Opinion
NOT FOR PUBLICATION
Submitted Without Oral Argument: June 6, 2007
Appeal from the United States Bankruptcy Court for the Central District of California. Bk. No. RS 04-15966-MG. Honorable Mitchel R. Goldberg, Bankruptcy Judge, Presiding.
Before: KLEIN, PAPPAS and DUNN, Bankruptcy Judges.
MEMORANDUM
PER CURIAM:
The Appellant, Michael W. Watkins, appeals the order of the U.S. Bankruptcy Court for the Central District of California, Riverside Division, entered July 6, 2006, denying the claim filed by Appellant and denying Appellant's motion to transfer the matter to the U.S. District Court for the Middle District of Tennessee. We AFFIRM.
FACTS
Appellees Richard and Sharon Belotti are chapter 7 debtors who filed the underlying bankruptcy case in 2004 in the U.S. Bankruptcy Court for the Central District of California, Riverside Division.
Appellee N.L. Hanover serves as the chapter 7 trustee in the Belotti bankruptcy case.
The dispute between Appellant Michael W. Watkins and the Belottis relates to a failed residential construction contract between the Belottis and Advanced Technologies for Building, Inc., a contractor with which Appellant was connected, for the construction of a residence in California.
Appellant filed a proof of secured claim in the bankruptcy case for $2,001,780, and represented that it was based on " Civil Action BBC 00433." He listed his address as " 9588 SVL BOX, Victorville, Ca 92392."
Attached to the proof of claim were two documents from Case No. BBC00433, Superior Court of the State of California, County of San Bernardino, Central Court. One document was entitled " Cross Complaint of Michael W. Watkins" in which Appellant asserted that he owned a patent and alleged four specific causes of action against the Belottis: negligent misrepresentation; fraud; perjury; and malicious prosecution. On each count, he demanded $2,000,000. The other document, entitled " Mandatory Settlement Conference Mediation Brief, " was prepared by Appellant and itemized $1,780 of costs to be added to his $2,000,000 demand. Both of the state-court documents reflected the same Victorville, California address as that which appeared on the proof of claim.
Appellant filed an amended proof of claim on May 4, 2005. The amendment redesignated the claim from secured status to unsecured, nonpriority status but did not change the $2,001,780 sum claimed. The amended proof of claim listed Appellant's address as " 1100 E. Victoria Street, Apt I 5, Carson, Ca 90746."
The debtors objected to Appellant's claim on February 23, 2006. The exhibits to the objection included a 54-page " Tentative Opinion" issued by the Court of Appeal of the State of California, Fourth Appellate District, Division Two, in Case No. E032558 (Super. Ct. No. VCVVS025786), an appeal captioned " Virginia Louise Watkins et al. v. Stephen P. Sands, as Registrar of Contractors, et al." It is a review of an order issued by the Contractors State License Board revoking the contractor's license of Advanced Technologies for Building, Inc., barring Virginia Watkins (spouse of Appellant Michael William Watkins) and Michael David Watkins (son of Appellant Michael William Watkins) from serving as principal of any licensed contractor, and ordering Virginia Watkins and Michael David Watkins to pay restitution or reimburse the state board for its investigation and enforcement costs. A California superior court had affirmed the administrative order. The Fourth District Court of Appeal affirmed except as to restitution and reimbursement.
Appellant filed a " Response to Notice of Objection" on March 23, 2006, asserting that " [t]he case is now before the United States District Court Middle District of Tennessee, Nashville. Case # 3 06 0197." The remainder of the Response described the Tennessee lawsuit (which is said to be a patent infringement action against a number of defendants and seeks $100,000,000) and appeared to assert that the bankruptcy court did not have jurisdiction to resolve the matter. Appellant signed his name as " Michael W. Watkins, sui juris citizen of Tennessee and of the United States" and provided an address of 224 Edith Ave., Nashville, TN 37207."
At a hearing on March 30, 2006, the bankruptcy court sustained the objection to claim, but granted leave to amend the claim. Tr. 3/30/06 at pp. 25-27.
Appellant filed on April 6, 2006, a paper entitled " Amended Claim of Michael W. Watkins and Motion to Transfer to United States District Court Middle District of Tennessee Case # 3 06 0197 Where There is a Related Pending Case." To the extent it was an amendment to the proof of claim, it merely asserted that the matter was now within the exclusive jurisdiction of the district court. The remainder of the document is styled a Motion to Transfer and contains what appear to be the allegations of a complaint in which six causes of action are asserted, only one of which is patent infringement.
The chapter 7 trustee filed an opposition objecting to the claim to the extent it was a claim, opposing transfer to a different district, and asserting that any request for permission to sue the trustee that might be construed as being present in the document should be denied.
The bankruptcy court conducted a hearing on May 11, 2006. It declined to transfer the claim and disallowed the claim with prejudice. Tr. 5/11/06 at pp. 20-25.
