FILED
APR 06 2018
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
4
5 In re: ) BAP No. AK-17-1139-LBF
)
6 MARGARET A. BERTRAN, ) Bk. No. 4:12-bk-501-FC
)
7 Debtor. )
______________________________)
8 )
DONALD TANGWALL; DONALD )
9 TANGWALL, Member of Tangwall )
Entities, )
10 )
Appellants, )
11 )
v. ) M E M O R A N D U M*
12 )
LARRY D. COMPTON, Trustee, )
13 )
Appellee. )
14 ______________________________)
15 Submitted Without Argument on March 22, 2018
16 Filed - April 6, 2018
17 Appeal from the United States Bankruptcy Court
for the District of Alaska
18
Honorable Fred Corbit, Bankruptcy Judge, Presiding**
19 _________________________
20 Appearances: Appellant Donald Tangwall, pro se on brief; Cabot
Christianson of Law Offices of Cabot Christianson,
21 P.C., on brief for Appellee.
_________________________
22
Before: LAFFERTY, BRAND, and FARIS, Bankruptcy Judges.
23
24
*
This disposition is not appropriate for publication.
25 Although it may be cited for whatever persuasive value it may
26 have (see Fed. R. App. P. 32.1), it has no precedential value.
See 9th Cir. BAP Rule 8024-1.
27
**
Hon. Fred Corbit, Chief Bankruptcy Judge for the Eastern
28 District of Washington, sitting by designation.
1 Appellant Donald Tangwall appeals the bankruptcy court’s
2 order declaring him a vexatious litigant and requiring him and
3 his entities to request permission before filing any further
4 documents in the Bankruptcy Court for the District of Alaska.
5 Mr. Tangwall also appeals the bankruptcy court’s order denying
6 his motion to void all orders entered in Margaret Bertran’s
7 bankruptcy case due to an alleged conflict on the part of the
8 judge who briefly presided over the case.
9 We AFFIRM both orders.
10 FACTS
11 A. Prepetition Events
12 Mr. Tangwall is married to Debtor’s daughter, Barbara
13 Tangwall. Several years ago, the Tangwalls sued William and
14 Barbara Wacker in Montana state court over a dispute concerning a
15 trucking enterprise and a cattle trailer. The Wackers filed a
16 third party complaint against Debtor, the Tangwalls, and others
17 to recover on a debt. At that time, Debtor and Ms. Tangwall co-
18 owned a parcel of real property in Roundup, Montana (the
19 “Ranch”). While the state court litigation was pending, they
20 transferred the Ranch and a commercial property owned by Debtor
21 (“Montana Properties”) to the Toni 1 Trust, of which Mr. Tangwall
22 was purportedly the trustee.
23 In May 2011, the Wackers obtained a $137,551.47 judgment in
24 the state court litigation against the Tangwalls and Debtor. The
25 Wackers then brought a fraudulent transfer suit in Montana state
26 court against the Toni 1 Trust, seeking to recover and execute
27 against the Montana Properties. In May 2012, the state court
28 entered an order setting aside the transfers and permitting the
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1 Wackers to execute on the Montana Properties, sell the properties
2 at public auction, and apply the proceeds to the 2011 judgment
3 (the “Fraudulent Transfer Judgment”). A writ of execution was
4 issued in July 2012, and a notice of public auction was sent to
5 Debtor and Ms. Tangwall, who unsuccessfully moved to quash the
6 writ and set aside the Fraudulent Transfer Judgment.
