Augustine Bustos v. Steven Molasky ( 2016 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    IN RE STEVEN D. MOLASKY,                           No. 14-60080
    Debtor,
    BAP No.
    14-1109
    AUGUSTINE C. BUSTOS,
    Appellant,
    OPINION
    v.
    STEVEN D. MOLASKY,
    Appellee.
    Appeal from the Ninth Circuit
    Bankruptcy Appellate Panel
    Pappas, Jury, and Houle, Bankruptcy Judges, Presiding
    Argued and Submitted November 17, 2016
    San Francisco, California
    Before: Sidney R. Thomas, Chief Judge, and Ronald Lee
    Gilman* and Michelle T. Friedland, Circuit Judges.
    Filed December 12, 2016
    Opinion by Chief Judge Thomas
    *
    The Honorable Ronald Lee Gilman, United States Circuit Judge for
    the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    2                          IN RE MOLASKY
    SUMMARY**
    Bankruptcy
    The panel reversed the Bankruptcy Appellate Panel’s
    affirmance of the bankruptcy court’s dismissal of an
    adversary proceeding against a chapter 11 debtor, seeking
    exception to discharge of debts pursuant to 11 U.S.C.
    § 523(c).
    The panel held that an intervenor can continue to litigate
    as the sole remaining party in a bankruptcy proceeding
    involving his own claim, when the original party who
    represented his interest, and whose adversary complaint he
    adopted without filing his own, was dismissed for failure to
    prosecute. The panel held that after the dismissal of the
    original party, an independent basis for subject matter
    jurisdiction existed because the bankruptcy court did not
    dismiss or otherwise adjudicate the § 523 claim itself. In
    addition, the goal of judicial economy was best served by
    allowing the intervenor to continue litigating the timely filed
    § 523 claim.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    IN RE MOLASKY                                  3
    COUNSEL
    John M. Netzorg (argued), Las Vegas, Nevada, for Appellant.
    Todd L. Bice (argued), Jordan T. Smith, Debra L. Spinelli,
    and James J. Pisanelli, Pisanelli Bice PLLC, Las Vegas,
    Nevada, for Appellee.
    OPINION
    THOMAS, Chief Judge:
    In this case we are asked to decide whether an intervenor
    can continue to litigate as the sole remaining party in a
    bankruptcy proceeding involving his own claim, when the
    original party who represented his interest, and whose
    adversary complaint he adopted without filing his own, was
    dismissed for failure to prosecute. Because we conclude that
    he can proceed, we reverse and remand.
    I
    This appeal, the second in this bankruptcy proceeding,
    concerns Augustine Bustos’s ongoing efforts to pursue an
    exception-to-discharge claim under 11 U.S.C. § 523(c)
    against Steven Molasky, the debtor.1 In May 2007, a
    corporate entity controlled by Molasky took out a loan and
    executed a promissory note for $17 million in favor of
    OneCap Funding Corporation (“OneCap”). Molasky also
    executed a Continuing Guarantee that obligated him
    1
    Unless otherwise specified, all section and chapter references are to
    the Bankruptcy Code, 11. U.S.C. §§ 101 et seq.
    4                      IN RE MOLASKY
    personally on this debt. Bustos was an investor in this debt
    instrument through OneCap; his funds accounted for
    $800,000 of the $17 million loaned to Molasky.
    The loan-servicing agreement between Bustos and
    OneCap provided that OneCap would represent Bustos in any
    court proceedings as long as the agreement was still in effect
    and “while any amounts [we]re still outstanding under the
    Note(s).” It provided that Bustos was “not to represent
    [himself] in any courts unless [the] agreement is terminated.”
    Molasky filed for chapter 11 bankruptcy on May 3, 2008.
    Under the deadline set by Federal Rule of Bankruptcy
    Procedure 4007(c), creditors received notice that the last day
    to file a complaint objecting to the discharge of a debt under
    11 U.S.C. § 523(c) was August 11, 2008. In accordance with
    the loan-servicing agreement, OneCap filed a timely § 523
    complaint on behalf of the lenders who had invested in the
    promissory note. In its adversary complaint, OneCap raised
    a claim under § 523(a)(2)(A), alleging that Molasky’s debt on
    the promissory note was not dischargeable because Molasky
    had knowingly made false representations on which OneCap
    had relied when making the loan.
