                                                           FILED
                                                            AUG 01 2012
 1                                                      SUSAN M SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 2
                    UNITED STATES BANKRUPTCY APPELLATE PANEL
 3
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No.    EW-11-1538-MkHJu
                                   )
 6   JAMES JAHR and CHANELLE JAHR, )      Bk. No.    11-02302
                                   )
 7                  Debtors.       )
                                   )
 8                                 )
     JAMES JAHR; CHANELLE JAHR,    )
 9                                 )
                    Appellants,    )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     DONALD R. FRANK, dba Don’s    )
12   Auto Sales,                   )
                                   )
13                  Appellee.      )
                                   )
14
                         Argued by Telephone Conference
15                       and Submitted on June 14, 2012
16                           Filed: August 1, 2012
17             Appeal From The United States Bankruptcy Court
                   for the Eastern District of Washington
18
        Honorable Frank L. Kurtz, Chief Bankruptcy Judge, Presiding
19
20   Appearances:     Thomas D. Nagle of the Law Offices of Thomas D.
                      Nagle argued on behalf of Appellants James Jahr
21                    and Chanelle Jahr; and James P. Hurley of Hurley &
                      Lara argued on behalf of Appellee Donald Frank,
22                    dba Don’s Auto Sales.
23
24   Before:   MARKELL, HOLLOWELL and JURY, Bankruptcy Judges.
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 8013-1.
 1                               INTRODUCTION
 2        Chapter 131 debtors James Jahr (“Jahr”) and his wife
 3   Chanelle Jahr (jointly, the “Jahrs”) filed a motion for contempt
 4   against Donald R. Frank (“Frank”) for an alleged violation of the
 5   automatic stay.    Frank defended on the basis that the property
 6   involved was not estate property and hence was not protected by
 7   the automatic stay.    Over the Jahrs’ objection, the bankruptcy
 8   court accepted Frank’s argument, and determined that Frank had
 9   not violated the automatic stay.       The bankruptcy court thus did
10   not hold Frank in contempt or sanction him.
11        We VACATE and REMAND, with instructions to the bankruptcy
12   court to enter an order dismissing the contempt motion without
13   prejudice to the Jahrs commencing an adversary proceeding seeking
14   the same relief or, alternatively, seeking relief under § 362(k).
15                                   FACTS
16        Doing business as Don’s Auto Sales, Frank owned and operated
17   a used car dealership in Union Gap, Washington.      On April 18,
18   2011, Jahr and Frank both signed a retail installment contract
19   (“Contract”) under which Frank sold Jahr a 2002 Cadillac Escalade
20   (“Escalade”).2    The purchase price was $14,773.75; with other
21
          1
22         Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
23   all Rule references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All Civil Rule references are to the
24
     Federal Rules of Civil Procedure.
25        2
           Chanelle Jahr was not a party to the Contract, and it is
26   undisputed that Chanelle Jahr was not directly involved in the
     sales transaction between Jahr and Frank. Nonetheless, for ease
27   of reference, we hereinafter refer to the Jahrs jointly, except
     when discussing Jahr’s individual testimony at the contempt
28
                                                        (continued...)

                                        2
 1   charges allocated to the Jahrs, however, the total price came to
 2   $15,000.   The Jahrs paid $7,000 down.   Frank agreed to carry the
 3   balance over time at 29.99%, taking back a security interest in
 4   the vehicle to secure the unpaid balance.
 5        On the face of the Contract, the sale was unconditional.      On
 6   the day of purchase, April 18, or the next day, Frank delivered
 7   possession of the Escalade to the Jahrs, and the Jahrs drove it
 8   off Frank’s lot.   The Jahrs obtained insurance for the Escalade
 9   soon thereafter.
10        About 2-1/2 weeks later, on May 6, Frank repossessed the
11   Escalade, after presumably declaring a default under the Contract
12   because Frank had deemed himself “insecure.”   Three days later,
13   on May 9, 2011, the Jahrs filed a chapter 13 bankruptcy case.3
14   On May 23, 2011, the Jahrs filed a motion to hold Frank in
15   contempt of court for willful violation of the automatic stay
16   based on his repossession of the Escalade and his refusal to
17   return it to the Jahrs.4
18
19        2
           (...continued)
     motion hearing. Joint reference to the Jahrs in all other
20
     instances does not affect our analysis or disposition of this
21   appeal.
          3
22         This was the Jahrs’ third bankruptcy in five years. They
     filed their first chapter 13 bankruptcy in May 2007 (Case No. 07-
23   01720), which case was dismissed in July 2008, based on the
     Jahrs’ failure to make their chapter 13 payments. The Jahrs
24
     filed their second chapter 13 bankruptcy in June 2009 (Case No.
25   09-03180), which case was dismissed in October 2009, also based
     on the Jahrs’ failure to make their chapter 13 payments.
26
          4
           We are somewhat perplexed by the Jahrs’ decision to
27   commence a contempt proceeding instead of commencing a proceeding
     to recover damages under § 362(k)(1). Section 362(k) provides:
28
                                                        (continued...)

