                                                            FILED
                                                            DEC 22 2017
 1                       NOT FOR PUBLICATION
 2                                                      SUSAN M. SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 3               UNITED STATES BANKRUPTCY APPELLATE PANEL
                           OF THE NINTH CIRCUIT
 4
 5   In re:                        )    BAP No.     NV-17-1096-TaBH
                                   )
 6   RUBILYN M. FERNANDO,          )    Bk. No.     2:16-bk-13250-LED
                                   )
 7                  Debtor.        )    Adv. No.    2:16-ap-01115-LED
     ______________________________)
 8                                 )
     RUBILYN M. FERNANDO,          )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )    MEMORANDUM*
11                                 )
     OCWEN LOAN SERVICING, LLC;    )
12   HSBC BANK USA, N.A., as       )
     Trustee for the Benefit of    )
13   People’s Financial Realty     )
     Mortgage Securities Trust,    )
14   Series 2006-1, Mortgage Pass- )
     Through Certificates, Series )
15   2006-1; FRANKLIN CREDIT       )
     MANAGEMENT CORPORATION;       )
16   DEUTSCHE BANK NATIONAL TRUST )
     COMPANY, as Certificate       )
17   Trustee on Behalf of Bosco    )
     Credit II Trust Series 2010-1;)
18   WESTERN PROGRESSIVE - NEVADA, )
     INC.,                         )
19                                 )
                    Appellees.     )
20   ______________________________)
21            Submitted Without Argument on December 1, 2017
22                      Filed – December 22, 2017
23            Appeal from the United States Bankruptcy Court
                        for the District of Nevada
24
          Honorable Laurel E. Davis, Bankruptcy Judge, Presiding
25
26        *
             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.
28   See 9th Cir. BAP Rule 8024-1(c)(2).
 1
 2   Appearances:     Appellant Rubilyn M. Fernando pro se on brief.
 3
     Before:     TAYLOR, BRAND, and HOULE,** Bankruptcy Judges.
 4
 5                               INTRODUCTION
 6        Five days after the bankruptcy court dismissed her
 7   bankruptcy case and two minutes after she filed a redundant
 8   voluntary request for case dismissal, Rubilyn Fernando filed an
 9   adversary proceeding.    The bankruptcy court later dismissed the
10   litigation without prejudice and denied Ms. Fernando’s motion
11   for relief from the dismissal order.    The bankruptcy court
12   explained its decision in oral findings of fact and conclusions
13   of law, which were incorporated by general reference into its
14   order.    Because Ms. Fernando refused to provide us with a
15   transcript detailing these findings, we cannot adequately review
16   the bankruptcy court’s orders.    And consideration of the merits
17   on the limited record we have does not support a different
18   result.    Accordingly, we AFFIRM the bankruptcy court.
19                                   FACTS
20        Ms. Fernando filed a chapter 131 petition in June 2016.2
21
22        **
             The Hon. Mark D. Houle, United States Bankruptcy Judge
23   for the Central District of California, sitting by designation.
          1
24           Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
25   All “Rule” references are to the Federal Rules of Bankruptcy
     Procedure. All “Civil Rule” references are to the Federal Rules
26
     of Civil Procedure.
27        2
               We exercise our discretion to take judicial notice of
28                                                        (continued...)

                                       2
 1   Her chapter 13 plan drew opposition, and the bankruptcy court
 2   eventually entered an order denying confirmation of the plan and
 3   dismissing the case.    Five days later, Ms. Fernando also, and
 4   unnecessarily, requested voluntary dismissal of her bankruptcy
 5   case under § 1307(b).    And two minutes after her request for
 6   voluntary dismissal, Ms. Fernando filed an adversary complaint
 7   seeking declaratory relief and requesting clear title to her
 8   real property.
 9        Some defendants moved to dismiss; others later joined in
10   the motion.   They argued lack of subject matter jurisdiction and
11   failure to state a claim and, in the alternative, requested
12   abstention.
13        While this motion was pending, the bankruptcy court’s
14   clerk’s office issued a notice of conditional dismissal of the
15   adversary proceeding based on dismissal of the bankruptcy case;
16   the notice provided for dismissal without prejudice unless an
17   objection was filed within 21 days of service.    Ms. Fernando
18   filed a timely response;3 the clerk’s office, however, took
19
20        2
           (...continued)
21   documents electronically filed in the adversary proceeding and
     in the underlying bankruptcy case. See Atwood v. Chase
22   Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9
     (9th Cir. BAP 2003).
23
          3
24           The opposition questioned why the notice was issued by
     the clerk of court, who lacked authority to dismiss the case;
25   argued that the bankruptcy court could only submit proposed
     findings of fact and conclusions of law in non-core proceedings;
26   and quoted text from Menk v. Lapaglia (In re Menk), 241 B.R.
27   896, 904 (9th Cir. BAP 1999), suggesting the bankruptcy court
     can entertain an adversary proceeding even when the main
28                                                      (continued...)

