FILED JUN 1 2020 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. EC-19-1147-LBG

RAJPAL SINGH CHATHA; TARANJIT Bk. No. 17-25335 KAUR CHATHA, Adv. No. 17-02205 Debtors.

RAJPAL SINGH CHATHA; TARANJIT KAUR CHATHA,

Appellants,

v. MEMORANDUM*

WESTATES HOLDINGS, LLC,

Appellee.

Argued and Submitted on May 21, 2020

Filed – June 1, 2020

Appeal from the United States Bankruptcy Court for the Eastern District of California

* This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. Honorable Christopher D. Jaime, Bankruptcy Judge, Presiding

Appearances: William Steven Shumway argued for Appellants; Walter R. Dahl argued for Appellee.

Before: LAFFERTY, BRAND, and GAN, Bankruptcy Judges.

INTRODUCTION

Chapter 71 debtors Rajpal and Taranjit Chatha appeal the bankruptcy

court’s order denying their motion to extend the time to appeal the

judgment entered in favor of Appellee Westates Holdings, LLC

(“Westates”) denying their discharge under § 727(a). Because the motion to

extend was filed outside of the appeal period, Debtors were required to

show excusable neglect pursuant to Rule 8002(d)(1)(B). Debtors’ attorney,

W. Steven Shumway, explained that he had missed the fourteen-day

deadline for filing an appeal under Rule 8002 because he was distracted

after learning that his elderly mother had suffered a fall. After considering

all the facts and circumstances surrounding the reason for the delay, the

bankruptcy court concluded that Debtors had not established excusable

neglect and denied the motion.

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code,

, all “Civil Rule” references are to the Federal Rules of Civil Procedure, and “Rule” references are to the Federal Rules of Bankruptcy Procedure.

2 We AFFIRM.

FACTUAL BACKGROUND

The bankruptcy court entered judgment for Westates denying

Debtors’ discharge on March 26, 2019. Under Rule 8002(a)(1), Debtors had

fourteen days, or until April 9, 2019, to file a notice of appeal. The notice of

appeal was not filed until April 12, 2019. That appeal was referred to this

Panel (No. EC-19-1091), which issued a Notice of Deficient Appeal and

Impending Dismissal informing Debtors that their appeal was untimely

and ordering them to file an explanation why the appeal should not be

dismissed.

On April 29, 2019, Debtors filed in the bankruptcy court a motion

under Rule 8002(d)(1)(B), which permits the bankruptcy court to extend the

time to appeal if the motion is filed within twenty-one days of the

expiration of the fourteen-day appeal period and the party shows

excusable neglect. The motion was accompanied by the declaration of Mr.

Shumway, who testified to the following:

• He received the notice of entry of judgment on March 28, 2019,

which he emailed to Debtors with a request that they contact

him to discuss it.

• In anticipation of Debtors authorizing him to file an appeal, he

drafted a notice of appeal on April 4, 2019.

• On April 9, as he was leaving the bankruptcy court to return to

3 his office, he was notified that his mother had fallen “again”

and was receiving medical attention. His mother is 85 years old,

lives alone, and has a condition that interferes with her ability

to walk.

• Upon receiving the notification, he went home and forgot about

work because he was communicating with his siblings and

medical professionals about his mother’s condition.

• On the evening of April 11, he remembered that he had not

filed the notice of appeal and filed it the next day.

Westates filed an opposition, arguing that Debtors’ motion had not

established excusable neglect. It pointed out that Mr. Shumway was an

experienced bankruptcy practitioner and e-filer. It also pointed out, based

on statements from Mr. Shumway’s declaration, that Mr. Shumway had

drafted a notice of appeal before the appeal deadline, his mother’s fall was

not her first, he has siblings involved in his mother’s care, and he did not

go to the hospital but rather returned home. Westates also pointed out that

because Mr. Shumway had a draft notice of appeal prepared, he could

easily have e-filed it before the deadline.

Debtors filed a reply, arguing that there would be no prejudice to

Westates in granting the motion to extend and offering further explanation

for Mr. Shumway’s failure timely to file the notice of appeal by way of a

second declaration in which Mr. Shumway testified to the following

4 additional facts:

• His mother lives in Utah.

• In August 2009 he had been scheduled to visit his father but

canceled the trip due to events at his office; his father died a

week later. At that time he resolved not to allow events to get in

the way “if the need arose with my mother.”

• He recalled receiving his clients' authorization to file the appeal

the day before it was due.