                                      3
 1        Initially, the Jahrs filed a certificate under penalty of
 2   perjury stating that the Escalade was repossessed after they
 3   filed bankruptcy.   But later, in June 2011, the Jahrs filed a new
 4   certificate under penalty of perjury, in which they admitted that
 5   the first certificate was inaccurate, that the Escalade actually
 6   was repossessed on May 6, 2011, three days before the Jahrs filed
 7   their bankruptcy case.5
 8        Based on the Jahrs’ motion, on June 1, 2011, the court
 9   entered an order to show cause, directing Frank to appear and
10
11
          4
           (...continued)
12   “Except as provided in paragraph (2), an individual injured by
     any willful violation of a stay provided by this section shall
13
     recover actual damages, including costs and attorneys’ fees, and,
14   in appropriate circumstances, may recover punitive damages.”
     Contempt proceedings and § 362(k) proceedings are distinct.
15   Different standards and remedies apply to each. See Knupfer v.
     Lindblade (In re Dyer), 322 F.3d 1178, 1190 (9th Cir. 2003).
16   Moreover, while it generally is accepted in the Ninth Circuit
17   that contempt is a proper remedy for violation of the stay when
     the contempt proceeding is pursued by an entity who is ineligible
18   for relief under § 362(k), id. at 1189-90, it is far less clear
     whether an individual who is eligible for relief under § 362(k)
19   also is eligible to seek alternate relief by way of a contempt
     proceeding under § 105(a). See generally id. at 1189-90. In
20   light of our disposition of this appeal, we do not need to
21   resolve this issue.
          5
22         The Jahrs included in their excerpts of record for this
     appeal the Jahrs’ first, inaccurate certificate, but they did not
23   include the later, accurate certificate. Nonetheless, we can and
     have considered this later certificate, as well as other
24   documents filed in the Jahrs’ bankruptcy case, even though they
25   were not provided to us by either of the parties. See O’Rourke
     v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955,
26   957-58 (9th Cir. 1989); Atwood v. Chase Manhattan Mrtg. Co.
     (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). We
27   have obtained copies of those documents online by accessing the
     bankruptcy court’s electronic docket and the images appended
28
     thereto.

                                      4
 1   show cause why he should not be held in contempt of court for
 2   violation of the automatic stay.       After both parties filed briefs
 3   in support of their respective positions, the bankruptcy court
 4   held an evidentiary hearing on July 14 and 15, 2011.6
 5        During the hearing, Frank admitted that, prepetition, Frank
 6   had repossessed the Escalade and that, postpetition, he had
 7   refused to return the Escalade to the Jahrs.      However, Frank
 8   asserted that he was entitled under the Contract to declare
 9   himself insecure and repossess and retain the Escalade based on
10   certain inaccuracies and omissions in the information – including
11   whether James Jahr had a valid driver’s license – that the Jahrs
12   had provided to Frank in order to induce Frank to sell them the
13   Escalade.
14        Somewhat inconsistently, Frank also asserted that the whole
15   sales transaction was conditioned upon whether Frank was able to
16   sell the Contract to Reliable Credit Association (“Reliable”).
17   Both before and after transferring possession of the Escalade to
18   the Jahrs, Frank worked with Reliable hoping that Reliable would
19   finance the sale in exchange for an assignment of Frank’s rights
20   under the Contract.   Frank testified that Frank’s customers,
21   including the Jahrs, were routinely and repeatedly told that all
22   deals were contingent on financing company approval.
23        According to Frank: (1) Reliable had approved the financing
24   for the sale to the Jahrs, but subject to certain stipulations,
25
          6
26         Because the Jahrs’ excerpts of record only included limited
     excerpts from the hearing transcript, we instead have relied upon
27   the full hearing transcript. That full transcript is appended to
     the bankruptcy court’s electronic docket as document numbers 106
28
     and 107, in case number 11-02302.

