                                                          FILED
                                                           MAY 31 2013
 1                                                     SUSAN M SPRAUL, CLERK
                                                         U.S. BKCY. APP. PANEL
                                                         OF THE NINTH CIRCUIT
 2
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                             )   BAP Nos. CC-12-1059-PaMkTa
                                        )            CC-12-1229-PaMkTa
 6   B SQUARED, INC.,                   )            CC-12-1410 PaMkTa
                                        )            (related appeals)
 7                  Debtor.             )
     ___________________________________)   Bankr. No. 09-12590-GM
 8                                      )
     DANNY WAYNE PRYOR,                 )   Adv. No.    11-01677-GM
 9                                      )
                    Appellant,          )
10                                      )
     v.                                 )   M E M O R A N D U M1
11                                      )
     B SQUARED, INC.,                   )
12                                      )
                    Appellee.           )
13   ___________________________________)
14                    Argued and Submitted on May 16, 2013
                             at Pasadena, California
15
                              Filed - May 31, 2013
16
                 Appeal from the United States Bankruptcy Court
17                   for the Central District of California
18            Honorable Geraldine Mund, Bankruptcy Judge, Presiding
19
     Appearances:     Appellant Danny Wayne Pryor argued pro se; Susan K.
20                    Seflin of Wolf, Rifkin, Shapiro, Schulman & Rabkin,
                      LLP argued for appellee B Squared, Inc.
21
22
23   Before: PAPPAS, MARKELL and TAYLOR, Bankruptcy Judges.
24
25
26
          1
             This disposition is not appropriate for publication.
27   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
28   Cir. BAP Rule 8013-1.

                                      -1-
 1        An alleged creditor, Danny Wayne Pryor ("Pryor"), appeals
 2   three orders of the bankruptcy court2: (1) an order finding that
 3   Pryor was in contempt (the “Contempt Order”) for violating the
 4   automatic stay and discharge injunction in the chapter 113 case of
 5   the reorganized debtor, B Squared, Inc. (“B Squared”) (BAP No.
 6   CC-12-1059); (2) an order denying reconsideration of an order
 7   dismissing Pryor’s adversary proceeding seeking revocation of
 8   B Squared’s plan confirmation (the “Dismissal Order”) (BAP No.
 9   CC-12-1229); and (3) an order denying reconsideration of an order
10   designating Pryor as a vexatious litigant (the “Vexatious Litigant
11   Order”) (BAP No. CC-12-1410).   We AFFIRM all three orders.
12                                   FACTS
13        Pryor is a former real estate contractor and developer in the
14   Los Angeles area.   B Squared was a licensed mortgage broker in the
15   state of California.
16        The dispute between Pryor and B Squared4 began in 2003-2004.
17   Pryor purchased two parcels of land, one containing fourteen lots
18   and the other four lots, from the City of Lancaster, California
19   (the “Property”).   Intending to develop the Property, in November
20
          2
21           The record in this appeal involves numerous courts. We
     refer to the court that entered the orders in this appeal as the
22   bankruptcy court or the court. The court hearing Pryor’s
     chapter 7 bankruptcy case is the “Pryor Bankruptcy Court.” It is
23   usually clear in context which state court (Los Angeles Central,
     Lancaster or Long Beach Division) is discussed, so they are all
24   referred to as the state court.
25        3
             Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The
     Federal Rules of Civil Procedure are referred to as "Civil Rules."
27
          4
             Reference to B Squared also includes any references to its
28   d.b.a., All California Funding.

                                      -2-
 1   2003, Pryor entered into a construction loan agreement with
 2   B Squared for $3,500,000, secured by a deed of trust on fourteen
 3   lots of the Property (“Construction Loan 1").      In March 2004,
 4   Pryor entered into a second construction loan agreement with
 5   B Squared for $900,000, secured by a deed of trust on the
 6   remaining four lots (“Construction Loan 2").
 7        On July 7, 2005, B Squared caused a Notice of Default to be
 8   recorded concerning Construction Loan 1, based on Pryor’s alleged
 9   failure to pay $130,294.75 in interest.   A foreclosure sale was
10   held on January 13, 2006, at which B Squared acquired title to the
11   fourteen lots by credit bid.   On June 21, 2005, B Squared recorded
12   a Notice of Default concerning Construction Loan 2, based on
13   Pryor’s alleged default on his obligation to pay $948,414.54.
14   B Squared acquired title to the four lots at a foreclosure sale on
15   November 18, 2005.
16                        The Central Division Action
17        On June 6, 2006, Pryor5 filed an action in Los Angeles
18   Superior Court, Central Division, American Commodities Real Estate
19   Sec. v. B Squared, Inc., case no. BC353526 (the “Central Division
20   Action”).   In the complaint, Pryor asserted causes of action for
21   quiet title, fraud and related claims relating to the loans and
22
          5
             Over the years, Pryor has prosecuted actions and claims
23   against B Squared under the names of Danny Wayne Pryor, Dan Pryor,
     Dan W. Pryor, Danny Pryor, Danny W. Pryor and Daniel Pryor. He
24   has also acted through his controlled businesses, American Real
     Estate Securities, Inc. d.b.a. A.C.R.E.S., Inc., Acres Inc.,
25   ACRES, ACRES Development, Inc., ACP Development, LLC, Turnkey
     Developers, and ROYRP Enterprises, LP. Although he debates the
26   percentage of his ownership interest in these entities, Pryor has
     not challenged in this appeal that he controls these entities.
27   Thus, unless there is need to separately identify a particular
     entity, any reference to Pryor means Pryor or Pryor acting through
28   his controlled entities.