                                      3
 1   almost two full days to docket it.      And during this period of
 2   delay, the bankruptcy court entered a dismissal order based on
 3   the absence of a timely response to the notice on the docket.
 4        The reconsideration motion.      Given the dismissal,
 5   Ms. Fernando filed a reconsideration motion claiming that there
 6   was an oversight or omission because she timely filed her
 7   objection.   She also repeated arguments from her opposition
 8   papers.
 9        Some of the defendants opposed; they argued that granting
10   the motion would be an exercise in futility because the case
11   would remain subject to dismissal for all the reasons
12   articulated in their motion to dismiss.      In her reply,
13   Ms. Fernando argued that her complaint initiated a non-core
14   proceeding and that, as a result, the bankruptcy court could not
15   enter a final judgment on her claims.
16        The bankruptcy court heard oral argument on the
17   reconsideration motion and stated its oral findings of fact and
18   conclusions of law on the record.      It later incorporated those
19   findings and conclusions into its order denying Ms. Fernando’s
20   reconsideration request.
21        Ms. Fernando timely appealed.
22                                JURISDICTION
23        Subject to the discussion below, the bankruptcy court had
24   jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(K).       We have
25   jurisdiction under 28 U.S.C. § 158.
26
27        3
           (...continued)
28   bankruptcy case is closed.

                                       4
 1                                   ISSUES
 2        Did the bankruptcy court abuse its discretion in denying
 3   Ms. Fernando’s motion for relief from the dismissal order or in
 4   dismissing the adversary proceeding?
 5                           STANDARDS OF REVIEW
 6        We review for an abuse of discretion a bankruptcy court’s
 7   decision on a reconsideration motion.      Ybarra v. McDaniel,
 8   656 F.3d 984, 998 (9th Cir. 2011) (Civil Rule 59); Lal v.
 9   California, 610 F.3d 518, 523 (9th Cir. 2010) (Civil Rule 60);
10   Weiner v. Perry, Settles & Lawson, Inc. (In re Weiner), 161 F.3d
11   1216, 1217 (9th Cir. 1998).    We review de novo whether a
12   litigant’s due process rights were violated.      DeLuca v. Seare
13   (In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014).
14        A bankruptcy court abuses its discretion if it applies the
15   wrong legal standard, misapplies the correct legal standard, or
16   makes factual findings that are illogical, implausible, or
17   without support in inferences that may be drawn from the facts
18   in the record.   See TrafficSchool.com, Inc. v. Edriver Inc.,
19   653 F.3d 820, 832 (9th Cir. 2011) (citing United States v.
20   Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
21                                 DISCUSSION
22        We liberally construe Ms. Fernando’s pro se brief.      See
23   Cruz v. Stein Strauss Trust # 1361 (In re Cruz), 516 B.R. 594,
24   604 (9th Cir. BAP 2014).
25        Scope of appeal.   In her notice of appeal, Ms. Fernando
26   says that she “appeal[s] th[e bankruptcy] court’s entry of the
27   Order dismissing this case (docket #36).”      But docket entry 36
28   is the order denying her reconsideration motion; she also

                                       5
 1   attached that order to her notice of appeal.    Similarly, in her
 2   appellate brief, she states that she is appealing the order
 3   denying her motion for relief and identifies it by docket
 4   number.
 5        Despite the infirmities in the notice of appeal and
 6   Ms. Fernando’s express statement that she is appealing the
 7   reconsideration order, we conclude that she intended to also
 8   appeal the dismissal order.4
 9        We affirm the bankruptcy court’s orders.
10        The bankruptcy court’s order denying Ms. Fernando’s
11   reconsideration motion incorporated oral findings of fact and
12   conclusions of law made on the record.   If a bankruptcy court
13   makes its findings of facts and conclusions of law on the
14   record, the appellant must include the transcript as part of the
15   excerpts of record.   McCarthy v. Prince (In re McCarthy),
16   230 B.R. 414, 416–17 (9th Cir. BAP 1999).   Here, Ms. Fernando
17   elected not to obtain a transcript.5   We thus cannot
18   meaningfully review the bankruptcy court’s order denying
19
          4
             Ms. Fernando’s notice of appeal was timely as to the
20
     dismissal order: since she filed a reconsideration motion within
21   14 days of the dismissal order, the 14-day time to file the
     appeal ran from the entry of the order denying that motion.
22   Fed. R. Bankr. P. 8002(b)(1)(C)&(D).
23        5
             In her designation of the record and statement of
24   issues, Ms. Fernando stated that she “designate[s] the case
     record in its entirety, without the transcript of the oral
25   record . . . .” In June 2017, the BAP issued an order noting
     that there were oral findings, informing Ms. Fernando why the
26   transcript was necessary, and warning her that failure to
27   provide it would impede review of her appeal and could lead to
     summary affirmance. Ms. Fernando filed a response stating that
28   she was not going to provide the transcript.

