                                                             FILED
                                                              NOV 28 2012
 1                                                        SUSAN M SPRAUL, CLERK
                                                            U.S. BKCY. APP. PANEL
 2                                                          OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )        BAP No. CC-12-1144-DHKi
                                   )
 6   MARCELO BRITTO GOMEZ,         )        Bk. No. 11-26905-TBD
                                   )
 7                  Debtor.        )        Adv. No. 11-02360-TBD
     ______________________________)
 8                                 )
     CARTER STEPHENS,1             )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )        MEMORANDUM2
11                                 )
     LORI SMITH, ESQ.;             )
12   MARCELO BRITTO GOMEZ,         )
                                   )
13                  Appellees.     )
     ______________________________)
14
                 Argued and Submitted on November 15, 2012
15                        at Pasadena, California
16                         Filed - November 28, 2012
17             Appeal from the United States Bankruptcy Court
                   for the Central District of California
18
         Honorable Thomas B. Donovan, Bankruptcy Judge, Presiding
19
     Appearances:     The Appellant, Carter Stephens, argued pro se;
20                    Douglas Crowder, Esq. argued for Appellee Marcelo
                      Britto Gomez.
21                    ___________________________________
22   Before:   DUNN, HOLLOWELL, and KIRSCHER, Bankruptcy Judges.
23
24        1
               While the BAP docket is captioned with the correct
     spelling of the Appellant’s name “Carter Stephens,” the
25
     bankruptcy docket is captioned incorrectly as “Carter Stevens.”
26        2
               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 8013-1.

                                      -1-
 1            Plaintiff, Carter Stephens ("Appellant"), filed an
 2   adversary complaint (“Adversary Proceeding”) seeking to except
 3   from discharge debts owed to Appellant by debtor defendant
 4   Marcelo Britto Gomez ("Appellee") under § 523(a)(2)(A)3 and
 5   (a)(6) on the bases that the debts arose from Appellee’s false
 6   pretenses and caused Appellant willful and malicious injury,
 7   respectively.     Due to the failure of Appellant's attorney to
 8   file status reports timely, appear at status conference
 9   hearings, and respond to discovery requests on several
10   occasions, as well as Appellant's failure to find new counsel,
11   the bankruptcy court dismissed the Adversary Proceeding for
12   failure to prosecute.     Appellant filed two subsequent motions
13   for reconsideration, both of which the bankruptcy court
14   summarily denied without making separate findings of fact or
15   conclusions of law.     Appellant then appealed from the dismissal
16   and the denial of the first motion for reconsideration.
17   However, the BAP motions panel (1) determined that appellate
18   jurisdiction existed only to hear the appeal from the denial of
19   the first motion for reconsideration because Appellant did not
20   timely appeal the dismissal order and (2) ordered that the scope
21   of the appeal be limited to denial of the first motion for
22   reconsideration.     We VACATE the bankruptcy court’s order on the
23   first motion for reconsideration and REMAND for findings of fact
24   and conclusions of law.
25
          3
26             Unless otherwise indicated, all chapter, section and
     rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-
27   1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-
     9037. The Federal Rules of Civil Procedure are referred to as
28   “Civil Rules.”

                                       -2-
 1                                   I. FACTS
 2            The limited record presented in this appeal is not very
 3   helpful or illuminating.     To aid our determinations, the Panel
 4   has reviewed the docket and documents filed in the Adversary
 5   Proceeding, Case No. 11-02360-TBD.      See O’Rourke v. Seaboard
 6   Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 958 (9th Cir.
 7   1989) (court may take judicial notice of underlying bankruptcy
 8   records).
 9            This appeal is complicated procedurally, as noted above,
10   because, although Appellant appealed from both the order
11   dismissing the Adversary Proceeding and an order denying
12   Appellant's first motion for reconsideration of the dismissal
13   order, the motions panel limited the scope of review to denial
14   of the motion for reconsideration filed on February 27, 2012
15   (“Motion”), as the notice of appeal was untimely as to the
16   dismissal order.4     Therefore, the facts set forth below are
17   limited to those bearing on the Motion.
18            On April 19, 2011, Appellee filed a voluntary petition for
19   chapter 7 relief.     On June 15, 2011, Appellant filed the
20   Adversary Proceeding.
21            On September 1, 2011, the bankruptcy court held a first
22   status conference in the Adversary Proceeding.       Appellant’s
23   attorney, Lori Smith (“Smith”), failed to appear or file the
24   required pre-hearing status report.        However, Appellant did
25   appear and indicated that Appellant believed that Smith would
26
          4
27             The procedural and substantive details of the motions
     panel's decision to limit the scope of review are discussed infra
28   at notes 7 and 8.

