IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11190

In The Matter Of: RICKY KLEIBRINK

Debtor

________________________________________________________________________

RICKY KLEIBRINK

Appellant

v.

ELLEN KLEIBRINK; MID STATE TRUST VII

Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CV-88

Before DAVIS, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:

*

In this bankruptcy appeal, debtor Ricky Kleibrink challenges the district

court’s affirmance of the bankruptcy court’s ruling that creditor Mid State Trust

VII holds an enforceable security interest in a property of his, despite his having

United States Court of Appeals

Fifth Circuit

F I L E D

September 21, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 07-11190 Document: 00511240152 Page: 1 Date Filed: 09/21/2010
received a discharge in an earlier bankruptcy proceeding. The debtor filed the

instant bankruptcy proceeding in order to avoid the creditor’s attempt to

foreclose on the property. The bankruptcy court ruled that the earlier

bankruptcy proceeding did not extinguish the creditor’s lien against the

property, because the claim objection filed by the debtor in the earlier proceeding

did not afford the creditor due process in two ways. First, the claim objection

was not accompanied by clear notice that the debtor was challenging the

validity, priority, or extent of the lien, and that the debtor sought to abrogate the

creditor’s right to look to its collateral. Second, the debtor did not comply with

the procedural safeguards set forth in Part VII of the Federal Rules of

Bankruptcy Procedure. Accordingly, the bankruptcy court concluded that the

claim objection filed by the debtor could not substitute for the adversary

proceeding that is ordinarily required by the bankruptcy rules for extinguishing

a lien under the circumstances of the case. The debtor appealed to the district

court, which affirmed for substantially the same reasons.

In the time since the lower courts addressed the merits of this case, the

Supreme Court issued its decision in United Student Aid Funds, Inc. v.

Espinosa, 130 S. Ct. 1367 (2010). Espinosa held that a judgment discharging

debt in a bankruptcy proceeding is void under Rule 60(b)(4) where the creditor

did not receive notice that satisfied the requirements of due process. Id. at 1378.

“‘An elementary and fundamental requirement of due process in any proceeding

which is to be accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.’” Id. at 1378 (quoting

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

Although the procedural posture of the instant case is different from that of

Espinosa, the dispositive issue is the same: whether a creditor in a bankruptcy

2

Case: 07-11190 Document: 00511240152 Page: 2 Date Filed: 09/21/2010
proceeding received notice, satisfying the requirements of due process, that its

interest could be extinguished in that proceeding.

Here, the lower courts explained in detail why the debtor’s confusing claim

objection filings in the earlier bankruptcy proceeding did not give the creditor

clear or sufficient notice that its lien could be extinguished. The district court

summarized its findings as follows:

The Court agrees with the bankruptcy court’s conclusion that . . .

the [debtor’s] Claim Objection in the [earlier bankruptcy proceeding]

did not clearly notify [the creditor] that its secured claim was at

risk[,] nor did the Claim Objection notify [the creditor] that [the

debtor] sought to extinguish its ability to look to its collateral . . . .

[T]he Claim Objection did not seek to “disallow” [the creditor’s]

claim, but rather, it sought to allow the claim at a zero amount.

Only after reading the [debtor’s] “objection codes” does it become

clear that [the debtor] sought to allow the claim only as an

unsecured claim, thereby arguably extinguishing the lien . . . .

Particularly in light of the fact that the confirmed Plan provided

that [the creditor] would retain its lien, the Court concludes that

the bankruptcy court properly held that the Claim Objection did not

provide adequate notice to [the creditor] that [the debtor] sought to

extinguish its lien.

In re Kleibrink, 2007 WL 2438359 at *7 (N.D. Tex. 2007). We conclude that the

notice given to the creditor here did not satisfy the due process standard for

notice set forth in Mullane. Accordingly, we AFFIRM the district court’s

judgment that the creditor’s lien survived the earlier bankruptcy proceeding.

1

The debtor fails to raise any argument appealing the district court’s holding that the 1

the lien is valid as to the debtor’s former wife, his co-debtor. Therefore, that issue is waived.

Fed. R. App. P. 28(a)(9)(A) (appellate briefs must contain “contentions and the reasons for

them, with citations to the authorities and parts of the record on which the appellant relies”);

United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000) (where a party fails to

adequately brief an issue, the issue is waived).

3

Case: 07-11190 Document: 00511240152 Page: 3 Date Filed: 09/21/2010