    A number of parties subsequently reached a settlement
    with Molasky in the main bankruptcy case regarding a
    separate group of debts that indirectly related to Bustos. As
    part of that settlement, the parties stipulated that Bustos
    would be allowed to intervene in the § 523 adversary
    proceeding initiated by OneCap. At a hearing on whether to
    approve the settlement agreement, counsel for OneCap
    explained that Molasky had “agreed . . . that Mr. Bustos may
    . . . file a motion to intervene in the OneCap adversary
    proceeding regarding the 523 claim[] . . . , and the debtor will
    IN RE MOLASKY                                5
    not raise any affirmative defenses regarding timeliness or
    Statute of Limitations.” Bustos’s counsel further described
    the agreement as providing that Bustos would “be treated as
    if he filed the complaint with the OneCap representatives.”
    Molasky’s counsel agreed with this description of the
    settlement terms, and the bankruptcy court approved them as
    part of the settlement agreement.
    Bustos moved to intervene in the § 523 adversary
    proceeding on September 8, 2008, filing his own § 523
    adversary complaint in accordance with Federal Rule of Civil
    Procedure 24(c). Bustos’s complaint almost exactly mirrored
    the portions of the OneCap complaint relating to the
    promissory note disputed here. Molasky did not object to
    Bustos’s intervention but objected to his filing this separate
    complaint in intervention.
    Looking to the terms of the settlement agreement, the
    bankruptcy court allowed Bustos “to intervene in the
    complaint in the action brought by OneCap” under
    Bankruptcy Rule 7024,2 but it did not allow Bustos to file his
    own, separate complaint. In granting Bustos’s motion, the
    bankruptcy court ordered that Bustos be “afforded all the
    rights and remedies as those granted to OneCap Holding
    Corporation in this Adversary Proceeding insofar as they
    pertain to any and all of the claims of Augustine C. Bustos
    against the Debtor/Defandant.”3
    2
    Bankruptcy Rule 7024 incorporates Civil Rule 24 into adversary
    proceedings in bankruptcy.
    3
    At around the same time, the bankruptcy court approved a
    stipulation allowing another party, the W. Leslie Sully, Jr., Chtd. Profit
    Sharing Plan, to intervene in the OneCap adversary proceeding. The Sully
    6                         IN RE MOLASKY
    Several months later, the bankruptcy court allowed
    counsel for OneCap to withdraw, and no replacement counsel
    appeared on OneCap’s behalf at a status conference the
    following month. The court ordered OneCap to appear and
    explain why it should not be dismissed from the adversary
    proceeding for failure to prosecute. When OneCap did not
    appear at the show-cause hearing, the court “dismiss[ed]
    OneCap from the proceeding” and explained that this
    situation “le[ft] Mr. Bustos . . . as the lone party . . . to carry
    the flag in this matter.”
    Molasky then moved to dismiss Bustos and the adversary
    proceeding entirely. The motion alleged that, following
    OneCap’s dismissal, “there [was] no party for Bustos to
    assist” as an intervenor in the action. Because Bustos had not
    filed his own § 523 claim, Molasky argued that Bustos could
    show “no independent basis for jurisdiction against
    Molasky.” Bustos opposed the motion to dismiss, arguing
    that he should be able to proceed on the basis of the OneCap
    complaint, which he had effectively adopted when the court
    allowed him to intervene but prohibited him from filing his
    own complaint.
    After holding a hearing, the bankruptcy court granted
    Molasky’s motion to dismiss. Looking to Benavidez v. Eu,
    
    34 F.3d 825
    , 830 (9th Cir. 1994), the bankruptcy court
    explained that an intervenor “can proceed after dismissal of
    [the] original party only if . . . an independent basis for
    jurisdiction exists,” and it concluded that there was no such
    basis here because Bustos had not filed his own § 523
    Plan proceedings largely mirrored the Bustos appeals, but the Sully Plan
    has since voluntarily dismissed its claims against Molasky, so we do not
    discuss those proceedings further here.
    IN RE MOLASKY                         7
    complaint. Bustos appealed to the district court, which
    reversed the dismissal, concluding that “[t]he adversary
    proceeding underlying this appeal and the bankruptcy court’s
    subject matter jurisdiction survived the dismissal of OneCap
    as a plaintiff.”