                                        5
 1   like proof of a valid driver’s license, proof of residency, proof
 2   of income, and the accuracy of the information that the Jahrs had
 3   provided to Frank; and (2) Frank communicated Reliable’s
 4   stipulations to the Jahrs and told the Jahrs that the deal was
 5   conditioned upon the satisfaction of Reliable’s stipulations.
 6          The following passage is representative of Frank’s
 7   testimony:
 8          Q. . . . So [the Contract, Ex. 107,] was the agreement
            between you and James Jahr?
 9
            A.   If, if, a big if, if the stipulations meet.
10
            Q.   Where does it say that?
11
            A. We tell him that. I know verbal contracts aren’t
12          any good, but he has to know that if my collateral is
            in jeopardy, that I can repossess it. And with his
13          stipulations not meeting and me not getting my money,
            my collateral is in jeopardy.
14
15   Hr’g Trans. (July 14, 2011) at 93:13-21.
16          For his part, Jahr testified that Frank’s staff told him the
17   sale was unconditional and informed him the day he took
18   possession of the Escalade: (1) that Reliable had agreed to
19   finance the transaction and (2) they appreciated him buying the
20   car.   The Jahrs also claimed that the Contract, which was
21   unconditional on its face, was controlling.
22          The Jahrs further argued that, to the extent Frank
23   challenged their claim that their bankruptcy estate had an
24   interest in the Escalade, Frank should have commenced an
25   adversary proceeding raising the issue.    According to the Jahrs,
26   by not commencing such an adversary proceeding, Frank in essence
27   had waived, for purposes of the contempt motion, his right to
28   challenge the Jahrs’ claim that the estate had an interest in the

                                           6
 1   Escalade.
 2        Immediately following the close of evidence, the bankruptcy
 3   court expressed its preliminary view that, notwithstanding
 4   Frank’s prepetition repossession of the Escalade, the Jahrs
 5   continued to have an ownership interest in the Escalade because
 6   Frank had sold the Escalade to the Jahrs:
 7        You know, the bankruptcy estate covers all property in
          which the debtor has an interest.
 8
               Now, in this situation, which is very murky, you
 9        know, you’ve got a contract, the contract has been
          signed, [Frank] accepted [a downpayment of] $7000,
10        [Frank] sent the young man off at the dealership with
          the vehicle, so he’s got an interest in that piece of
11        property. And so there is a question about whether you
          violated the automatic stay by retaining possession of
12        property of the estate in a dispute over a debt.
13   Hr’g Trans. (July 15, 2011) at 120:11-20.
14        However, by the time the bankruptcy court rendered its oral
15   findings of fact and conclusions of law on September 6, 2011, the
16   court’s thinking had evolved.   The court, once again,
17   acknowledged: (1) that both parties had signed the Contract,
18   which was unconditional on its face; (2) that the Jahrs paid to
19   Frank a $7,000 downpayment, which never was returned to him; and
20   (3) that Frank transferred to the Jahrs possession of the
21   Escalade, which transfer occurred on April 18 or 19, 2011.
22   Nonetheless, according to the court, the Jahrs and Frank had
23   agreed that Reliable’s purchase of the Contract was a condition
24   precedent to Frank’s duty to sell the Escalade to the Jahrs.    The
25   court based this determination largely on Frank’s testimony
26   regarding the oral statements and course of conduct of the
27   parties while they were negotiating the sale of the Escalade.
28   The court further reasoned that, because Frank’s duty to sell was

