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FILED

SEP 03 2015

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NOT FOR PUBLICATION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. CC-14-1444-KuPeTa

)

NABILSI YUNES ABUD, ) Bk. No. 08-25451

aka Yunes Adub Nabilsi,* )

) Adv. No. 13-01383

Debtor. )

______________________________)

)

RAM SAXENA, )

)

Appellant, )

)

v. ) MEMORANDUM**

)

NABILSI YUNES ABUD, )

aka Yunes Adub Nabilsi, )

)

Appellee. )

______________________________)

Submitted Without Oral Argument 

on July 23, 2015***

Filed – September 3, 2015

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Deborah J. Saltzman, Bankruptcy Judge, Presiding

 

*It appears the debtor’s name is “Yunes Abud Nabilsi” and

not “Nabilsi Yunes Abud” as listed on the BAP and Bankruptcy

Court dockets. We refer to the Debtor as “Yunes Abud Nabilsi”

herein.

**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.

***On March 30, 2015, this Panel issued an order finding this

appeal suitable for submission without oral argument.
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Appearances: Appellant Ram Saxena, pro se, on brief. 

 

Before: KURTZ, PERRIS** *** and TAYLOR, Bankruptcy Judges.

INTRODUCTION

Ram Saxena, M.D. filed a nondischargeability complaint under

11 U.S.C. § 523(a)(2)(A)1 against debtor Yunes Abud Nabilsi. 

After an evidentiary hearing, the bankruptcy court dismissed

Saxena’s adversary proceeding. Saxena filed an appeal from the

bankruptcy court’s dismissal order, but this Panel dismissed that

appeal as untimely.

Shortly thereafter, Saxena filed in the bankruptcy court a

motion seeking relief from the bankruptcy court’s adversary

proceeding dismissal order. The bankruptcy court treated

Saxena’s motion as a request for relief under Civil Rule 60(b)

and denied the motion because Saxena had not demonstrated any

appropriate grounds for relief. We agree with the bankruptcy

court, so we AFFIRM.

FACTS

This is not Saxena’s first experience with the Panel. In

2009 and 2010, he successfully appealed the bankruptcy court’s

 Appellee Yunes Abud Nabilsi has not actively participated

in this appeal.

** ***Hon. Elizabeth L. Perris, United States Bankruptcy Judge

for the District of Oregon, 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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order dismissing his involuntary petition against Nabilsi. On

remand, the bankruptcy court entered a chapter 7 order for relief

against Nabilsi in accordance with the Panel’s mandate.

On May 9, 2012, after entering the order for relief, the

bankruptcy court issued its notice of first meeting of creditors

pursuant to § 341. Among other things, that notice advised

parties in interest of the August 20, 2012 deadline for filing

nondischargeability complaints.2 The certificate of service for

the § 341 meeting notice indicates that Saxena was served at the

same address that he is still using in his current appeal filings

– 446 W. Spruce St., Compton, CA 90220.

Notwithstanding the August 20, 2012 deadline, Saxena did not

file his nondischargeability complaint until March 22, 2013. 

Nabilsi filed an answer and a motion to dismiss. In both,

Nabilsi asserted that Saxena’s complaint was untimely under

§ 523(c) and Rule 4007(c). Saxena opposed the dismissal motion,

and the bankruptcy court held an evidentiary hearing after which

it entered an order granting Nabilsi’s dismissal motion. Saxena

filed an appeal from the adversary proceeding dismissal order,

but the appeal also was untimely. As a result, this Panel

dismissed the appeal for lack of jurisdiction.

Upon receipt of our appeal dismissal order, Saxena filed in

the bankruptcy court his motion seeking relief from the

2We have exercised our discretion to review the bankruptcy

court’s case and adversary proceeding dockets and the imaged

documents included therein. Francis v. Wallace (In re Francis),

505 B.R. 914, 916 n.3 (9th Cir. BAP 2014)(citing 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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bankruptcy court’s adversary proceeding dismissal order. Saxena,

who filed the motion in pro per, did not state any legal grounds

in support of the motion. Instead, he provided a rambling

narrative, which he claimed justified relief from the adversary

proceeding dismissal order. Nabilsi did not file any written

opposition to the motion.

