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 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.

-1-

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1353-PaMkH

) 

BRIAN W. DAVIES, ) Bk. No. 10-37900-SC

)

Debtor. )

___________________________________)

)

BRIAN W. DAVIES, )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

PATRICIA ZIMMERMAN, Chapter 7 )

Trustee, )

)

Appellee. )

)

___________________________________)

Argued and Submitted on November 16, 2011

at Pasadena, California

Filed - December 9, 2011

Appeal from the United States Bankruptcy Court

for the Central District of California

 Honorable Scott C. Clarkson, Bankruptcy Judge, Presiding 

Appearances: Appellant Brian W. Davies argued pro se. Trustee

Patricia Zimmerman filed a brief but did not appear

at oral argument. 

Before: PAPPAS, MARKELL and HOLLOWELL, Bankruptcy Judges.

FILED

DEC 09 2011

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2

 Unless otherwise indicated, all chapter, section and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, to

the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, or to

the Federal Rules of Civil Procedure, Civil Rules 1–86.

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Chapter 72 debtor Brian W. Davies (“Davies”) appeals the

bankruptcy court’s “Order Denying in Part and Granting in Part

Trustee’s Motion to Set Aside/Reconsider Order Granting Debtor’s

Motion to Compel Abandonment of Property by the Trustee and to

Withdraw the Trustee’s No Asset Report.” We AFFIRM.

FACTS

Unless noted otherwise, the facts in this appeal are

undisputed.

Davies divorced his wife, Carolyn Kao, in 2007. In

connection with the divorce, in October 2007, Davies was granted a

money judgment against Kao for $2,693,680.97 (the “Judgment”).

Davies alleges that Kao, a Canadian citizen, left the area and he

has been unable to locate her. 

After several years of unsuccessful searching, Davies

assigned his interest in the Judgment to Scott Kohn, a collections

agent, on June 29, 2009. The assignment provided that any amounts

collected by Kohn on the Judgment would be split evenly between

Davies and Kohn. The agreement also provided that “if judgment

has not been satisfied after 2 years, judgment will be reassigned

back to [Davies].”

Davies filed a petition under chapter 7 on August 31, 2010. 

Patricia Zimmerman was appointed trustee (“Trustee”). Although

his original schedules made no reference to the Judgment, on

September 27, 2010, Davies amended Schedule B to include the

following information about the Judgment:
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3

 This conversation with Trustee is the only documented

contact with Kohn in the bankruptcy case. Kohn has not appeared

or taken any part in the proceedings or in this appeal.

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Judgment against Carolyn Kao entered on 10/29/2007 as

part of the divorce Debtor was awarded $2.7 million. 

Debtor signed over the award money to a collection

agency to collect the money. If collection agency

collects the debt, Debtor gets half and collection

agency gets half of what is collected. Respondent in

case has disappeared and a skip trace has been placed. 

Likelihood of collection is unknown.

Davies listed the value of the Judgment in the schedule as

“$0.00.”

Davies was examined by Trustee at the § 341(a) meeting on

October 15, 2010, where Davies provided Trustee a copy of the

Judgment and Kohn’s address. Davies and Trustee agree that, at

the creditor’s meeting, Davies advised Trustee that he tried to

collect on the Judgment but that he had “given up.” 

Trustee thereafter contacted Kohn and was told that there was

little hope of recovering on the Judgment. Trustee filed a “No

Asset” report with the bankruptcy court on November 26, 2010.3 

Davies filed a motion to compel abandonment of property on

March 14, 2011. The only reference in the moving papers to the

property at issue was the following:

The market value of Debtor’s real property [in Indio] is

approximately $230,000 and the disputed debt against

said real property is $650,000. The real property,

taking into account the mortgages, liens and the costs

of sale, has no equity for the benefit of the estate or

the creditors. By this motion, the Debtor seeks the

Court for an Order to compel abandonment of property by

the Trustee on the grounds that the property is

burdensome and is of inconsequential value to the

estate.

Trustee did not oppose Davies’ abandonment motion, and the

bankruptcy court entered an order granting the motion on April 7,
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2011 (the “Abandonment Order”).

A month after entry of the Abandonment Order, on or about

May 7, Trustee received an offer of $5,000 to buy the Judgment. 

The record does not reflect who submitted the offer. Trustee, on

June 20, 2011, filed a Motion to Set Aside/Reconsider Order

Granting Debtor’s Motion to Compel Abandonment of Property by the

Trustee and to Withdraw the Trustee’s No Asset Report (the “Set

Aside Motion”). In the motion, Trustee asked the bankruptcy court

to either set aside the Abandonment Order, or to amend it to only

include real property.