7 B. Mr. Tangwall’s History of Litigation in Ms. Bertran’s
Bankruptcy Case
8
9 Debtor filed a chapter 71 petition on August 17, 2012. The
10 bankruptcy case was originally assigned to Judge Donald
11 MacDonald IV, then reassigned to Judge Gary Spraker upon Judge
12 MacDonald’s retirement. On December 14, 2012, Judge Spraker
13 reassigned the case to Judge Herb Ross; after Judge Ross passed
14 away in February 2017, Judge Spraker reassigned the case to Chief
15 Bankruptcy Judge Frederick P. Corbit of the Eastern District of
16 Washington.
17 Appellee Larry Compton was appointed chapter 7 trustee
18 (“Trustee”). Relying on the Fraudulent Transfer Judgment,
19 Trustee asserted the estate’s ownership of the Montana
20 Properties. On December 20, 2012, Mr. Tangwall, as trustee of
21 the Toni 1 Trust, filed an adversary proceeding against Trustee
22 and the Wackers, seeking damages for defendants’ alleged
23 interference with the Toni 1 Trust’s use of the Montana
24 Properties (the “2012 Adversary Proceeding”). In the complaint,
25
26 1
Unless specified otherwise, all chapter and section
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
all “Civil Rule” references are to the Federal Rules of Civil
28 Procedure.
-3-
1 Mr. Tangwall asserted, among other things, that service of
2 process on the Toni 1 Trust in the fraudulent transfer litigation
3 was defective such that the Fraudulent Transfer Judgment was
4 void.
5 The bankruptcy court agreed that it was not clear that the
6 Toni 1 Trust had been properly served in the state court
7 fraudulent transfer litigation. Therefore, Trustee filed a
8 counterclaim in the 2012 Adversary Proceeding to avoid the
9 transfers of the Montana properties as fraudulent transfers under
10 state and federal law. During that litigation, Mr. Tangwall was
11 ordered to produce the alleged trust documents for the Toni 1
12 Trust but did not do so. The court also ruled that the Toni 1
13 Trust was required to appear through an attorney and that
14 Mr. Tangwall could not file pro per papers or pleadings on behalf
15 of the Toni 1 Trust. Nevertheless, Mr. Tangwall continued to
16 file and appear on behalf of the Toni 1 Trust.
17 After many hearings, the bankruptcy court issued a
18 Memorandum Decision for Entry of Default Judgment finding that
19 entry of judgment against the Toni 1 Trust was appropriate
20 because it had failed to appear through counsel.2 Further, the
21 bankruptcy court found that the transfers of the Montana
22 Properties “were made to keep the property out of the hands of
23 the Wackers, who were on the verge of obtaining a $137,000
24
25 2
The parties did not supply a comprehensive record, and we
26 have exercised our discretion to examine the bankruptcy court’s
docket and imaged papers in Case No. 12–501 and related adversary
27 proceedings. Atwood v. Chase Manhattan Mortg. Co. (In re
Atwood),
293 B.R. 227, 233 n.9 (9th Cir. BAP 2003); Omoto v.
28 Ruggera (In re Omoto),
85 B.R. 98, 100 (9th Cir. BAP 1988).
-4-
1 judgment against the debtor,” and that the real property
2 transfers were thus avoidable under § 548(a)(1)(A). Accordingly,
3 the court entered a final judgment avoiding Debtor’s conveyances
4 of her interests in the Montana Properties as fraudulent and
5 declaring that Trustee’s rights to Debtor’s interests in those
6 properties were superior to those of the Toni 1 Trust itself and
7 Mr. Tangwall, as its trustee (the “2013 Final Judgment”). The
8 2013 Final Judgment also dismissed Mr. Tangwall’s complaint.
9 Mr. Tangwall, in his capacity as trustee of the Toni 1
10 Trust, appealed the 2013 Final Judgment to the Bankruptcy
11 Appellate Panel, then appealed a previously entered interlocutory
12 order in the adversary proceeding denying Debtor’s and
13 Mr. Tangwall’s motion to intervene and to strike the answer to
14 Trustee’s counterclaim. The BAP dismissed both appeals as
15 untimely. Mr. Tangwall appealed to the Ninth Circuit, which
16 dismissed the appeal of the 2013 Final Judgment as frivolous and
17 the appeal of the motion to intervene for failure to perfect the
18 appeal.