                                      7
 1   conditional and because Frank had repossessed the Escalade
 2   prepetition, the Jahrs had no interest in the Escalade at the
 3   time of his bankruptcy filing, so it was not property of the
 4   estate.    This led the court to conclude that Frank’s postpetition
 5   refusal to return the Escalade to the Jahrs had not violated the
 6   automatic stay because the Escalade was not estate property.
 7           On September 21, 2011, the bankruptcy court entered its
 8   order determining that Frank had not violated the automatic stay
 9   and hence that Frank should not be held in contempt of court.
10   The Jahrs timely filed their notice of appeal on September 27,
11   2011.
12                                JURISDICTION
13           The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
14   §§ 1334 and 157(b)(2)(A), and we have jurisdiction under
15   28 U.S.C. § 158(a)(1).
16                                 DISCUSSION
17           The dispositive issue in this appeal is procedural: whether
18   the bankruptcy court erred in ruling on the merits of the Jahrs’
19   contempt motion in the absence of an adversary proceeding.      This
20   issue requires us to interpret and apply Rule 7001(2), which is a
21   matter for de novo review.    See Ruvacalba v. Munoz (In re Munoz),
22   287 B.R. 546, 550 (9th Cir. BAP 2002); see also All Points
23   Capital Corp. v. Meyer (In re Meyer), 373 B.R. 84, 88 (9th Cir.
24   BAP 2007) (interpreting and applying Civil Rule 55(b)(2)).
25   A.   Law generally governing the Jahrs’ contempt motion
26           As a threshold matter, we must survey the legal context in
27   which the above-referenced procedural issue arises before we can
28   properly apply the governing procedural rule.    As discussed

                                        8
 1   above, this appeal arises from the Jahrs’ contempt motion.      As
 2   the movants seeking an order finding Frank in contempt, the Jahrs
 3   bore the burden of proof to establish by clear and convincing
 4   evidence that Frank violated a “specific and definite court
 5   order.”   In re Dyer, 322 F.3d at 1190-91.    For purposes of
 6   contempt, the automatic stay provided for in § 362(a) “qualifies
 7   as a specific and definite court order.”     Id. at 1191.
 8        The Jahrs claimed that Frank had violated § 362(a)(3), which
 9   stays “any act to obtain possession of property of the estate or
10   of property from the estate or to exercise control over property
11   of the estate.”   Congress added the “exercise control” clause to
12   § 362(a)(3) in 1984, and the Ninth Circuit has held that the mere
13   knowing retention of estate property violates § 362(a)(3).      Cal.
14   Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147,
15   1151 (9th Cir. 1996).   Moreover, this Panel has held that the
16   mere failure to return a repossessed motor vehicle that qualifies
17   as property of the estate violates § 362(a)(3).    Abrams v. Sw.
18   Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 241-43 (9th
19   Cir. BAP 1991).
20        Put another way, if the Escalade was estate property, the
21   onus was on Frank, if he wanted to avoid violating the automatic
22   stay, to return the Escalade as soon as the Jahrs notified Frank
23   of their bankruptcy filing and requested return of the car.     See
24   Thompson v. General Motors Acceptance Corp., LLC, 566 F.3d 699,
25   707-08 (7th Cir. 2009); see also U.S. v. Whiting Pools, Inc.,
26   462 U.S. 198, 206-07, 103 S.Ct. 2309, 2314-15 (1983); Expeditors
27   Int'l of Wash., Inc. v. Colortran, Inc. (In re Colortran, Inc.),
28   210 B.R. 823, 827-28 (9th Cir. BAP 1997), aff'd in part and