The bankruptcy court held a hearing on the motion, at which

Saxena appeared and argued. According to the court, the motion

could be treated either as an untimely motion under Rule 9023

(making Civil Rule 59 applicable in bankruptcy cases and

adversary proceedings) or as a timely motion under Rule 9024

(making Civil Rule 60 applicable in bankruptcy cases and

adversary proceedings). The court opted to treat the motion as a

timely request for relief under Rule 9024 and Civil Rule 60(b). 

The court ruled that Saxena had not demonstrated cause for relief

under any of the six grounds for relief enumerated in Civil

Rule 60(b). Based on that ruling, the bankruptcy court entered

its order denying the motion, and Saxena timely appealed from

that order. 

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.

ISSUE

Did the bankruptcy court err when it denied Saxena’s motion?

STANDARD OF REVIEW

We review the bankruptcy court's ruling on a motion for

relief under Civil Rule 60(b) for an abuse of discretion. United

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States v. Estate of Stonehill, 660 F.3d 415, 443 (9th Cir. 2011); 

Zurich Am. Ins. Co. v. Int'l Fibercom, Inc. (In re Int'l

Fibercom, Inc.), 503 F.3d 933, 939 (9th Cir. 2007). The

bankruptcy court does not abuse its discretion unless it applies

an incorrect legal rule or it makes findings of fact that are

illogical, implausible or without support in the record. United

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

DISCUSSION

Rule 9024 makes Civil Rule 60(b) applicable in adversary

proceedings. In turn, Civil Rule 60(b) identifies several

grounds for relief from final judgments and orders. The rule

provides as follows:

On motion and just terms, the court may relieve a party

or its legal representative from a final judgment,

order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable

neglect;

(2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to

move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or

discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively

is no longer equitable; or

(6) any other reason that justifies relief.

Fed.R.Civ.P. 60(b).

Here, the bankruptcy court ruled that Saxena had not

established any of the grounds for relief under Civil Rule 60(b). 

On this record, we cannot say that the bankruptcy court’s ruling

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was clearly erroneous; instead, it was logical, plausible and

supported by the record. See Hinkson, 585 F.3d at 1262.

On appeal, Saxena argues that he and his attorney Raj D. Roy 

did not know “when & where . . . case is happening.” But

Saxena’s disclaimer of knowledge of the trial date in his appeal

brief is not evidence. What evidence there is in the record

indicates to the contrary – that Saxena and his counsel knew the

date set for trial in the adversary proceeding. Indeed, Roy

filed in the adversary proceeding a number of papers listing the

trial date on the caption page.3

Saxena also claims that Roy received a bribe from Nabilsi. 

Again, Saxena offered no competent evidence in support of his

bribery claim. Moreover, Saxena did not present any evidence

tying either assertion to the reason his adversary proceeding was

dismissed. The record indicates that the dismissal was based on

the untimeliness of the nondischargeability complaint, and

nothing in the record establishes that any additional knowledge

regarding the trial date or the absence of the alleged bribery

would have resulted in a different outcome. The complaint still

would have been untimely. In fact, the record suggests that

Saxena did not even retain Roy to file the nondischargeability

3It also is worth noting that the bankruptcy court issued a 

tentative ruling on the motion for relief in which the court

stated that both Saxena and Roy appeared in the bankruptcy court

at the trial. While we could find nothing in the record

corroborating this statement, it was incumbent on Saxena to point

to evidence in the record to the contrary if he disagreed with

the court on this issue. For instance, Saxena could have ordered

the transcript from the April 14, 2014 trial if he wanted to

establish who attended and what was said, but Saxena apparently

did not order the transcript.

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complaint until after the deadline for filing the complaint had

already passed. As of February 15, 2013, Saxena was still filing

papers in the bankruptcy court on his own behalf, without the

assistance of counsel. See Motion to Reopen Closed Case

(Feb. 15, 2013), Bk. Dkt. No. 08-25451, Doc. No. 45.

Pursuant to Rule 4007(c), a nondischargeability complaint

filed under § 523(c) must be filed within sixty days of the date

set for the § 341(a) first meeting of creditors. While

Rule 9006(b) generally permits bankruptcy courts to enlarge many

deadlines, Rule 9006(b)(3) permits the courts to enlarge the time

for filing nondischargeability complaints “only to the extent and

under the conditions stated” in Rule 4007(c). In turn,

Rule 4007(c) mandates that any motion to extend the deadline to

file a § 523(c) complaint must be filed before the complaint

filing deadline expires. We have enforced the strict terms of

Rule 4007(c) numerous times. See, e.g., Shull v. Wells (In re

Wells), 2010 WL 6259961, at *3 (Mem. Dec.) (9th Cir. BAP Dec. 2,

2010)(citing cases); Johnson v. Safarian (In re Safarian),

2010 WL 6259763, at *5 (Mem. Dec.) (9th Cir. BAP Apr. 13, 2010)

(same).

