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FILED

OCT 15 2013

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-12-1452-TaKuKi

)

ZINOVIY BERSHADSKIY, ) Bk. No. SV 10-25466-AA

 )

Debtor. ) Adv. No. SV 11-01477-AA

______________________________)

ZINOVIY BERSHADSKIY, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

RODEO REALTY, INC., )

)

Appellee. )

______________________________)

Submitted Without Oral Argument**

September 19, 2013

Filed - October 15, 2013

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Alan M. Ahart, Bankruptcy Judge, Presiding ________________________________

Appearances: Appellant Zinoviy Bershadskiy, pro se, on brief;

Mark M. Sharf of Merritt, Hagen & Sharf LP, on

brief, for Appellee Rodeo Realty, Inc.

__________________________________

Before: TAYLOR, KURTZ, and KIRSCHER, Bankruptcy Judges.

FILED

OCT 15 2013

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

*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.

**In an order entered on May 24, 2013, the Panel determined

that this matter was suitable for disposition without oral

argument. Fed. R. Bankr. P. 8012; 9th Cir. BAP Rule 8012-1.
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INTRODUCTION

Rodeo Realty, Inc. (“Rodeo Realty”) initiated a

nondischargeability action against appellant, chapter 7 debtor,

Zinoviy Bershadskiy (“Appellant”), under 11 U.S.C. §§ 523(a)(2)

and (a)(6).1 Rodeo Realty sought summary judgment; debtor failed

to oppose; the bankruptcy court granted summary judgment under

§ 523(a)(2) and entered a nondischargeable judgment in Rodeo

Realty's favor in the amount of $47,250 plus post-judgment

interest (“Judgment”). Appellant filed a timely notice of appeal

from the Judgment. We AFFIRM.

FACTS2

On July 19, 2010, Appellant entered into a 180-day exclusive

listing agreement with Rodeo Realty (“Listing”) in relation to

his Los Angeles residence (the “Property”). The Listing stated a

sales price of $1,075,000 and also provided that: “Seller may

cancel this contract after 30 days. Paragraph 1A will apply if a

1 Unless specified otherwise, 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, Rules 1001-9037, and all “Civil Rule” references are

to the Federal Rules of Civil Procedure.

2

 Appellant filed only an opening brief in this appeal. He

did not file any excerpts of the record, although he attached to

his opening brief a copy of a document titled “Exclusive

Authorization and Right to Sell (Listing) Agreement.” By order

entered December 7, 2012, the Panel waived the requirement of

Fed. R. Bankr. P. 8009(b) that the Appellant file and serve an

appendix to his brief containing excerpts of the record. 

Fortunately for purposes of appellate review, Rodeo Realty filed

excerpts of the record in support of its opening brief; we

reviewed and relied upon these documents. In addition, we

exercised our discretion to review documents on the bankruptcy

court’s electronic docket to assist us in ascertaining the

relevant procedural history. O’Rourke v. Seaboard Sur. Co.

(In re E.R. Fegert, Inc.), 887 F.2d 955, 958 (9th Cir. 1989).

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cancellation is requested.” Complaint, Adv. Dkt. #1, Ex. A.;

Decl. Yelena Pavlova, Adv. Dkt. #44, Ex. A. Paragraph 1A

provided, in relevant part, that:

Should [Rodeo Realty] procure a purchaser ready,

willing, and able to purchase the above property at the

above price and terms, or at a price accepted by

[Appellant], [Appellant] shall pay [Rodeo Realty] a fee

of 5% of such listing or sales price plus $250. 

[Appellant] shall pay [Rodeo Realty] a like fee should

the property be sold, transferred, exchanged, or leased

during the term of this listing, by any source

including [Appellant], or within six months after the

expiration of this contract to any person with whom

[Rodeo Realty] has had any communications prior to the

termination of the listing term provided that said

[Rodeo Realty’s] sub-agent shall have notified

[Appellant] of such communication verbally, or in

writing, within 10 days after the termination of the

listing term. [Rodeo Realty] is entitled to said fee

whether any escrow resulting from such offer closes

during or after the expiration of the listing term.

