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FILED

MAR 10 2017

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NOT FOR PUBLICATION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. NV-16-1115-LJuKu

)

JOHN BADEA, ) Bk. No. 2:15-bk-10638-LED

)

Debtor. ) Adv. No. 2:15-ap-01035-LED

______________________________)

)

JOHN BADEA, )

)

 Appellant, )

)

v. ) MEMORANDUM*

)

EMIL BOTEZATU; GABRIELA )

BOTEZATU, )

)

Appellees. )

______________________________)

Argued and Submitted on February 24, 2017

at Las Vegas, Nevada 

Filed - March 10, 2017

Appeal from the United States Bankruptcy Court

for the District of Nevada

Honorable Laurel E. Davis, Bankruptcy Judge, Presiding

_________________________

Appearances: Appellant John Badea argued pro se; Michael R.

Mushkin argued for appellees Emil and Gabriela

Botezatu. 

_________________________

Before: LAFFERTY, JURY, and KURTZ, Bankruptcy Judges.

* 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

After John Badea filed his chapter 71 petition, creditors

Emil and Gabriela Botezatu filed a complaint seeking denial of

Badea’s discharge under § 727. After a trial, the bankruptcy

court entered a judgment denying discharge (the “Judgment”) based

upon Badea’s pre-petition transfer of property with intent to

hinder, delay or defraud a creditor and for false oaths in his

schedules and statements of financial affairs.

Badea moved for reconsideration, arguing that the bankruptcy

court had erroneously interpreted the evidence presented in

finding that he had acted with fraudulent intent. After a

hearing, the bankruptcy court denied Badea’s motion. Badea

timely appealed. Because Badea did not provide an adequate

record to permit our review of the Judgment, and because he did

not demonstrate any ground for reconsideration, we AFFIRM.

FACTS2

In October 2007 the District Court for Clark County, Nevada,

entered a judgment against Badea and in favor of the Botezatus in

the amount of $47,401.29 for attorneys’ fees and costs, plus

$2,500 for sanctions, plus interest.

In January 2010, Badea purchased a condominium in Las Vegas

(the “Silverado Ranch Property”) for $52,000. On February 24,

1 Unless otherwise indicated, all chapter and section

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

“Rule” references are to the Federal Rules of Bankruptcy

Procedure, and “Civil Rule” references are to the Federal Rules

of Civil Procedure.

2 The facts are taken primarily from the bankruptcy court’s

findings and conclusions.

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2014, Badea transferred the Silverado Ranch Property to his

brother, George Badea, by quit claim deed. The deed noted that

no consideration was given in exchange for the transfer. 

Less than a year later, on February 12, 2015, Badea filed a

petition for relief under chapter 7. At the initial meeting of

creditors, several problems with Badea’s schedules came to light. 

Badea failed to list his second motor vehicle or his interest in

a family home in Romania; misstated the date on which he

transferred the Silverado Ranch Property to George as “mid-2013”;

listed zero income on Schedule I and $2,579 in monthly expenses

on Schedule J; and listed a 2005 Mercedes Benz 350 on Schedule B

with a value of zero and a monthly car payment of $800 on

Schedule J but did not list any secured creditor or lessor for

that vehicle. Although the chapter 7 trustee sent a written

request to Badea to amend his schedules and statements, no

amendments were ever filed that corrected these issues.

The Botezatus filed an adversary proceeding seeking denial

of Badea’s discharge pursuant to § 727; the matter was tried on

December 4, 2015. As discussed below, Badea did not provide a

copy of the trial transcript; thus, we do not have a record of

the testimony or evidence presented at trial. However, the

bankruptcy court noted in its findings and conclusions that it

had declined to admit Badea’s Trial Exhibit B entitled “Agreement

and Power of Attorney,” which purportedly memorialized an

agreement for George to loan Badea $50,000 in August 2009 to

purchase a condominium in Las Vegas. The bankruptcy court did

not admit this document because Badea had not laid a proper

evidentiary foundation for the agreement and for other concerns

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related to the agreement’s authenticity.

