1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

*

 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.

-1-

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-11-1477-JuKiJo

)

BRIAN SCOTT CARPENTER, ) Bk. No. 11-44904

)

Debtor. )

______________________________)

)

BRIAN SCOTT CARPENTER, )

)

Appellant, )

)

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

)

MARTHA G. BRONITSKY; )

UNITED STATES TRUSTEE, )

OAKLAND; BAC HOME LOANS )

SERVICING, LP, )

)

Appellees. )

______________________________)

 Argued and Submitted on May 17, 2012

at San Francisco, California 

Filed - May 30, 2012

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable Roger L. Efremsky, Bankruptcy Judge, Presiding 

Appearances: Jim G. Price, Esq. argued for Appellant Brian

Scott Carpenter. No appellee participated in

this appeal. 

FILED

MAY 30 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

** The Honorable Wayne E. Johnson, Bankruptcy Judge, Central

District of California, sitting by designation.

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-

Before: JURY, KIRSCHER, and JOHNSON** Bankruptcy Judges.

Debtor Brian Scott Carpenter appeals the decisions of the

bankruptcy court denying without hearings his motion to value

real property and motion for reconsideration. Because the

motions were not supported by evidence and the Local Rules do

not compel a hearing, we AFFIRM.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

On May 4, 2011, debtor filed a petition for bankruptcy

under chapter 131

. On June 6, 2011, debtor filed a motion to

value real property under § 506(a). The motion was filed

pursuant to the bankruptcy court’s Local Rule 9014-1, which

provides for a hearing only after a party objects. Debtor’s

motion sought to reclassify as unsecured the claim based on BAC

Home Loans Servicing, LP’s (“BAC Home Loans”) second deed of

trust (“Second DOT”). In support of the motion, debtor declared

the value of his real property was $275,000 and the balance on

his first deed of trust (“First DOT”), also with BAC Home Loans,

was $280,000. Debtor did not support his declaration as to the

balance on his First DOT with any documentary evidence.

On June 16, 2011, BAC Home Loans filed a proof of claim

(“POC”) for the First DOT stating the amount owed was
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 The second motion was denominated “Motion for

Reconsideration”, so the request for default seems procedurally

improper. However, as noted below, it really was a renewed

motion to value and, in that context, the request for default

follows.

-3-

$272,922.96.

On June 28, 2011, debtor filed a request for default on the

grounds that no party opposed the motion to value. On July 8,

2011, the bankruptcy court denied the request. The bankruptcy

court, relying on evidence in BAC Homes Loans’ POC, found

debtor’s property held equity above the First DOT in the amount

of $2,077. Accordingly, the Second DOT remained secured.

On July 15, 2011, debtor filed a motion for

reconsideration. In the motion, debtor asserted the amount

stated in BAC Home Loans’ POC was incorrect because it did not

account for costs incurred by publication of a notice of default

and a notice of trustee’s sale. Debtor further alleged BAC Home

Loans had informed him that the total principal and arrears was

$282,272.27. Debtor’s motion was supported by a declaration

from the debtor but no mortgage statement from BAC Home Loans or

any other documentation. On August 9, 2011, debtor again

submitted a request for default.2

The bankruptcy court denied the request. The bankruptcy

court rejected debtor’s unsubstantiated assertions regarding the

amount owed on the First DOT. The bankruptcy court again relied

on BAC Home Loans’ POC. The bankruptcy court determined BAC

Home Loans’ POC was the best evidence before the court. 

Finally, the bankruptcy court noted that its denial was without

prejudice and invited the debtor to refile the motion with
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 Debtor’s statement of issues on appeal challenged the

bankruptcy court’s reliance on BAC Home Loans’ POC. However,

debtor did not argue the issue in his brief. Therefore, debtor

has waived the issue for purposes of this appeal. See Wake v.

Sedona Inst. (In re Sedona Inst.), 220 B.R. 74, 76 (9th Cir.

1998) (an issue not briefed is deemed waived).

-4-

additional evidence. On August 23, 2011, debtor filed a notice

of appeal.

II. JURISDICTION

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

§§ 1334 and 157(b)(1). This Panel has jurisdiction under

28 U.S.C. § 158.

III. ISSUE

Whether the bankruptcy court abused its discretion by

denying debtor a hearing on his motion to value and motion for

reconsideration.3

IV. STANDARD OF REVIEW

We review a bankruptcy court’s compliance with nonjurisdictional bankruptcy rules for an abuse of discretion. 