• When notified on April 9 that his mother had fallen, he

remembered his father, and spent the remainder of the day

solely discussing the matter with his siblings and doctors and

making travel arrangements instead of focusing on his law

practice.2

The bankruptcy court held a hearing on May 28, 2019. At that

hearing, Mr. Shumway orally presented additional facts, including that his

2 On May 3, the bankruptcy court issued an “Indicative Ruling on Motion to Extend Time to File Notice of Appeal.” The court noted that Mr. Shumway’s initial declaration stated that he learned of his mother’s fall as he was leaving the bankruptcy court to return to his office, but that there was no record of any personal appearance by Mr. Shumway before any bankruptcy judge or at a § 341 meeting that day. In response, Mr. Shumway filed a third declaration explaining his whereabouts on April 9, including that he had appeared on behalf of a creditor at a § 341 meeting at the courthouse that afternoon. At the hearing on the motion, the bankruptcy court noted that it had confirmed with the United States trustee’s office that Mr. Shumway had indeed attended a § 341 meeting at the bankruptcy court on April 9.

5 mother had previously fallen in January or February 2019 and had

completed rehab in early March, and he has several relatives in Utah: four

brothers, three of whom live within ten or fifteen minutes of their mother’s

house, a (disabled) sister, and numerous nieces and nephews. He also

explained that, although he had prepared the notice of appeal on April 4,

he did not file it immediately because he was waiting for Debtors to

authorize him to do so. In response to the court’s question as to why he

waited until April 12 to file the notice of appeal when he had remembered

it on the 11th, Mr. Shumway stated

I have no reason for waiting that one extra day other than I was – it was in the flow of work, and I did it just as I – and I don’t remember if I was doing other e-filings that day at that time, but it was kind of in the flow, and that’s when I put it in there.

Hr’g Tr. (May 28, 2019) at 7:3-5.3

Thereafter, the bankruptcy court issued a memorandum decision and

order denying the motion. It analyzed the facts presented under the

standards set forth in Pioneer Investment Services Co. v. Brunswick Associates

Ltd. Partnership,

(1993), and concluded that Debtors had not

established excusable neglect.

Debtors timely appealed.

3 The record does not reflect that Mr. Shumway made his statements under oath, but no party objected to his “testimony.”

6 JURISDICTION

The bankruptcy court had jurisdiction under

and

157(b)(1) and (b)(2)(J). We have jurisdiction under

.

ISSUE

Whether the bankruptcy court abused its discretion in denying

Debtors’ motion to extend.

STANDARD OF REVIEW

The bankruptcy court’s denial of a motion to extend the time to file a

notice of appeal is reviewed for abuse of discretion. Pincay v. Andrews,

, 858–59 (9th Cir. 2004) (en banc). Under the abuse of discretion

standard, we first “determine de novo whether the [bankruptcy] court

identified the correct legal rule to apply to the relief requested.” United

States v. Hinkson,

(9th Cir. 2009) (en banc). If the

bankruptcy court identified the correct legal rule, we then determine under

the clearly erroneous standard whether its factual findings and its

application of the facts to the relevant law were: “(1) illogical,

(2) implausible, or (3) without support in inferences that may be drawn

from the facts in the record.”

(internal quotation marks omitted).

We emphasize that, under this standard, we may not “substitute our

judgment for that of the [bankruptcy] court.”

; see also Nat'l

Hockey League v. Metro. Hockey Club, Inc.,

(1976) (per

curiam) (holding that, under abuse of discretion standard, question is not

7 what the appellate court would have decided in the first instance but rather

whether the trial court abused its discretion in what it decided).

DISCUSSION

Upon entry of a judgment, order, or decree by a bankruptcy court, a

party has fourteen days to file a notice of appeal. Rule 8002(a). If unable to

meet that deadline, a party may move for an extension of time to file the

notice of appeal. Rule 8002(d). While the deadline for filing a request to

extend the appeal time is also fourteen days from the entry of the order to

be appealed, the rules contain an additional twenty-one day window (a

total of thirty-five days) during which the bankruptcy court may grant a

late-filed motion to extend time, but only if the moving party demonstrates

that its neglect in not filing a timely motion was “excusable.” Rule

8002(d)(1)(B). The party requesting an extension of time bears the burden

of proving the existence of excusable neglect. Key Bar Invs., Inc. v. Cahn (In

re Cahn),

(9th Cir. BAP 1995).

In determining whether the moving party has shown excusable

neglect, the court considers: (1) the danger of prejudice to the other party;

(2) the length of the delay caused by the neglect, and its potential impact on

judicial proceedings; (3) the reason for the delay, including whether it was

within the movant’s reasonable control; and (4) whether the movant acted

in good faith. Pioneer,

. In conducting this analysis, the court

is to consider all relevant circumstances surrounding the neglect; no “single

8 circumstance in isolation compels a particular result regardless of the other

factors.” Pincay,

-57 (quoting Briones v. Riviera Hotel & Casino,

, 382 n.2 (9th Cir. 1997)). See also Pioneer,

(the

determination whether neglect is excusable “is at bottom an equitable one,

taking account of all relevant circumstances surrounding the party’s

omission.” (Footnote omitted)).

