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FILED

JUN 01 2016

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NOT FOR PUBLICATION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. AZ-15-1195-KuJaJu

)

LMM SPORTS MANAGEMENT, LLC; ) Bk. No. 2-14-bk-13952-DPC

ETHAN LOCK; ERIC D. METZ, )

)

Debtors. )

______________________________)

)

WARNER ANGLE HALLAM JACKSON & )

FORMANEK, P.L.C., )

)

Appellant, )

)

v. ) MEMORANDUM*

)

ETHAN LOCK; ERIC D. METZ, )

)

Appellees. )

______________________________)

Argued and Submitted on May 20, 2016

at Phoenix, Arizona

Filed – June 1, 2016

Appeal from the United States Bankruptcy Court

for the District of Arizona

Honorable Daniel P. Collins, Chief Bankruptcy Judge, Presiding

 

Appearances: Mark C. Hudson of Schian Walker, P.L.C. argued for

appellant Warner Angle Hallam Jackson & Formanek,

P.L.C.; Janel Glynn of Gallagher & Kennedy, P.A.

argued for Appellees Ethan Lock and Eric D. Metz.

 

*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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Before: KURTZ, JAIME** and JURY, Bankruptcy Judges.

INTRODUCTION

In two of these three chapter 111 bankruptcy cases,

appellant Warner Angle Hallam Jackson & Formanek, P.L.C., filed 

proofs of claim two months after the claims bar date set by the

bankruptcy court. The bankruptcy court denied Warner Angle’s

excusable neglect motion under Rule 9006(b)(1) seeking to have

the proofs of claim treated as timely filed and disallowed the

claims as untimely under § 502(b)(9). The bankruptcy court also

denied Warner Angle’s motion for reconsideration. All of the

bankruptcy court’s rulings hinged on its finding that the debtors

were prejudiced by Warner Angle’s delay in filing its proofs of

claim.

On appeal, Warner Angle contends that the bankruptcy court’s

finding of prejudice was clearly erroneous. Alternately, Warner

Angle contends that we should fashion an equitable exception to

Rule 3003(c)(2)’s claim filing requirement and should apply that

equitable exception to its claims. Because Warner Angle’s

contentions lack merit, we AFFIRM.

FACTS

 Debtors Ethan Lock and Eric D. Metz are two of the three

owners of debtor LMM Sports Management, LLC. The third owner is

**Hon. Christopher D. Jaime, United States Bankruptcy Judge

for the Eastern District of California, sitting by designation.

1Unless 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.

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non-debtor Vance Malinovic. Together, Lock, Metz and Malinovic

are sports managers and agents for roughly 30 athletes employed

by the National Football League. Through LMM Sports Management,

and formerly through its predecessor, Lock, Metz, and Malinovic

provided their sports management and agency services. Appellant

Warner Angle provided legal services to one or more of the

debtors in their state court litigation against third party Your

Source Pacific Fund I, LLP. Warner Angle claims that it still is

owed attorney’s fees and interest for the services it rendered.

In the Maricopa County Superior Court, Your Source Pacific

Fund I, LLP, obtained a $2.4 million judgment against the debtors

and Malinovic. Enforcement of the state court judgment

ultimately caused the three debtors to file their chapter 11

bankruptcy petitions.

The judgment was the subject of state court cross-appeals

until the parties reached a consensual resolution of their

dispute, which was approved by the bankruptcy court. In their

motion for approval of the settlement, filed in January 2015, the

debtors explained that Your Source Pacific Fund I was willing to

accept an immediate lump sum settlement payment of $1.5 million

in full satisfaction of its $2.4 million judgment, which had the

potential to more than double if Your Source Pacific Fund I

prevailed on appeal. 

The bankruptcy court approved the settlement over Warner

Angle’s objection. For purposes of this appeal, the only

important part of the objection was set forth in a footnote, in

which Warner Angle stated: “Warner Angle asserts that, as of the

Petition Date, its claim, with interest, is $1,301,055.86 (plus

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accruing interest). The Court has not set a claims bar date and

Warner Angle has not yet filed a proof of claim.” Objection to

Motion for Order Approving Settlement (Feb. 17, 2015) at 2 n.2

(emphasis added).