Davies filed an opposition to the Set Aside Motion on

June 22, 2010. Davies principally argued that an Abandonment

Order under § 554(b) is irrevocable. Davies’ opposition contained

no reference to Kohn.

On June 29, 2011, finding that no hearing was necessary, the

bankruptcy court entered an Order denying in part and granting in

part the Set Aside Motion (the “Set Aside/Reconsider Order”). The

court granted that portion of the Set Aside Motion requesting

leave by Trustee to withdraw the No Asset report, but denied the

request to set aside or modify the Abandonment Order because:

The Order entered on April 7, 2011 as docket number 75,

granting Debtor’s Motion to Compel Abandonment by

Trustee (the “Abandonment Order”), only concerned and

affected the real property identified as [the Indio

property]. No other property, real or personal, was

abandoned by the Abandonment Order. The “Ko Judgment”

identified in the Motion remains property of the

bankruptcy estate. Therefore, the [Set Aside] Motion

with respect to abandonment is denied as moot. 

Davies filed a timely appeal of the Set Aside/Reconsider

Order on July 8, 2011, commencing the instant appeal.

On July 3, 2011, Trustee filed a Notice of Assets and
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 There is no transcript of this hearing in the record.

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Possible Dividend in the bankruptcy case. On July 13, 2011,

Trustee filed a motion for approval of the sale of the Judgment. 

In this motion, Trustee proposed to sell the bankruptcy estate’s

interest in the Judgment to Asset Acquisition Partners, LLC of

Orlando Florida for $5,000, free and clear of liens, but subject

to the right of others to submit overbids. A hearing on the sale

motion was set for August 10, 2011. 

Davies did not oppose the sale motion. However, on July 20,

2011, he filed an emergency motion for stay of the Set

Aside/Reconsider Order pending appeal in the bankruptcy court. He

repeated his argument that the Judgment had been effectively

abandoned in the Abandonment Order under § 554(b), and that such

abandonment was irreversible. He urged that he would likely

succeed on the merits in this appeal, that he would suffer

irreparable harm if Trustee’s proposed sale was not stayed, and

that a stay would not harm others. Again, Davies made no mention

of Kohn in his motion for stay pending appeal. Trustee opposed

the motion. 

The bankruptcy court conducted a hearing on Davies’ stay 

motion on July 25, 2011. Davies and Trustee appeared.4

 On

July 25, 2011, the bankruptcy court entered a Memorandum Opinion

indicating its intent to deny the stay motion. The court observed

that the only legal question presented by Davies in the appeal was

whether the Abandonment Order effectively covered all estate

property, including the Judgment. The court repeated its earlier

conclusion that the Abandonment Order pertained only to real

property, not the Judgment. While it agreed, generally, with
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5

 Davies filed an emergency motion for stay pending appeal

with the Panel on August 2, 2011, in which he made the same

arguments presented in the bankruptcy court. Notably, again,

there was no mention in this motion of Kohn. The Panel denied the

motion on August 3, 2011, concluding that Davies was not likely to

succeed on the merits. Davies v. Zimmerman, BAP no. CC-11-1353

(9th Cir. BAP, August 3, 2011).

-6-

Davies that an abandonment under § 554(b) is irrevocable, the

bankruptcy court concluded, again, that there had never been an

abandonment of the Judgment so it never left the bankruptcy

estate. Applying the four-part test for determining whether to

grant a stay pending appeal expressed in Leiva-Perez v. Holder,

640 F.3d 962, 964 (9th Cir. 2011), the court concluded:

The Debtor has not shown any likelihood of irreparable

injury in the absence of stay, nor has it been shown

that the balance of hardships tips sharply in favor of

Debtor. Because Debtor has not made a strong showing of

likelihood of success on appeal, and more importantly,

because Debtor has failed to demonstrate any likelihood

of irreparable injury, his motion for stay pending

appeal is denied.

The bankruptcy court entered an order denying the motion for a

stay pending appeal on July 25, 2011.5

The hearing on Trustee’s motion to sell the Judgment took

place on August 10, 2011. Only the Trustee appeared, and there

were no other bidders. The bankruptcy court granted the motion

and entered an order approving Trustee’s proposal to sell the

Judgment as proposed in his motion on August 12, 2011. Davies did

not appeal that order, and it is not clear in the record or the

bankruptcy docket whether the sale has been completed.

JURISDICTION

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

and 157(b)(2)(A) and (O). We have jurisdiction under 28 U.S.C.

§ 158.
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ISSUE

Whether the bankruptcy court abused its discretion in

deciding that the Judgment had not been abandoned.