19 On May 11, 2016, Trustee filed a motion in the main case
20 seeking an order permitting him to sell the bankruptcy estate’s
21 interest the Ranch. By this time the Wackers had obtained
22 Barbara Tangwell’s 50% interest in the Ranch and joined in the
23 motion. After a hearing at which the Tangwalls, Trustee, his
24 attorney, and counsel for the Wackers appeared, on June 7, 2016,
25 the bankruptcy court granted Trustee’s motion, finding that:
26 (1) the bankruptcy court has subject matter jurisdiction over
27 Trustee’s motion as it constituted a core proceeding pursuant to
28 28 U.S.C. § 157(b)(2)(A) and (N); (2) the bankruptcy court has
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1 personal jurisdiction over Donald Tangwall, both in his
2 individual capacity and as the “alleged trustee of the Toni 1
3 Trust”; (3) the bankruptcy court has personal jurisdiction over
4 the Toni 1 Trust; (4) the bankruptcy court has personal
5 jurisdiction over Barbara Tangwall and Margaret Bertran;
6 (5) Trustee may sell the bankruptcy estate’s 50% undivided
7 interest in the Ranch by auction; (6) because the Wackers joined
8 in Trustee’s motion, Trustee shall sell the Ranch as a whole;
9 (7) proper notice of the motion was given to all parties involved
10 in the Bertran bankruptcy proceedings and all persons claiming
11 through them; and (8) the sale of the Ranch would be free and
12 clear of the claims and liens of all persons who received notice
13 of the motion.
14 On June 13, 2016, the Tangwalls filed a notice of appeal
15 from the order approving the sale, later electing to have the
16 appeal heard by the District Court. On June 20, 2016, they filed
17 in the bankruptcy court a request for an evidentiary hearing on
18 the issue of whether the bankruptcy court had jurisdiction over
19 the Toni 1 Trust. They maintained that all “orders, memorandum
20 and judgments entered by [the Bankruptcy] Court should be deemed
21 null and void.” The bankruptcy court denied the motion because
22 the pending appeal deprived it of jurisdiction.
23 Debtor and the Tangwalls then moved to stay the execution of
24 the order approving sale. The bankruptcy court denied the motion
25 to stay, as did the District Court. Importantly, the District
26 Court also affirmed the bankruptcy court’s jurisdiction to enter
27 the order approving the sale. Mr. Tangwall appealed the District
28 Court’s decision to the Ninth Circuit Court of Appeals (Appeal
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1 No. 17-35334). On February 28, 2018, the Ninth Circuit Court of
2 Appeals dismissed the appeal as frivolous.
3 C. The Vexatious Litigant Motion
4 On February 14, 2017, Trustee filed a Motion to Declare
5 Donald A. Tangwall a Vexatious Litigant and Require Pre-Filing
6 Order for Him or his Entities to File Any Pleadings; and to
7 Vacate Lis Pendens (“Vexatious Litigant Motion”). Trustee
8 requested the bankruptcy court enter an order requiring written
9 authorization before Mr. Tangwall or any “Tangwall Entity” filed
10 any pleading in the bankruptcy court; Trustee also requested the
11 court vacate three lis pendens filed by Mr. Tangwall that clouded
12 Trustee’s title to the Ranch.
13 As background, Trustee recounted Mr. Tangwall’s lengthy
14 litigation history in various federal and state venues in
15 Michigan, Illinois, Tennessee, Montana, and the Northern Mariana
16 Islands. The litigation included bankruptcy filings and
17 litigation pursued on behalf of Mr. Tangwall and various entities
18 that he controlled. Trustee pointed out that in 1992, the United
19 States District Court for the Eastern District of Michigan had
20 entered a vexatious litigant order against Mr. Tangwall and
21 others, which Mr. Tangwall unsuccessfully appealed. And in 2011
22 the Montana Fourteenth Judicial District Court, Musselshell
23 County, declared Mr. Tangwall a vexatious litigant.3 Trustee
24 included copies of the vexatious litigant orders with the
25
26 3
It later came to light that the Montana state court had
27 entered not one, but two, vexatious litigant orders against
Mr. Tangwall, one on May 9, 2011 in Cause No. DV-11-08, and the
28 other on July 22, 2011 in Cause No. DV-11-18.
