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 2021-08

Paul Merritt v. Lake Mathews Mineral Props. ( 2021 )


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  •                              NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                          AUG 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LAKE MATHEWS MINERAL                     No.    20-55276
PROPERTIES, LTD.,
D.C. No. 2:19-cv-00921-VAP
Debtor,
______________________________
MEMORANDUM*
PAUL MERRITT,
Appellant,
v.
LAKE MATHEWS MINERAL
PROPERTIES, LTD.; ELISSA D. MILLER,
Trustee,
Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Submitted August 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
*
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
without oral argument. See Fed. R. App. P. 34(a)(2).
Paul Merritt appeals pro se from the district court’s order affirming the
bankruptcy court’s order disallowing his proof of claim. We have jurisdiction
pursuant to 28 U.S.C. § 158(d). We review de novo a district court’s judgment on
appeal from a bankruptcy court. In re First T.D. & Inv., Inc.,
    253 F.3d 520
    , 526
(9th Cir. 2001). We apply the same standard of review applied by the district
court, reviewing the bankruptcy court’s legal conclusions de novo and its factual
determinations for clear error.
    Id.
     We affirm.
The bankruptcy court properly disallowed Merritt’s proof of claim because
he failed to prove its validity by a preponderance of the evidence. See Lundell v.
Anchor Const. Specialists, Inc.,
    223 F.3d 1035
    , 1039 (9th Cir. 2000). The record
demonstrates that Merritt has at most an equity interest in the debtor. “It is
axiomatic that an allowed proof of claim requires something more than mere
equity ownership.” In re USA Com. Mortg. Co.,
    377 B.R. 608
    , 615 (B.A.P. 9th
Cir. 2007). The district court thus did not err in affirming the bankruptcy court’s
disallowance of Merritt’s proof of claim.
Because the district court did not err in affirming the bankruptcy court’s
disallowance of Merritt’s proof of claim, there was no error for the district court to
correct on Merritt’s motion for reconsideration. Thus, the district court did not
2
abuse its discretion in denying that motion.1 Sch. Dist. No. 1J, Multnomah Cnty. v.
ACandS, Inc.,
    5 F.3d 1255
    , 1262 (9th Cir. 1993).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief or arguments raised for the first time on appeal. See Padgett v.
Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
1
Appellee argues that the scope of this appeal is limited to review of the district
court’s order denying Merritt’s motion for reconsideration. However, because
Merritt timely filed a reconsideration motion—which we construe as a motion for
rehearing under Rule 8022 of the Federal Rules of Bankruptcy Procedure—and
subsequently timely filed a notice of appeal following the district court’s denial of
his reconsideration motion, we have jurisdiction to review both the district court’s
order affirming the bankruptcy court’s order disallowing Merritt’s proof of claim
and the district court’s order denying Merritt’s motion for reconsideration. See
Fed. R. App. P. 6; Fed. R. Bankr. P. 8022.
3