William Norrie v. Kelly Mallen , 698 F. App'x 432 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: WILLIAM ROBERT NORRIE, No. 16-60074
Debtor, BAP No. 15-1330
______________________________
WILLIAM ROBERT NORRIE, MEMORANDUM*
Appellant,
v.
KELLY MALLEN; JOHN PULOS,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Kurtz, and Faris, Bankruptcy Judges, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Chapter 7 debtor William Robert Norrie appeals pro se from the Bankruptcy
Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s order
*
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).
granting two creditors’ motion to enforce their settlement with the chapter 7
trustee. We have jurisdiction under 28 U.S.C. § 158(d). We review for clear error
the factual finding of whether an appellant is a person aggrieved. Duckor
Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 777 (9th
Cir. 1999). We affirm.
The bankruptcy court properly enforced the trustee’s settlement agreement,
and dismissed Norrie’s motion to set aside a state court judgment, because the
claims raised by Norrie belonged to the chapter 7 bankruptcy estate, and Norrie
accordingly lacked standing to pursue them. See 11 U.S.C. § 323; Moneymaker v.
CoBen (In re Eisen), 31 F.3d 1447, 1451 n.2 (9th Cir. 1994) (chapter 7 trustee is
the representative of the debtor’s estate, and therefore the only party with standing
to administer estate assets like causes of action); Fondiller v. Robertson (In re
Fondiller), 707 F.2d 441, 442-43 (9th Cir. 1983) (debtor carries burden to
“demonstrate that [he] was directly and adversely affected pecuniarily by the order
of the bankruptcy court”).
We reject as without merit Norrie’s argument on appeal that he has standing
to challenge the bankruptcy court’s order approving the chapter 7 trustee’s
settlement agreement. See Brady v. Andrew (In re Commercial W. Fin. Corp.),
761 F.2d 1329, 1334-35 (9th Cir. 1985) (holding that, provided the appellant was
given proper notice of the bankruptcy court proceeding, “attendance and objection”
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are “prerequisites to fulfilling the ‘person aggrieved’ standard”).
The bankruptcy court did not abuse its discretion in awarding sanctions to
the creditors because the record supports the bankruptcy court’s finding that
Norrie’s motion to set aside the state court judgment was frivolous. See Price v.
Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009) (a bankruptcy
court’s imposition of sanctions is reviewed for an abuse of discretion).
The BAP did not abuse its discretion in awarding sanctions to the creditors
because the record supports the BAP’s finding that Norrie’s appeal from the
bankruptcy court order was frivolous. See Fed. R. Bankr. P. 8020.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or matters raised for the first time on appeal. See Padgett v.
Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
Appellees’ request to dismiss this appeal based on the fugitive disentitlement
doctrine, set forth in their answering brief, is denied. See Mastro v. Rigby, 764
F.3d 1090, 1096-97 (9th Cir. 2014) (discussing the fugitive disentitlement
doctrine).
Appellees’ motion for sanctions (Docket Entry No. 15) is denied.
Norrie’s requests for independent action under Federal Rule of Bankruptcy
Procedure 60(d) (Docket Entry No. 21 and 22) are denied.
AFFIRMED.
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