In December 2015 the bankruptcy court orally ruled on the

matters presented at trial, finding for the Botezatus on their

claims under §§ 727(a)(2)(A) and (a)(4); the bankruptcy court

thereafter entered the Judgment.

Badea timely moved for reconsideration, arguing that the

bankruptcy court had erred in finding that he intended to defraud

the Botezatus and that his failure to amend the schedules was

fraudulent. After a hearing, the bankruptcy court denied the

motion for reconsideration. Badea timely appealed. 

JURISDICTION

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

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

§ 158.

ISSUES

1. Whether the Panel has jurisdiction to review the

Judgment denying discharge.

2. Whether the Panel should affirm the bankruptcy court’s

Judgment denying discharge under §§ 727(a)(2)(A) and (a)(4) based

on Badea’s failure to provide an adequate record.

3. Whether the bankruptcy court abused its discretion in

denying Badea’s motion for reconsideration.

STANDARDS OF REVIEW

We review the bankruptcy court’s findings of fact for clear

error and its conclusions of law de novo. Carrillo v. Su

(In re Su), 290 F.3d 1140, 1142 (9th Cir. 2002). If an appellant

challenges a finding of fact, it is his responsibility to provide

an adequate record to show clear error. Massoud v. Ernie

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Goldberger & Co. (In re Massoud), 248 B.R. 160, 163 (9th Cir. BAP

2000). 

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

or amend a judgment for abuse of discretion. Ta Chong Bank Ltd.

v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th Cir.

2010). Under the abuse of discretion standard, we “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, 1261-62 (9th Cir. 2009). If the

bankruptcy court identified the correct legal rule, we then

determine under the clearly erroneous standard whether its

factual findings and its application of the facts to the relevant

law were: “(1) illogical, (2) implausible, or (3) without support

in inferences that may be drawn from the facts in the record.” 

Id. 

DISCUSSION

A. The Panel has jurisdiction over the appeal of the Judgment

denying discharge, and Appellees will not be prejudiced by

our consideration of that matter on the merits.

The Botezatus argue in their answering brief that we do not

have jurisdiction to consider Badea’s appeal of the Judgment

because the notice of appeal references and attaches only the

order denying reconsideration. The Botezatus reason that there

was no timely notice of appeal filed from the Judgment, and thus

this Panel lacks jurisdiction to consider the appeal of the

Judgment. 

The Botezatus misconstrue the applicable rules. As an

initial matter, Rule 8002 provides that, if a party timely moves

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to alter or amend a judgment under Rule 9023, then the 14-day

deadline under Rule 8002 for filing an appeal runs from the entry

of the order disposing of the last such motion outstanding. We

consider a motion for reconsideration filed within 14 days of a

judgment to be a timely motion to “alter or amend” within the

meaning of Rule 8002(b). Shapiro ex rel. Shapiro v. Paradise

Valley Unified Sch. Dist., 374 F.3d 857, 863 (9th Cir. 2004). If

the motion is timely under Rule 9023, we have jurisdiction to

review both the underlying order and the order denying

reconsideration. Tennant v. Rojas (In re Tennant), 318 B.R. 860,

866 n.5 (9th Cir. 2004). 

Here, the motion for reconsideration was filed less than

14 days after entry of the Judgment, and the notice of appeal was

filed less than 14 days after entry of the order denying

reconsideration. We thus have jurisdiction to review the

Judgment.

As for Badea’s failure to reference the Judgment in the

notice of appeal, Rule 8001(a) does not require the underlying

order or judgment to be attached to the notice of appeal. 

Although 9th Cir. BAP R. 8003 does require such a designation, we

may depart from this local rule absent a showing of prejudice. 

Wall Street Plaza, LLC v. JSJF Corp. (In re JSJF Corp.), 344 B.R.