                                      -3-
 1   foreclosures on the Property.   The Central Division Action ended
 2   on July 30, 2007, when a dismissal judgment was entered against
 3   Pryor, “grant[ing] the Demurrers [of B Squared] in their entirety,
 4   without leave to amend, as to all six causes of action in
 5   [Pryor’s] Complaint.”   The state court awarded B Squared
 6   attorney’s fees in the amount of $743,597.
 7                           The Lancaster Action
 8        On December 17, 2009, Pryor filed a complaint in Los Angeles
 9   Superior Court, Lancaster Division, Pryor v. B Squared, Inc., case
10   no. 021132 (the “Lancaster Action”).   As discussed below,
11   B Squared had been in bankruptcy for nine months when this action
12   was filed.   The complaint in this suit was similar to the one he
13   filed in the Central Division Action, with the same defendants and
14   causes of action.   However, Pryor filed this action in his own
15   name (as opposed to the filing of the Central Division Action by
16   ACRES, his controlled corporation) and he filed it in a different
17   court division.   B Squared alleges that it was never served with
18   the summons and complaint in the Lancaster Action.
19        On March 17, 2011, Pryor filed a request for entry of a
20   default judgment in the Lancaster Action.    B Squared then appeared
21   in the Lancaster Action on September 22, 2011, and moved for
22   dismissal.   Pryor opposed B Squared’s motion to dismiss by the
23   filing of an Opposition on October 24, 2011.    On November 29,
24   2011, the state court dismissed the Lancaster Action with
25   prejudice against Pryor.
26                           The April 2010 Action
27        On April 5, 2010, Pryor filed yet another complaint in Los
28   Angeles Superior Court, again in the Central Division, Pryor v.

                                      -4-
 1   B Squared, Inc., case no. 435256 (the “April 2010 Action”).       The
 2   parties and causes of action were the same as those in the
 3   Lancaster Action, which was still open at the time of filing the
 4   April 2010 Action.    The state court dismissed the April 2010
 5   Action on September 20, 2011, for lack of prosecution.    B Squared
 6   alleges that it was never served with the summons and complaint in
 7   the April 2010 Action.
 8                            The Long Beach Action
 9           As discussed below, the bankruptcy court indicated at a
10   hearing on December 28, 2011, its intention to permanently enjoin
11   any action by Pryor to collect on the debt alleged in the
12   Lancaster Action.    Despite this, on January 4, 2012, Pryor filed
13   yet another action in Los Angeles Superior Court, this time in the
14   Long Beach Division, alleging the same claims asserted in the
15   Lancaster Action, and styled as Pryor v. Lyric Ave. P’ship, case
16   no. NC-57005.    Although Pryor did not list B Squared as a
17   defendant in the caption of this action, the body of the complaint
18   clearly identifies B Squared as a defendant.
19                             The Bankruptcy Cases
20           B Squared filed a chapter 11 bankruptcy petition on March 10,
21   2009.    B Squared's Statement of Financial Affairs listed the
22   judgment in its favor and against ACRES/Pryor entered in the
23   Central Division Action of $743,597.    B Squared’s Statement of
24   Financial Affairs at 2, ¶ 4.    B Squared did not list Pryor or any
25   of his controlled entities as creditors in its schedules, and
26   Pryor did not participate in the chapter 11 proceedings.
27           The bankruptcy court confirmed B Squared’s Second Amended
28   Plan of Reorganization at a hearing on July 22, 2010.    The court

                                       -5-
 1   entered the order confirming the plan on August 20, 2010.      In
 2   separate Findings of Fact and Conclusions of Law in Support of
 3   Confirmation of Debtor’s Second Amended Chapter 11 Plan, the court
 4   concluded that all claims arising prior to the date of
 5   confirmation would be discharged pursuant to § 1141(d)(1).
 6           A Discharge Order was entered in the B Squared bankruptcy
 7   case on March 11, 2011.    The Discharge Order provided, in relevant
 8   part,
 9           The debtor has no liability for debts discharged under
             11 U.S.C. . . . 1141 except those debts determined by
10           order of a court with competent jurisdiction not to be
             discharged pursuant to 11 U.S.C. section 523. . . . All
11           creditors whose debts are discharged by this order and
             all creditors whose judgments are declared null and void
12           by this order are enjoined from instituting or
             continuing any action or employing any process or
13           engaging in any act to collect such debts as personal
             liabilities of the debtor.
14
15           In the meantime, on June 3, 2009, Pryor had filed his own
16   bankruptcy case under chapter 7.    Attached to his Schedule B of
17   personal property is a “List of Secured and Unsecured Creditors”
18   in which he lists the Central Division Lawsuit as an action for
19   fraud, but with no further information or alleged value.      The
20   chapter 7 trustee in Pryor’s case filed a report of no
21   distribution on December 9, 2011.       Pryor was granted a discharge
22   on December 13, 2011.
23                              The Contempt Order
24           On November 2, 2011, B Squared filed a Motion for Entry of
25   Order (1) Enforcing the Discharge Injunction; (2) Permanently
26   Enjoining Pryor and his Entities from Attempting to Collect the
27   Discharged Debt; and (3) For Contempt Sanctions (the “Contempt
28   Motion”).    Pryor filed an Opposition to the Contempt Motion on

                                       -6-
 1   November 11, 2011.
 2        The bankruptcy court held hearings on the Contempt Motion on
 3   November 29 and December 28, 2011.    The transcripts of those
 4   hearings are not in the record or the bankruptcy court’s docket.
 5   However, a copy of the court’s tentative ruling was docketed on
 6   December 28.   It reported that Pryor had represented to the court
 7   at the November 29 hearing that he had filed the Lancaster Action
 8   on advice of his counsel, Ms. Katherine Warwick (“Warwick”), who
 9   was representing him in other proceedings.   At the November 29
10   hearing, the bankruptcy court ordered Pryor to provide a
11   declaration from Warwick to support that assertion.    Pryor did not
12   provide a declaration, but rather submitted a series of redacted
13   emails between Pryor and Warwick.
14        The bankruptcy court, at the hearing on December 28,
15   indicated its intention to grant the Contempt Motion, including a
16   permanent injunction against any attempt by Pryor to collect on
17   any debt alleged in the Lancaster Action.6   A January 30, 2012
18   order entered by the bankruptcy court provided that:   (1) Pryor
19   and related entities were permanently enjoined from any and all
20   attempts to collect on discharged debts, including any claim
21   allegedly arising from the Lancaster Action; (2) any claim that
22   Pryor and related entities may have had against B Squared prior to
23
          6
             Recall from the discussion of the Long Beach Action above
24   that — despite the bankruptcy court’s statement on December 28,
     2011, that it would enter a permanent injunction prohibiting any
25   actions by Pryor or his entities against B Squared — Pryor filed
     yet another action on January 3, 2012, Pryor v. Lyric Ave. P'ship,
26   case no. NC-57005 (Los Angeles Superior Court), this time in the
     Long Beach Division, alleging the same claims asserted in the
27   Lancaster Action. B Squared was not named in the caption of that
     action, but was clearly identified as the object of the action in
28   the text of the complaint.

