NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

ALAN M. BARTLETT AND LUZ MARINA

BARTLETT-MORAN,

Debtors.

ALAN M. BARTLETT,

Appellant,

v.

DAVID A. BIRDSELL, CHAPTER 7 TRUSTEE;

CITIBANK, SOUTH DAKOTA, N.A.,

Appellees.

BAP No. AZ-17-1047-TaBKu

BAP No. AZ-18-1093-TaBKu

BAP No. AZ-18-1096-TaBKu 

(Related Appeals)

Bk. No. 2:00-bk-11770-MCW

Adv. No. 2:01-ap-01276-MCW

Adv. No. 2:01-ap-00059-MCW

 MEMORANDUM*

Argued and Submitted on October 25, 2018

at Seattle, WA

Filed – November 15, 2018

Appeal from the United States Bankruptcy Court

for the District of Arizona

FILED

NOV 15 2018

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 8024-1.
Honorable Madeline Carmel Wanslee, Bankruptcy Judge, Presiding

 

Appearances: Appellant Alan M. Bartlett argued pro se.

 

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

INTRODUCTION

Alan Bartlett (“Bartlett”) and Luz Marina Bartlett-Moran (collectively,

“Debtors”) filed a chapter 71 petition in 2000 but failed to obtain a

discharge of their debts. Citibank, South Dakota, N.A. (“Citibank”)

obtained a nondischargeability judgment by default. And the chapter 7

trustee later obtained a default judgment revoking Debtors’ discharge of all

debt. Debtors did not appeal from either default judgment, and nothing

happened in the closed chapter 7 case for well over a decade.

In 2016, Bartlett sought to reopen the case to “enforce” the discharge.

The bankruptcy court denied the motion, and Bartlett appealed. He later

filed notices of appeal of the default judgments. But those appeals are

untimely and we, accordingly, lack jurisdiction over the adversary

proceeding judgments. And as for Bartlett’s motion to reopen, he fails to

provide us with a record adequate to review the bankruptcy court’s

1

 Unless 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.

2
decision. Accordingly, we DISMISS BAP Nos. AZ-18-1093 and AZ-18-1096

for lack of jurisdiction and SUMMARILY AFFIRM in BAP No. AZ-17-1047.

FACTS

2

Debtors filed a chapter 7 petition in 2000. Citibank subsequently filed

a complaint to render its claim nondischargeable under § 523(a)(2)(A). The

bankruptcy court later entered a default judgment in Citibank’s favor.

The bankruptcy court’s docket3reflects that, although Debtors

initially received a discharge and their case was closed, the Trustee later

withdrew his no-asset report and obtained an order reopening the Debtors’

bankruptcy case. The Trustee then filed a complaint seeking turnover of

Debtors’ 2000 tax returns and any refunds or, in the alternative, revocation

of their discharge. In 2002, the bankruptcy court entered a separate

judgment revoking Debtors’ discharge.

The bankruptcy court’s docket4reflects that thereafter the Trustee

entered a second report of no distribution, and the bankruptcy court closed

the case.

Over a decade later, in November 2016, Bartlett filed a motion that

2

 We exercise our discretion to take judicial notice of documents electronically

filed in the bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293

B.R. 227, 233 n.9 (9th Cir. BAP 2003).

3

 Bartlett did not provide a copy of the relevant documents, and they are not

available through CM/ECF.

4

 Again, Bartlett did not provide a copy of the relevant documents and they are

not available through CM/ECF.

3
the bankruptcy court later construed as a motion to reopen. He also filed a

variety of motions “for Summary Judgment” and “to Approve

Enforcement of Bankruptcy Injunction.” Later, he filed a motion more

clearly seeking to reopen his 2000 bankruptcy and requesting enforcement

of his alleged discharge injunction.

After a hearing, the bankruptcy court entered a signed minute order

denying the motion to reopen for the reasons stated on the record. Bartlett

timely appealed. Later, he also filed notices of appeal in the two adversary

proceedings.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(2)(A), (H), and (I). We consider our jurisdiction below.

ISSUES

Whether we have jurisdiction to review the adversary proceeding

judgments.

Whether the bankruptcy court abused its discretion when it denied

Bartlett’s motion to reopen the bankruptcy case.

STANDARD OF REVIEW

We review our own jurisdiction de novo. Ellis v. Yu (In re Ellis), 523

B.R. 673, 677 (9th Cir. BAP 2014). We review the denial of a motion to

reopen a bankruptcy case for abuse of discretion. Staffer v. Predovich (In re

Staffer), 306 F.3d 967, 971 (9th Cir. 2002).

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DISCUSSION

Bartlett filed three appeals; he discussed them all in one opening

brief; we liberally construe his pro se submission. See Cruz v. Stein Strauss

Trust # 1361 (In re Cruz), 516 B.R. 594, 604 (9th Cir. BAP 2014). We,

similarly, address the appeals jointly.