Id. The Listing further provided, at paragraph 1C, that: 

“Should [Appellant] (a) withdraw the property from sale, . . .

[Appellant], nonetheless, shall pay [Rodeo Realty] a fee equal to

the percentage of the listing price as stated in paragraph 1

above.”3 Id.

Sometime after August 19, 2010, Appellant requested

cancellation of the Listing, and Rodeo Realty agreed. On

December 9, 2010, Appellant filed a voluntary bankruptcy petition

under chapter 11. The case ultimately was converted to a case

3 These quoted provisions of the Listing are substantially

consistent with the provisions set forth in the copy of the

Listing attached to Appellant’s Opening Brief. The only point of

difference is the commission percentage. In the copy of the

Listing attached to the Complaint, the inserted handwritten

number is a “5." In the copy attached to Appellant’s Opening

Brief, the inserted number appears to be a “3" with the initials

“ZB” handwritten above it and on top of text in the form.

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under chapter 7, and Rodeo Realty filed a timely

nondischargeability complaint.

In the complaint, Rodeo Realty alleged that Appellant

committed fraud when he falsely represented that he was taking

the Property off the market, when, in fact, he intended to sell

it to a Rodeo Realty registered buyer. Rodeo Realty alleged

damages of 5% of the sales price, plus $250, as provided under

the Listing, as a proximate result of Appellant’s fraudulent

conduct. Rodeo Realty sought a nondischargeable judgment in the

amount of the lost commission pursuant to § 523(a)(2),4 as well

as punitive damages and attorney’s fees.5

Appellant, originally represented by counsel, filed a motion

to dismiss the complaint which the bankruptcy court denied. 

Appellant thereafter substituted himself in place of counsel and

filed documents docketed as an answer. The answer consists of a

one-paragraph undated letter to the judge from Appellant and

copies of various correspondence. In the letter, Appellant

denied fraud. Approximately eight months later, Rodeo Realty

filed and served its motion for summary judgment (hereinafter,

“MSJ”) along with a memorandum of points and authorities, four

4 Rodeo Realty failed to expressly set forth in its

complaint whether it sought relief under subsection (a)(2)(A) or

(a)(2)(B) of § 523, and the Judgment, likewise, references only

§ 523(a)(2). Nonetheless, when viewed in context, it is clear

that Rodeo Realty sought nondischargeability based on alleged

actual fraud under § 523(a)(2)(A) and not based on use of a

materially false statement in writing “respecting the debtor’s or

an insider’s financial condition,” under § 523(a)(2)(B).

5 The complaint included a second cause of action for

nondischargeability under § 523(a)(6), which we do not further

mention here as the bankruptcy court entered the Judgment solely

on § 523(a)(2)(A).

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declarations, a request for judicial notice, and a separate

statement of uncontroverted facts. The Notice of Motion gave

notice to Appellant that failure to file and serve papers in

opposition to the MSJ could be deemed consent to the relief

sought therein.

The evidence submitted by Rodeo Realty in support of the MSJ

included the following:

1. A declaration by Yelena Pavlova, a licensed real estate

agent at Rodeo Realty who was the primary contact with

Appellant, because, like Appellant, she was fluent in

Russian. She attached an authenticated copy of the Listing. 

Ms. Pavlova declared under penalty of perjury that she

showed the Property to Abraham Bak and later to his wife and

daughter, within 24 to 48 hours of initial contact on

August 15, 2010. Thereafter she had multiple telephone

conversations with Mr. Bak. She offered, as corroboration,

copies of her cellphone records and identified the

respective contact numbers. She met with Mr. Bak on

August 31, 2010 to discuss a proposed sale of the Property

at $900,000, and later that day with Appellant to discuss

Mr. Bak’s expression of interest, which caused Appellant to

authorize a reduction of the listing price to $999,950 to

encourage an offer from Mr. Bak. 