    Molasky then appealed to this Court, and a three-judge
    panel issued a memorandum disposition vacating the district
    court’s order. The panel held that the bankruptcy court had
    correctly stated the applicable legal standard under
    Benavidez. Molasky v. Bustos (In re Molasky) (“Molasky I”),
    492 F. App’x 801, 802 (9th Cir. 2012) (citing 
    Benavidez, 34 F.3d at 830
    ). But in applying this standard to Bustos — in
    light of his failure to file a timely § 523 complaint — the
    panel concluded that the bankruptcy court had erred in failing
    to consider equitable factors that might justify extending the
    § 523 deadline or otherwise allowing Bustos to pursue the
    OneCap complaint. 
    Id. at 802–03.
    As an example, the panel
    pointed to Fasson v. Magouirk (In re Magouirk), 
    693 F.2d 948
    , 951 (9th Cir. 1982), which laid out five equitable factors
    that courts have previously considered in deciding whether to
    extend bankruptcy deadlines. Molasky I, 492 F. App’x at
    802–03. The panel therefore remanded “to the bankruptcy
    court for a determination of jurisdiction over Bustos” under
    Bankruptcy Rule 4007, which sets the deadline for § 523
    claims. 
    Id. at 803.
    On remand, the bankruptcy court considered an
    intervening precedential decision from this Court, Anwar v.
    Johnson, 
    720 F.3d 1183
    (9th Cir. 2013), which clarified that
    bankruptcy courts do not have equitable discretion to extend
    the Rule 4007 deadline retroactively. In light of this
    intervening precedent, the bankruptcy court concluded “that
    equitable relief from the deadline under FRBP 4007(c) [was]
    8                     IN RE MOLASKY
    not available to Bustos” and that, having “failed to timely
    assert a separate objection to dischargeability” before the
    deadline expired, Bustos could not continue to prosecute the
    action. On appeal, the Bankruptcy Appellate Panel (“BAP”)
    affirmed this decision in all respects. Bustos timely appealed
    to this Court. We have jurisdiction to hear his appeal under
    28 U.S.C. § 158(d).
    “We review decisions of the Bankruptcy Appellate Panel
    de novo and apply the same standard of review that the
    Bankruptcy Appellate Panel applied to the bankruptcy court’s
    ruling.” Wolfe v. Jacobson (In re Jacobson), 
    676 F.3d 1193
    ,
    1198 (9th Cir. 2012) (citing Americredit Fin. Srvs. v. Penrod
    (In re Penrod), 
    611 F.3d 1158
    , 1160 (9th Cir. 2010)). In
    doing so, “[w]e review conclusions of law de novo and
    findings of fact for clear error.” 
    Id. (citing Countrywide
    Home Loans, Inc. v. Hoopai (In re Hoopai), 
    581 F.3d 1090
    ,
    1095 (9th Cir. 2009)). Because interpretation of a prior
    decision is a question of law, we “review[] de novo a [lower]
    court’s compliance with the mandate of an appellate court,”
    such as the bankruptcy court’s interpretation of our Molasky
    I decision here. United States v. Perez, 
    475 F.3d 1110
    , 1112
    (9th Cir. 2007) (citation omitted).
    II
    Section 523 of the Bankruptcy Code provides that certain
    categories of debts may not be discharged in a bankruptcy
    proceeding. 11 U.S.C. § 523(a). Specifically, § 523(a)(2)(A)
    excepts from discharge certain debts obtained through fraud
    or false representation. To utilize this provision, § 523(c)
    requires a creditor to file an exception-to-discharge claim in
    the bankruptcy court. Bankruptcy Rule 4007 sets a 60-day
    IN RE MOLASKY                               9
    deadline for filing such a § 523(c) claim, beginning on the
    date of the first creditor meeting.
    In the present case, it is undisputed that OneCap filed its
    § 523(c) complaint within the 60-day deadline set by Rule
    4007 and that Bustos did not move to intervene or file his
    own complaint until after that period had passed. The
    primary question, then, is whether Bustos’s intervention and
    adoption of the OneCap complaint allow him to continue
    prosecuting the action even after OneCap’s dismissal. We
    answer this question in the affirmative.