Fitzsimmons v. Nolden (In re Fitzsimmons), 920 F.2d 1468, 1471

(9th Cir. 1990). We apply a two-part test to determine whether

the bankruptcy court abused its discretion: (1) we review de

novo whether the bankruptcy court “identified the correct legal

rule to apply to the relief requested” and (2) if it did,

whether the bankruptcy court’s application of the legal standard

was illogical, implausible or “without support in inferences

that may be drawn from the facts in the record.” United States

v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009).
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-5-

V. DISCUSSION

Debtor focuses his appeal on the failure of the bankruptcy

court to set a hearing before denying the motions. This focus

is misguided. 

Debtor’s motion to value asserted the balance on his First

DOT with BAC Home Loans was $280,000 and the value of his real

property was $275,000. BAC Home Loans filed a POC with

supporting documentation that contradicted Debtor’s declaration. 

The bankruptcy court denied the motion stating:

The evidence in support of Debtor’s Motion shows that

there is equity for the benefit of BAC Home Loans

Servicing, LP. Specifically, the appraisal submitted

by Debtor values the property at $275,000. Further,

the Proof of Claim filed by the 1st lienholder values

its claim at $272,922.96, leaving $2,077 in equity for

the benefit of BAC Home Loans Servicing, LP.

In response, debtor filed a motion for reconsideration. 

We note that the motion for reconsideration did not state any

grounds for reconsideration under Rule 9024. For this reason,

we do not analyze the motion under Rule 9024, but instead

consider the motion as a resubmission of the motion to value.

Debtor’s motion for reconsideration contested the

bankruptcy court’s reliance on BAC Home Loans’ POC. Debtor

argued that BAC Home Loans’ POC was inaccurate because it did

not account for costs accrued by BAC Home Loans relating to

recording and publishing a notice of default and notice of

trustee sale.

In denying the motion for reconsideration, the bankruptcy

court reaffirmed its prior decision, stating, “the Motion did

not attach the proof of claim, the note and deed of trust, or a

statement setting forth the outstanding balance at or about the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-6-

time the petition was filed for either the senior or the junior

lienholder.” Notably, the bankruptcy court denied the motion

for reconsideration without prejudice and invited debtor to

refile the motion with supporting documentation.

The procedural framework for valuing collateral pursuant to

§ 506(a) is set forth in Rule 3012, which states as follows:

The court may determine the value of a claim secured by

a lien on property in which the estate has an interest

on motion of any party in interest and after a hearing

on notice to the holder of the secured claim and any

other entity as the court may direct.

Section 102(1)(A) defines “after notice and a hearing” and

similar phrases to mean “after such notice as is appropriate in

the particular circumstances, and such opportunity for hearing

as is appropriate in the particular circumstances[.]” See

United States v. Yochum (In re Yochum), 89 F.3d 661, 672 (9th

Cir. 1996). Section 102(1)(B) authorizes an act without an

actual hearing if notice is proper and a hearing is not

requested by a party in interest.

The Northern District of California has adopted guidelines

for notice and hearing on motions to value. Pursuant to those

guidelines, the moving party is not required to schedule a

hearing but, if there is an objection, a hearing shall be set. 

The guidelines do not set forth a procedure if the bankruptcy

court raises an issue of fact.

Debtor’s motion for reconsideration, and brief in this

appeal, assert the bankruptcy court was required to set the

motion to value debtor’s real property for hearing. Debtor is

incorrect; nothing in the Northern District of California

guidelines or Local Rules require a bankruptcy court to set a
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 The Panel acknowledges that a court may under Rule 9014(c)

direct that not all Part VII Rules apply to contested matters.

-7-

motion to value for hearing, nor would such a requirement make

sense when, as here, the only relevant evidence is

documentation.

At oral argument, debtor’s counsel argued that a hearing

was necessary to obtain documentation through discovery. While

we agree that discovery may be necessary, a hearing is not. 

This Panel notes three methods by which debtor’s counsel may

conduct discovery without a hearing. First, because a motion to

value is a contested matter under Rule 9014, debtor’s counsel

may request production of documents from BAC Home Loans pursuant

to Rule 7034.4 Second, debtor’s counsel may seek production of

documents by motion and subpoena pursuant to Rule 2004(c). 

Finally, debtor’s counsel may object to BAC Home Loans’ POC,

creating again the discovery rights which arise in a contested

matter. 

Accordingly, the bankruptcy court did not abuse its

discretion by denying debtor a hearing.

VI. CONCLUSION

Having determined the bankruptcy court did not abuse its

discretion when denying debtor’s motion to value and motion for

reconsideration, we AFFIRM.