                                       -3-
 1   appear and was handling the case.    Appellant also expressed
 2   concern about Smith’s failure to communicate with Appellant and
 3   failure to appear, causing Appellant to proceed without counsel.
 4   The bankruptcy court explained to Appellant the nature of the
 5   required status report and that Appellant could either terminate
 6   Smith’s representation and obtain new counsel or appear pro se.
 7   The bankruptcy court further warned Appellant that “[o]ne way or
 8   the other, [Appellant has] to do something to move this case
 9   ahead . . .,” and that after terminating Smith, Appellant would
10   have personal responsibility to prosecute the Adversary
11   Proceeding in an effective way.   Hr’g Tr. (Sept. 1, 2011) at
12   7:12-13; 11:3-8.   The bankruptcy court emphasized that failure
13   to file the status report was a ground for dismissal and that a
14   status report would be required two weeks in advance of the
15   continued hearing which the bankruptcy court would schedule.
16   On January 13, 2012, Appellee filed a motion to dismiss the
17   Adversary Proceeding for lack of prosecution under Rule 7041.5
18   On February 2, 2012, the bankruptcy court held a continued
19   status conference in the Adversary Proceeding and also
20   considered Appellee’s motion to dismiss.   Again, Smith failed to
21   file the required status report, but did appear at the hearing.
22   The bankruptcy court began by noting that the case was seven
23   months old.   The court then outlined the standards required for
24   diligent prosecution of the case under the local rules including
25
          5
26             The motion also was brought pursuant to Local Rule
     7041-1(a) which provides that “[a] proceeding that has been
27   pending for an unreasonable period of time without any action
     having been taken therein may be dismissed for want of
28   prosecution upon notice and opportunity to request a hearing.”

                                    -4-
 1   sharing information and communication between the parties.       It
 2   concluded that “[the court] pretty consistently [had] not had
 3   much of a showing of any compliance with standards that I’ve
 4   just outlined from the Plaintiff’s side.”    Id. at 1:21-25,
 5   2:1-8.
 6           The bankruptcy court initially warned that “[the late
 7   filing of reports] is unacceptable, and if that happens one more
 8   time in this case, this [Adversary Proceeding] will be
 9   dismissed.”    Id. at 2:11-13.   Further, the court made clear that
10   “if, [Smith fails] to follow our rules and procedures, as
11   outlined in our Local rules, and as I’ve announced in this court
12   to you before, one more time, this case will be dismissed for
13   lack of diligent prosecution.”    Id. at 2:14-17.   Before hearing
14   from Smith, the court concluded by saying that “this case is
15   wasting a lot of the Defendant’s time.     This case is wasting a
16   lot of the Court’s time, and this is probably one of the busiest
17   courts in the country.”    Id. at 4:2-5.
18   Smith first alleged that “there has been a complete and
19   irredeemable breakdown of relationship between the client and
20   the attorney.” Id. at 4:16-18.     Smith further told the court
21   that:
22           [Appellant] has refused to -- to sign a substitution
             of attorney. [Appellant] has made a terrorist threat
23           against me. [Appellant] has been alleged to have
             sexually assaulted, on two separate occasions, one of
24           the women that was working on his case. [Appellant]
             has filed a complaint against me with the State Bar. .
25           . . I’ve been advised to get out of any cases I’m
             with [Appellant] as soon as possible. Id. at 5:20-25,
26           5:1-2.
27           Smith then asked the bankruptcy court if a court security
28   officer could accompany Smith out of the courtroom because Smith