                                     -7-
 1   the date of the confirmation of B Squared’s plan of reorganization
 2   was discharged pursuant to § 1141; (3) Pryor and related entities
 3   had knowingly and willingly violated the automatic stay in effect
 4   in B Squared’s bankruptcy case under § 362(a), and knowingly and
 5   willingly violated the discharge injunction under §§ 524 and 1141
 6   after B Squared’s plan was confirmed; (4) B Squared had been
 7   forced to incur substantial expenses in connection with the
 8   Lancaster Action and in prosecuting the motion to stop Pryor’s
 9   continuing violations of the discharge injunction;
10   (5) compensatory sanctions were awarded against Pryor and in favor
11   of B Squared in the amount of $25,000, together with punitive
12   damages in the amount of $10,000.
13        After the hearing, but before entry of the bankruptcy court’s
14   order, on January 17, 2012, Pryor filed a motion asking the
15   bankruptcy court to reconsider the award of sanctions.   The court
16   entered an order denying Pryor’s motion to reconsider sanctions on
17   January 27, 2012 (the “Contempt Reconsider Order”).   In the order
18   denying the reconsideration motion, the court elaborated on its
19   finding that, in suing B Squared, Pryor had not acted on advice of
20   his attorney.   The bankruptcy court quoted from one email from
21   Warwick to Pryor, in which Warwick told Pryor that filing the
22   Lancaster Action was a violation of the automatic stay: “I
23   specifically remember saying that it WAS a violation of the
24   automatic stay. . . .   Be perfectly clear however, I told you that
25   it was a violation of the automatic stay.”    Email from Warwick to
26   Pryor, December 3, 2011, quoted in Contempt Reconsider Order at 4
27   (capitalization of word “WAS” in original).
28        In fact, the declaration Warwick had submitted on January 12,

                                     -8-
 1   2012, directly contradicted Pryor’s statements made to the
 2   bankruptcy court on November 29 and December 28 that Warwick had
 3   advised him that he would not violate the automatic stay by
 4   seeking to collect from B Squared because he was not listed on
 5   B Squared’s schedules.    Warwick instead declared that: “Because
 6   [Pryor] had not been listed as a creditor in the B Squared
 7   bankruptcy case and because he did not proceed otherwise against
 8   B Squared in the state court litigation, he believed that he had
 9   not violated the automatic stay in this Case.”    In short, Pryor
10   made the representation to Warwick, not vice versa.    The
11   bankruptcy court summarized: “Pryor has twice attempted to get
12   Warwick to state that she told him to proceed regardless of the
13   bankruptcy and she has twice refused.”    Contempt Reconsider Order
14   at 4.
15           Pryor filed a timely appeal of the Contempt Order (BAP No.
16   CC-12-1059).
17               The Adversary Proceeding and the Dismissal Order
18           On December 27, 2011, Pryor filed an adversary proceeding
19   Complaint to Deny Discharge Pursuant to 11 U.S.C. § 523 and 727
20   against B Squared in the bankruptcy court.    In it, Pryor generally
21   asserted the same claims that he had alleged against B Squared in
22   the Central Division and Lancaster Actions, but couched them as
23   objections to discharge and requests for exception of his claims
24   from discharge.
25           Almost immediately, on January 30, 2012, B Squared filed a
26   motion to dismiss the adversary proceeding pursuant to Civil
27   Rule 12(b)(6).    B Squared argued that the complaint was
28   time-barred, too conclusory to survive a motion for dismissal

                                       -9-
 1   under Civil Rule 12(b)(6), and barred under the doctrines of
 2   collateral estoppel and res judicata.    Pryor responded, repeating
 3   the general allegations made in the Central Division and Lancaster
 4   Actions, emphasizing his allegation that B Squared had engaged in
 5   fraud.
 6           B Squared, through counsel, and Pryor, acting pro se,
 7   appeared at the bankruptcy court hearing concerning the motion to
 8   dismiss on February 28, 2012.    A transcript of that hearing is in
 9   the record.    The court thereafter entered a Memorandum of Opinion
10   Re Defendant’s Motion to Dismiss Adversary Proceeding on March 20,
11   2012.    In the Memorandum, the court opined that it would not
12   consider the arguments of either party, because it had no
13   authority to grant the relief requested in the Complaint.
14           First, B Squared had been granted a discharge under § 1141,
15   and a discharged chapter 11 debtor is not subject to denial of
16   discharge under § 727.
17           Second, the bankruptcy court noted that B Squared is a
18   corporation and, with certain irrelevant exceptions, only
19   individual debtors are subject to exceptions from discharge under
20   § 523(a).
21           Finally, the bankruptcy court observed that B Squared’s
22   discharge had been authorized in the Confirmation Order and that,
23   under § 1144, the court may revoke a confirmation order only if a
24   motion to revoke is filed within 180 days of the entry of that
25   order.    Even if the Complaint were to be construed as a motion to
26   revoke, because it was filed on December 27, 2011, or over
27   400 days after entry of the Confirmation Order, it was
28   time barred.    The bankruptcy court concluded that the 180-day rule