94, 100 (9th Cir. BAP 2006), aff’d, 277 F. App’x 718 (9th Cir.

2008). When a party seeks to argue the merits of an underlying

order that does not appear on the notice of appeal, the reviewing

court will generally consider (1) whether the intent to appeal a

specific judgment is fairly inferred and (2) whether the appellee

will be prejudiced by the mistake. See Lolli v. County of

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Orange, 351 F.3d 410, 414 (9th Cir. 2003) (interpreting Fed. R.

App. P. 3). 

Intent to appeal a specific order can be “fairly inferred”

by the issues raised in the appellant’s opening brief. Id. 

Here, the intent to appeal the Judgment denying discharge is

easily inferred from the substantial discussion of the Judgment

in Badea’s brief, which focuses entirely on the request for a

reversal of the denial of discharge and requests remand for

further proceedings. Badea also designated the transcript of the

bankruptcy court’s December 22, 2015 ruling on denial of

discharge as part of the record on appeal. Thus, Badea’s intent

to appeal the Judgment can be fairly inferred. 

There can be no claim of prejudice if both parties have

briefed the issues in the underlying order. Id. at 415. The

Botezatus addressed Badea’s reasoning in their answering brief. 

Therefore, they will not be prejudiced by our review of the

Judgment.3

B. We cannot find that the bankruptcy court clearly erred in

denying Badea’s discharge under §§ 727(a)(2)(A) or (a)(4)

because Badea has not provided an adequate record on appeal.

Sections 727(a)(2)(A) and (a)(4) both require a finding of

fraudulent intent. Section 727(a)(2)(A) provides, in relevant

part:

The court shall grant the debtor a discharge, unless

. . . the debtor, with intent to hinder, delay, or

defraud a creditor or an officer of the estate charged

3 Moreover, Botezatus’ counsel conceded at oral argument

that his clients were not prejudiced by Badea’s failure to attach

the Judgment to the Notice of Appeal.

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with custody of property under this title, has

transferred, removed, destroyed, mutilated, or

concealed, or has permitted to be transferred, removed,

destroyed, mutilated, or concealed . . . property of

the debtor, within one year before the date of the

filing of the petition.

To succeed on a claim for denial of discharge under

§ 727(a)(2)(A), the plaintiff must show by a preponderance of the

evidence (1) that a transfer or concealment took place within one

year before the filing of a bankruptcy petition, and (2) the

subjective intent of the debtor to hinder, delay or defraud a

creditor through the disposition of the property. Retz v.

Sampson (In re Retz), 606 F.3d 1189, 1200 (9th Cir. 2010). As

direct evidence is rarely available to determine fraudulent

intent, certain “badges of fraud” may support such a finding: 

(1) a close relationship between the transferor and the

transferee; (2) that the transfer was in anticipation

of a pending suit; (3) that the transferor Debtor was

insolvent or in poor financial condition at the time;

(4) that all or substantially all of the Debtor's

property was transferred; (5) that the transfer so

completely depleted the Debtor’s assets that the

creditor has been hindered or delayed in recovering any

part of the judgment; and (6) that the Debtor received

inadequate consideration for the transfer.

Id. 

Section 727(a)(4)(A) provides in relevant part: “The court

shall grant the debtor a discharge, unless . . . the debtor

knowingly and fraudulently, in or in connection with the case[,]

made a false oath or account.” To prevail on a claim under this

subsection, the plaintiff must show by a preponderance of the

evidence that (1) the debtor made a false oath in connection to

the case, (2) that related to a material fact, (3) made

knowingly, (4) and fraudulently. In re Retz, 606 F.3d at 1197.