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1 Vexatious Litigant Motion.
2 Mr. Tangwall filed an opposition complaining that Trustee’s
3 motion was “nothing more than bald allegations” and was not
4 supported with complete and true copies of the relevant filings
5 from his previous litigation in other courts. He also objected
6 to the hearing date, claiming that he had not had sufficient
7 notice. At the initial hearing held April 5, 2017, Judge Corbit
8 continued the matter to April 14 and permitted Mr. Tangwall to
9 supplement the record.
10 On April 12, Mr. Tangwall filed a supplemental response to
11 the Vexatious Litigant Motion. His sole arguments with respect
12 to the Vexatious Litigant Motion were that the bankruptcy court
13 lacked subject matter jurisdiction over the request to declare
14 him a vexatious litigant and that the motion was Trustee’s
15 attempt to silence him. The balance of the response addressed
16 his argument that the bankruptcy court lacked personal
17 jurisdiction over Mr. Tangwall and his entities. Mr. Tangwall
18 contended that the Toni 1 Trust was not the plaintiff in the 2012
19 Adversary Proceeding; instead, he claimed that he filed the
20 complaint “as a natural person in his capacity as trustee of the
21 Toni 1 Trust” and therefore had the right to represent himself.
22 Mr. Tangwall also complained, as discussed below, that Judge
23 Spraker had a conflict in hearing matters in the bankruptcy case
24 because he was once a law partner with Trustee’s counsel, Cabot
25 Christianson. Mr. Tangwall demanded an evidentiary hearing on
26 the issues of personal and subject matter jurisdiction. Finally,
27 Mr. Tangwall argued that United States district courts “were
28 never delegated the authority to hear issues on vexatious
-8-
1 litigants.” He asserted that such matters may only be heard in
2 Alaska state courts, citing Johnson v. Johnson,
293 P.2d 393
3 (Alaska 2010).
4 Trustee filed a supplemental response which noted that most
5 of Mr. Tangwall’s arguments had been “hashed and rehashed,
6 rebutted and re-rebutted” numerous times. Trustee outlined
7 numerous inconsistencies in Mr. Tangwall’s assertions as
8 evidenced in pleadings and other documents filed in the court.
9 D. The “Motion to Find Judgments, Orders, and Memorandums Void
Abinitio”
10
11 While the Vexatious Litigant Motion was pending, on
12 March 31, 2017, the Tangwalls and various related entities
13 (Barbara Trust, Toni 1 Trust, CBT Farm and Mine, Inc., Trickle
14 Down Trucking, LP, and Trust Protectors of Alaska, LP) filed a
15 “Motion to Find All Judgments, Orders, and Memorandums [sic] Void
16 Abinitio [sic]” (“Motion to Void”).
17 In the Motion to Void, Mr. Tangwall alleged that Judge
18 Spraker, Trustee, and Trustee’s counsel had conflicts of interest
19 that warranted the voiding of all orders entered in the
20 bankruptcy case and related adversary proceedings. Mr. Tangwall
21 alleged that before his appointment to the bench, Judge Spraker
22 had been a law partner with Trustee’s counsel, Cabot
23 Christianson. He further alleged that in December 2012 Judge
24 Spraker had entered orders against the Debtor in favor of “his
25 law partner and its client.” Both orders were dated December 6,
26 2012. One was an order denying Debtor’s motion to avoid the
27 judgment lien held by the Wackers; the other granted the Wackers’
28 motion for relief from stay (Trustee was not a party to either
-9-
1 motion). Mr. Tangwall also noted that on December 14, 2012, the
2 same day Trustee filed his application to employ Cabot
3 Christianson, Judge Spraker reassigned the case to Judge Ross.
4 In his brief in support of the Motion to Void, Mr. Tangwall
5 argued that both Judge Spraker and Judge Ross should have recused
6 themselves. He further asserted that Judge Corbit should recuse
7 himself “because of the improprieties of Judge Spraker.”
