Joseph Wilczak v. Select Portfolio Servicing, In ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JOSEPH L. WILCZAK; JUDITH A. No. 19-60068
WILCZAK,
BAP No. 19-1038
Debtors,
------------------------------ MEMORANDUM*
JOSEPH L. WILCZAK; JUDITH A.
WILCZAK,
Appellants,
v.
SELECT PORTFOLIO SERVICING, INC.;
THE BANK OF NEW YORK MELLON, as
trustee, on behalf of the holders of the
Alternative Loan Trust 2007-OA10,
Mortgage Pass-Through Certificates Series
2007-OA10,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Faris, Brand, and Gan, Bankruptcy Judges, Presiding
Submitted November 30, 2020**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
Before: GOODWIN, SCHROEDER, and SILVERMAN, Circuit Judges.
Joseph L. and Judith A. Wilczak, Chapter 11 debtors, appeal pro se the
Bankruptcy Appellate Panel’s judgment affirming the bankruptcy court’s order
overruling the Wilczaks’ objection to the claim of creditors Select Portfolio
Servicing, Inc., and the Bank of New York Mellon. We have jurisdiction under 28
U.S.C. § 158(d). We review for clear error the bankruptcy court’s findings of fact.
Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070, 1073 (9th Cir. 2000).
We affirm.
The bankruptcy court did not clearly err in finding that the signatures on the
loan documents were valid. First, the record, including the Wilczaks’ admissions at
trial, supports the bankruptcy court’s finding that the Wilczaks signed the loan
documents. Second, “we give singular deference to a trial court’s judgments about
the credibility of witnesses,” including the bankruptcy court’s determinations that
notary Cindy North’s testimony was credible and the Wilczaks’ testimony was
implausible. Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017). Finally, the
Wilczaks’ contention that the bankruptcy court erred by noting irregularities in the
signatures without finding them forged lacks merit.
To the extent the Wilczaks contend that their own counsel engaged in
without oral argument. See Fed. R. App. P. 34(a)(2).
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misconduct, the record discloses no misconduct affecting fundamental fairness. See
Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1145, 1148 (9th Cir. 2001)
(limiting review in civil cases to whether attorney misconduct affected
fundamental fairness where the error is alleged for the first time on appeal).
To the extent the Wilczaks raise the issue on appeal, the bankruptcy court
did not abuse its discretion by rejecting expert testimony by Nancy Cole because
Cole’s qualifications were out of date and her testimony would not have been
helpful or reliable. See Fed. R. Evid. 702(a) (qualified witnesses may testify as
experts if their “scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue”); Samuels v.
Holland Am. Line-USA Inc., 656 F.3d 948, 952 (9th Cir. 2011) (“a trial court has
broad discretion in assessing the relevance and reliability of expert testimony”
(citation and internal quotation marks omitted)).
The Wilczaks’ contention that the issue decided at trial was different than
the issue raised in their objection to the proof of claim lacks merit.
AFFIRMED.
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