    A
    As we explained in Molasky I, our precedent establishes
    that an intervenor may continue to litigate an action after the
    dismissal of the original party “when 1) an independent basis
    for jurisdiction exists, and 2) unnecessary delay would
    otherwise result,” such that allowing the intervenor to
    continue “promotes judicial economy and preserves litigant
    resources.”4 
    Benavidez, 34 F.3d at 830
    –31.
    Molasky I remanded for a determination of jurisdiction
    under the first prong of this test. 492 F. App’x at 803. The
    bankruptcy court and the BAP correctly concluded that our
    intervening decision in Anwar precluded extension of the
    Rule 4007 deadline to allow Bustos to file his own complaint.
    4
    This standard originally arose in the context of Civil Rule 24
    intervention, but it applies equally in the bankruptcy context. Because
    Bankruptcy Rule 7024 simply incorporates Civil Rule 24, courts apply
    Rule 24 jurisprudence to intervention in bankruptcy proceedings. Educ.
    Credit Mgmt. Corp. v. Bernal (In re Bernal), 
    207 F.3d 595
    , 597 (9th Cir.
    2000).
    10                         IN RE MOLASKY
    That conclusion leaves open the question of whether some
    other source of jurisdiction might allow Bustos to continue
    litigating the action even without his own complaint. See
    
    Anwar, 720 F.3d at 1187
    ; see also Willms v. Sanderson,
    
    723 F.3d 1094
    , 1100 (9th Cir. 2013) (confirming Anwar’s
    strict interpretation of Rule 4007).
    The bankruptcy court and the BAP seemed to assume that
    the court necessarily lacked jurisdiction if the Rule 4007
    deadline could not be extended to allow Bustos to file his
    own complaint.5 This assumption is not supported by
    precedent; our case law does not require an intervenor such
    as Bustos to file his own complaint in order for the court to
    have jurisdiction over his claim. Rather, an intervenor need
    not file separate pleadings “[i]f the intervenor is content to
    stand on the pleading an existing party has filed.”
    Westchester Fire Ins. Co. v. Mendez, 
    585 F.3d 1183
    , 1188
    (9th Cir. 2009) (quoting 7C Charles Alan Wright, Arthur R.
    Miller & Mary Kay Kane, Federal Practice & Procedure
    § 1914 (3d ed. 2009)). We therefore conclude that the
    bankruptcy court and the BAP interpreted Molaksy I too
    narrowly, erroneously foreclosing the ultimate question of
    whether the court retained jurisdiction over Bustos without a
    deadline extension.
    5
    Molasky argues that the mandate from our court after the first appeal
    “limited the scope of remand to assessing whether there was an
    independent basis for jurisdiction in light of Magouirk.” We do not think
    the mandate was so limited. But even if it were, there are exceptions to
    the mandate rule and to the law of the case doctrine for an intervening
    change in controlling authority, as Molasky concedes. See United States
    v. Bad Marriage, 
    439 F.3d 534
    , 537–38 (9th Cir. 2006). Under those
    exceptions, the intervening precedent of Anwar, 
    720 F.3d 1183
    , defeats
    any argument that the bankruptcy court on remand was limited by our
    prior decision to applying Magouirk, which Anwar overruled.
    IN RE MOLASKY                                11
    B
    Here, the bankruptcy court retained an independent source
    of jurisdiction over Bustos after OneCap’s dismissal, thereby
    satisfying the first prong of the Benavidez test. The
    “independent basis for jurisdiction” prong of the test stems
    from the Article III necessity of ensuring continued subject-
    matter jurisdiction over the intervenor’s claim. 
    Benavidez, 34 F.3d at 830
    ; see also Diamond v. Charles, 
    476 U.S. 54
    , 68
    (1986) (“[A]n intervenor’s right to continue a suit in the
    absence of the party on whose side intervention was
    permitted is contingent upon a showing by the intervenor that
    he fulfills the requirements of Art. III.”). The first Benavidez
    prong can therefore be understood as a temporal extension of
    the case-or-controversy requirement, applied at the point
    where the intervenor is the lone remaining party.6
    This requirement demands higher scrutiny where the
    original party’s claim was dismissed on the merits or for lack
    of jurisdiction, but the analysis is somewhat different where
    6
    Although Benavidez involved a permissive intervenor, the test itself
    and the analysis supporting it do not draw a distinction between
    permissive intervenors under Civil Rule 24(b) and intervenors of right
    under Rule 24(a). 