8 Additionally, although he did not make any jurisdictional
9 arguments, Mr. Tangwall requested an evidentiary hearing on the
10 issues of personal and subject matter jurisdiction.
11 Trustee filed an opposition, in which he pointed out that
12 (i) according to a vexatious litigant order entered in 2011 in
13 the Montana state court, Mr. Tangwall had a history of suing
14 every judge who had issued a ruling in any case in which he was
15 involved, and (ii) Judge Spraker had entered the orders in
16 question before Trustee had filed his application to employ
17 Mr. Christianson.
18 E. The Combined Hearing and Disposition of the Motions
19 The bankruptcy court heard the Vexatious Litigant Motion and
20 the Motion to Void on April 14, 2017. At that hearing,
21 Mr. Tangwall consented to the bankruptcy court taking judicial
22 notice of the court filings submitted by Trustee in support of
23 the Vexatious Litigant Motion. He also stated in answer to Judge
24 Corbit’s inquiry that, despite the language of the Motion to
25 Void, he did not want voided Judge Spraker’s order assigning the
26 case to Judge Corbit. Although the bankruptcy court gave
27 Mr. Tangwall an opportunity to argue the Vexatious Litigant
28 Motion, Mr. Tangwall made virtually no argument in opposition to
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1 that motion, at one point stating in regard to the jurisdictional
2 issues he had raised, “I’m going to argue . . . until hell
3 freezes over, and if I’m vexatious, then I’m vexatious, but
4 somewhere along the line, it’s going to be proven that [Civil]
5 Rule 17 applies . . . there’s a way that you have to sue a trust,
6 and they did not do it.”
7 As to the Motion to Void, Mr. Tangwall complained that he
8 had never been given a hearing on the jurisdictional issues, so
9 Judge Corbit permitted him to argue. Mr. Tangwall argued, as he
10 had in his papers, that the Toni 1 Trust was not a party to the
11 2012 Adversary Proceeding and that the trustee of the Toni 1
12 Trust was not a named party in Trustee’s counterclaim.
13 At the conclusion of the hearing, the bankruptcy court took
14 the matter under advisement and issued a Memorandum Decision and
15 Order. The Order granted the Vexatious Litigant Motion and
16 denied the Motion to Void. The Order also set forth a procedure
17 for Mr. Tangwall and his entities to follow to request permission
18 to file papers in the bankruptcy court.
19 Mr. Tangwall timely appealed.
20 JURISDICTION
21 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
22 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.
23 § 158.
24 ISSUES
25 Whether the bankruptcy court abused its discretion in
26 granting Trustee’s Vexatious Litigant Motion.
27 Whether the bankruptcy court erred in denying the Motion to
28 Void.
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1 STANDARDS OF REVIEW
2 We review the bankruptcy court’s conclusions of law de novo
3 and its findings of fact for clear error. Keller v. New Penn
4 Fin., LLC (In re Keller),
568 B.R. 118, 121 (9th Cir. BAP 2017).
5 We review a pre-filing order entered against a vexatious
6 litigant for abuse of discretion. Molski v. Evergreen Dynasty
7 Corp.,
500 F.3d 1047, 1056 (9th Cir. 2007). To determine whether
8 the bankruptcy court has abused its discretion, we conduct a
9 two-step inquiry: (1) we review de novo whether the bankruptcy
10 court identified the correct legal rule to apply to the relief
11 requested and (2) if it did, whether the bankruptcy court’s
12 application of the legal standard was illogical, implausible, or
13 without support in inferences that may be drawn from the facts in
14 the record. United States v. Hinkson,
585 F.3d 1247, 1262–63 &
15 n.21 (9th Cir. 2009) (en banc).