Ms. Pavlova stated that her co-agent, Marc Tahler, and

she received a fax from Appellant’s daughter Marina Fox on

September 8, 2010 requesting that Rodeo Realty cancel its

Listing. She attached a copy of the fax as an exhibit to

her declaration. She stated that she confirmed by telephone

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with Appellant that his daughter was properly acting on his

behalf, and on September 9, 2010, Rodeo Realty canceled the

Listing. Rodeo Realty sent a letter dated September 9,

2010, specifically identifying Mr. and Mrs. Bak as potential

buyers, and another letter on September 14, 2010. Copies of

the two letters were attached to Ms. Pavlova’s declaration

as exhibits. Ms. Pavlova also stated that at no time did

Appellant or anyone on his behalf disclose that Appellant

decided to sell the Property to Mr. Bak without Rodeo

Realty’s assistance. 

Finally, Ms. Pavlova attached as an exhibit to her

declaration a copy of a Grant Deed executed by Appellant on

November 2, 2010, deeding the Property to the Baks. The

Grant Deed was recorded on November 5, 2010. She learned

from the Multiple Listing Service database, which she stated

to be a source regularly relied upon by agents, that the

Property was sold for $940,000. Ms. Pavlova stated that the

commission due and owing to Rodeo based on the sale, was

$47,000 (5%) plus $250. 

2. A declaration by Marc Tahler, under penalty of perjury,

who is a licensed salesperson at Rodeo Realty. Mr. Tahler

stated that he attended the meeting with Ms. Pavlova and

Mr. Bak on August 31, 2010 to discuss a possible offer to

purchase the Property and later the meeting with Appellant

that resulted in an authorized reduction in the listing

price.

Mr. Tahler stated that he received a telephone call

from Appellant’s daughter Marina Fox on September 6 or 7,

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2010 during which she “pretended that her father had

requested that the Listing Agreement be canceled two weeks

earlier.” Tahler Decl., Adv. Dkt. #34 at 2:14-16. He

stated that he informed Ms. Fox that her father made no such

request. Mr. Tahler then corroborated Ms. Pavlova’s

statement that they received the fax from Ms. Fox on

September 8, 2010 requesting cancellation of the Listing

with no disclosure, at any time by anyone, that Appellant

had decided to sell the Property to Mr. Bak without

assistance from Rodeo Realty. Mr. Tahler sent the letters

on September 9, 2010 and September 14, 2010 (to correct the

spelling), identifying Mr. Bak as a potential buyer

protected under the Listing. 

3. The Declaration of Mark M. Sharf, as Rodeo Realty’s

counsel, regarding the deposition testimony of Appellant

taken on April 30, 2012, attached to which is a copy of the

reporter’s transcript. Mr. Sharf stated that Appellant had

refused to comply with the Notice of Deposition requirement

that he produce his telephone records regarding

communications between Appellant and Mr. Bak, and others,

for the months of August through December. In addition,

Mr. Sharf pointed out that Appellant testified that

Appellant’s daughter also refused to produce her telephone

records. 

Mr. Sharf also reviewed the Appellant’s Statement of

Financial Affairs in his bankruptcy case and noted that

Appellant failed to disclose the sale of the Property, which

would have been required by an accurate answer to

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Question 10.6

In Rodeo Realty’s Memorandum of Points and Authorities,

Rodeo Realty argued that Appellant obtained cancellation of the

Listing by not disclosing his negotiations to sell to Mr. Bak,

and did so intentionally to avoid paying a commission. It

provided evidence that within 60 days after the Listing was

cancelled, the Property was deeded to the Baks. It also argued

that as part of the deception, Appellant and his daughter falsely

represented that Appellant canceled the Listing before the

September 8, 2010 fax. Rodeo Realty argued that Appellant

concealed the sale transaction from Rodeo Realty as well as from

the bankruptcy court, his creditors, and the chapter 7 trustee by

answering “none” to Question 10 of the Statement of Financial

Affairs, refusing to testify regarding the net proceeds from the

sale, and refusing to produce his telephone records regarding

contacts with Mr. Bak. Rodeo Realty finally argued that the

bankruptcy court could infer Appellant’s knowledge and fraudulent

intent from the number of fabrications, the “rush to fire Rodeo

Realty when a serious buyer was located, proximity of the sale to

the cancellation of the listing agreement, combined with the

continuing concealment of the sale” in the bankruptcy case filed

shortly thereafter. MSJ, Adv. Dkt. #40 at 10.