                                      -5-
 1   was afraid of Appellant.     The bankruptcy court assured Smith
 2   that an escort would be provided.       Finally, Smith alleged that
 3   Appellant and Smith did not have a fee agreement which covered
 4   fees related to trial and that Appellant insisted that Smith go
 5   to trial without further payment.
 6            The bankruptcy court then gave Appellant an opportunity to
 7   speak to the allegations to which the Appellant responded that
 8   “100-percent they’re lies.”     Id. at 6:21.    Appellant told the
 9   court that Appellant had paid Smith an $8,500 retainer, which
10   Smith had requested, and Smith had failed to appear at six
11   hearings, including hearings before the bankruptcy court and
12   hearings in “other courts.”6     Appellant concluded, requesting
13   from the court time to find new counsel, saying that:
14            I’m going to need counsel, and since Ms. Smith has not
              fulfilled her obligation for the retention and the
15            retaining by me giving her money, I would like that –
              the retainer back so that I can obtain counsel that
16            are viable, very reliable counsel, so that I can
              continue this. Id. at 8:22 - 9:5.
17
18            The bankruptcy court then proceeded to dismiss the
19   Adversary Proceeding for lack of diligent prosecution.        As bases
20   for its ruling, the bankruptcy court noted that the case had
21   been pending for seven months, and for the court to learn of the
22   failed relationship between Smith and Appellant at this late
23   stage was “an inexcusable burden on the [Appellee], and on the
24   legal process, and on this Court.”      Id. at 9:13-20.   On February
25
26        6
               Though the record is not entirely clear, the “other
27   court” hearings are presumably hearings in which Smith was to
     appear as Appellant’s attorney in the related prepetition state
28   court fraud case against Appellee.

                                       -6-
 1   8, 2012, the bankruptcy court entered a written order dismissing
 2   (“Dismissal Order”) the Adversary Proceeding for the reasons
 3   stated on the record at the February 2, 2012 hearing.
 4            On February 27, 2012, Appellant in pro se filed the Motion,
 5   nineteen days after the date of entry of the Dismissal Order.
 6   On March 1, 2012, the court summarily denied the Motion by
 7   writing “Motion denied” in handwriting in the upper-right corner
 8   of the first page of the Motion, dated and initialed immediately
 9   below.     No findings of fact or conclusions of law were docketed
10   separately, nor written on the face of the Motion.
11            On March 13, 2012, Appellant filed a notice of appeal
12   (“Notice”) from the Dismissal Order and the March 1, 2012 denial
13   of the Motion.     On May 7, 2012, the motions panel limited the
14   scope of the appeal to review of the Motion because the Notice
15   of Appeal was untimely as to the Dismissal Order,7 but not as to
16   the Motion.8
17
          7
               The motions panel determined that because the Motion
18
     pursuant to Civil Rule 59 or Civil Rule 60, made applicable in
19   adversary proceedings by Rule 9023 and Rule 9024 respectively,
     was not filed within fourteen days after the Dismissal Order was
20   entered, the fourteen day time limit to file a notice of appeal
     was not tolled pursuant to Rule 8002(b). Therefore, the motions
21   panel held that no jurisdiction existed to hear the appeal of the
22   Dismissal Order. However, because the denial of the Motion
     itself was appealed within fourteen days, pursuant to
23   Rule 8002(a), jurisdiction was proper as to denial of the Motion.
     Order of Motions Panel re “motion for extension of time, scope of
24   appeal & completion of the record” (“Limiting Order”)(granted in
     part), May 7, 2012.
25
          8
26             On June 7, 2012, Appellant filed a “Request for BAP to
     Consider Dismissal” which the motions panel considered as an
27   untimely motion for reconsideration of the Limiting Order.
     Though untimely, the motions panel addressed the merits of the
28                                                      (continued...)