Warner Angle’s statement regarding the bar date was

incorrect. By order entered November 12, 2014, the bankruptcy

court granted the debtors’ bar date motion and set a claims bar

date in all three bankruptcy cases of December 16, 2014. The

certificates of service accompanying the bar date motion and the

entered bar date order indicate that Warner Angle was served at

the address set forth in Warner Angle’s notice of appearance and

request for special notice.2

On the same day Warner Angle filed its objection to debtors’

compromise motion, February 17, 2015, debtors filed a motion

seeking to accelerate the hearing on the compromise motion. In

the motion to accelerate, debtors pointed out that the claims bar

date had expired on December 16, 2014, that Warner Angle had not

filed any proofs of claim and, hence, that Warner Angle lacked

standing to object to the compromise motion.

One day later, apparently in response to the debtor’s

assertions in the motion to accelerate, Warner Angle belatedly

filed proofs of claim in the Lock and Metz bankruptcy cases.

While the compromise motion was still pending, Lock and Metz

2The certificates of service reflecting service of the

entered bar date order were not included in the parties’ excerpts

of record, but we can and do take judicial notice of the

documents attached to the bankruptcy court’s electronic docket,

including the certificates of service. See O'Rourke v. Seaboard

Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957–58 (9th

Cir. 1989).

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filed an objection to Warner Angle’s proofs of claim and argued

that the claims should be disallowed as untimely. In response,

Warner Angle filed a cross-motion requesting that the bankruptcy

court under 9006(b)(1) treat its proofs of claim as if they had

been timely filed. According to Warner Angle, it was entitled to

this relief because the late filing of its proofs of claim was

the result of excusable neglect, under the standard articulated

by the Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick

Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993).

After further briefing, the bankruptcy court held a hearing

at which the court rejected Warner Angle’s excusable neglect

argument. The court found in favor of Warner Angle regarding two

of the four Pioneer factors. According to the court, Warner

Angle had sufficiently established its good faith and also had

established that the length of delay associated with its belated

proof of claim was relatively minor - two months – and did not

potentially impact the debtors’ bankruptcy cases (except to the

extent noted in the court’s discussion of prejudice).

On the other hand, with respect to the third Pioneer factor,

which focuses on the reason for the delay, the bankruptcy court

noted that Warner Angle had conceded that they had no good reason 

for the delay and that the delay had been preventable and within

their control.

Most importantly, as for the remaining Pioneer factor,

whether Lock and Metz were in danger of suffering prejudice if

the untimely proofs of claim were treated as timely, the

bankruptcy found that there was a risk of prejudice. The

bankruptcy court explained that Lock and Metz had presented

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evidence indicating that, based on the absence of proofs of claim

from Warner Angle, they finalized close to three months of

settlement negotiations with Your Source Pacific Fund I and

submitted the resulting settlement agreement to the bankruptcy

court for approval. The court acknowledged that Warner Angle’s

objection to the settlement motion put the debtors on notice,

before the settlement agreement was approved, that Warner Angle

did not intend to abandon its claim and instead sought to file

belated proofs of claim against Lock and Metz and to have those

claims treated as timely. Even so, the court explained, Lock and

Metz had presented evidence indicating that they proceeded down a

particular path towards settlement they would not have proceeded

down if they had been confronted with timely filed proofs of

claim from Warner Angle and that it would not have been

reasonable under the circumstances to have expected Lock and Metz

to unwind or attempt to modify the settlement at the time of

Warner Angle’s settlement objection based on Warner Angle’s

belated proofs of claim. As the bankruptcy court stated:

[T]he only evidence that I have is in the two

affidavits from Messrs. Metz and Lock to the effect

that this was a very important settlement with YSB and

not having the Warner Angle claim filed timely, caused

them to proceed down a certain avenue and they made

that settlement with YSP. And then, of course, we all

know at the settlement hearing that the Warner Angle

claim was at issue, but that it was extremely important

that YSP get its money promptly. There was a real

short fuse on that and the debtor chose to -- Debtors

chose to go forward with that settlement with the

understanding that these claims filed by Warner Angle

were late and on the hope and expectation that the

Court would uphold its claims bar date order.

Hr’g Tr. (March 30, 2015) at 37:12-24.

After the bankruptcy court entered its order sustaining the

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debtors’ claim objection and denying Warner Angle’s cross-motion,

Warner Angle filed a motion for reconsideration, seeking

reconsideration of the bankruptcy court’s order. Warner Angle,

in essence, asserted that the bankruptcy court’s finding of

prejudice was clearly erroneous. Warner Angle further asserted

that the court should not have enforced against it

Rule 3003(c)(2)’s claim filing requirement because application of

that requirement was premised on the debtors’ spurious and badfaith scheduling of Warner Angle’s claim as contingent, disputed

and unliquidated.