Appellant filed nothing in opposition. 

The bankruptcy court waived appearances at the hearing on

the MSJ and entered the Judgment on August 16, 2012. Appellant

6 Rodeo Realty also filed a Request to Take Judicial Notice

of Appellant’s bankruptcy filings, and in particular the

Appellant’s non-disclosure of the sale of the Property.

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timely filed the notice of appeal on August 28, 2012. 

JURISDICTION

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

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

§ 158(a)(1).

ISSUES

Did the bankruptcy court err when it granted Rodeo Realty’s

MSJ and entered the Judgment against Appellant?

STANDARD OF REVIEW

We review de novo the bankruptcy court’s decision to grant

summary judgment. Boyajian v. New Falls Corp. (In re Boyajian),

564 F.3d 1088, 1090 (9th Cir. 2009); Lopez v. Emergency Serv.

Restoration, Inc. (In re Lopez), 367 B.R. 99, 103 (9th Cir. BAP

2007). Viewing the evidence in the light most favorable to the

non-moving party (i.e., Appellant), we determine whether the

bankruptcy court correctly found that there are no genuine issues

of material fact and that the moving party is entitled to

judgment as a matter of law. Jesinger v. Nev. Fed. Credit Union,

24 F.3d 1127, 1130 (9th Cir. 1994); Gertsch v. Johnson & Johnson

Fin. Corp. (In re Gertsch), 237 B.R. 160, 165 (9th Cir. BAP

1999).

DISCUSSION

A. Waiver of Claims and Arguments

Rodeo Realty argues that Appellant waived all factual and

legal arguments by failing to raise them before the bankruptcy

court in response to the MSJ. This argument has some merit.

As an appellate court, “We are [] concerned only with the

record before the trial judge when his decision was made.”

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Kirschner v. Uniden Corp. of Am.,, 842 F.2d 1074, 1077 (9th Cir.

1988) (internal quote and citation omitted). Evidence not

admitted by the bankruptcy court is not part of the record and

cannot be considered in this appeal. Id. at 1077-1078.

In Appellant’s Opening Brief he states one issue to be

reviewed: 

Whether the bankruptcy code section 523(a)(2) applies

given that there is evidence of substantial fraud,

misrepresentation and deceit on the part of Plaintiff

Rodeo with regard to its legal action and the evidence

it has provided in support of its action, to collect

its purported real estate sales commission.

Apl’t Opening Brief at 5. He argues, without any citation to the

record, that Rodeo Realty engaged in misrepresentations designed

to trick Appellant into believing that Appellant owed a

commission for the sale of the Property, whereas Appellant sold

the Property to a neighbor who found the Property himself without

the aid of Rodeo Realty. Appellant denies that Rodeo Realty’s

agents ever showed the Property to the buyer, much less prior to

cancellation of the Listing, and he argues that Rodeo Realty

doctored the Listing, converting the commission fee from 2% to

5%. Appellant presented none of these alleged factual

contentions to the bankruptcy court. 

We are cognizant of our duty to ensure that pro se litigants

do not lose their right to a determination of the merits due to

ignorance of a technical procedural requirement.7

 We, however,

must limit our consideration to the record before the bankruptcy

court. United States v. Kitsap Physicians Serv., 314 F.3d 995,

7

 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,

699 (9th Cir. 1986).

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999 (9th Cir. 2002). Appellant waived his factual arguments by

failing to file any response to the MSJ, and he cannot create

disputed issues of fact by presenting them here in the first

instance. Nevertheless, we will examine the record to determine

if any basis for reversal is clearly evident,8 as our de novo

review necessarily includes determination as to whether Rodeo

Realty is entitled to judgment as a matter of law.