A. Factors one and two, prejudice and length of delay and impact on judicial proceedings, are not at issue in this appeal.

The bankruptcy court found that the first factor – prejudice to the

other party – weighed in favor of granting relief, noting that Westates had

not addressed the issue of prejudice, and while Westates would no doubt

rather avoid the cost and delay of an appeal, that was not sufficiently

prejudicial in this context. As for the second factor, the length of delay and

impact on judicial proceedings, the court found that this factor was either

neutral or tipped slightly in favor of granting relief, given the minimal

delay (three days) and the lack of any pending post-trial matters. No party

has assigned error to the court’s conclusions as to these two factors.

B. The bankruptcy court did not commit reversible error in finding that the third factor, reason for the delay, weighed heavily against granting relief.

The bankruptcy court held that this factor is the most significant,

citing Gibbons v. United States,

, 854 (8th Cir. 2003). But as

Debtors correctly point out, that is not the rule in this circuit. See Pincay, 389

9 F.3d at 860 (holding that the excusable neglect analysis does not mandate

any per se rules, and the weighing of the factors should be left to the

discretion of the trial court). See also Ehrenberg v. WSCR, Inc. (In re Hoover

WSCR Assocs., Ltd.), Nos. CC–04–1390–MaMoP, CC–04–1391–MaMoP,

, at *7 (9th Cir. BAP May 31, 2005) (noting that, under Pincay,

the trial court need not give greater weight to the third factor in balancing

the equities). At the same time, given that the bankruptcy court has

discretion to determine how much weight to give each factor, the court’s

misstatement of the law was harmless error. See

; Civil

Rule 61, applicable via Rule 9005 (court must disregard errors and defects

that do not affect any party’s substantial rights).

In finding that this factor weighed against granting the motion, the

bankruptcy court noted that Mr. Shumway had failed to explain: (1) why

he did not file the notice of appeal immediately upon receiving

authorization from his clients on April 8; (2) why he took two days to

realize that the notice of appeal had not been timely filed; and (3) why he

waited over 24 hours to file the notice of appeal after realizing that it had

not been filed.

The bankruptcy court also distinguished cases where courts had

found excusable neglect, which presented “dire circumstances” not present

in this case. See Allied Domecq Retailing USA v. Schultz (In re Schultz),

(6th Cir. BAP 2000); and Erdman v. Calvert (In re Nw. Territorial

10 Mint, LLC), No. WW-18-1127-BKuTa,

(9th Cir. BAP Nov.

27, 2018). In Schultz, the Sixth Circuit BAP held that the bankruptcy court

abused its discretion in not finding excusable neglect where an attorney’s

failure timely to file a notice of appeal was due to his wife’s three-day

hospitalization for a serious side effect of her chemotherapy treatment for

ovarian cancer. After her release and during the entire appeal period, the

attorney was her sole caregiver, accompanying her to medical

appointments, administering her medication, and devoting only part-time

hours to his solo law practice.

. Similarly, in Northwest

Territorial Mint, the BAP found that the bankruptcy court had abused its

discretion in not finding excusable neglect when an attorney’s failure

timely to file a notice of appeal was due to his being distracted by the fact

that, three days after the judgment was entered, he found his wife of thirty-

five years collapsed on the floor without a pulse and unsuccessfully

applied CPR; she died a few days later.

at *1-*2. 4

Here, the bankruptcy court found no similarity between the

circumstances of the medical emergencies at issue in Schultz or Northwest

Territorial Mint because Mr. Shumway is not his mother’s sole caregiver

4 The BAP did not reverse the bankruptcy court based on its finding with respect to the “reason for delay” factor, noting that it would not substitute its judgment for the bankruptcy court’s as to that factor, but it ultimately reversed the bankruptcy court because it found that the court’s finding that the attorney lacked good faith was either illogical or unsupported by the record.

.

11 and in fact, Mr. Shumway’s relatives provide for his mother’s care.

Moreover, there was no evidence that serious medical issues occurred after

the fall that resulted in a prolonged hospitalization or loss of life. 5 The court

also noted that in Northwest Territorial Mint, the newly-hired attorney did

not realize he needed to file a notice of appeal within fourteen days

because he did not know the judgment was from a bankruptcy court, while

here, Mr. Shumway knew of the appeal deadline, had prepared a notice of

appeal, and was authorized to file it the day before the deadline, and there

was no reason he could not have e-filed it, regardless of whether he was in

his office.