                                       -10-
 1   was not equitably tolled, based principally on the multiple
 2   misrepresentations made to the court by Pryor.
 3           The bankruptcy court granted B Squared’s motion to dismiss
 4   and entered an order dismissing the adversary proceeding with
 5   prejudice and without leave to amend on March 20, 2012.
 6           Pryor filed a Motion to Reconsider Dismissal on April 16,
 7   2012, twenty-six days after entry of the Dismissal Order.7
 8   Pryor’s motion to reconsider the Dismissal Order is fifty-seven
 9   pages long but, at bottom, generally complains that the bankruptcy
10   court had not considered all of the papers he submitted on the
11   motion to dismiss.
12           The bankruptcy court denied Pryor’s motion to reconsider the
13   Dismissal Order without a hearing in an order entered April 20,
14   2012.       In the order, the court noted that the documents that Pryor
15   asserted had not been considered did not address the basis of the
16   court’s ruling and therefore made no difference in the outcome of
17   the motion to dismiss.      The court also observed that at the
18   hearing on February 28, 2012, an issue had been raised as to
19   whether Pryor had standing to prosecute the adversary proceeding
20   because the claims he asserted were property of his bankruptcy
21   estate.      Pryor asserted that the claims had been abandoned by the
22   bankruptcy court the previous week.        Counsel for B Squared stated
23   that she had reviewed the docket of the bankruptcy case and did
24
25           7
             A dismissal with prejudice is a final, appealable order
     that starts the clock on the time to appeal. Elliott v. White Mt.
26   Apache Tribal Ct., 566 F.3d 843, 846 (9th Cir. 2006). A
     reconsideration motion under Rules 9023 and 9024 (incorporating
27   Civil Rules 59(e) and 60(b)(6)) will toll the time to appeal only
     if filed within fourteen days of entry of the order.
28   Rule 8002(b)(3) and (4).

                                         -11-
 1   not find any such order.   The bankruptcy court ordered Pryor to
 2   submit proof that they had been abandoned.    Pryor never provided
 3   proof that the claims were abandoned.   Therefore, the court
 4   concluded that the claims Pryor asserted in his Complaint were
 5   held by the chapter 7 trustee, implicitly holding that Pryor did
 6   not have standing to assert them.8
 7        Pryor filed a timely appeal of the order denying his motion
 8   to reconsider the dismissal order on April 30, 2012.   However, as
 9   noted above, because his reconsideration motion did not toll the
10   time for an appeal of the underlying dismissal order, the
11   dismissal order is not before us in this appeal.
12                      The Vexatious Litigant Order
13        B Squared filed a motion to have Pryor deemed a vexatious
14   litigant on April 26, 2012 (the “Vexatious Litigant Motion”).    In
15   it, B Squared included a chart of eight cases Pryor had filed
16   which, it alleged, demonstrated that Pryor:
17        routinely forum shops, has cases dismissed and then
          refiles, files actions after the statute of limitations
18        has run, when unsuccessful against a party refiles in
          another court, files baseless appeals, all while not
19        paying a dime for any of his filings or towards the
          hundreds of thousands in attorneys’ fees and sanctions
20        that have already been awarded against him.
21   Pryor filed opposition documents on May 15, 2012, generally
22   disputing B Squared’s allegations.
23
          8
             The B Squared bankruptcy court was apparently not aware on
24   April 20, 2012, that the bankruptcy court in Pryor’s bankruptcy
     case had, on April 17, 2012, denied Pryor’s request to order the
25   trustee to abandon the claims against B Squared. Hr'g Tr. 6:9-17,
     April 17, 2012 (THE PRYOR BANKRUPTCY COURT: "Let me stop you
26   because it's obvious we're not going to get anywhere as far as
     B Squared is concerned. I'm going to deny your motion to abandon
27   [the B Squared claims]. I'm not going to do anything to encourage
     you in any way to further abuse the bankruptcy system, at least in
28   relationship to the B Squared action.").

                                     -12-
 1        The bankruptcy court heard arguments from B Squared and Pryor
 2   on May 29, 2012.   After taking the matters under submission, the
 3   court entered the Vexatious Litigant Order on June 22, 2012.     The
 4   Vexatious Litigant Order concluded that Pryor had adequate notice
 5   of, and opportunity to defend against, B Squared’s motion.    It
 6   attached a chart listing twelve cases, motions, and events that
 7   “led this Court to conclude that a vexatious litigation order is
 8   necessary and appropriate as to and against the Pryor Parties.”
 9   It noted that Pryor had failed to pay contempt sanctions
10   previously entered against him in the B Squared bankruptcy,
11   leading the court to believe that additional monetary sanctions
12   would be ineffective.   Instead, the bankruptcy court enjoined
13   Pryor from initiating any form of action against B Squared in
14   regard to the Property without obtaining the court’s prior written
15   consent.
16         Pryor filed a reconsideration motion seventeen days after
17   entry of the Vexatious Litigation Order on July 9, 2012.   Pryor’s
18   motion alleged that the bankruptcy court was not aware that Pryor
19   had been granted a default judgment in the Long Beach Action
20   against all defendants except B Squared, and reasoned that this
21   “mooted” the Vexatious Litigation Order.   The court denied the
22   motion to reconsider the Vexatious Litigation Order in an order
23   entered on August 1, 2012.   The bankruptcy court found the
24   reconsideration motion simply repeated prior oppositions and
25   provided no relevant new evidence.
26        Pryor filed a timely appeal of the order denying
27   reconsideration of the Vexatious Litigant Order on August 8, 2012.
28

                                     -13-
 1                               JURISDICTION
 2        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
 3   and 157(b)(2)(A), (I), (J) and (L).     We have jurisdiction under
 4   28 U.S.C. § 158.
 5                                  ISSUES
 6        Whether the bankruptcy court abused its discretion in
 7   granting the motion for the Contempt Order.
 8        Whether the bankruptcy court abused its discretion in denying
 9   reconsideration of the Dismissal Order.
10        Whether the bankruptcy court abused its discretion in denying
11   reconsideration of the Vexatious Litigant Order.
12                          STANDARDS OF REVIEW
13        An award or denial of sanctions under § 105(a) is reviewed
14   for abuse of discretion.   Nash v. Clark County Dist. Atty's.
15   Office (In re Nash), 464 B.R. 874, 878 (9th Cir. BAP 2012).
16        A trial court’s denial of reconsideration under Civil
17   Rule 60(b) is reviewed for abuse of discretion.    Ahanchian v.
18   Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010).
19        In applying the abuse of discretion standard, we first
20   "determine de novo whether the [bankruptcy] court identified the
21   correct legal rule to apply to the relief requested."    United
22   States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
23   If the correct legal rule was applied, we then consider whether
24   its "application of the correct legal standard was (1) illogical,
25   (2) implausible, or (3) without support in inferences that may be
26   drawn from the facts in the record."    Id.   Only in the event that
27   one of these three apply are we then able to find that the
28   bankruptcy court abused its discretion.    Id.