B. Motion to Dismiss9

Before we consider the merits of the MSJ, we briefly note

Appellant’s contention that the dispute between the parties was a

simple breach of contract claim that should have been dismissed

at the outset of the Adversary Proceeding, pursuant to

Appellant’s motion to dismiss under Civil Rules 9(b) and

12(b)(6). Appellant did not include the denial of his motion to

dismiss as an issue in his Opening Brief, nor did he file a

Statement of Issues on Appeal. Nor does Appellant present in his

Opening Brief any substantive argument that addresses the

bankruptcy court’s denial of the motion to dismiss. Appellant’s

sole statement, however, that the dispute is nothing more than

breach of contract, goes directly to the merits of whether Rodeo

Realty met its burden of proof on summary judgment and

established its entitlement to judgment, as a matter of law,

based on fraud. We conclude that it did, and we address this

8 It is error to grant summary judgment simply because the

opponent failed to oppose. N. Slope Borough v. Rogstad

(In re Rogstad), 126 F.3d 1224, 1227 (9th Cir. 1997).

9 “[A]n appeal from the final judgment draws in question

all earlier non-final orders and all rulings which produced the

judgment.” Munoz v. Small Bus. Admin., 644 F.2d 1361, 1364, 1363

(9th Cir. 1981).

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issue hereafter.

C. The MSJ 

Summary judgment is governed by Rule 7056. Rule 7056,

incorporating Civil Rule 56(c), states that summary judgment

“shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” The burden of establishing that

there is no genuine issue of material fact lies with the moving

party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

In order to establish that a debt is nondischargeable under

section 523(a)(2)(A), a creditor must establish five elements by

a preponderance of the evidence:

(1) misrepresentation, fraudulent omission or deceptive

conduct by the debtor; (2) knowledge of the falsity or

deceptiveness of his statement or conduct; (3) an

intent to deceive; (4) justifiable reliance by the

creditor on the debtor’s statement or conduct; and

(5) damage to the creditor proximately caused by its

reliance on the debtor’s statement or conduct.

Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman),

234 F.3d 1081, 1085 (9th Cir. 2000); Ghomeshi v. Sabban

(In re Sabban), 384 B.R. 1, 5 (9th Cir. BAP 2008). Based on our

de novo review of the record before the bankruptcy court, we

conclude that no genuine issue as to any material fact exists,

that Rodeo Realty carried its burden of proof on each of the five

elements of § 523(a)(2)(A), and that Rodeo Realty is entitled to

judgment as a matter of law.

Through the declaratory evidence offered by Ms. Pavlova and

Mr. Tahler and corroborating cellphone records, Rodeo Realty

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established that it identified Mr. Bak as a potential purchaser

during the term of the Listing. The denial contained in the

answer is insufficient to create a triable issue of fact on this

point; Appellant had to come forward with evidence of specific

facts in the face of Rodeo Realty’s case. Both of Rodeo Realty’s

declarants testified that when Appellant sought to cancel the

Listing, within days of introduction to Mr. Bak as an interested

buyer, he failed to disclose that he was in negotiations to sell

the Property to Mr. Bak. The testimony that Appellant never

advised Rodeo Realty of the sale, which closed less than 60 days

after cancellation of the Listing, is also undisputed, as is the

fact that the following month Appellant filed his chapter 7

bankruptcy, again without disclosing the closed sale transaction. 

An omission of a material fact can constitute a false

representation actionable under section 523(a)(2)(A). Citibank

(S.D.), N.A. v. Eashai (In re Eashai), 87 F.3d 1082, 1088-89 (9th

Cir. 1996). However, there must be a duty to disclose. Id.

Here, Appellant entered into a business transaction with Rodeo

Realty that included a provision allowing cancellation subject to

payment of the agreed commission if Appellant later sold the

Property to a registered buyer. Under such circumstances,

Appellant had a duty to disclose to Rodeo Realty the

post-cancellation sale and intent to sell the Property. See

Apte v. Japra (In re Apte), 96 F.3d 1319, 1324 (9th Cir. 1996). 

The fraudulent omissions related to this sale as well as the

affirmative misrepresentation that he was taking the Property off

the market satisfy the first element necessary for

section 523(a)(2)(A) relief. 