In addition, the court noted that Mr. Shumway knew his mother had

fallen previously and might fall again but had not put any procedures in

place to address the disruption to his practice resulting from such a

“known and anticipated” event. As such, the court found that this case was

more akin to the circumstance where a deadline is missed due to

inattentiveness or general office disruption, neither of which constitute

excusable neglect. Under all the circumstances, the bankruptcy court found

that this factor weighed heavily against granting relief.

On appeal, Debtors argue that their attorney’s reason for delay was

“reasonable,” essentially rehashing the same arguments they made in the

5 The court stated that it made these conclusions not to minimize Mr. Shumway’s mother’s condition, but only to draw a distinction.

12 bankruptcy court and speculating as to additional reasons why the

attorney failed to file the notice of appeal on time. For example, with

respect to the question why Mr. Shumway took two days to realize the

appeal had not been filed, they state “he might have thought he had filed

it.” They also posit that while Mr. Shumway had relatives living near his

mother, those family members were “less than responsive in prior

situations involving his mother.” But there is no evidence in the record to

support these assertions, which were not made to the bankruptcy court.6

Debtors also assert that the facts of this case are distinguishable from

those in a case cited by the bankruptcy court, Easley v. Kirmsee,

(7th Cir. 2004). However, the bankruptcy court did not cite Easley as an

analogous case, but for its holding that attorney inattentiveness to litigation

is not excusable.

.

6 The “evidence” Debtors cite in support of the assertion that Mr. Shumway’s relatives had previously been unresponsive is the portion of the hearing transcript in which Mr. Shumway responded to the bankruptcy court’s question of how his mother was currently doing:

She’s doing much better. I got my – my brothers and – I have not only four brothers back there, but I have probably 15 or 20 nieces and nephews. And so we now have a schedule where someone is visiting her at least every day making sure everything’s going – we’ve got Hospice care coming four days a week for a two-hour period. So other than evenings after like 6:00 o’clock, there’s somebody there, and everyone’s within – and this is, they had a problem. Every one of my brothers is within, except one, is within ten minutes, fifteen minutes of her house.

Hr’g Tr. (May 28, 2019) at 7:13-23.

13 C. Good Faith

The bankruptcy court also found that the good faith factor weighed

against granting relief. The basis for this finding was that Mr. Shumway

was authorized to file the notice of appeal the day before it was due and

yet it took him two full days after the deadline for him to realize he had not

filed it, and there was no evidence he had been preoccupied with issues

relating to his mother’s condition during that entire time. The court also

noted that even after Mr. Shumway realized he needed to file the notice of

appeal, he took almost twenty-four hours to do so. The court found that

these circumstances pointed to a lack of diligence.

On appeal, Debtors argue that Mr. Shumway’s failure to file the

notice of appeal as soon as he had authorization from them was because

the authorization was not communicated until the end of the day on April

8, he believed he would have time to file it after his hearings the next day,

and he could not have anticipated that his mother would fall that day.

They also contend that Mr. Shumway is a solo practitioner with no support

staff, and, for over 30 years, he has maintained his office without failing to

file documents due to inadvertence or lack of diligence. They also state

that, as soon as he realized he had not filed the notice of appeal, he filed it

the following day, adding “[w]hether it was filed at 7:00 in the morning or

5:00 in the evening, it was filed.”

Debtors’ arguments are not supported by the record. Neither

14 Mr. Shumway’s declarations nor his unsworn statements at the May 28

hearing support the assertions that he planned to file the notice of appeal

after his hearings on April 9 or that he had practiced for over 30 years

without inadvertently missing any deadlines. As for the argument that it

did not matter what time he filed it, the simple fact that he did not

immediately file the notice of appeal when he realized it was late supports

the bankruptcy court’s finding that he was not diligent.

We note, however, that although Debtors did not raise the issue, the

bankruptcy court appears to have misinterpreted this factor in finding Mr.

Shumway’s lack of diligence indicative of bad faith. Lack of diligence is

more appropriately analyzed under the “reason for delay” factor, and there

is no evidence in the record that Mr. Shumway acted with deviousness or

willfulness. See Bateman v. U.S. Postal Serv.,

(9th Cir.

2000) (no bad faith where errors resulted from negligence and carelessness,

not from deviousness or willfulness). But even if the bankruptcy court

erred in its interpretation of this factor, it was within its discretion in

finding that, under the totality of the circumstances, Debtors failed to

establish excusable neglect.

CONCLUSION

Debtors do not contend that the bankruptcy court applied the wrong

legal standard or that its factual findings were clearly erroneous. And they

have not shown that the bankruptcy court’s application of the facts to the

15 legal standard was illogical, implausible, or without support in the record.

While we are sympathetic to counsel’s situation, the bankruptcy court

acted within its discretion in denying the motion to extend; Debtors have

not shown otherwise. Accordingly, we AFFIRM.

16