                                     -14-
 1                                DISCUSSION
 2                                    I.
 3        The bankruptcy court did not abuse its discretion in
          awarding monetary sanctions against Pryor for violating
 4        the automatic stay and discharge injunction.
 5        Although Pryor appeals the Contempt Order, it appears that he
 6   only challenges in this appeal the bankruptcy court’s order that
 7   he pay compensatory and punitive damages.   Consequently, we do
 8   not review the bankruptcy court’s decision to permanently enjoin
 9   Pryor from seeking to collect the discharged debt from B Squared.
10        The bankruptcy court awarded $25,000 in damages to B Squared
11   as compensation for Pryor’s knowing and willful violation of the
12   automatic stay and the discharge injunction, and $10,000 in
13   punitive damages for Pryor’s knowing and willful violation of the
14   discharge injunction.   Since the case law distinguishes between
15   sanction awards under these two injunctions, we must first review
16   the differences.
17        The filing of a bankruptcy petition under chapter 11 of the
18   Bankruptcy Code creates an automatic stay which prohibits, inter
19   alia, “the commencement or continuation, including the issuance or
20   employment of process, of a judicial, administrative, or other
21   action or proceeding against the debtor that was or could have
22   been commenced before the commencement of the case under this
23   title, or to recover a claim against the debtor that arose before
24   the commencement of the case under this title[.]”   § 362(a)(1);
25   Snavely v. Miller (In re Miller), 397 F.3d 726, 730-31 (9th Cir.
26   2006) ("The stay of section 362 is extremely broad in scope and
27   . . . should apply to almost any type of formal or informal action
28   against the debtor or property of the estate.").

                                     -15-
 1        An automatic stay arose when B Squared filed the chapter 11
 2   bankruptcy petition on March 10, 2009.   It is uncontested that the
 3   dispute between Pryor and B Squared regarding the Property arose
 4   during the period 2003-2006.   The automatic stay remained in
 5   effect to bar actions against B Squared until entry of the
 6   discharge and discharge injunction on March 11, 2011.
 7   § 362(c)(2)(C) (“[T]he stay of any other act under subsection (a)
 8   of this section continues until the earliest of — . . . (c) if the
 9   case is a case under . . . chapter . . . 11 . . . of this title,
10   the time a discharge is granted or denied[.]”); Zilog, Inc. v.
11   Corning (In re Zilog, Inc.), 450 F.3d, 996, 1009 (9th Cir. 2006).
12   Consequently, any attempt by Pryor to commence or continue an
13   action against B Squared to collect on an alleged debt concerning
14   the Property between March 10, 2009 and March 11, 2011 would
15   constitute a violation of the automatic stay, and any collection
16   actions against B Squared taken on or after March 11, 2011 would
17   constitute a violation of the discharge injunction.
18        The bankruptcy court imposed sanctions against Pryor for
19   violating the automatic stay and discharge injunctions based on
20   his knowing and willful actions in the Lancaster Action.    Contempt
21   Order at ¶¶ 2-4.   The court imposed sanctions under the authority
22   granted by § 105(a)9; Cal. Employment Dev. Dep't v. Taxel
23
          9
24            Power of court
25        (a) The court may issue any order, process, or judgment
          that is necessary or appropriate to carry out the
26        provisions of this title. No provision of this title
          providing for the raising of an issue by a party in
27        interest shall be construed to preclude the court from,
          sua sponte, taking any action or making any
28                                                       (continued...)

                                     -16-
 1   (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir. 1996)
 2   (holding that damages for violation of the automatic stay of a
 3   corporate debtor are properly sought under § 105(a)).   The
 4   propriety of an award made under § 105(a) turns not on a finding
 5   of bad faith or subjective intent, but rather on a finding of
 6   "willfulness," where willfulness has a particularized meaning:
 7        “[W]illful violation" does not require a specific intent
          to violate the automatic stay. Rather, the statute
 8        provides for damages upon a finding that the defendant
          knew of the automatic stay and that the defendant's
 9        actions which violated the stay were intentional.
10   Havelock v. Taxel (In re Pace), 67 F.3d 187, 191 (9th Cir. 1995).
11        Pryor provided inconsistent statements in the record
12   concerning the date when he first became aware of the B Squared
13   bankruptcy case and the automatic stay.   Pryor conceded in a
14   declaration submitted in the Lancaster Action on September 28,
15   2011 that he was aware of the pendency of the B Squared bankruptcy
16   case by August 3, 2010.   But the bankruptcy court had evidence
17   provided by Pryor himself that he knew of the B Squared bankruptcy
18   case and existence of the automatic stay before termination of
19   that stay, and that he nonetheless knowingly and willfully
20   violated that stay.
21        At the hearing on the Contempt Motion on November 29, 2011,
22   Pryor informed the bankruptcy court that when he inquired of his
23   counsel, Warwick, who represented him in other matters, she
24
25
          9
           (...continued)
26        determination necessary or appropriate to enforce or
          implement court orders or rules, or to prevent an abuse
27        of process.
28   § 105(a).