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Further, Rodeo Realty’s evidence establishes both

Appellant’s knowledge of the falsity and deceptiveness of his

statements and omissions and his intent to deceive. Appellant

signed a contract, knew its terms as he requested cancellation,

knew that he sold his own home, and knew that he did not tell

Rodeo Realty about the sale. Few debtor defendants are likely to

admit defrauding their creditor, therefore, “fraudulent intent

may be established by circumstantial evidence, or by inferences

drawn from a course of conduct.” Devers v. Bank of Sheridan,

Mont. (In re Devers), 759 F.2d 751, 753-54 (9th Cir. 1985). 

Alexander & Alexander of Wash., Inc. v. Hultquist

(In re Hultquist), 101 B.R. 180, 183 (9th Cir. BAP 1989). Here,

the circumstantial evidence – Appellant’s sale of the Property to

Mr. Bak: a registered potential buyer; the timing of the

cancellation: days after introduction to Mr. Bak; the timing of

the sale: shortly after cancelling the Listing; the sales price

of $940,000: almost exactly the amount of the agreed reduced list

price, less the 5% commission that Appellant agreed to pay to

Rodeo Realty; Appellant’s failure to disclose the sale in his

Statement of Financial Affairs in his chapter 7 bankruptcy

initiated a month after closing; and Appellant’s refusal to

supply phone records in discovery – only supports the inference

that Appellant knowingly intended to prevent Rodeo Realty from

collecting its commission. 

The evidence also supports a finding of justifiable

reliance. First, justifiable reliance turns on a person’s

knowledge under the particular circumstances. In re Eashai,

87 F.3d at 1090. Here, there is no evidence that Rodeo Realty

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had any knowledge of Appellant’s fraud or even an ability to

detect fraud or reason to look for it. Reliance can be presumed

where the fraud primarily involves omissions. Binder v.

Gillespie, 184 F.3d 1059, 1064 (9th Cir. 1999).

The only question that then remains is the amount of damages

proximately caused by Appellant’s non-disclosure. Rodeo Realty’s

evidence establishes that Appellant’s intentional failure to

disclose the sale effectively prevented it from protecting its

rights to collect the commission owed. Without knowledge of the

pending sale, Rodeo Realty could not put a demand into escrow and

could not lien the proceeds if the demand were refused. And,

without knowledge of the transaction, Rodeo Realty could not

bring an action to collect. Free from oversight, as a result of

his deceit, Appellant promptly put sale proceeds beyond Rodeo

Realty’s control and filed bankruptcy. Appellant testified in

his deposition that he gave some of the sale proceeds to his

daughters and spent the balance, proximately causing Rodeo Realty

damages in the amount of the commission it could otherwise have

collected. Here, Rodeo Realty’s damages flowed cleanly from

Appellant’s fraud. The only evidence establishes that this is

not a mere breach of contract case and that Appellant is not an

honest but unfortunate debtor entitled to discharge.

The bankruptcy court entered judgment in an amount

consistent with the undisputed evidence in Ms. Pavolva’s

declaration that the Property sold for $940,000, and that it was

damaged in the amount of the contract commission fee of 5% plus

$250. The Judgment, entered in the amount of the earned

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commission,10 is well-supported by substantial evidence. 

Appellant failed to present any evidence to the contrary, and we

determine that we cannot make any justifiable inferences to the

contrary.

Therefore, we conclude that the bankruptcy court did not

commit error and that Rodeo Realty is entitled to summary

judgment, as a matter of law.

CONCLUSION

For all the reasons set forth above, we AFFIRM the

bankruptcy court’s summary judgment in favor of Rodeo Realty.

10 Although Rodeo Realty also sought punitive damages, it

is clear from the record that the bankruptcy court did not award

punitive damages. And, although the Judgment also allowed Rodeo

Realty to request attorney’s fees and costs and we located on the

docket an entered order that allowed fees and costs to Rodeo

Realty, Appellant has not sought review of that order in this

appeal and we, thus, do not address the appropriateness of an

attorney’s fees award under the circumstances of this Adversary

Proceeding.

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