    See 34 F.3d at 830
    –31. Similarly, the decisions from
    other Courts of Appeals cited by Benavidez do not distinguish between
    permissive intervenors and intervenors of right. See, e.g., Arkoma Assoc.
    v. Carden, 
    904 F.2d 5
    , 7 (5th Cir. 1990); Horn v. Eltra Corp., 
    686 F.2d 439
    , 440 (6th Cir. 1982); Fuller v. Volk, 
    351 F.2d 323
    , 328 (3d Cir. 1965).
    Thus, while the parties dispute whether Bustos should be considered an
    intervenor of right or a permissive intervenor, in fact Bustos would need
    to demonstrate continued jurisdiction in either case. The Molasky I panel
    impliedly reached this conclusion when, after repeated questioning at oral
    argument about whether Bustos was a permissive intervenor or an
    intervenor of right, it ultimately concluded that the Benavidez test applied
    without reaching this question. See 492 F. App’x at 802.
    12                     IN RE MOLASKY
    the original party was dismissed for a procedural reason, such
    as for failure to prosecute. In such cases, a claim joined by an
    intervenor may survive the dismissal of the original party if
    the court retains jurisdiction over the claim and the intervenor
    has standing to continue litigating it. See Westchester Fire
    Ins. 
    Co., 585 F.3d at 1189
    (holding that “the district court
    should not have entered a default judgment” against an
    intervenor based on the original party’s failure to appear).
    There is no question that OneCap timely filed its § 523
    complaint and that the bankruptcy court initially had
    jurisdiction over this claim. See Rein v. Providian Fin. Corp.,
    
    270 F.3d 895
    , 904 (9th Cir. 2001) (“Bankruptcy courts have
    exclusive jurisdiction over nondischargeability actions
    brought pursuant to 11 U.S.C. § 523(a)(2) . . . .”). The
    bankruptcy court, in its own words, permitted Bustos to
    “intervene in the complaint in the action brought by OneCap
    Holding Corporation.” At that point, as explained above,
    Bustos necessarily adopted OneCap’s complaint — he had a
    valid claim against Molasky and was not required to file his
    own § 523 complaint because he was “content to stand on the
    pleading an existing party ha[d] filed.” See Westchester Fire
    Ins. 
    Co., 585 F.3d at 1188
    (quoting 7C Wright, Miller &
    
    Kane, supra
    , at § 1914).
    Thus, OneCap’s timely filing satisfied the Rule 4007
    deadline, and Bustos is simply “treated as if he filed the
    complaint with the OneCap representatives,” in accordance
    with the parties’ settlement agreement. We note that there is
    no unfairness in this result, particularly given that Molasky
    expressly agreed to waive any timeliness defense in his
    settlement agreement with Bustos; Molasky cannot now
    argue that it is too late for Bustos to pursue his own § 523
    claim that originally formed part of OneCap’s complaint. See
    IN RE MOLASKY                         13
    Doi v. Halekulani Corp., 
    276 F.3d 1131
    , 1138 (9th Cir. 2002)
    (first citing Sargent v. Dep’t of Health & Human Servs.,
    
    229 F.3d 1088
    , 1090 (Fed. Cir. 2000); then citing In re
    Christie, 
    173 B.R. 890
    , 891 (Bankr. E.D. Tex.1994))
    (explaining that the parties are bound by the terms of a
    settlement agreement once it is announced to the court).
    Logic and equitable principles counsel the same result. In
    a similar case where a creditor sought to be substituted for the
    original party after the Rule 4007 deadline had run, the
    Seventh Circuit aptly recognized that the thrust of the
    timeliness inquiry as to § 523 claims “should fall first and
    foremost on whether a complaint was filed against a specific
    debt, not so much on who makes the complaint.” FDIC v.
    Meyer (In re Meyer), 
    120 F.3d 66
    , 68 (7th Cir. 1997). This
    approach serves Rule 4007’s purpose of ensuring that “[a]fter
    the 60 days are over, all the demands for non-discharge that
    can be made, have been made. The debtor can relax.” 
    Id. Our Circuit
    has similarly recognized the need for flexibility
    in allowing § 523 claims to go forward despite issues
    requiring party substitution or other procedural adjustments,
    even after the deadline for filing a new claim has passed.