                                      9
 1   vacated in part on other grounds, 165 F.3d 35 (table) (9th Cir.
 2   1998).
 3         But the bankruptcy court determined that the Escalade was
 4   not property of the estate and thus there was no violation of
 5   § 362(a)(3).   Whether the Jahrs’ bankruptcy estate had an
 6   interest in the Escalade is determined by looking at the debtor’s
 7   legal and equitable property rights on the date of the bankruptcy
 8   filing, as established under state law.   See Nobelman v. Am. Sav.
 9   Bank, 508 U.S. 324, 329, 113 S.Ct. 2106, 2110 (1993);   Cogliano
10   v. Anderson (In re Cogliano), 355 B.R. 792, 800-01 (9th Cir. BAP
11   2006) (citing Butner v. United States, 440 U.S. 48, 54–55, 99
12   S.Ct. 914, 59 L.Ed.2d 136 (1979)).
13   B.   Adversary proceeding requirement
14         On appeal, the Jahrs challenge the bankruptcy court’s
15   determination that the Escalade was not property of the estate.
16   Among other things, the Jahrs have asserted that the bankruptcy
17   court should have determined whether the Escalade was estate
18   property in an adversary proceeding under Rules 7001, et. seq.,
19   rather than in a contested matter under Rule 9014.   This Panel
20   previously has explained that there are significant differences
21   between contested matter procedure and adversary proceeding
22   procedure, Ung v. Boni (In re Boni), 240 B.R. 381, (9th Cir. BAP
23   1999), and that it is error for a bankruptcy court to employ
24   contested matter procedure when adversary proceeding procedure is
25   required.   In re Munoz, 287 B.R. at 551 (citing Bear v. Coben
26   (In re Golden Plan), 829 F.2d 705, 711–12 (9th Cir. 1986), GMAC
27   Mortg. Corp. v. Salisbury (In re Loloee), 241 B.R. 655, 660 (9th
28   Cir. BAP 1999), and In re Boni, 240 B.R. at 385–86).

                                     10
 1        Under Rule 7001(2), “a proceeding to determine the validity,
 2   priority, or extent of a lien or other interest in property,”
 3   must be brought as an adversary proceeding.    And it is settled
 4   law in this circuit that it is error for a bankruptcy court to
 5   determine property interests outside of an adversary proceeding.
 6   See, e.g., Brady v. Commercial W. Fin. Corp. (In re Commercial W.
 7   Fin. Corp.), 761 F.2d 1329, 1336-38 (9th Cir. 1985) (reversing
 8   order confirming chapter 11 plan because plan proponent attempted
 9   to invalidate liens through plan confirmation process, rather
10   than by filing required adversary proceeding); Expeditors Int’l
11   of Wash., Inc. v. Citicorp N. Am., Inc. (In re Colortran, Inc.),
12   218 B.R. 507, 510-11 (9th Cir. BAP 1997) (following Commercial W.
13   Fin. Corp, and declaring void bankruptcy court’s order denying
14   compromise motion to the extent the order purported to invalidate
15   creditor’s lien).   Moreover, this Panel specifically has held
16   that the issue of whether the estate has an interest in
17   particular property ordinarily should be determined in an
18   adversary proceeding.   In re Cogliano, 355 B.R. at 804-05.
19        However, In re Munoz points to one possible loophole in the
20   adversary proceeding requirement that may apply here.    If the
21   bankruptcy court’s circumvention of the adversary proceeding
22   requirement was harmless, this Panel need not reverse on that
23   basis.   In re Munoz, 287 B.R. at 551-52.7   As Munoz explained:
24
          7
25         Another potential loophole that arguably might apply in
     some cases is the appellant’s waiver of the adversary proceeding
26   requirement. In re Boni, 240 B.R. at 385–86. In Boni, we
     declined to decide whether and under what circumstances the
27   adversary proceeding requirement can be waived. We similarly
     decline to do so here. In this instance, it suffices for us to
28
                                                        (continued...)