                                       -7-
 1                                II. JURISDICTION
 2            The bankruptcy court had jurisdiction under 28 U.S.C.
 3   §§ 1334 and 157(b)(2)(I).      We have jurisdiction under 28 U.S.C.
 4   § 158.
 5                                  III. ISSUES
 6            1.   Whether the bankruptcy court failed to make sufficient
 7   findings of fact and conclusions of law to allow for meaningful
 8   review.
 9            2.   Whether the bankruptcy court abused its discretion in
10   denying the Motion.
11                            IV. STANDARDS OF REVIEW
12            We review the bankruptcy court's denial of the Motion for
13   abuse of discretion.9      Arrow Elecs., Inc. v. Justus
14   (In re Kaypro), 218 F.3d 1070, 1073 (9th Cir. 2000); Sewell v.
15   MGF Funding, Inc. (In re Sewell), 345 B.R. 174, 178 (9th Cir.
16   BAP 2007).      We apply a two-part test to determine objectively
17   whether the bankruptcy court abused its discretion.       United
18   States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.
19   2009)(en banc).      First, we “determine de novo whether the
20   bankruptcy court identified the correct legal rule to apply to
21
              8
22         (...continued)
     motion and denied the motion by order entered on August 20, 2012.
23   Order of Motions Panel re “Appellant’s request for BAP to
     consider dismissal” (denied), August 20, 2012.
24
          9
               The Civil Rules do not recognize motions for
25   reconsideration. Captain Blythers, Inc. v. Thompson (In re
26   Captain Blythers, Inc.), 311 B.R. 530, 539 (9th Cir. BAP 2004).
     The Civil Rules do provide, however, two avenues through which a
27   party may obtain post-judgment relief: (1) a motion to alter or
     amend judgment under Civil Rule 59; and (2) a motion for relief
28   from judgment under Civil Rule 60.

                                        -8-
 1   the relief requested.”    Id.   Second, we examine the bankruptcy
 2   court’s factual findings under the clearly erroneous standard.
 3   Id. at 1262 & n.20.   De novo means review is independent, with
 4   no deference given to the trial court's conclusion.    See First
 5   Ave. W. Bldg., LLC v. James (In re Onecast Media, Inc.),
 6   439 F.3d 558, 561 (9th Cir. 2006).
 7        Where a party files a motion for reconsideration within
 8   14 days following the date of entry of the judgment or order,
 9   the motion is treated as a motion to alter or amend the judgment
10   under Civil Rule 59(e).   Am. Ironworks & Erectors, Inc. v.
11   N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001)
12   (citation omitted).   Such a motion is “analogous to a motion for
13   new trial or to alter or amend the judgment pursuant to [Civil
14   Rule] 59 as incorporated by Rule 9023.”    United Student Funds,
15   Inc. v. Wylie (In re Wylie), 349 B.R. 204, 209 (9th Cir. BAP
16   2006).
17        However, where the fourteen day time for appeal has
18   expired, a motion for reconsideration should be construed as a
19   motion for relief from judgment under Civil Rule 60(b).      Negrete
20   v. Bleau (In re Negrete), 183 B.R. 195, 197 (9th Cir. BAP
21   1995)(citing In re Cleanmaster Indus., Inc., 106 B.R. 628, 630
22   (9th Cir. BAP 1989)(internal citations omitted)).    Civil
23   Rule 60(b) provides that relief may be granted from an order for
24   several reasons, including (1) mistake, inadvertence, surprise,
25   or excusable neglect; (2) newly discovered evidence; and (3) any
26
27
28