A notice of appeal was filed by Appellant on May 25, 2006. No Statement of Election to have the appeal heard by the district court pursuant to 28 U.S.C. § 158(c)(1), as required by Federal Rule of Bankruptcy Procedure 8001(e), was filed.
The order denying the motion to transfer and rejecting the claim based on the ruling announced in open court on May 11, 2006, was not entered until July 6, 2006.
After our motions panel denied a motion to transfer this appeal to the U.S. District Court for the Middle District of Tennessee, that panel ordered a temporary remand for the limited purpose of affording Appellant an opportunity to establish, as a matter of fact, that he had made a timely election to have this appeal heard by the U.S. District Court for the Central District of California, even though the record did not reflect that a timely election to have the appeal heard by the district court pursuant to 28 U.S.C. § 158(c)(1) was filed in compliance Rule 8001(e). After the time allotted for the remand expired without Appellant having taken action to establish that there was a timely election, that panel ruled that the appeal is properly before it and ordered Appellant to file his opening brief and excerpts of record not later than April 30, 2007.
Appellant filed his opening brief on April 30, 2007, but did not file excerpts of record as an appendix to the brief as required by Federal Rule of Bankruptcy Procedure 8009(b).
Appellees' briefs were filed May 15, 2007, by chapter 7 trustee N.L. Hanover and May 17, 2007, by Richard and Sharon Belotti. Appellant's reply brief was filed June 4, 2007. The appeal has now been fully briefed. Appellant still has not filed an appendix containing excerpts of the record. Appellee Hanover, however, did file an Appellee's Appendix.
ISSUES
1. Whether this appeal should be resolved without oral argument.
2. Whether this Panel has jurisdiction.
3. Whether the claim was correctly disallowed.
4. Whether the motion to transfer was correctly denied.
STANDARDS OF REVIEW
We review questions of law, including the application of procedural rules, de novo, and questions of fact for clear error. Garvida v. Litton Loan Serv'g, LLP (In re Garvida), 347 B.R. 697, 703 (9th Cir. BAP 2006). We review questions of jurisdiction de novo. Donald v. Curry (In re Donald), 328 B.R. 192, 196 (9th Cir. BAP 2005). A decision regarding transfer is reviewed for abuse of discretion. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000); Donald, 328 B.R. at 196.
JURISDICTION
The bankruptcy court had jurisdiction over these matters pursuant to 28 U.S.C. § 1334; they are core proceedings under 28 U.S.C. § 157(b)(2)(B). We have appellate jurisdiction pursuant to 28 U.S.C. § 158(a) and (c)(1).
DISCUSSION
We begin by explaining our procedure and jurisdiction before addressing the disallowance of Appellant's claim and the denial of his motion to transfer.
I
The procedural issue is whether we should take this appeal as submitted in its current posture. It subdivides into whether Appellant has complied with his obligations regarding filings and whether it is appropriate to act without oral argument.
We have examined the briefs with care and are satisfied that we are able to engage in meaningful review of the issues presented. See Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991); Sw. Adm'rs, Inc. v. Lopez, 781 F.2d 1378, 1378-80 (9th Cir. 1986); McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 417 (9th Cir. BAP 1999).
The burden to provide a transcript and findings of fact and conclusions of law is on the Appellant. As the person appealing, he has the ultimate persuasive burden to demonstrate the existence of error that would warrant altering the status quo established by the order being appealed. Kyle v. Dye (In re Kyle), 317 B.R. 390, 394 (9th Cir. BAP 2004), aff'd, 170 F.App'x 457 (9th Cir. 2006); Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680-81 (9th Cir. BAP 1994), aff'd, 92 F.3d 1192 (9th Cir. 1996) (citing cases); cf. Cogliano v. Anderson (In re Cogliano), 355 B.R. 792, 803 (9th Cir. BAP 2006) (burden to assure complete record).
We are able to conduct meaningful review because the Appellee's Appendix is sufficiently extensive as to apprise us of what occurred in the bankruptcy court; and the briefs reveal that the issues are essentially questions of law that are not fact-intensive. We are entitled to presume from Appellant's decision not to supply excerpts of the record that he does not believe that any additional excerpts would be helpful in his effort to demonstrate error. Gionis, 170 B.R. at 681. We have also examined the bankruptcy court's docket in order to gain a fuller understanding of the proceedings.
Accordingly, we will exercise our discretion to proceed with the consideration of the appeal and, further, exercise our discretion under Federal Rule of Bankruptcy Procedure 8012 and 9th Cir. BAP Rule 8012-1 by determining that the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. Now that the position and theory of the Appellant are known, it is appropriate to decide this appeal without oral argument, further delay, and further burden on the parties.
II
Next, there is the question whether we have jurisdiction to hear this appeal. We conclude that we do.
The governing statute is 28 U.S.C. § 158(c)(1), which provides in relevant part that:
each appeal under subsection (a) shall be heard by a 3-judge panel of the bankruptcy appellate panel service established under subsection (b)(1) unless -
(A) the appellant elects at the time of filing the appeal; or
(B) any other party elects, not later than 30 days after service of notice of the appeal; to have such appeal heard by the district court.
