP

2000) (citing Griffin v. Allstate Ins. Co., 920 F. Supp. 127, 130

(C.D. Cal. 1996).

The bankruptcy court found that, at the time Ho filed her

adversary proceeding, Ho’s chapter 7 trustee, not Ho, was the

proper party to pursue a § 548 claim. Further, the court

determined that the bankruptcy trustee had not abandoned the

claim and that it had been administered in the bankruptcy case.
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The bankruptcy court did not err in determining that Ho

lacked prudential standing to assert the § 548 claim.

C. Jurisdiction Over Abandoned Claims

Before leaving the discussion of standing and subject matter

jurisdiction, there is one other aspect of jurisdiction in this

case that should be noted. Although the bankruptcy court ruled

that Ho did not have standing to assert the § 548 claim and that

claim was not abandoned, it did rule that the trustee had

abandoned all the state law claims asserted in the complaint. 

The court commented that Ho was free to pursue those claims in

the state court, but did not have standing to pursue them in the

bankruptcy court. 

Abandonment has jurisdictional implications. When a

property is abandoned, it reverts to the debtor as if no

bankruptcy petition had been filed. Hopkins v. Idaho State Univ.

Credit Union (In re Herter), 2011 Bankr. LEXIS 2435 * 20 (Bankr.

D. Idaho 2011) (citing Dewsnup v. Timm, 908 F.2d 588, 590 (10th

Cir. 1990), aff'd on other grounds, 502 U.S. 410 (1992)). When

property is transferred out of the bankruptcy estate, the

bankruptcy court's jurisdiction "typically lapses." Gardner v.

United States, 913 F.2d 1515, 1518 (10th Cir. 1990) (“When

property leaves the bankruptcy estate, however, the bankruptcy

court's jurisdiction typically lapses, and the property's

relationship to the bankruptcy proceeding comes to an end."); 

In re Hall's Motor Transit Co., 889 F.2d 520, 523 (3d Cir. 1989);

In re Xonics, Inc., 813 F.2d 127, 131 (7th Cir. 1987); Crowder v.

Given (In re Crowder), 314 B.R. 445, 449 (10th Cir. BAP 2004)
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(“[P]roperty interests of the bankruptcy estate are within the

exclusive jurisdiction of the bankruptcy court; but the court's

jurisdiction typically lapses when the property leaves the

estate[.]”).

The bankruptcy court did not err in determining that Ho did

not have constitutional standing to assert any claims in her

complaint. The court did not err in determining that Ho did not

have prudential standing to assert the § 548 claim. And the

court did not err in determining that, following abandonment, Ho

could not pursue the state law claims in the bankruptcy court.

A dismissal for lack of standing is a subspecies of

dismissal for failure to state a claim under Civil Rule 12(b)(6). 

Quarre v. Saylor (In re Saylor), 178 B.R. 209, 215 (9th Cir. BAP

1995), aff’d, 108 F.3d 219 (9th Cir. 1997). Consequently, the

bankruptcy court did not err in dismissing Ho’s adversary

proceeding for lack of standing under Civil Rule 12(b)(6).

II. The bankruptcy court did not err in declining Ho’s request

for entry of default against BANA. 

Ho argues that the bankruptcy court erred in declining to

enter a default against BANA in the Adversary Proceeding because

BANA failed to file a timely response after being appropriately

served with the Complaint. What Ho clearly wants is a default

judgment against BANA, as argued in her opening brief.

The entry of defaults and default judgments is governed by

Civil Rule 55, applicable in adversary proceedings under Rule

7055. A bankruptcy court has “wide discretion” in determining

whether it is appropriate to enter a default judgment. See,
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e.g., In re Villegas, 132 B.R. at 746. Under Civil Rule 55(b)(2),

The court may conduct hearings or make referrals . . .

when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting; (B) determine the amount of

damages; (C) establish the truth of any allegation by

evidence; or (D) investigate any other matter.