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On appeal, Badea does not dispute that he transferred the

Silverado Ranch Property to his brother within a year of filing

his bankruptcy petition or that his schedules and statement of

financial affairs contained material misstatements. Badea

disputes only the bankruptcy court’s finding of fraudulent

intent, which was based on the following badges of fraud: there

was a close relationship between transferor and transferee, the

transfer was made to avoid collection activity on the Botezatus’

renewed judgment, and Badea did not receive consideration for the

transfer of the Silverado Ranch Property. Badea disputes these

underlying factual findings.

However, under 9th Cir. BAP R. 8009-1: 

The excerpts of record shall include the transcripts

necessary for adequate review in light of the standard

of review to be applied to the issues before the Panel.

The Panel is required to consider only those portions

of the transcript included in the excerpts of the

record. 

When a complete record is not provided, we are entitled to

presume that the omitted portions do not further the appellant’s

arguments. Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680-81

(9th Cir. BAP 1994), aff’d, 92 F.3d 1192 (9th Cir. 1996).

“[F]ailure to provide a sufficient record to support informed

review of trial-court determinations may, but need not, lead

either to dismissal of the appeal or to affirmance for inability

to demonstrate error.” Kyle v. Dye (In re Kyle), 317 B.R. 390,

393 (9th Cir. BAP 2004), aff’d, 170 F. App’x 457 (9th Cir. 2006).

As noted, Badea failed to provide a transcript of the trial

testimony in his excerpts of record, and no trial transcript was

filed with the bankruptcy court. To find clear error, we must be

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able to review the entire record. See Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 573 (1985) (“A finding is

clearly erroneous when although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”)

(emphasis added) (citation omitted). Because Badea did not

include the complete transcript necessary for us to review the

“entire evidence” for clear error, we must affirm the Judgment

denying discharge. See Morrissey v. Stuteville

(In re Morrissey), 349 F.3d 1187, 1191 (9th Cir. 2003) (affirming

this Panel’s dismissal of appeal based in part on the inadequacy

of the appellate record); In re Kyle, 317 B.R. at 393.

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

Badea’s motion for reconsideration.

We construe a timely motion for reconsideration as a motion

to alter or amend judgment under Civil Rule 59(e), applicable in

bankruptcy via Rule 9023. Rule 59(e) allows for reconsideration

if the bankruptcy court (1) is presented with newly discovered

evidence, (2) committed clear error or the initial decision was

manifestly unjust, or (3) if there is an intervening change in

controlling law. Kona Enters., Inc. v. Estate of Bishop,

229 F.3d 877, 890 (9th Cir. 2000).

In his motion for reconsideration, Badea argued that the

bankruptcy court’s fraud finding was clearly erroneous. However,

he pointed to no newly discovered evidence, clear error, manifest

injustice, or intervening change in controlling law. Badea

simply disagreed with the inferences drawn by the bankruptcy

court. The bankruptcy court denied the motion because Badea had

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not demonstrated any of the required grounds for reconsideration.

On appeal, Badea focused solely on the bankruptcy court’s factual

findings supporting the § 727 Judgment and did not argue, much

less demonstrate, that he met the appropriate standard on

reconsideration or that the bankruptcy court abused its

discretion in denying that motion.

D. Appellees’ request for fees and costs is denied for failure

to file the request in a separate motion.

In their brief, the Botezatus requested fees and costs under

Fed. R. App. P. 38 for filing a frivolous appeal. In bankruptcy

appeals, the relevant rule is Rule 8020, which provides:

If the district court or BAP determines that an appeal

is frivolous, it may, after a separately filed motion

or notice from the court and reasonable opportunity to

respond, award just damages and single or double costs

to the appellee.

Because the Botezatus did not make their request in a

separately filed motion, we must deny it. See Nghiem v. Ghazvini

(In re Nghiem), 264 B.R. 557, 560 n.4 (9th Cir. BAP 2001). 

CONCLUSION

Badea failed to provide an adequate record to enable review

of the bankruptcy court’s finding of fraudulent intent, and he

has not shown that the bankruptcy court abused its discretion in

denying Badea’s motion for reconsideration. Accordingly, we

AFFIRM.

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