After allowing full briefing and holding a hearing on the

reconsideration motion, the bankruptcy court denied the

reconsideration motion. The bankruptcy court sua sponte modified

its claim disallowance order to carve out an exception for any

claim of offset Warner Angle might assert against the debtors in

response to any malpractice litigation debtors might commence

against Warner Angle. Otherwise, the bankruptcy court let stand

its claim disallowance order.

The bankruptcy court entered its order denying the

reconsideration motion on May 29, 2015, and Warner Angle timely

appealed.

JURISDICTION

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

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

§ 158.

ISSUES

1. Did the bankruptcy court abuse its discretion when it denied

Warner Angle’s Rule 9006(b) excusable neglect motion?

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2. Did the bankruptcy court correctly interpret and apply

§ 502(b)(9), § 1111(a) and Rule 3003(c) when it disallowed

Warner Angle’s claim?

3. Did the bankruptcy court abuse its discretion when it denied

Warner Angle’s reconsideration motion?

STANDARDS OF REVIEW

The bankruptcy court’s denial of a Rule 9006(b) motion

seeking relief based on excusable neglect is reviewed for an

abuse of discretion. See Pioneer Inv. Servs. Co., 507 U.S. at

398. The bankruptcy court’s denial of a reconsideration motion

also is reviewed for an abuse of discretion. Cruz v. Stein

Strauss Tr. # 1361, PDQ Invs., LLC (In re Cruz), 516 B.R. 594,

601 (9th Cir. BAP 2014). 

 The bankruptcy court abuses its discretion if it applies an

incorrect legal rule or its findings of fact are illogical,

implausible or without support in the record. United States v.

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

Interpreting the Bankruptcy Code and the Federal Rules of

Bankruptcy Procedure requires us to resolve questions of law,

which we review de novo. Duffy v. Dwyer (In re Dwyer), 303 B.R.

437, 439 (9th Cir. BAP 2003), aff'd, 426 F.3d 1041 (9th Cir

2005).

DISCUSSION

1. Excusable Neglect

Generally speaking, requests for relief based on excusable

neglect are subject to well-established standards. The

bankruptcy court must consider the totality of the circumstances

and typically must focus on four factors: “(1) the danger of

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prejudice to the non-moving party, (2) the length of delay and

its potential impact on judicial proceedings, (3) the reason for

the delay, including whether it was within the reasonable control

of the movant, and (4) whether the moving party's conduct was in

good faith.” Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir.

2004) (citing Pioneer Inv. Servs. Co., 507 U.S. at 395).

Pioneer is particularly instructive for purposes of

resolving this appeal because the Pioneer court was considering

the same Rule Warner Angle asked the bankruptcy court to apply

here. The subject Rule – Rule 9006(b)(1) – in relevant part

states: 

[W]hen an act is required or allowed to be done at or

within a specified period by these rules or by a notice

given thereunder or by order of court, the court for

cause shown may at any time in its discretion . . . on

motion made after the expiration of the specified

period permit the act to be done where the failure to

act was the result of excusable neglect.

As in Pioneer, the bankruptcy court here was asked to

determine whether certain untimely-filed proofs of claim could be

treated as timely filed by application of Rule 9006(b)’s

excusable neglect provision. Pioneer Inv. Servs. Co., 507 U.S.

at 384. After the Supreme Court in Pioneer articulated the

applicable legal standard, the Supreme court opined that, when

the failure to timely file the proof of claim results from the

negligent or inadvertent omission of counsel, the bankruptcy

court acts within its discretion in finding no excusable neglect

when there is “evidence of prejudice to [the debtor] or to

judicial administration [of] this case, or . . . bad faith.” Id.

at 398.

For this reason, perhaps, Warner Angle’s appeal focuses on

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the bankruptcy court’s finding of prejudice. The bankruptcy

court’s decision depended upon that finding. Warner Angle argues

on appeal, as it did in its reconsideration motion, that there

was no evidence to support the prejudice finding and that the

prejudice finding was illogical given the evidence presented. We

will address each of these arguments in turn.