                                     -17-
 1   counseled him that his activities in the Lancaster Action did not
 2   violate the stay.       But when Pryor submitted the copies of emails
 3   between himself and Warwick, she stated that: “I specifically
 4   remember saying that [the Lancaster Action] WAS a violation of the
 5   automatic stay. . . .      Be perfectly clear however, I told you that
 6   it was a violation of the automatic stay."       Email from Warwick to
 7   Pryor, December 3, 2011, quoted in Contempt Reconsider Order at 4.
 8           Indeed, in his reply brief, Pryor cites to his testimony
 9   given on April 25, 2012, before the bankruptcy court in his own
10   bankruptcy case.    As shown by the transcript of that hearing in
11   the excerpts of record, in a colloquy between Pryor and the Pryor
12   Bankruptcy Court, the court suggested that Pryor was being evasive
13   on the question of when he first became aware of the B Squared
14   bankruptcy.    The Pryor Bankruptcy Court then placed Pryor under
15   oath:
16           THE PRYOR BANKRUPTCY COURT; You’re under oath. I’m
             asking you directly, did you — when did you first get
17           knowledge of the B Squared bankruptcy? . . .
18           PRYOR: After December 2009.
19           THE PRYOR BANKRUPTCY COURT: After — when after?
20           PRYOR: That was — I think it was in January, right
             around January.
21
             THE PRYOR BANKRUPTCY COURT: Of 2009?
22
             PRYOR: Not in 2009, but the next year.
23
             THE PRYOR BANKRUPTCY COURT: 2010?
24
             PRYOR: Right.
25
26   Hr’g Tr. 9:10–10:4, April 27, 2012.
27           Thus, the record on appeal establishes that Pryor, contrary
28   to his representation that he did not know of the B Squared

                                         -18-
 1   bankruptcy until August 3, 2010, testified that he was aware of
 2   the bankruptcy filing by January 2010.    And contrary to his
 3   initial representation to the bankruptcy court that his counsel
 4   advised him that it would not violate the stay for him to pursue
 5   the Lancaster Action, he subsequently produced emails and a
 6   declaration from counsel where she denies giving him that advice.
 7   In the bankruptcy court’s words, “Pryor has twice attempted to get
 8   Warwick to state that she told him to proceed regardless of the
 9   bankruptcy and she has twice refused.”    Contempt Reconsider Order
10   at 4.
11           But regardless of the various suspect representations by
12   Pryor, it cannot be challenged that, at some point during the
13   pendency of the B Squared bankruptcy case, Pryor became aware of
14   the automatic stay and failed to remedy his on-going stay
15   violations.    In other words, whether he had knowledge of the stay
16   in August 2010, January 2010, or earlier, he was under an
17   obligation to immediately dismiss B Squared from the Lancaster
18   Action.    Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1192
19   (9th Cir. 2003) (upon discovery of a violation, the creditor “had
20   an affirmative duty to remedy his automatic stay violation.”).
21   Even an “arguably innocent” stay violation that the creditor does
22   not attempt to remedy immediately may constitute a willful stay
23   violation.    In re Zilog, Inc., 450 F.3d at 1007.
24           Pryor never sought to stop the Lancaster Action, nor to
25   dismiss B Squared from it, for the seven months after the latest
26   possible date that he admits he was aware of B Squared’s
27   bankruptcy, August 2010.    And after the automatic stay terminated
28   with the entry of the discharge injunction, Pryor continued to

                                       -19-
 1   press his claims against B Squared in the Lancaster Action.     On
 2   March 17, 2011, Pryor sought entry of a default judgment against
 3   B Squared in the Lancaster Action.      Then, after B Squared finally
 4   was made aware of the Lancaster Action and moved to dismiss the
 5   action, Pryor opposed the motion to dismiss B Squared on
 6   October 24, 2011.   B Squared would only escape from the Lancaster
 7   Action when the state court dismissed the proceeding with
 8   prejudice against Pryor on November 29, 2011.
 9        Pryor has not challenged in this appeal the calculation of
10   the amount of the bankruptcy court’s award of $25,000 in
11   compensatory damages, which the court awarded based on a detailed
12   fee and expense statement from B Squared.     We therefore find that
13   the bankruptcy court did not abuse its discretion in awarding
14   compensatory damages to B Squared for expenses incurred in
15   responding to Pryor’s knowing and willful violation of the
16   automatic stay and discharge injunction.
17        The bankruptcy court also awarded $10,000 in punitive damages
18   against Pryor for his violation of the discharge injunction.
19   Section 524 of the bankruptcy code provides that a discharge
20   "operates as an injunction against the commencement or
21   continuation of an action . . . to collect, recover or offset any
22   [discharged] debt as a personal liability of the debtor."
23   § 524(a)(2).   A party who knowingly violates the discharge
24   injunction can be held in contempt under § 105(a) of the
25   Bankruptcy Code.    Walls v. Wells Fargo Bank, N.A., 276 F.3d 502,
26   507 (9th Cir. 2002) (holding that civil contempt is an appropriate
27   remedy for a willful violation of § 524's discharge injunction).
28   Although the bankruptcy court may not award punitive damages for

                                      -20-
 1   violation of the automatic stay under § 105(a), it may award
 2   punitive damages under that section for knowing and willful
 3   violations of the discharge injunction.   Espinosa v. United
 4   Student Aid Funds, 553 F.3d. 1193, 1205 n.7 (9th Cir. 2008). (“If
 5   the bankruptcy court finds that the creditor here willfully
 6   violated the injunction, it shall, at the very least, impose
 7   sanctions to the extent necessary to make [debtor] whole.     See
 8   2 Collier Bankruptcy Manual (3d rev. ed.) ¶ 524.02[2][c] (‘In
 9   cases in which the discharge injunction was violated willfully,
10   courts have awarded debtors actual damages, punitive damages and
11   attorney's fees.’)”).   The standard in this circuit for violations
12   of the discharge injunction is that the movant must prove that the
13   creditor: (1) knew the discharge injunction was applicable and
14   (2) intended the actions which violated the injunction.   Renwick
15   v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir. 2002)
16   (citing Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390
17   (11th Cir. 1996)).
18        Although a bankruptcy court can infer that a creditor has
19   knowledge of a discharge injunction from the creditor’s knowledge
20   of the bankruptcy case, such an inference must be proven.
21   In re Zilog, Inc., 450 F.3d at 1003.   The bankruptcy court
22   conducted hearings on the contempt motion on November 29 and
23   December 28, 2011.   The court considered the declarations from the
24   parties regarding the discharge injunction.   In particular, in his
25   declaration, Pryor states,
26        B Squared counsel makes the claim whether I proceeded
          against B Squared Inc. after they were discharged. This
27        is apparently “Yes.” After Warwick had checked PACER
          and advised me that I was not listed as a creditor, I
28        was under the assumption that this debt was not