16 DISCUSSION
17 A. The bankruptcy court did not abuse its discretion in
granting Trustee’s Motion to Declare Mr. Tangwall a
18 Vexatious Litigant.
19 The All Writs Act, 28 U.S.C. § 1651(a) provides: “The
20 Supreme Court and all courts established by Act of Congress may
21 issue all writs necessary or appropriate in aid of their
22 respective jurisdictions and agreeable to the usages and
23 principles of law.” The Ninth Circuit Court of Appeals has not
24 explicitly held that bankruptcy courts are “courts established by
25 Congress” such that they are authorized to issue writs under the
26 All Writs Act. But it is beyond dispute that federal courts,
27 including district courts, “have the inherent power to file
28 restrictive pre-filing orders against vexatious litigants with
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1 abusive and lengthy histories of litigation.” Weissman v. Quail
2 Lodge, Inc.,
179 F.3d 1194, 1197 (9th Cir. 1999); see also
3 De Long v. Hennessey,
912 F.2d 1144, 1146 (9th Cir. 1990) (“We
4 recognize that there is strong precedent establishing the
5 inherent power of federal courts to regulate the activities of
6 abusive litigants by imposing carefully tailored restrictions
7 under appropriate circumstances.”). Relying on these
8 authorities, bankruptcy courts in the Ninth Circuit have
9 concluded that they have the power to regulate vexatious
10 litigation under § 105(a) and 28 U.S.C. § 1651(a). See Stanwyck
11 v. Bogen (In re Stanwyck),
450 B.R. 181, 200 (Bankr. C.D. Cal.
12 2011); Goodman v. Cal. Portland Cement Co. (In re GTI Capital
13 Holdings, LLC),
420 B.R. 1, 11 (Bankr. D. Ariz. 2009). This
14 power includes the power to issue restrictive pre-filing orders
15 against vexatious litigants.
16 Because such orders constrain a litigant’s fundamental right
17 of access to the courts, they should rarely be used, and only if
18 courts comply with certain procedural and substantive
19 requirements. Ringgold-Lockhart v. Cnty. of L.A.,
761 F.3d 1057,
20 1062 (9th Cir. 2014). Therefore, before imposing pre-filing
21 restrictions, the court must:
22 (1) give litigants notice and an opportunity to oppose
the order before it is entered; (2) compile an adequate
23 record for appellate review, including a listing of all
the cases and motions that led the district court to
24 conclude that a vexatious litigant order was needed;
(3) make substantive findings of frivolousness or
25 harassment; and (4) tailor the order narrowly so as to
closely fit the specific vice encountered.
26
27
Id. (quoting DeLong, 912 F.2d at 1147-48).
28 The bankruptcy court made explicit findings as to all of the
-13-
1 relevant factors, and Mr. Tangwall does not contend that any of
2 those findings were erroneous. Taking each in turn:
3 1. Mr. Tangwall had adequate notice and an opportunity to
be heard.
4
5 It is undisputed that Mr. Tangwall was given adequate notice
6 of the hearing and an opportunity to be heard. In fact, the
7 bankruptcy court went out of its way to ensure that Mr. Tangwall
8 had the opportunity fully to address the issues when it continued
9 the hearing on the Vexatious Litigant Motion and permitted
10 Mr. Tangwall to supplement the record. Additionally, the
11 bankruptcy court permitted Mr. Tangwall to argue at length at the
12 April 14, 2017 hearing.
13 2. The bankruptcy court provided an adequate list of the
cases and motions leading to its conclusion that the
14 vexatious litigant order was needed.