“This provides the trial court with discretion to require, at a

hearing under [Civil] Rule 55(b)(2), some proof of the facts that

are necessary to a valid cause of action or to determine

liability.” In re Villegas, 132 B.R. at 746 (citations omitted). 

Factors which may be considered by courts in exercising

discretion as to the entry of a default judgment

include: (1) the possibility of prejudice to the

plaintiff, (2) the merits of plaintiff’s substantive

claim, (3) the sufficiency of the complaint, (4) the

sum of money at stake in the action; (5) the

possibility of a dispute concerning material facts;

(6) whether the default was due to excusable neglect,

and (7) the strong policy underlying the Federal Rules

of Civil Procedure favoring decisions on the merits. 

Eitel v. McCool, 782 F.2d at 1471-72. Entry of a default does

not entitle a party to judgment as a matter of right. See, e.g.,

Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); Warner Bros.

Entm’t, Inc. v. Caridi, 346 F.Supp. 2d 1068, 1071 (C.D. Cal.

2004). 

Default had not been entered against BANA at the time of the

hearing on the Motions to Dismiss. In light of our previous

conclusion that the bankruptcy court did not err in dismissing

the Adversary Proceeding based on Ho’s patent lack of standing,

we conclude that the bankruptcy court did not abuse its

discretion in declining to enter a default judgment in Ho’s favor

against BANA in the Adversary Proceeding. Aldabe v. Aldabe,

616 F.2d 1089, 1092-93 (9th Cir. 1980) (“Given the lack of merit
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Rule 9023 was amended in 2009 to enlarge the time period

for requesting alteration or amendment of judgment from ten days

(continued...)

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in appellant’s substantive claims, we cannot say that the

district court abused its discretion in declining to enter a

default judgment in favor of appellant.”).

III.

The bankruptcy court did not abuse its discretion in its

reconsideration rulings.

Ho has appealed the Order Denying Plaintiff’s “Motion for

Rehearing (Pursuant to Rule 8015) Regarding to the Dismissal of

Adversary Proceeding.” On several grounds, we affirm the

decision of the bankruptcy court.

First, although Ho listed this order in her notice of

appeal, she failed to discuss it at all in her brief. An

appellate court in this circuit “will not review issues which are

not argued specifically and distinctly in a party's opening

brief.” City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th

Cir. 2010). 

Second, the bankruptcy court properly determined that

Rule 8015 is only applicable in appeals in the district court and

bankruptcy appellate panel. Apparently, the bankruptcy court did

apply the proper procedural basis for the motion, Civil

Rule 59(e), made applicable in bankruptcy proceedings by

Rule 9023. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69,

374 F.3d 857, 863 (9th Cir. 2004)(motions for reconsideration

filed within ten days of judgment are considered motions to alter

or amend judgment under Civil Rule 59(e)).5
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(...continued)

to fourteen days. This change is of no consequence in this

appeal, because Ho moved for reconsideration within ten days of

the oral ruling dismissing the complaint.

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A motion for reconsideration under Rule 9023/Civil Rule

59(e) should not be granted unless the court is presented with

newly discovered evidence, committed clear error, or if there is

an intervening change in the controlling law. Kona Enter., Inc.

v. Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Ho argued

successfully, and unopposed by the other parties, that the

bankruptcy court had clearly erred in its earlier ruling on the

collateral estoppel basis for dismissal. The court did indeed

reconsider its previous position, and amended its dismissal order

to state that collateral estoppel does not apply.

Ho alleged no other errors in its rehearing motion, nor

suggested that there was newly discovered evidence or an

intervening change in law. We conclude that the bankruptcy court

did not abuse its discretion in its reconsideration rulings.

CONCLUSION

The bankruptcy court did not err in concluding that Ho

lacked standing to prosecute the claims in the Complaint in the

Adversary Proceeding. Accordingly, the bankruptcy court did not

err in dismissing the Complaint without leave to amend. In these

circumstances, the bankruptcy court did not abuse its discretion

in declining to enter a default judgment in Ho's favor against

BANA. And the court did not abuse its discretion in its

reconsideration rulings. We AFFIRM.