Opinion
NOT FOR PUBLICATION
Argued and Submitted at Pasadena, California: October 16, 2008
Appeal from the United States Bankruptcy Court for the District of Nevada. Honorable Bruce A. Markell, Bankruptcy Judge, Presiding. Bk. No. 92-24785. Adv. Nos. 92-02265. 92-02273. Ref. Nos. 08-9. 08-10. 08-11.
Before: DUNN, HOLLOWELL and MONTALI, Bankruptcy Judges.
MEMORANDUM
The bankruptcy court determined that a 1995 judgment was no longer enforceable where the judgment creditors failed to renew it until 2002, after the expiration of the six-year deadline set forth in Nev. Rev. Stat. § 11.190(1)(a). The judgment creditors appeal, asserting that the judgment debtors had waived the right to raise the timeliness of the 2002 " renewal" where they did not raise it until a subsequent renewal was attempted in 2008. We AFFIRM.
I. FACTS
Frank A. Romano and Maria Romano (the " Romanos") were debtors in a chapter 11 bankruptcy case filed in the Bankruptcy Court for the District of Nevada in 1992. On September 19, 1995, in an adversary proceeding commenced by the Romanos, the bankruptcy court entered a judgment (" Judgment") in the amount of $10, 175, 871.21 in favor of the Romanos and against Rudolph LaVecchia and Rudolph M. LaVecchia (the " LaVecchias"). The LaVecchias appealed to this panel, and we affirmed on July 16, 1996.
On January 31, 1996, the bankruptcy court granted the Romanos' motion to certify the Judgment for registration in other jurisdictions, and ordered the Bankruptcy Clerk to certify the Judgment " whenever presented for certification, until . . . further order of the Court." The Judgment was recorded in the state of Hawaii and in Broward County, Florida in 1998.
The record reflects that the Judgment also was registered in the states of New York and Georgia, although when is not disclosed.
The Romanos, through counsel, executed an affidavit on April 3, 2002 (" April 2002 Affidavit"), to support renewal of the Judgment (" First Renewal"). The April 2002 Affidavit was served on the LaVecchias on April 4, 2002, and filed with the bankruptcy court on April 5, 2002. The Romanos, through counsel, executed a second " Affidavit of Renewal" on March 6, 2008 (" March 2008 Affidavit"), to support renewal of the Judgment (" Second Renewal"). Also on March 6, 2008, the March 2008 Affidavit was served on the LaVecchias and filed with the bankruptcy court.
On April 17, 2008, the LaVecchias filed a motion to " vacate" both the First Renewal and the Second Renewal, and requested that the bankruptcy court enter an order stating that the Judgment had expired on the basis that the April 2002 Affidavit was filed outside the time limits for renewal of the Judgment under Nevada law. The Romanos countered that the First Renewal could not be vacated, because Fed.R.Civ.P. 60(b) requires that a motion to vacate the " renewed judgment" must be brought within a reasonable time, and that a six-year delay in challenging the First Renewal is inherently not within a reasonable time. The Romanos also asserted that the time limit for renewing the Judgment ran not from September 19, 1995, the date the Judgment was entered, but from the date the Judgment was affirmed on appeal.
Relying on St. Paul Fire & Marine Ins. Co. v. Cunningham, 257 F.2d 731 (9th Cir. 1958), the Romanos argued before the bankruptcy court that the First Renewal was timely, because " the term judgment means a 'final judgment' entered upon final determination of the appeal, " and because the Judgment was affirmed on appeal less than six years before the April 2002 Affidavit was filed. The Romanos have abandoned this position on appeal, and for good reason. Cunningham and the other cases the Romanos cited in support of this argument in their opposition to the LaVecchias' motion relied on Cal. Code Civ. Proc. § 1049. The Judgment was entered in a federal court, pursuant to the Federal Rules of Civil Procedure and the Federal Rules of Bankruptcy Procedure.
At the hearing on the LaVecchias' motion, the bankruptcy court informed the parties that, to the extent the motion sought declaratory relief, the LaVecchias were required to proceed by adversary proceeding rather than by motion in a contested matter. However, with the Romanos' express consent, the bankruptcy court allowed the dispute to proceed on the motion.
The bankruptcy court applied Fed.R.Civ.P. 69, made applicable by Fed.R.Bankr.P. 7069, and determined that the First Renewal was untimely, where the April 2002 Affidavit was filed more than six years after the date the Judgment was entered, with the result that the Judgment was no longer enforceable. The bankruptcy court did not vacate either the First Renewal or the Second Renewal, and declined to make a determination regarding the validity of the Judgment in any other jurisdiction in which the Judgment had been recorded.
The Romanos appealed, asserting that the bankruptcy court erred when it decided the LaVecchias' motion under Fed.R.Civ.P. 69 rather than Fed.R.Civ.P. 60(b).
II. JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. § § 1334 and 157(b)(2)(O) and by explicit consent of the parties. We have jurisdiction pursuant to 28 U.S.C. § 158.
III. ISSUE
Whether the bankruptcy court erred when it determined as a matter of law that the Judgment was no longer enforceable.
IV. STANDARDS OF REVIEW
We review a bankruptcy court's interpretation of state law de novo. State Bd. of Equalization v. Leal (In re Leal), 366 B.R. 77, 80 (9th Cir. BAP 2007). When interpreting state law, we follow the decisions of the highest state court. Security Pac. Nat'l Bank v. Kirkland (In re Kirkland), 915 F.2d 1236, 1238 (9th Cir. 1990). Whether compliance with a given statute or rule has been established is generally a question of fact which we review for clear error. Heath v. Am. Express Travel Related Servs. (In re Heath), 331 B.R. 424, 428-29 (9th Cir. BAP 2005).
V. DISCUSSION
The bankruptcy court ruled that the Judgment no longer is enforceable against the LaVecchias based upon the Romanos' failure to renew the Judgment within the time limit set forth in Nev. Rev. Stat. § 11.190(1)(a). In reaching its decision, the bankruptcy court applied Fed.R.Civ.P. 69. The Romanos contend this was error, because the bankruptcy court instead should have applied Fed.R.Civ.P. 60(b). The Romanos further contend that a proper application of Fed.R.Civ.P. 60(b) would have led to a determination that the LaVecchias had waived any defect in the First Renewal by failing to raise it until 2008. Ultimately, we conclude that the bankruptcy court properly applied Fed.R.Civ.P. 69 and applicable Nevada law for the following reasons.
A. Fed.R.Civ.P. 69 and Nevada Law
Fed. R. Civ. P. 69 sets forth the procedure for enforcing a money judgment entered by a federal court. Wright & Miller, Federal Practice and Procedure: Civil 2d § 3011. Fed.R.Civ.P. 69 applies pursuant to Fed.R.Bankr.P. 7069.
Fed. R. Civ. P. 69 provides:
Rule 69. Execution
(a) In General.
(1) Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution--and in proceedings supplementary to and in aid of judgment or execution--must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.
Thus, state law governs the procedure for execution on a judgment in the absence of an applicable federal statute. There is no relevant federal statute we have been able to locate with regard to the renewal of judgments. The parties agree that Nevada law governs the enforcement of the Judgment.
Nev. Rev. Stat. § 21.050 provides, in relevant part: " Where a judgment requires the payment of money or the delivery of real or personal property, the same shall be enforced in those respects by execution." Further, " the party in whose favor judgment is given may, at any time before the judgment expires, obtain the issuance of a writ of execution for its enforcement. . . ." Nev. Rev. Stat. § 21.010. However, " [t]he writ ceases to be effective when the judgment expires." Id . Once the judgment has expired, it is no longer enforceable.
Under Nevada law, an action to recover on a judgment must be commenced within six years. Nev. Rev. Stat. § 11.190(1)(a). Similarly, actions to renew judgments must be undertaken within the six-year limitation period. Id .; Leven v. Frey, 123 Nev. 399, 168 P.3d 712, 714 n.2 (Nev. 2007), citing Evans v. Samuels, 119 Nev. 378, 75 P.3d 361 (Nev. 2003).
Nev. Rev. Stat. § 17.214 sets forth the procedure for renewing a judgment in Nevada. As relevant to the dispute before us, Nev. Rev. Stat. § 17.214 provides:
1. A judgment creditor or his successor in interest may renew a judgment which has not been paid by:
(a) Filing an affidavit with the clerk of the court where the judgment is entered and docketed, within 90 days before the date the judgment expires by limitation.
. . .
2. The filing of the affidavit renews the judgment to the extent of the amount shown due in the affidavit.
. . .
4. Successive affidavits for renewal may be filed within 90 days before the preceding renewal of the judgment expires by limitation.
(emphasis added).
As emphasized in the above quoted text, in order to renew a judgment which has not been paid, a judgment creditor in Nevada must file a renewal affidavit before the judgment expires. Strict compliance with the statutory provision is required. Leven v. Frey, 168 P.3d at 713-14 and 717-18. The Judgment was entered September 19, 1995. Under Nev. Rev. Stat. § 17.214(1)(a), the first affidavit of renewal was required to be filed between June 21, 2001, and September 19, 2001. The April 2002 Affidavit was filed outside the 90-day window. As a result, and as a matter of law, the Judgment expired September 20, 2001.