15
The bankruptcy court provided in its memorandum a list and
16
details of numerous cases and appeals involving Mr. Tangwall and
17
entities controlled by him in several federal and state
18
jurisdictions. The bankruptcy court also noted that vexatious
19
litigant orders had been entered against Mr. Tangwall in Michigan
20
federal court and Montana state court.
21
The bankruptcy court further referenced “the record in this
22
court” as evidencing the necessity for a vexatious litigant
23
order, and, in its discussion of the third factor, listed the
24
cases and appeals relating to ownership of the Montana
25
Properties.
26
27
28
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1 3. The bankruptcy court made substantive findings of
frivolousness or harassment.
2
3 The bankruptcy court cited findings from the vexatious
4 litigant order entered in the Montana state court in May 2011,
5 which included a finding that Mr. Tangwall’s “history of filing
6 frivolous and patently meritless lawsuits . . . demonstrates that
7 he has no intention of refraining from such practices without
8 intervention of the Court.”
9 Additionally, the bankruptcy court cited Mr. Tangwall’s
10 “numerous repetitive and redundant [bankruptcy court] filings
11 that lack a basis in fact or law.” The bankruptcy court listed
12 at least twelve cases and appeals originating in the bankruptcy
13 court from Ms. Bertran’s bankruptcy as well as Mr. Tangwall’s own
14 chapter 7 bankruptcy case, all of which involved the same issues.
15 Based on these filings, the bankruptcy court found:
16 Mr. Tangwall has caused needless expense to other
parties and has [im]posed an unnecessary burden on the
17 court and its personnel. The court shares the
trustee’s concerns that Mr. Tangwall will continue to
18 burden the bankruptcy estate’s resources and the court.
The vast majority of Mr. Tangwall’s filings have been
19 meritless. The trustee and his counsel have been
burdened because they have had to respond not only to
20 Mr. Tangwall’s motions and oppositions, but to the
complaints Mr. Tangwall has made outside of this
21 bankruptcy case that attack the trustee’s personal
reputation and professional capacity. Additionally,
22 Mr. Tangwall’s filings, which primarily sought to
reargue matters previously decided, have resulted in an
23 overabundance of hearings before this court on issues
which are not germane to this bankruptcy. Thus, the
24 court makes a substantive finding of frivolousness and
harassment as to Mr. Tangwall.
25
26 4. The bankruptcy court’s order was narrowly tailored.
27 The bankruptcy court found that an appropriate order was one
28 which required Mr. Tangwall
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1 to obtain leave of the court before filing any further
documents in this court other than a notice of appeal
2 of this memorandum decision and the related vexatious
litigant order. The court assures Mr. Tangwall that it
3 will approve for filing any complaint, pleading or
other document if such document adequately demonstrates
4 a basis in law, and conforms to the federal and local
rules.
5
6 The bankruptcy court’s order granting the Vexatious Litigant
7 Motion set forth the procedure that Mr. Tangwall must follow
8 before filing any further papers in the bankruptcy court.
9 Specifically, the order requires Mr. Tangwall to file an
10 application seeking leave to file that attaches the proposed
11 document to be filed and a copy of the pre-filing order.
12 Further, the application must be supported by a declaration that
13 the matters asserted have not previously been raised and disposed
14 of by any court; that the claim or claims are not frivolous, made
15 in bad faith, or for the purpose of harassment; and that the
16 applicant has conducted a reasonable investigation of the facts,
17 and the investigation supports the claims or allegations.
18 On appeal, Mr. Tangwall does not argue that the bankruptcy
19 court abused its discretion in granting the Vexatious Litigant
20 Motion. Instead, Mr. Tangwall’s sole argument with respect to
21 the court’s ruling is that the bankruptcy court is an Article I
22 court with limited jurisdiction; as such, it is not a “United
23 States Court” with powers to declare Mr. Tangwall and his
24 entities vexatious litigants. Mr. Tangwall cites no authority
25 for this argument. In the bankruptcy court, he cited Johnson,
26
239 P.3d 393, without elaboration. We have reviewed this case,
27 which was in part a review of the propriety of awarding
28 attorney’s fees for vexatious or bad faith litigation under
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1 Alaska court rules. Nothing in that case addresses the authority
2 of bankruptcy courts to issue pre-filing orders against vexatious
3 litigants. Based on the authorities cited above, we conclude
4 that the bankruptcy court had the power to enter the pre-filing
5 order, and the court did not abuse its discretion in doing so.