This statute is implemented by Federal Rule of Bankruptcy Procedure 8001(e):
(e) Election to Have Appeal Heard by District Court Instead of Bankruptcy Appellate Panel. An election to have an appeal heard by the district court under 28 U.S.C. § 158(c)(1) may be made only by a statement of election contained in a separate writing filed within the time prescribed by 28 U.S.C. § 158(c)(1).
During the initial stages of the processing of this appeal, Appellant asserted that he had made a statement of election to have the appeal heard by the district but indicated that it had not been accepted or had been lost by the bankruptcy court clerk. This presented a factual question as to what actually happened. Accordingly, we remanded to the bankruptcy court for a limited period to afford Appellant an opportunity to demonstrate as a factual matter that he actually had made the election.
The period of the remand expired without the Appellant having taken steps to establish that he actually made the election in the form required by Rule 8001(e) and within the time prescribed by 28 U.S.C. § 158(c)(1).
Appellant was afforded a reasonable opportunity to establish that he had filed a correct and timely statement of election to have the appeal heard by the U.S. District Court for the Central District of California. We infer from his inaction that a factual inquiry by the bankruptcy court would not support his position.
It follows from the absence of a correct and timely statement of election to have the appeal heard by the district court, that this Panel has jurisdiction to hear the appeal by virtue of 28 U.S.C. § 158(c)(1).
III
The first issue raised by Appellant relates to the bankruptcy court's denial of the Appellant's claim. The merits of that decision are not called into question. Rather, the focus of the Appellant is on his assertion that there is federal subject matter jurisdiction over his claim and that he has a right to trial by jury on the merits of the claim. These are questions of law that we review de novo.
We agree that there is federal subject-matter jurisdiction to resolve the claim. Nothing in the record (or in the court's docket) suggests that the bankruptcy court's order that the claim be " denied" (which the hearing transcripts reveal was based on sustaining an objection to claim and disallowing the claim with prejudice) was based on lack of subject-matter jurisdiction. Thus, this aspect of the argument in the opening brief does not present a material question or controversy.
The key question urged in the opening brief is the supposed right to trial by jury. The dispositive fact of record with respect to this issue is that the Appellant filed a proof of claim in the bankruptcy court. It is settled that one who files a claim in the bankruptcy court submits to the equitable jurisdiction of the court and, in consequence, there is no Seventh Amendment right to trial by jury on the claim. Langenkamp v. Culp, 498 U.S. 42, 44-45, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990).
Since the filing by Appellant of a proof of claim constitutes, as a matter of law, a waiver of any right of trial by jury on the questions presented by the proof of claim, there was no error in that respect.
We have carefully examined the transcripts of the two hearings wherein the claim was addressed and perceive neither any material error of law, nor any clearly erroneously view of the facts.
Accordingly, the portion of the order that denies the Appellant's claim will be AFFIRMED.
IV
We infer from the tenor of Appellant's discussion regarding transfer that he also asserts that the bankruptcy court erred by denying his request to transfer venue from the Central District of California to the Middle District of Tennessee.
We review decisions regarding transfer to another district for abuse of discretion. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000); Donald v. Curry (In re Donald), 328 B.R. 192, 196 (9th Cir. BAP 2005).
Nothing has been presented, nor does anything appear on the docket, to suggest that venue in the Central District of California was improper. In particular, the venue of the parent bankruptcy case is unquestionably correct.
Moreover, Appellant used an address in Victorville, California, when he filed his proof of claim on September 10, 2004. And, he used an address in Carson, California, when he filed his amended proof of claim on May 4, 2005.
Moreover, the documents attached to the proof of claim reflect that Appellant opted to prosecute his claim in the California state courts.
While we accept that Appellant may have legitimately moved to Tennessee, and we appreciate that it may be inconvenient to the Appellant to leave the Middle District of Tennessee to litigate the claim that he filed in the Central District of California, he has not demonstrated facts sufficient to suggest that the denial of the motion to transfer to the Middle District of Tennessee constituted an abuse of discretion.
The bankruptcy court did not apply an incorrect standard of law. It was not operating under a clearly erroneous view of the facts. Nor do we otherwise have a definite and firm conviction that a mistake was committed.
Accordingly, the portion of the order that denied the motion to transfer venue will be AFFIRMED.
V
We are mindful that the Appellant is acting pro se and may not have the sophisticated training of a lawyer. Accordingly, we have conscientiously reviewed the record that has been provided, including the transcripts of two hearings, with a view towards assuring that the interests of justice are being served. We perceive no material error.
Moreover, we note that the bankruptcy judge displayed patience and understanding in his efforts to make sure that he understood the position of Appellant and, at each step, he provided guidance about how the Appellant could next proceed. In short, we are satisfied that the court's orders are consistent with the ends of justice.
CONCLUSION
For the foregoing reasons, oral argument will be dispensed with because it is not necessary. The order on appeal will be AFFIRMED in all respects.