### 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

Before DAVIS, STEWART, and DENNIS, Circuit Judges. DENNIS, Circuit Judge: In this bankruptcy appeal, debtor Ricky Kleibrink challenges the district court’saffirmance ofthe bankruptcy court’s ruling that creditor Mid StateTrust VII holds an enforceable security interest in a property ofhis, despite his having 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 United States Court of Appeals

Fifth Circuit 

### F I L E D September 21, 2010 Lyle W. Cayce Clerk2

bankruptcy proceeding did not extinguish the creditor’s lien against the property, because theclaim objection filed by thedebtor in theearlier 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 ofthe lien, and that the debtor sought toabrogate 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 rulesfor 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 U nited Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367 (2010). E spinosa 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 requirementsofdue process. I d. at 1378. “‘An elementary and fundamental requirement ofdue 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 proceeding received notice, satisfying the requirements ofdue process, that its interest could be extinguished in that proceeding.1 The debtor fails to raise any argument appealing the district court’s holding that the

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 Here, the lower courtsexplained in detail why thedebtor’sconfusing 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 c onclusion 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 c onfirmed 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 c

reditor 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