    Boyajian v. New Falls Corp. (In re Boyajian), 
    564 F.3d 1088
    ,
    1092 (9th Cir. 2009). When two creditors share a claim
    against a debtor, there is no reason why the procedural
    dismissal of one creditor should divest the court of
    jurisdiction over the other party, when it retains jurisdiction
    over the claim.
    Applying those principles to the current case — even if
    Molasky had not agreed to waive timeliness defenses —
    OneCap’s timely filed complaint gave Molasky notice of the
    § 523 claim within the time prescribed by Rule 4007.
    Bustos’s intervention and adoption of that complaint did not
    14                     IN RE MOLASKY
    prejudice Molasky or expose him to any additional claims
    after the expiration of the deadline. When the bankruptcy
    court dismissed OneCap from the proceeding for failure to
    appear, it did not dismiss or otherwise adjudicate the § 523
    claim itself. Thus, that claim remained live and justiciable.
    Ultimately, the bankruptcy court’s intervention order gave
    Bustos “all the rights and remedies as those granted to
    OneCap” to adjudicate this claim. The court’s dismissal of
    OneCap as a party did not divest the court of jurisdiction over
    the § 523 claim as it pertained to Bustos. Bustos has
    therefore satisfied the “independent basis for jurisdiction”
    prong of the Benavidez test, and the bankruptcy court and
    BAP erred in concluding otherwise.
    C
    Bustos also satisfies the second prong of the Benavidez
    test. The second Benavidez prong “asks whether refusing to
    allow the intervenors to continue would lead to senseless
    delay, because a new suit would inevitably bring the parties,
    at a much later date, to the point where they are 
    now.” 34 F.3d at 830
    –31. Benavidez also emphasized that the
    underlying goal of the rule is to “promote[] judicial economy
    and preserve[] litigant resources.” 
    Id. at 831.
    Delay and re-
    filing as described in Benavidez are not the only ways in
    which judicial resources may be wasted, and thus we
    understand Benavidez to counsel against other forms of
    judicial waste as well.
    In a § 523 case, as Bustos correctly points out, creditors
    should be entitled to rely on their representatives to litigate
    the adversary proceeding on their behalf. Here Bustos has a
    direct financial interest in the claim initiated by OneCap on
    IN RE MOLASKY                          15
    behalf of Bustos and the other investors, and he timely
    intervened to protect that interest. If an intervenor like
    Bustos cannot pursue an action initially filed by his or her
    representative at the point when the representative fails to
    prosecute the action, it creates an incentive for all of the
    individual creditors in a fractionalized debt instrument to
    hedge their bets by filing their own § 523 complaints before
    the 60-day deadline, just in case their representative later fails
    to prosecute adequately. Such an outcome could vastly
    increase the number of complaints filed in these cases,
    creating an unnecessary administrative burden for bankruptcy
    courts.
    This result runs counter to the Benavidez goals of
    “judicial economy and preserv[ation of] litigant resources,”
    
    see 34 F.3d at 831
    , and would impose exactly the type of
    administrative burden that the Benavidez rule seeks to avoid.
    For these reasons, we believe the goal of judicial economy is
    best served by allowing a party in Bustos’s position to
    continue litigating the timely filed § 523 claim that is before
    the court. We therefore conclude that Bustos has satisfied
    this second prong of the Benavidez test.
    III
    In sum, Bustos was permitted to intervene in the action
    initially filed by OneCap and was “afforded all the rights and
    remedies as those granted to OneCap.” By adopting
    OneCap’s timely filed § 523 complaint, Bustos satisfied the
    Rule 4007 deadline and established that the court had subject-
    matter jurisdiction over his claim. Both precedent and
    common sense dictate that Bustos should be permitted to
    continue litigating the claim after OneCap’s dismissal on
    procedural grounds.       Ultimately, Bustos satisfies the
    16                   IN RE MOLASKY
    Benavidez test because the court retains a subject-matter
    jurisdiction over his claim, and allowing him to pursue the
    claim promotes judicial economy. Accordingly, Bustos is
    entitled to continue prosecuting the § 523 claim originally
    filed by OneCap. The bankruptcy court and BAP erred in
    concluding otherwise.
    REVERSED and REMANDED.