STANDARD OF REVIEW

The bankruptcy court's decision to authorize or deny

abandonment is reviewed for an abuse of discretion. Viet Vu v.

Kendall (In re Viet Vu), 245 B.R. 644, 647 (9th Cir. BAP 2000). A

bankruptcy court abuses its discretion if it bases a decision on

an incorrect legal rule, or if its application of the law was

illogical, implausible, or without support in inferences that may

be drawn from the facts in the record. United States v. Hinkson,

585 F.3d 1247, 1261–63 (9th Cir. 2009) (en banc); Ellsworth v.

Lifescape Med. Assocs. (In re Ellsworth), 455 B.R. 904, 914 (9th

Cir. BAP 2011).

DISCUSSION

I.

Before reaching the merits, we examine an issue raised by

Davies for the first time late in this appeal: that Davies had

sold the Judgment to Kohn pre-petition and, thus, “the

[bankruptcy] estate did not contain the Debtor’s sold judgment,

and both the Court and Trustee erred in pursuing the sale of

property not contained in the estate.” Davies’ Reply Br. at 1. 

While the practice is disfavored, we have discretion to

review an issue raised for the first time on appeal, if "(1) there

are ‘exceptional circumstances’ why the issue was not raised in

the trial court, (2) the new issue arises while the appeal is

pending because of a change in the law, or (3) the issue presented

is purely one of law and the opposing party will suffer no
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prejudice as a result of the failure to raise the issue in the

trial court.” Rhoades v. Henry, 598 F.3d 495, 501 (9th Cir.

2010). None of these conditions apply. However, even if we were

to examine this tardy argument, we conclude it lacks merit.

At the very beginning of the case, Trustee contacted Kohn and

was informed that there was little likelihood of collecting on the

Judgment. Thus, Kohn was aware that Davies had filed a bankruptcy

case, and that Trustee had concluded that the bankruptcy estate

held some interest in the Judgment. Despite being the putative

owner of the Judgment, Kohn did not participate in the case. One

reasonable inference from these events would be that Kohn

considered whatever interest he might have in the Judgment to be

worthless, and he therefore chose not to assert that interest in

the bankruptcy case.

Second, and perhaps more important, whatever interests Kohn

had in the Judgment had been extinguished by the time that the

bankruptcy court entered its Set Aside/Reconsider Order, the order

on appeal. As noted above, Davies’ assignment to Kohn contained a

reversion clause: "if [the] judgment has not been satisfied after

2 years, judgment will be reassigned back to [Davies].” It is

apparently undisputed that Kohn had made no collections on the

Judgment, and thus, by the terms of the assignment, whatever

interest in the Judgment Kohn had been given under the assignment

reverted back to Davies, and to his bankruptcy estate, on June 29,

2011. 

That this date is coincidentally the same as the day the

bankruptcy court entered the Set Aside/Reconsider Order at issue

in this appeal is interesting, but not necessarily relevant. Even
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6

 Davies has filed a Request for Judicial Notice of five

documents relating to Kohn’s actions and services. These

documents were never presented to the bankruptcy court. See

Kirschner v. Uniden Corp. of Am., 842 F.2d 1074, 1077-78 (9th Cir.

1988). The request is therefore DENIED.

-9-

before that, Davies had, at a minimum, a contingent, reversionary

interest in the Judgment and, under § 541(a) and Ninth Circuit

case law, Davies’ contingent reversionary interest became property

of the bankruptcy estate on the petition date. Nicholas v.

Birdsell, 491 F.3d 987, 990 (9th Cir. 2007) ("By including all

legal interests without exception, Congress indicated its

intention to include all legally recognizable interests although

they may be contingent and not subject to possession until some

future time.").

We therefore conclude there is no merit in Davies’ late

argument that Trustee “erred in pursuing the sale of property not

contained in the estate.” Davies’ interest in the Judgment was

always part of the estate, and Kohn’s interest in the Judgment was

extinguished under the terms of the assignment by the time the

bankruptcy court entered the Set Aside/Reconsider Order.6

II.

Turning to the merits, in the bankruptcy court, and on

appeal, Davies has steadfastly contended that the bankruptcy

court’s Abandonment Order effectively abandoned the Judgment. 

From that premise, Davies argues that whatever is abandoned cannot

be returned to the estate. There is, of course, support for the

irrevocability of an abandonment:

A number of cases recognize a general rule that

abandonment is irrevocable, even if it is subsequently

discovered that the abandoned property had greater value

than previously believed. In re Lintz West Side Lumber,

Inc., 655 F.2d 786, 789 (7th Cir. 1981) [other citations
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7

 Concurrently with this appeal, the Panel examined a

dispute between Davies and Deutsche Bank regarding this real

property. See Davies v. Deutsche Bank Nat’l Trust Co., BAP no.