B. Fed.R.Civ.P. 60(b) and Waiver
The Romanos argue that the bankruptcy court erred when it failed to apply Fed.R.Civ.P. 60(b) to find that the LaVecchias had waived the right to assert that the First Renewal was untimely by waiting an unreasonable length of time before filing their motion. They make several arguments in support of this position.
We note at the outset the record reflects that the bankruptcy court specifically addressed the waiver issue:
[T]here is no duty on behalf of the defendants to rush into court . . . and seek some form of relief or declaration as to [the First Renewal].
They are the beneficiaries of a Statute of Limitations like defense at that point, and they can choose to sit back and wait and raise it as an affirmative defense as one could raise any Statute of Limitations defense or they could as they have done here sought affirmatively to come into court with respect to a declaration as to the continuing validity of the judgment.
Counsel for the Romanos indicates that [the LaVecchias are] just too late. That they had the opportunity to do [it] for six [years, but they] haven't done it. It's [only when] that's been tried to renew the second time that this has come to a head.
The basic response to that is what I said earlier. There is no duty I think to come forward when, in fact, there is an invalid judgment for lack of renewal, and, thus, the waiver arguments and the arguments under Rule 60(b) and Rule 9024 simply miss the mark [and are inapplicable].
Tr. of May 20, 2008 H'r'ng at 20:17-21:9.
The Romanos assert statutory limitation periods are subject to waiver. In support of this proposition they cite Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (Nev. 1983); and Hubbard v. State, 112 Nev. 946, 920 P.2d 991 (Nev. 1996). Neither case addresses waiver of the right to assert that an untimely renewed judgment is unenforceable. Instead, Copeland recognizes the right to assert equitable tolling of the limitations period in the context of Nevada's antidiscrimination statutes. At oral argument, counsel for the Romanos conceded that equitable tolling did not apply because no evidentiary record was made to support an equitable tolling argument before the bankruptcy court. Hubbard stands for the unsurprising proposition that a criminal defendant can waive a statute of limitations defense to prosecution by entry of a guilty plea.
In their waiver argument before the bankruptcy court, the Romanos characterized the First Renewal as " essentially" a new judgment. Proceeding from this faulty premise, the Romanos assert that challenging the validity of the First Renewal six years later is not " within a reasonable time" as required by Fed.R.Civ.P. 60(b) and (c).
Rule 60. Relief from a Judgment or Order
Renewal of a judgment does not create a new judgment. Fed.R.Civ.P. 54(a) defines judgment to include " a decree and an order from which an appeal lies." The LaVecchias' appeal of the Judgment was finally resolved in 1996.
The record reflects that the bankruptcy court made no findings of fact or conclusions of law in connection with either the First Renewal or the Second Renewal. Nor was the bankruptcy court required to make such determinations in connection with any judgment renewal. Under Nev. Rev. Stat. § 17.214, the filing of an affidavit of renewal, which implicitly requires compliance with the timeliness provision of Nev. Rev. St. § 11.190(1)(a), is all that is necessary to effectuate the renewal. The Nevada Supreme Court has adopted the view that the renewal of a judgment is a ministerial act. See O'Lane v. Spinney, 110 Nev. 496, 874 P.2d 754 (Nev. 1994).
The Romanos do not dispute that the bankruptcy court was reviewing only the validity of the First Renewal, not whether the Judgment itself was invalid. The First Renewal did not constitute a " final judgment, order, or proceeding." In these circumstances, the bankruptcy court did not err when it ruled that Fed.R.Civ.P. 60(b) did not apply.
Further, even were Fed.R.Civ.P. 60(b) applicable, the bankruptcy court ruled that the LaVecchias' motion was not untimely because the LaVecchias had no duty to raise the issue of the invalidity of the First Renewal unless and until it was asserted against them in collection activity. The Second Renewal presented a legitimate opportunity for the LaVecchias to challenge the continued enforceability of the Judgment in Nevada. Counsel for the Romanos acknowledged at oral argument that no collection activity on the Judgment was undertaken in Nevada between the dates of the First Renewal and the Second Renewal. The LaVecchias raised the failure to renew the Judgment timely as they would an affirmative defense when the prospect of further collection activity in Nevada by the Romanos was indicated by the Second Renewal. We conclude that the bankruptcy court did not err in determining that the LaVecchias had no duty to act earlier to bring the timeliness of the First Renewal before it.
VI. CONCLUSION
The bankruptcy court correctly applied Fed.R.Civ.P. 69 to the issue before it, specifically, whether the Judgment remained enforceable in light of the untimely First Renewal under Nev. Rev. Stat. § § 11.190(1)(a) and 17.214. The bankruptcy court made no error in the computation of time for filing the April 2002 Affidavit under Nev. Rev. Stat. § 17.214, nor in its determination of the effect of failure to comply. We AFFIRM.
. . . (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment . . . 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 . .., 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.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.