Nick Alden v. Edward Wolkowitz

FILED
NOT FOR PUBLICATION
FEB 23 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: TINA CHI HOUNG, No. 12-60089
Debtor. BAP No. CC-12-1208-DHKi
NICK ARGAMAN ALDEN, MEMORANDUM*
Appellant,
v.
EDWARD M. WOLKOWITZ,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Hollowell, and Dunn, Bankruptcy Judges, Presiding
Submitted February 10, 2015**
Pasadena California
Before: GRABER, WARDLAW, Circuit Judges, and MAHAN,*** District Judge.
Nick Alden, a California attorney, appeals pro se from the Bankruptcy
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s entry of
default judgment. We have jurisdiction under 28 U.S.C. § 158(d)(1). Reviewing
de novo, Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th
Cir. 2009), we affirm.
This appeal arises out of the Chapter 7 bankruptcy proceeding of Tina Chi
Houng. Edward Wolkowitz, appellee and Trustee for the bankruptcy estate, filed
an adversary proceeding against Alden seeking a determination that $250,000 in
proceeds that Alden received from the sale of Houng’s residence was a fraudulent
transfer. The bankruptcy court, after several hearings, granted the Trustee’s
motion for entry of default judgment.
The bankruptcy court did not abuse its discretion in entering default
judgment because Alden failed to file a timely answer, failed to attend the hearing
on his own motion to set aside the order of default, and failed to present evidence
establishing a dispute as to material facts after having several opportunities to do
so. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986) (setting forth the
standard of review and the factors the court may consider in deciding whether to
enter default judgment).
Alden’s contention that the adversary proceeding is barred by the statute of
limitations fails because a Trustee is permitted to recover transfers made within
two years of the petition date. See 11 U.S.C. § 548. Houng transferred funds to
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Alden on October 26, 2006, well within two years of the December 5, 2007
petition date in Houng’s Chapter 7 bankruptcy proceedings.
Alden contends that the bankruptcy court erred by (1) entering default after
he had made a general appearance in court, and (2) failing to address his asserted
immunities and defenses under California law. These contentions fail because
state procedures and immunities do not apply in a federal proceeding. See
Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 n.10 (9th Cir. 1992) (per
curiam) (explaining that state immunities are generally not recognized under
federal common law); United States v. Tacoma Oriental S.S. Co., 86 F.2d 363, 366
(9th Cir. 1936) (“[S]tate law is not controlling in the federal courts in the
determination of the question as to whether an appearance is general or special.”).
Alden’s contention that the bankruptcy court erred in entering default
judgment while his son remained a defendant fails because the court may enter a
final judgment against one or more, but fewer than all, parties when it expressly
determines, as it did here, that there is no just reason for delay. See Fed. R. Civ. P.
54(b).
Alden’s remaining contentions, including that the Trustee had unclean
hands, are unpersuasive.
AFFIRMED.
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