                                     6
 1   reconsideration.   Ehrenberg v. Cal. State Univ., Fullerton
 2   Found. (In re Beachport Entm’t), 396 F.3d 1083, 1087-88
 3   (9th Cir. 2005); Morrissey v. Stuteville (In re Morrissey),
 4   349 F.3d 1187, 1189 (9th Cir. 2003) (failing to provide a
 5   critical transcript may result in summary affirmance).
 6   Accordingly, we summarily affirm the order denying
 7   Ms. Fernando’s motion for reconsideration.
 8        We next consider the dismissal order.    In her opening brief
 9   on appeal, Ms. Fernando repeats her argument that she timely
10   objected to the notice of conditional dismissal.    Now on appeal,
11   she frames this as a due process concern.    We independently
12   consider her due process argument and conclude that her due
13   process rights were not violated.    Ms. Fernando’s declaration in
14   support of her motion for relief states that the bankruptcy
15   court was closed on December 27 and 28, a Tuesday and Wednesday,
16   due to water issues.    But that is immaterial: Ms. Fernando was
17   able to timely file her opposition.   She thus had access to the
18   court.   Further, due process requires “notice ‘reasonably
19   calculated, under all the circumstances, to apprise interested
20   parties of the pendency of the action and afford them an
21   opportunity to present their objections.’”    United Student Aid
22   Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (quoting
23   Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314
24   (1950)).   Here, she does not contend that the bankruptcy court
25   did not consider her arguments against dismissal in the context
26   of the reconsideration motion.   Nor could she, as the bankruptcy
27   court heard the matter and made findings of fact and conclusions
28   of law on the record.   Instead, Ms. Fernando disagrees with the

                                      7
 1   bankruptcy court’s resolution of her objections.   That does not,
 2   however, mean her due process rights were violated.   Given her
 3   failure to provide a transcript, we can do nothing but disregard
 4   her allegation that her arguments against dismissal did not
 5   receive appropriate consideration.
 6        She also raised arguments for the first time on appeal; we
 7   deem them waived.   “[I]n general, ‘a federal appellate court
 8   does not consider an issue not passed upon below.’”   Mano-Y&M,
 9   Ltd. v. Field (In re Mortg. Store, Inc.), 773 F.3d 990, 998
10   (9th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 120
11   (1976)).
12        And as to the arguments she did raise before the bankruptcy
13   court, the lack of a transcript is again fatal to her appeal.
14   We cannot adequately review the bankruptcy court’s
15   determinations, and we again summarily affirm.
16        We would also affirm on the merits.
17        While we can only guess at the actual analysis made by the
18   bankruptcy court at the hearing, the appropriateness of
19   dismissal of the adversary proceeding is unquestionable; the
20   bankruptcy court lacked jurisdiction over Ms. Fernando’s claims
21   because she filed the adversary proceeding after dismissal of
22   her chapter 13 bankruptcy case.
23        As a result, the claims were not assets of an existing
24   bankruptcy estate and could not arise in or relate to an
25   existing bankruptcy case.   Further, the state law claims did not
26   arise under bankruptcy law.   Finally, they did not relate to a
27   bankruptcy court order, so there was no ancillary jurisdiction.
28        We acknowledge that Ms. Fernando has a legitimate grievance

                                       8
 1   with the dismissal order because it states that there was no
 2   opposition when she had filed opposition.   But we cannot avoid
 3   the obvious; the bankruptcy court never had jurisdiction because
 4   Ms. Fernando filed the adversary proceeding after bankruptcy
 5   case dismissal.   And consistent with this determination, the
 6   bankruptcy court dismissed the adversary proceeding without
 7   prejudice; it did not finally adjudicate or pass judgment on the
 8   merits of any of Ms. Fernando’s claims; it simply determined
 9   that the bankruptcy court was not the proper place for her to
10   proceed.   She is free to assert her claims elsewhere.
11                               CONCLUSION
12        Based on the foregoing, we AFFIRM.
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