BAP Nos. AZ-18-1093 & AZ-18-1096: We lack jurisdiction over the

adversary proceeding judgments. Our jurisdiction to hear appeals is found

in 28 U.S.C. § 158. In relevant part, it states that an appeal must be taken

“in the time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C.

§ 158(c)(2). Rule 8002, in turn, provides that a notice of appeal must be filed

within 14 days of entry of the judgment. Fed. R. Bankr. P. 8002(a)(1). This

14-day timeline is a jurisdictional requirement. Wilkins v. Menchaca (In re

Wilkins), 587 B.R. 97, 107 (9th Cir. BAP 2018).

Here, the bankruptcy court entered judgment in Citibank’s adversary

proceeding in 2001 and in the Trustee’s adversary proceeding in 2002.

Bartlett filed his notices of appeal in 2018. We, accordingly, lack jurisdiction

to review the judgments.5 Accordingly, we dismiss BAP Nos. AZ-18-1093

& AZ-18-1096 for lack of jurisdiction.

BAP No. AZ-17-1047: We lack jurisdiction over the November 2002

order reopening the bankruptcy case; we otherwise summarily affirm the

5

 On appeal, Bartlett argues that the judgments are void because the complaints

were not properly served. Even if true, his remedy is not an appeal.

5
bankruptcy court’s order. In his notice of appeal, Bartlett states that he is

appealing the “revocation of discharge and [the] denial of motion for

summary judgment seeking redress for post-discharge injunction

violations[.]” But we have already concluded that we lack jurisdiction over

the judgment revoking his discharge. 

In his opening brief, Bartlett does not discuss the denial of his

motions for summary judgment, much less argue that the bankruptcy court

erred in doing so. As a result, we deem any argument about that decision

waived. Padgett v. Wright, 587 F.3d 983, 986 n.2 (9th Cir. 2009) (per curiam)

(appellate courts “will not ordinarily consider matters on appeal that are

not specifically and distinctly raised and argued in appellant's opening

brief”).

Instead, the only argument Bartlett makes in his opening brief about

the administration of his main bankruptcy case concerns the November

2001 reopening of his bankruptcy case: he contends the bankruptcy court

abused its discretion in doing so. But, for the same reasons articulated

above, we lack jurisdiction over that order because the notice of appeal was

not timely as to that order.

Bartlett’s notice of appeal was timely filed only as to the bankruptcy

court’s order on Bartlett’s 2016 motion to reopen. We thus have jurisdiction

under 28 U.S.C. § 158 in this singular context.

That said, the bankruptcy court’s minute order denying Bartlett’s

6
motion to reopen incorporated oral findings of fact and conclusions of law

made on the record at the hearing. If a bankruptcy court makes its findings

of facts and conclusions of law on the record, the appellant must include

the transcript as part of the excerpts of record. McCarthy v. Prince (In re

McCarthy), 230 B.R. 414, 416–17 (9th Cir. BAP 1999). Here, Bartlett elected

not to obtain a transcript.6 Nor can we find a copy of the transcript on the

bankruptcy court’s docket. We, thus, cannot meaningfully or adequately

review the bankruptcy court’s order denying the motion to reopen and

determining that the other motions were moot. Ehrenberg v. Cal. State Univ.,

Fullerton Found. (In re Beachport Entm’t), 396 F.3d 1083, 1087–88 (9th Cir.

2005); Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1189 (9th Cir.

2003) (failing to provide a critical transcript may result in summary

affirmance). As a result, we may and do summarily affirm.

And, as noted, Bartlett’s opening brief addresses the bankruptcy

court’s 2001 decision to reopen the bankruptcy case; he does not argue that

the bankruptcy court erred when it denied his 2016 motion to reopen. As a

result, we deem any argument about the 2016 decision waived. Padgett, 587

F.3d at 986 n.2.

6

 Post-appeal, the United States District Court for the District of Arizona granted

Bartlett’s motion to proceed in forma pauperis on appeal. See BAP No. AZ-17-1047, Dkt.

No. 16. Bartlett then asked the bankruptcy court to certify that the appeal was not

frivolous, but presents a substantial question, so the United States would pay for

preparation of the transcripts. Bk. Case No. 2:00-bk-11770-MCW, Dkt. Nos. 97 and 98.

The bankruptcy court found that the appeal was frivolous and denied the requested

certification. Bk. Case No. 2:00-bk-11770-MCW, Dkt. No. 106.

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CONCLUSION

Based on the foregoing, we DISMISS BAP Nos. AZ-18-1093 and AZ18-1096 for lack of jurisdiction and SUMMARILY AFFIRM in BAP No.

AZ-17-1047.

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