6 B. The Bankruptcy Court did not err in denying the Motion to
Void.
7
8 As noted, the Motion to Void focused primarily on an alleged
9 conflict due to Judge Spraker’s former relationship as a law
10 partner with Trustee’s counsel. The bankruptcy court found that
11 Mr. Tangwall had presented no facts to support his claims of
12 alleged bias by the court and that even if such facts existed,
13 the time to present arguments had long passed. The bankruptcy
14 court did not err in this finding. The bankruptcy court docket
15 reflects that Judge Spraker ceased involvement in the case on the
16 same day Trustee filed his application to employ
17 Mr. Christianson. Thereafter, all matters were decided by Judge
18 Ross or Judge Corbit (other than the orders reassigning the case
19 to other judges). As for the two orders entered by Judge Spraker
20 in December 2012, Trustee was not a party to either of the
21 underlying motions; thus, Mr. Tangwall’s allegation in the
22 bankruptcy court that those orders were entered “in favor of
23 [Judge Spraker’s] law partner Cabot Christianson and their [sic]
24 client Larry D. Compton” is entirely groundless. Moreover,
25 Mr. Tangwall has never filed a motion for recusal despite the
26 fact that the bankruptcy case has been ongoing for over five
27 years.
28 As for the jurisdictional issues, the bankruptcy court found
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1 that those issues had already been litigated and decided. The
2 record supports this finding. In its order approving the sale of
3 the Ranch, the bankruptcy court explicitly found that it had both
4 personal and subject matter jurisdiction over the parties and
5 matters involved in the motion, and the District Court explicitly
6 affirmed that aspect of the bankruptcy court’s ruling. In its
7 Decision & Order on Appeal affirming the bankruptcy court, the
8 District Court held that the bankruptcy court had subject matter
9 jurisdiction over the estate’s interest in the Ranch because the
10 Ranch became property of the estate upon the filing of
11 Ms. Bertran’s bankruptcy case (because the 2013 Final Judgment
12 had avoided the transfer of the Ranch to the Toni 1 Trust), and
13 the bankruptcy court had authority to authorize the sale of the
14 Wackers’ interest in the Ranch because they had consented to the
15 sale. Regarding personal jurisdiction, the District Court held
16 that the bankruptcy court obtained personal jurisdiction over the
17 Toni 1 Trust by virtue of the fact that its trustee,
18 Mr. Tangwall, had filed an adversary proceeding in the bankruptcy
19 court.
20 On appeal, Mr. Tangwall argues that he never had a hearing
21 on the jurisdictional issues, but he fails to recognize that the
22 bankruptcy court gave him the opportunity to present his
23 arguments at the April 14, 2017 hearing.
24 Additionally, Mr. Tangwall complains that the bankruptcy
25 court did not make explicit findings of fact and conclusions of
26 law in denying the Motion to Void. While the bankruptcy court
27 arguably could have been more specific in its findings, we may
28 affirm on any basis supported by the record. Caviata Attached
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1 Homes, LLC v. U.S. Bank, Nat’l Ass’n (In re Caviata Attached
2 Homes, LLC),
481 B.R. 34, 44 (9th Cir. BAP 2012). As explained
3 above, the record supports the bankruptcy court’s denial of the
4 Motion to Void. Accordingly, the bankruptcy court did not err.
5 CONCLUSION
6 For the reasons explained above, we AFFIRM both the
7 bankruptcy court’s granting of the Vexatious Litigant Order and
8 its denial of the Motion to Void.
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