                                     -21-
 1        discharged. It is clear that I was not acting without
          the advice of an experience[d] Bankruptcy Attorney. I
 2        was under the assumption that B Squared debt concerning
          Dan Pryor and his entities were never discharged. I
 3        would never [have] violated an automat[ic] stay of this
          court or any court knowing that the claims were
 4        discharged.
 5   Declaration of Dan Pryor at 4, December 23, 2011.   Pryor thus
 6   concedes that he knew that there had been a discharge entered in
 7   B Squared’s bankruptcy case, but he disputes the consequences of
 8   that discharge.
 9        There was conflicting evidence whether Pryor knew of the
10   existence and effect of the discharge injunction when it was
11   entered on March 11, 2011.   But the evidence is uncontested that
12   Pryor was made aware of the injunction and consequences for
13   violating it on September 19, 2011, when B Squared sent Pryor an
14   email stating:
15        Please further note that [this] email shall serve as
          notice that, continuing to prosecute [the Lancaster
16        Action] is a clear violation of the automatic stay and
          discharge injunction and if we are forced to do so, [we]
17        will file a motion in the Bankruptcy Court to
          permanently enjoin you from attempting to collect on an
18        alleged pre-petition obligation of [] B Squared, and
          will seek monetary sanctions and attorney’s costs
19        against you for your blatant disregard of the discharge
          injunction.
20
21   B Square email to Pryor, September 19, 2011, attached to and
22   incorporated as exh. G to the Supplemental Declaration of Simon
23   Aron in support of the Contempt Motion, December 20, 2011.
24        As mentioned earlier, the record does not include a
25   transcript of the December 28, 2011 hearing where the bankruptcy
26   court reported its reasons for awarding sanctions for violation of
27   the automatic stay and discharge injunction.   However, in its
28   Contempt Reconsider Order, the court reported its credibility

                                     -22-
 1   ruling at the December 28, 2011 hearing: “Further, as I stated at
 2   the December 28 hearing, I simply do not believe Pryor as to his
 3   belief on the effect of the discharge.”       Contempt Reconsider Order
 4   at 5.        In this appeal, Pryor acknowledges that the court used
 5   those same words at the December 28 hearing.       Pryor Reply Br. at
 6   28.
 7           Additionally, there is a copy of the state court docket of
 8   the Lancaster Action in the excerpts of record.10       The docket
 9   entries include: (1) 9/12/2011, Pryor files Notice of Hearing on
10   OSC why a default judgment should not be entered against B Square;
11   (2) 9/22/2011, B Squared files declaration of Simon Aron opposing
12   entry of default judgment against B Squared; (3) 9/29/2011, Pryor
13   files Declaration in response to declaration of Aron;
14   (4) 10/19/2011, B Squared files Motion to Dismiss action against
15   B Squared; (5) 10/24/2011, Pryor files Request for Entry of
16   Default against B Squared; (6) 10/24/2011, Pryor files Opposition
17   to Motion to Dismiss of B Squared; (7) 11/29/2011, “JUDGMENT OF
18   DISMISSAL WITH PREJUDICE OF THE ACTION IN ITS ENTIRETY IS ENTERED
19   IN FAVOR OF B SQUARED.”
20           In sum, the record on appeal amply demonstrates that Pryor
21   knowingly and willfully continued to prosecute the Lancaster
22   Action after Pryor had notice of the discharge injunction and the
23   consequences of violating it.       Pryor has not challenged in this
24   appeal the amount of punitive damages awarded against him to
25
             10
             A copy of the state court docket in the Lancaster Action
26   was attached to and incorporated in the Declaration of Elsa
     Horowitz, attorney for B Squared, submitted in support of
27   B Squared’s Vexatious Litigant Motion. Bankr. 09-12590 at dkt.
     no. 597. The Vexatious Litigant Order acknowledged review of all
28   declarations submitted related to the Vexatious Litigant Motion.

                                          -23-
 1   B Squared.    Therefore, we also conclude that the bankruptcy court
 2   did not abuse its discretion in awarding $10,000 in punitive
 3   damages for Pryor’s knowing and willful violation of the discharge
 4   injunction.
 5                                    II.
 6        The bankruptcy court did not abuse its discretion in
          denying Pryor’s motions for reconsideration of the
 7        Dismissal Order and the Vexatious Litigant Order.
 8        As pointed out above, Pryor did not timely appeal the
 9   Dismissal Order or the Vexatious Litigant Order.   However, the
10   bulk of Pryor’s arguments in these two appeals challenge the
11   merits of the bankruptcy court’s decision to grant the underlying
12   orders.   We may not review those orders in this appeal because we
13   do not have jurisdiction to hear them.   Samson v. W. Capital
14   Partners, LLC (In re Blixseth), 684 F.3d 865, 870 (9th Cir. 2012)
15   (“A reviewing court lacks jurisdiction over an appeal that is not
16   timely filed.   The requirement of a timely notice of appeal is
17   mandatory and jurisdictional.”).
18        Pryor’s briefs are also unclear under which provisions of the
19   Rules he sought reconsideration of these orders.   His
20   reconsideration motions in the bankruptcy court sought review of
21   both orders under Civil Rules 59(e) and 60(b)(6), as incorporated
22   by Rules 9023 and 9024.   But Civil Rule 59(e) was not available to
23   him because such a motion must be filed within fourteen days of
24   entry of the order sought to be reconsidered.
25        Moreover, Civil Rule 60(b)(6) imposes a very high threshold
26   of proof.    Its “catch-all” provisions are available rarely, are
27   solely an equitable remedy to prevent manifest injustice, and
28   should be invoked only where extraordinary circumstances prevented