                                      -9-
 1   other reason that justifies relief.10   Relief from judgment for

 2   “any other reason” under Civil Rule 60(b)(6) should be limited

 3   only to exceptional or extraordinary circumstances, and the

 4   moving party bears the burden of establishing the existence of

 5   such circumstances.   Negrete, 183 B.R. at 197.   In the

 6   circumstances of this appeal, we conclude that analysis under

 7   Civil Rule 60(b) applies.

 8        A motion for reconsideration of an order dismissing an

 9   adversary proceeding is a contested matter under Rule 9014,

10   subject to Civil Rule 52(a) by incorporation under Rule 7052,

11   which requires the bankruptcy court to find the facts

12   specifically and state its conclusions of law separately.   In

13   the absence of complete findings, we may vacate a judgment and

14   remand the case to the bankruptcy court to make the required

15   findings or develop further evidence.   In re First Yorkshire

16
17       10
              Civil Rule 60(b) provides that:
18       On motion and just terms, the court may relieve a party
19       or its legal representative from a final judgment,
         order, or proceeding for the following reasons:
20
         (1) mistake, inadvertence, surprise, or excusable
21       neglect;
         (2) newly discovered evidence that, with reasonable
22
         diligence, could not have been discovered in time to
23       move for a new trial under Rule 59(b);
         (3) fraud (whether previously called intrinsic or
24       extrinsic), misrepresentation, or misconduct by an
         opposing party;
25       (4) the judgment is void;
26       (5) the judgment has been satisfied, released, or
         discharged; it is based on an earlier judgment that has
27       been reversed or vacated; or applying it prospectively
         is no longer equitable; or
28       (6) any other reason that justifies relief.

                                    -10-
 1   Holdings, Inc., 470 B.R. 864, 871 (9th Cir. BAP 2012)(citing
 2   United States. v. Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005));
 3   Rule 8013.
 4                               V. DISCUSSION
 5   The bankruptcy court failed to make specific findings of fact
     and conclusions of law in denying the Motion.
 6
          1.      Arguments on Appeal
 7
 8        Appellant argues on appeal that gross negligence of counsel
 9   is an appropriate ground for relief pursuant to Civil Rule 60(b)
10   from an order of dismissal for failure to prosecute, and,
11   therefore, the bankruptcy court abused its discretion by denying
12   the Motion on the facts presented.
13        For support, Appellant first cites Cmty. Dental Servs. v.
14   Tani, 282 F.3d 1164, 1168 (9th Cir. 2002), where the Ninth
15   Circuit held that a default judgment may be set aside under the
16   “catch all” clause of Civil Rule 60(b)(6).     Specifically, the
17   court held that “a party merits relief under Rule 60(b)(6) if he
18   demonstrates 'extraordinary circumstances which prevented or
19   rendered him unable to prosecute [his case].'” Id. (citing
20   Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730
21   (9th Cir. 1971) (per curiam)).      To be entitled to relief, “the
22   party must demonstrate both injury and circumstances beyond his
23   control that prevented him from proceeding with the prosecution
24   or defense of the action in a proper fashion.”     Tani, 282 F.3d
25   at 1168 (citing United States v. Alpine Land & Reservoir Co.,
26   984 F.2d 1047, 1049 (9th Cir. 1993)).
27        In holding that gross negligence of counsel may provide a
28   basis for relief, the Tani court distinguished negligent acts of

                                        -11-
 1   counsel, which are attributable to the client under an agency
 2   theory, from the more unusual case of extreme or gross
 3   negligence which is “neglect so gross that it is inexcusable.”
 4   Id. at 1168.   For example, the Tani court cited L.P. Steuart,
 5   Inc. v. Matthews, 329 F.2d 234, 235 (D.C. Cir. 1964), for the
 6   proposition that “[Civil Rule] 60(b)(6) 'is broad enough to
 7   permit relief when as in this case personal problems of counsel
 8   cause him grossly to neglect a diligent client's case and
 9   mislead the client.'”   Tani, 282 F.3d at 1169.   Further, even
10   though a client choosing incompetent counsel typically risks
11   suffering any negative consequences as a result, a client should
12   not “suffer the ultimate sanction of losing his case without any
13   consideration of the merits because of his attorney's neglect
14   and inattention,” for example where there is evidence of
15   counsel's “blatant disregard for explicit [court] orders.”    Id.
16   at 1168-69 (citing Shepard Claims Serv., Inc. v. William Darrah
17   & Assocs., 796 F.2d 190, 195 (6th Cir. 1986); Carter v. Albert
18   Einstein Med. Ctr., 804 F.2d 805, 806 (3d Cir. 1986)).
19        Because the appellant's lawyer in the Tani case “virtually
20   abandoned” the client by failing, inter alia, to proceed despite
21   court orders, to attend hearings and file papers, and most
22   especially, by duping the client by representing to the client
23   that the case was proceeding properly, the Ninth Circuit
24   ultimately reversed the trial court, which had held the
25   appellant responsible for the lawyer's failures, and held that
26   the “unknowing client should not be held liable on the basis of
27   a default judgment resulting from an attorney's grossly
28   negligent conduct, and that in such cases sanctions should be