According to Warner Angle, there was no evidence of any

material prejudice to the debtors resulting from Warner Angle’s

delay in filing its proofs of claim. We disagree. Lock and Metz

both submitted declarations indicating that they relied on the

expiration of the claims bar date and on the absence of proofs of

claim from Warner Angle in finalizing their settlement agreement

with Your Source Pacific Fund I and in submitting that settlement

agreement to the bankruptcy court for approval. As the

bankruptcy court indicated, by the time the debtors learned of

Warner Angle’s position regarding its claims (while the

compromise motion was pending), Lock and Metz already had

proceeded well down the settlement path and also were faced with

stringent settlement timing exigencies imposed by Your Source

Pacific Fund I. Put another way, had Warner Angle timely filed

their proofs of claim, Lock and Metz would have had the option to

consider a path other than finalizing and submitting for approval

their settlement agreement with Your Source Pacific Fund I and

thereby might have avoided the dilemma it faced when its was

confronted for the first time with the proofs of claim in the

midst of the pending compromise motion proceedings and with Your

Source Pacific Fund I’s settlement payment deadline looming over

their heads.

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Warner Angle insists that the court should not have 

credited Lock’s and Metz’s declaration testimony regarding the

prejudice they suffered. Warner Angle reasons that, if there

truly had been an expectation or a contingency regarding the

disallowance (or nonexistence) of Warner Angle’s claims, it would

have been mentioned in the settlement agreement, or in the

compromise motion, or both, but it was not so mentioned. 

Therefore, according to Warner Angle, the court erroneously found

prejudice based on Lock’s and Metz’s fabricated reliance on the

absence of proofs of claim from Warner Angle.

Assuming without deciding that Warner Angle’s view of the

evidence is reasonable – that the bankruptcy court reasonably

could have inferred that Lock and Metz did not really rely on the

absence of proofs of claim from Warner Angle – we are not

persuaded that the court’s contrary finding of reliance was

clearly erroneous. Rather, we see the bankruptcy court as having

a choice between the two competing inferences. On the record

presented, both were reasonable potential inferences. As the

Supreme Court has stated: “[w]here there are two permissible

views of the evidence, the fact finder's choice between them

cannot be clearly erroneous.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 574 (1985).

As for Warner Angle’s contention that the bankruptcy court’s

prejudice finding was illogical, Warner Angle contends that

Lock’s and Metz’s complaints of prejudice cannot logically be

reconciled with their statements that Warner Angle’s claims were

properly listed as disputed and that they hold counterclaims

against Warner Angle for malpratice. According to Warner Angle,

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Lock’s and Metz’s malpractice allegations and its reliance

allegations are mutually exclusive in the sense that both sets of

allegations cannot possibly be true. 

Once again, we disagree with Warner Angle. We simply don’t

see Lock’s and Metz’s positions as irreconcilable. The

contention of prejudice was based on Lock’s and Metz’s asserted

desire, at the time they finalized their settlement negotiations 

with Your Source Pacific Fund I, to account for any lingering

exposure to Warner Angle for unpaid fees, whereas the contention

that they hold valuable malpractice claims against Warner Angle

was based on their presumed hope or belief that, ultimately, they

would prevail in a future malpractice action against Warner

Angle. In short, Lock’s and Metz’s two sets of contentions are

no more inconsistent than the old adage encouraging us all to:

“hope for the best but prepare for the worst.” Put another way,

the two potential outcomes might be mutually inconsistent, but

the motivation to plan and take action to address both potential

outcomes reasonably can be perceived as prudence rather than

inconsistency. 

In sum, Warner Angle’s arguments challenging the bankruptcy

court’s prejudice finding lack merit. The prejudice finding was

logical, plausible and supported by the record.

2. Untimely Claims

Rule 3003(c)(2) provides:

Any creditor or equity security holder whose claim or

interest is not scheduled or scheduled as disputed,

contingent, or unliquidated shall file a proof of claim

or interest within the time prescribed by subdivision

(c)(3) of this rule; any creditor who fails to do so

shall not be treated as a creditor with respect to such

claim for the purposes of voting and distribution.

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(Emphasis added.)

The rule compliments and effectuates § 502(b)(9) and

§ 1111(a), which when read together provide that creditors in

chapter 11 cases whose claims are scheduled as disputed,

contingent or unliquidated must timely file a proof of claim or

else their claims are subject to disallowance.