CC-11-1221 (9th Cir. BAP 2011).

8

 The full text of the Abandonment Order reads as follows:

“On March 14, 2011, Brian William Davies (the “Debtor”) filed

his Motion to Compel Abandonment of Property by Trustee in this

case.

“The Debtor having filed a declaration on April 1, 2011

stating that he has not received any opposition nor any objection

to his Motion, and for good cause shown,

“IT IS HEREBY ORDERED that the Debtor’s Motion to Compel

Abandonment of Property by Trustee is GRANTED.”

-10-

omitted]. 

DeVore v. Marshack (In re DeVore), 223 B.R. 193, 197 (9th Cir. BAP

1998). The bankruptcy court agreed with Davies on this point,

even citing In re Lintz W. Side Lumber, Inc. But the court

repeatedly, and correctly, reminded Davies that this case did not

present any question whether the Abandonment Order should be

“revoked.” Instead, the bankruptcy court construed its order, and

concluded in the Set Aside/Reconsider Order that the Abandonment

Order:

only concerned and affected the real property identified

as [the Indio, California property]. No other property,

real or personal, was abandoned by the Abandonment

Order. The [Judgment] identified in the Motion remains

property of the bankruptcy estate.

Set Aside Order at 1. Because it concluded that the Abandonment

Order only concerned Davies’ real property in Indio, California,7

it held the Judgment had never been abandoned. As a result,

Davies’ arguments are misplaced.

In reaching its conclusion, the bankruptcy court interpreted 

its own order.8 The Ninth Circuit instructs that we should "give

deference to [a] court's interpretation of its own order, based on

the court's extensive oversight of the decree from the
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commencement of the litigation to the current appeal." Hallett v.

Morgan, 296 F.3d 732, 739-40 (9th Cir. 2002); accord Zinchiak v.

CIT Small Bus. Lending Corp. (In re Zinchiak), 406 F.3d 214, 224

(3rd Cir. 2005) (noting that the bankruptcy court is well suited

to "provide the best interpretation of its own order.");

Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 (7th Cir.

1989) ("Few persons are in a better position to understand the

meaning of a [court order] than the judge who oversaw and approved

it."); Brown v. Neeb, 644 F.2d 551, 558 n.12 (6th Cir. 1981).

Our deference to the construction by the bankruptcy court is

not blind and, in this case, there is considerable support in the

record for the bankruptcy court’s conclusion that the Abandonment

Order did not cover the Judgment. For example, Davies’ motion to

compel abandonment described only the real property. Immediately

following that description, the motion represents that, “By this

motion, the Debtor seeks the Court for an Order to compel

abandonment of property by the Trustee on the grounds that the

property is burdensome and is of inconsequential value to the

estate.” And though § 554(b) authorizing abandonment upon request

of a party targets property which is either burdensome or of

inconsequential value, the only property of Davies that was both

burdensome and of inconsequential value (as referenced in the

motion) was the over-encumbered real property. The Judgment,

arguably, had inconsequential value at the time the abandonment

motion was acted on by the bankruptcy court, but it is difficult

to see how it could be described as burdensome. 

Davies’ argument supporting the abandonment motion notes:

Not all property of the bankruptcy estate will be of
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value to creditors. Often, the Debtor’s property is so

heavily encumbered, as in this case, that there is no

equity and the expenses of maintaining the property are

greater than can be realized from the sale or other

disposition of the property.

In this passage, Davies is arguing to the bankruptcy court that

the property to be abandoned has no equity and its maintenance is

costing the bankruptcy estate more than it is worth. Fairly, that

argument can only refer to the real property. Even if the

Judgment had no equity, it also was maintenance-free. 

Finally, as shown above, neither the motion for abandonment

nor the Abandonment Order contains any reference to the Judgment. 

The bankruptcy court, in construing its own order, is

entitled to deference. The court based its construction on its

parallel review of Davies’ abandonment motion, that unquestionably

referred to abandonment of property that was both burdensome on

the estate and of inconsequential value. That description can

only apply to the real property in this case. Neither the motion

nor the order entered by the bankruptcy court specifically

references the Judgment. 

All things considered, the bankruptcy court did not abuse its

discretion when it decided that the Abandonment Order did not

cover the Judgment, and in denying Davies’ Set Aside Motion for

that reason.

CONCLUSION

We AFFIRM the order of the bankruptcy court.