                                    -12-
 1   imposed on the lawyer, rather than on the faultless client.”
 2   Tani, 282 F.3d at 1168, 1171.   Underlying the holding, the Tani
 3   court explained that because default is an extreme measure, “the
 4   judicial system loses credibility as well as the appearance of
 5   fairness, if the result is that an innocent party is forced to
 6   suffer drastic consequences.”   Id. at 1170.11
 7         Appellant further argues that an attorney's failure to
 8   prosecute a case on behalf of the plaintiff is an “extraordinary
 9   circumstance” under Civil Rule 60(b) warranting relief from an
10   order of dismissal, citing Lal v. Cal., 610 F.3d 518, 524 (9th
11   Cir. 2010).   In Lal, the Ninth Circuit approvingly cited Tani
12   with respect to default judgments and applied the Tani reasoning
13   to gross negligence of counsel resulting in dismissal with
14   prejudice for failure to prosecute.    Id.   The court reasoned
15   that “[d]ismissal with prejudice under [Civil] Rule 41(b) for
16   failure to prosecute is the converse of a default judgment.       In
17   both instances, the consequence of the attorney's action (or
18   inaction) is a loss of the case on the merits.     The only
19   significant difference is that the plaintiff rather than the
20   defendant suffers the adverse judgment.”     Id.   In Lal, the
21   plaintiff's counsel failed to make disclosures, attend status
22
23
          11
               The Ninth Circuit also disagreed with the district
24   court that the appellant's remedy should be a separate action for
     malpractice, rather than relief from the default judgment. The
25   Ninth Circuit reasoned that while malpractice was a possibility,
26   the remedy was insufficient due to delay, increased load on the
     courts, and the uncertainty of receiving a money judgment in a
27   malpractice action, while the client may have to pay out
     substantial sums before the action concludes many years in the
28   future. Id. at 1171.

                                     -13-
 1   conferences, and attend hearings.       Id. at 525.    In addition, as
 2   in Tani, the attorney in Lal deliberately misled the client
 3   regarding the status of the case.       Id.   The Lal court reversed
 4   the trial court and held that the Civil Rule 60(b) motion for
 5   relief should have been granted.    Id. at 527.
 6          Appellant alleges by declaration on appeal that Appellant’s
 7   attorney, Smith, failed to file status reports, failed to show
 8   up for several hearings, failed to oppose the motion to dismiss,
 9   failed to respond to discovery requests, failed to return phone
10   calls, and was untruthful about the status of the case.
11   Stephens Dec. (July 2012) at ¶ 2.       Further, Smith declared that
12   she was found guilty by the State Bar of California for, inter
13   alia, not properly communicating with the Appellant and not
14   responding to discovery with respect to the Adversary
15   Proceeding.   Smith Dec. (June 11, 2012) at ¶ 3.       Smith further
16   states that Appellant filed the State Bar complaint prior to the
17   February 2, 2012 hearing at which Smith failed to produce a
18   status report, failed adequately to explain the failure to
19   produce discovery, and alleged a total breakdown of
20   communications with Appellant.    Id. at ¶ 2.     Smith states
21   finally that “[b]ecause of my behavior, Mr. Stephens was unable
22   to present or have presented his case properly. . . .”        Id. at
23   ¶ 5.
24          In response, Appellee first argues that the Motion should
25   be treated as a motion pursuant to Civil Rule 59 rather than
26   Civil Rule 60 because, according to Appellee without reference
27   to any dates in Appellee's Opening Brief, Appellant filed the
28   Motion within the fourteen day appeal period.         However, Appellee