Warner Angle admits that Lock and Metz scheduled its claim

as disputed, contingent and unliquidated and furthermore concedes

that notice of the claims bar date was served on it at the

address set forth in its notice of appearance. Even so, Warner

Angle contends that the bankruptcy court should have “looked

behind” the debtors’ schedules. If the court had done this,

Warner Angle reasons, the court would have discovered that the

claims of Warner Angle actually were non-contingent, undisputed

and liquidated. Warner Angle additionally alleged that Lock’s

and Metz’s scheduling of its claims as disputed, contingent and

unliquidated was groundless and done in bad faith.

In effect, without citing any legal authority to support its

request, Warner Angle asks us to create an equitable exception to

the claim filing requirement imposed on chapter 11 creditors by

virtue of § 502(b)(9), § 1111(a) and Rule 3003(c)(2). We decline

to do so. The meaning of the above-referenced statutes and Rule

is plain: when a chapter 11 creditor’s claim is scheduled as

disputed, contingent or unliquidated, that creditor must timely

file a proof of claim if it wants to participate in the

chapter 11 case for voting and distribution purposes. For

purposes of applying the statutes and Rule as drafted, it makes

no difference what grounds (if any) the debtor had for scheduling

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the claim as disputed, contingent or unliquidated. All that

matters is whether the claim was scheduled with one of these

three designations.

There are an array of remedies available in the event that a

debtor knowingly and intentionally files inaccurate schedules. 

Such a debtor might be denied a discharge under § 727(a)(4), or

the debtor might be sanctioned under Rule 9011. Such a debtor

also might be prosecuted for a bankruptcy crime under 18 U.S.C.

§ 152. Excusing creditors from the obligation to file a proof of

claim is not one of the available remedies. Nor would such a

remedy make sense in light of the scheme Congress carefully and

painstakingly enacted for administering claims. The Bankruptcy

Code and Rules, as drafted, provide bright line procedures making

it clear for creditors whether or not they need to file proofs of

claim, and the act of filing a claim is easy and straightforward

in the vast majority of cases. Warner Angle’s obligation to file 

proofs of claim only became problematic, here, because Warner

Angle failed to take the simple steps necessary to file its

proofs of claim before the claim filing deadline expired.

Our decision to refrain from creating an equitable exception

excusing chapter 11 creditors from filing proofs of claim as

contemplated in § 502(b)(9), § 1111(a) and Rule 3003(c)(2) is

consistent with Supreme Court precedent. The Supreme Court

repeatedly has cautioned bankruptcy courts to exercise their

equitable authority within the confines of the Bankruptcy Code.

Most recently, the court said this in Law v. Siegel, 134 S.Ct.

1188, 1194-95 (2014). Among other things, this means that

bankruptcy courts should not exercise their equitable authority

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in a manner that conflicts with the explicit provisions of the

statutes and Rules. See id. Warner Angle is asking us to ignore

this clear prohibition, so we will deny their request.

3. Reconsideration Motion

Section 502(j) and Rule 3008 permit bankruptcy courts to

reconsider the disallowance of claims “for cause.” United

Student Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204, 209

(9th Cir. BAP 2006). When, as here, the reconsideration motion

is filed within fourteen days of the entry of the underlying

order, we treat the reconsideration motion the same as we would a

motion for new trial or to alter or amend the judgment under

Rule 9023 (incorporating most of Civil Rule 59). Id.; see also

Dicker v. Dye (In re Edelman), 237 B.R. 146, 151 (9th Cir. BAP

1999) (“motions for reconsideration have traditionally been

treated as motions to alter or amend under [Civil Rule 59(e)] if

the motion draws into question the correctness of the trial

court's decision.”). Typically, such motions are denied in the

absence of newly discovered evidence, clear error by the

bankruptcy court, or an intervening change in the law. Marlyn

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,

880 (9th Cir. 2009); Jeffries v. Carlson (In re Jeffries),

468 B.R. 373, 380 (9th Cir. BAP 2012).

Warner Angle’s appeal brief did not directly and explicitly

address the bankruptcy court’s denial of the reconsideration

motion. Nonetheless, Warner Angle raised precisely the same

arguments in its reconsideration motion that it has raised on

appeal regarding the bankruptcy court’s prejudice finding and

regarding “looking behind” the debtors’ schedules. For the same

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reasons we concluded, above, that Warner Angle’s arguments on

appeal lack merit, we also conclude that the bankruptcy court did

not abuse its discretion when it denied Warner Angle’s

reconsideration motion.

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy

court’s orders denying Warner Angle’s Rule 9006(b)(1) excusable

neglect motion, sustaining the debtors’ claim objection and

denying Warner Angle’s reconsideration motion.

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