Simply put, the bankruptcy court correctly dismissed

Saxena’s nondischargeability complaint as untimely filed. Saxena

did not timely request an extension of the filing deadline under

Rule 4007(c), and Saxena’s factual assertions regarding his

alleged lack of knowledge of the trial date and the alleged

bribery of his attorney Roy do not alter the fact that his

complaint was untimely filed. 

Saxena also has not explained how his alleged lack of

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knowledge of the trial date or the alleged bribery of Roy in any

way established his entitlement to Civil Rule 60(b)(1) relief. 

To the contrary, as a matter of law, the conduct of his counsel

(whether negligent or intentional) would not have permitted the

bankruptcy court to grant under § 60(b)(1) an extension of time

to file the nondischargeability complaint absent a timely-filed

motion seeking the extension. Herndon v. De La Cruz (In re De La

Cruz), 176 B.R. 19, 24-25 (9th Cir. BAP 1994); Schunck v. Santos

(In re Santos), 112 B.R. 1001, 1008 (9th Cir. BAP 1990); see also

Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir.

2006) (“For purposes of [Civil Rule 60(b)(1)], parties should be

bound by and accountable for the deliberate actions of themselves

and their chosen counsel. This includes not only an innocent,

albeit careless or negligent, attorney mistake, but also

intentional attorney misconduct.”). 

All of the other Civil Rule 60(b) grounds for relief also

are inapplicable. Relief under Civil Rule 60(b)(2) – relief

based on newly discovered evidence – requires: (1) newly

discovered evidence, (2) due diligence, and (3) evidence

significant enough that its discovery earlier likely would have

altered the outcome of the litigation. Feature Realty, Inc. v.

City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003). Saxena did

not present evidence establishing any of these facts.

Relief under Civil Rule 60(b)(3) – relief based on fraud on

the court – requires proof by clear and convincing evidence:

(1) that the court's ruling was obtained by fraud,

misrepresentation or other misconduct, and (2) that the

misconduct prevented the movant from fully and fairly presenting

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his or her case. Casey v. Albertson's Inc, 362 F.3d 1254, 1260

(9th Cir. 2004). Saxena did not present evidence establishing

any of these facts.

Relief under Civil Rule 60(b)(4) – relief from a void

judgment – requires either a fundamental and egregious

jurisdictional error or the absence of due process. United

Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270-71 (2010).

Saxena did not present evidence or law meeting either of these

criteria. 

Relief under Civil Rule 60(b)(5) – relief based on changed

circumstances – requires either satisfaction of the judgment,

release of the judgment, discharge of the judgment, reversal of

the judgment or a subsequent change in circumstances rendering it

inequitable to enforce the judgment prospectively. Flores v.

Huppenthal, 789 F.3d 994, 1001 (9th Cir. 2015). Saxena did not

present evidence establishing any of these facts. 

Finally, relief under Civil Rule 60(b)(6) – relief based on

other grounds – requires extraordinary circumstances: (1) beyond

the movant’s control, (2) which prevented the movant from taking

timely action, and (3) which must be rectified to prevent or

correct an erroneous judgment. In re Int'l Fibercom, Inc.,

503 F.3d at 941. Saxena did not present evidence or law meeting

any of these criteria. 

Saxena’s other contentions on appeal suffer from the same

fatal infirmities. He claims that Nabilsi is a criminal, has

committed fraud, has not paid his taxes, and attempted to kill

him (Saxena). He also vaguely claims some sort of misconduct by

the bankruptcy court and the chapter 7 trustee. Even if Saxena

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had supported any or all of these contentions with competent

evidence (which he did not), Saxena has not linked any of them to

the untimeliness of his nondischargeability complaint or to his

asserted entitlement to Civil Rule 60(b) relief. Consequently,

we reject all of these contentions.

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy

court's order denying Saxena's motion for relief from the

bankruptcy court's adversary proceeding dismissal order.

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