                                      -14-
 1   is in error because, as noted above, the Motion was filed on
 2   February 27, 2012, nineteen days after the Dismissal Order was
 3   entered.     Next, Appellee argues that the bankruptcy court
 4   properly denied the Motion under Civil Rule 60(b), arguing that
 5   Appellant failed to show that any of the Civil Rule 60(b)
 6   conditions were present in this case.    Appellee alleges that
 7   Appellant produced no new evidence, nor evidence of fraud, nor
 8   that the order is void, nor finally that the order has been
 9   “satisfied, released, or discharged.”    Appellee states that
10   because Appellant had ample time, after warning from the
11   bankruptcy court, to change counsel during the eight months
12   while the case was pending, Appellant was not denied effective
13   assistance of counsel.    Appellee further contends that under the
14   reasoning of In re Williams, 287 B.R. 787 (9th Cir. 2002),
15   holding that Appellant has the burden of providing an adequate
16   record on appeal, the appeal should be dismissed because the
17   record is inadequate to show that the bankruptcy court abused
18   its discretion.
19           2.   New Evidence in the Motion for Reconsideration
20           In the Motion, Appellant urged the court to consider that
21   the order had been granted “without full facts being presented
22   in the case.”    Though many of the facts asserted in the Motion
23   are simply reassertions of facts that Appellant alleged during
24   the two status conference hearings or in other filings,
25   Appellant alleged that after several requests for return of
26   Appellant’s file, Smith refused to return Appellant’s complete
27   file.    Appellant further alleged that Appellant did search for
28   other attorneys and that attorneys with whom he spoke gave

                                      -15-
 1   Appellant additional information with respect to Smith’s
 2   difficulties serving clients.   Appellant also alleged that on a
 3   weekly basis, Appellant asked Smith’s office to provide status
 4   information and a list of completed activities with respect to
 5   the Adversary Proceeding, which Appellant further alleges was
 6   provided, but which was falsified to include completion of tasks
 7   not actually performed.
 8         In addition, Appellant gave more specific information about
 9   the larger scope of Smith’s difficulties and Appellant’s
10   knowledge of those issues by alleging that not until “well into
11   our history” did Appellant learn that “Smith had been reported
12   [by four (4)] other clients, with [eleven] incidents, for lack
13   of doing her job . . . .”
14         3.   Bankruptcy Court's Holding
15         The court denied the Motion by writing “Motion denied” in
16   handwriting in the upper-right hand corner of the Motion papers
17   and initialing immediately below, with nothing more.   No
18   separate findings of fact or conclusions of law were docketed,
19   nor written on the face of the Motion.   Because the bankruptcy
20   court did not make any findings of fact or conclusions of law
21   with regard to the Motion, the Panel does not have a basis for
22   evaluating whether the bankruptcy court abused its discretion in
23   this appeal.   Therefore, the matter is VACATED and REMANDED to
24   the bankruptcy court for findings of fact and conclusions of law
25   pursuant to Rules 7052 and 9014.12
26
          12
27             On March 9, 2012, Appellant filed a second motion for
     reconsideration of the dismissal of the Adversary Proceeding
28                                                      (continued...)

                                     -16-
 1                             VI. CONCLUSION
 2        The bankruptcy court failed to make specific findings of
 3   fact and conclusions of law on the record sufficient to allow
 4   review of its denial of the Motion when it made only a
 5   handwritten statement on the face of the Motion that the Motion
 6   was denied.   Accordingly, we VACATE the order denying the Motion
 7   and REMAND for findings of fact and conclusions of law
 8   consistent with this Memorandum disposition.
 9
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          12
            (...continued)
24   (“Second Motion”). On March 23, 2012, the bankruptcy court
     denied the Second Motion by written order stating in one line
25   that “Mr. Stephens' Motion for Reconsideration of the order
26   denying his Motion for Reconsideration is hereby DENIED.” Though
     not before us, the Panel would not be able to review adequately
27   denial of the Second Motion any more than the denial of the
     Motion in this appeal due to the same lack of findings of fact
28   and conclusions of law.

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