                                      -24-
 1   a party from taking timely action to correct an erroneous
 2   judgment.    United States v. Washington, 394 F.3d 1152, 1157 (9th
 3   Cir 2005).   As such, under Civil Rule 60(b)(6), a party seeking
 4   relief must demonstrate both injury and circumstances beyond his
 5   control that prevented him from proceeding with the prosecution or
 6   defense of the action in a proper fashion.   Id.
 7        In both reconsideration appeals, Pryor argues that the
 8   bankruptcy court’s failure to review documents that he admittedly
 9   submitted at the last minute or were somehow “lost in the mail”
10   prevented him from receiving a fair consideration of his position.
11   But Pryor asserts that the documents he submitted in seeking
12   review of the Dismissal Order were “lost in the mail” and he only
13   submitted the documents in seeking review of the Vexatious
14   Litigant Order the day before the hearing on reconsideration.    In
15   other words, he provided no acceptable explanation for his failure
16   to provide the documents in sufficient time for the court to
17   consider them.
18        In its order denying reconsideration of the Dismissal Order,
19   the bankruptcy court in fact observed that it had reviewed the
20   allegedly “lost” documents and found that they “do not go to the
21   basis of the ruling and make no difference in the outcome of the
22   motion.”    Order Denying Motion to Reconsider Dismissal at 4,
23   April 20, 2012.   Thus, Pryor cannot argue here on appeal that he
24   was prejudiced because the bankruptcy court did not examine the
25   documents.   The court did examine them and rejected his arguments.
26   Based on our review of the record, we see no abuse of discretion
27   in the court’s procedure.
28        As to the Vexatious Litigant Order, Pryor argues that the

                                      -25-
 1   bankruptcy court failed to consider papers he submitted the day
 2   before the hearing, showing that he had submitted in the state
 3   court a Motion to Consolidate the Lancaster Action with the Long
 4   Beach Action.    On reconsideration, the bankruptcy court did in
 5   fact review those papers and ruled that “the request is
 6   repetitious of prior oppositions and provides no relevant new
 7   evidence.”   Order Denying Reconsideration of Vexatious Litigant
 8   Order at 2, August 1, 2012.
 9        In other words, in both appeals of reconsideration of the
10   Dismissal Order and the Vexatious Litigant Order, Pryor did not
11   demonstrate “circumstances beyond his control that prevented him
12   from proceeding with the prosecution or defense of the action in a
13   proper fashion.”   In one case, he submitted the documents only the
14   day before they were due; in the other they were allegedly “lost
15   in the mail.”    But in either case, on reconsideration the court in
16   fact reviewed the documents and thus he was not prevented from
17   proceeding with their prosecution.      Thus, he cannot satisfy the
18   elements needed for extraordinary relief under Civil
19   Rule 60(b)(6).
20        Despite his extensive court experience, we recognize that
21   Pryor is a pro se litigant and not an attorney.     We also
22   acknowledge our responsibility to treat his pleadings liberally.
23   King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).      Fairly
24   considering Pryor’s position leads us to conclude that the most
25   appropriate statute to support his request for relief from the
26   Vexatious Litigant Order and Dismissal Order was Civil
27   Rule 60(b)(2) (“newly discovered evidence that, with reasonable
28   diligence, could not have been discovered in time to move for a

                                      -26-
 1   new trial under Rule 59(b)”).   To obtain relief under Civil
 2   Rule 60(b)(2), the creditor must show that the “new evidence”:
 3   (1) existed at the time of the trial; (2) could not have been
 4   discovered through due diligence; and (3) was “of such magnitude
 5   that production of it earlier would have been likely to change the
 6   disposition of the case.”   Jones v. Aero/Chem Corp., 921 F.2d 875,
 7   878 (9th Cir. 1990).
 8        In Pryor’s motion to reconsider the Dismissal Order,
 9   according to the bankruptcy court, he attached “the schedules of
10   the debtor and the mailing matrix, the unpublished BAP opinion in
11   Pryor v. ITEC Financial [BAP No. CC-10-1258], various documents
12   from Acres Commodities Real Estate Securities v. B Squared Inc.
13   [LASC BC 353526], fictitious business name statements for Acres
14   Development and Maintenance Unlimited and Pryor’s Declaration
15   dated February 27, 2007.”   The court also noted that Pryor failed
16   to present documentation of his bankruptcy court’s alleged
17   abandonment of Pryor’s claims against B Squared.   The court
18   summarized its ruling on the documents:
19        The documents presented in this motion for
          reconsideration (which Pryor seems to assert were lost
20        in the mail and not reviewed by the court prior to
          issuance of the memorandum of opinion) do not go to the
21        basis of the ruling and make no difference in the
          outcome of the motion. The ruling was not made without
22        full review of the filings and it was delayed some weeks
          after oral argument. In fact, Pryor was ordered to
23        submit information proving that the abandonment had
          taken place, which he did not do and which is not
24        attached to this motion because it does not exist.
25   Order Denying Reconsideration of Dismissal Order at 4.   In other
26   words, the documents Pryor wanted the bankruptcy court to consider
27   were not new evidence, persuasive, or even relevant.   The
28   bankruptcy court did not abuse its discretion in denying

                                     -27-
 1   reconsideration of the Dismissal Order.
 2        In Pryor’s motion to reconsider the Vexatious Litigant Order,
 3   he asserted, “I filed papers, addressing all the above issues.
 4   However, the Court did not receive the papers and have an
 5   opportunity to review such papers before the next hearing.   For
 6   that reason we feel that the court did not have all the fact[s]
 7   based on the statement in the ruling and before the final decision
 8   was made.”   On its face, this assertion fails to meet criterion 2
 9   of Jones, that the information submitted could not have been
10   discovered through due diligence.
11        The bankruptcy court summarized its view of Pryor’s motion
12   succinctly: “The motion to vacate the vexatious litigant order is
13   hereby denied.   The request is repetitious of prior oppositions
14   and provides no relevant new evidence.    The Court has considered
15   all matters put before it and finds no reason to vacate or modify
16   the prior order.”   Order Denying Reconsideration of Vexatious
17   Litigant Order at 2.   The bankruptcy court applied the correct law
18   and its application was not illogical, implausible, or without
19   support in inferences that may be drawn from the facts in the
20   record.
21        The bankruptcy court did not abuse its discretion in denying
22   reconsideration of the Dismissal Order or the Vexatious Litigant
23   Order.
24                                CONCLUSION
25        We AFFIRM all three orders of the bankruptcy court.
26
27
28

                                     -28-