                                     11
 1             Such an error may nevertheless be harmless when
          the record of the procedurally incorrect “contested
 2        matter” is developed to a sufficient degree that the
          record of an adversary proceeding likely would not have
 3        been materially different. In such circumstances, the
          error does not affect the substantial rights of the
 4        parties and is not inconsistent with substantial
          justice.
 5
               But where the record might have been materially
 6        different with an adversary proceeding, reversal
          ensues.
 7
 8   Id. at 551 (citations omitted.)    In concluding that the failure
 9   to use an adversary proceeding there was harmless error, Munoz
10   relied on the following considerations: (1) the material facts
11   were few and undisputed, (2) the dispositive issues were pure
12   questions of law, (3) neither party expressed any discontent with
13   the contested matter procedures the bankruptcy court utilized,
14   and (4) this Panel was “satisfied that neither the factual record
15   nor the quality of the presentation of the arguments would have
16   been materially different had there been an adversary
17   proceeding.”   Id.
18        Here, in contrast, the Munoz factors militate in favor of
19   reversal.   We will address each factor in turn.
20        1.     The dispositive facts were disputed, and the testimony
                 concerning those facts was inconsistent.
21
22        While the material facts were relatively few, the
23   dispositive facts concerning whether Frank transferred title to
24   the Escalade to the Jahrs were disputed and the evidence on this
25
          7
26         (...continued)
     hold that there could not have been any waiver when the Jahrs
27   argued, both in the bankruptcy court and on appeal, that the
     bankruptcy court should not decide the issue of the estate’s
28
     interest in the Escalade outside of an adversary proceeding.

                                       12
 1   point was quite equivocal.   For their part, the Jahrs claimed
 2   that there were no unsatisfied contingencies with respect to
 3   either Contract acceptance or the consummation of the sale.    On
 4   the other hand, Frank’s testimony was inconsistent.   At times, he
 5   seemed to admit that the sale had been consummated without
 6   mentioning any qualifications or conditions.   At other times,
 7   Frank stated that the “sale” or the “deal” was contingent upon
 8   the satisfaction of the financing condition and other
 9   conditions.8   The inconsistency of Frank’s testimony is
10   highlighted by his admission that he accepted the benefits of the
11   Contract (particularly the $7,000 downpayment and the right to
12   repossess if he deemed himself insecure), while at the same time
13   denying that the Contract conferred upon the Jahrs any interest
14   in the Escalade or any other rights.   This inconsistency is
15   particularly problematic here because Frank's retention of
16   Contract rights for himself was coupled with delivery of
17   possession of the Escalade to the Jahrs.9
18
19        8
           It is unclear to us whether Frank’s references to “sale”
     and “deal” in this context were meant to refer to Frank’s
20   acceptance of the Contract, Frank’s duty to perform under the
21   Contract, Frank’s consummation of the sale by transferring title
     to Jahr, or all three of the above. Indeed, from our review of
22   the entire record, we suspect that Frank conflated these three
     questions – that he did not comprehend that the answer to each of
23   these three questions could be different and that each answer
     could have distinct legal consequences.
24
          9
25         Frank’s inconsistent testimony also is problematic because
     Washington law generally prohibits automobile dealers from
26   holding buyers to a sales contract while at the same time giving
     themselves the option, for more than a few days, to declare that
27   there is no binding contract between the parties. See
     RCW § 46.70.180(4)(a); see also Banuelos v. TSA Wash., Inc.,
28
                                                        (continued...)

                                     13
 1        2.   The dispositive issue was not a pure question of law.
 2        Not only were there material issues of disputed fact in
 3   play, but also the underlying issue – whether the Escalade was
 4   estate property at the time of the Jahrs’ bankruptcy filing –
 5   cannot reasonably be characterized as a “pure question of law” as
 6   was extant in Munoz.   To the contrary, answering this question
 7   required the bankruptcy court to weigh the conflicting and
 8   circumstantial evidence regarding whether the parties explicitly
 9   agreed that Frank would retain all interest in and title to the
10   Escalade notwithstanding the fully-executed Contract and Frank’s
11   delivery of possession to the Jahrs.   The bankruptcy court never
12   found that such an agreement existed.10
13        3.    The Jahrs objected to the bankruptcy court resolving
                the matter absent an adversary proceeding.
14
15        Unlike the parties in Munoz, the Jahrs here more than once
16   objected to the issue of the estate’s interest in the Escalade
17   being decided outside of an adversary proceeding.   After Frank
18   raised the issue of whether the Escalade was estate property, the
19
          9
           (...continued)
20   141 P.3d 652, 655 (Wash. App. 2006).
21        10
           Under Washington’s version of the Uniform Commercial Code
22   covering sales, RCW §§ 62A.2-101, et seq., absent explicit
     agreement to the contrary: (1) identification of the Escalade in
23   the Contract conferred upon the Jahrs a legally-recognized
     interest in the Escalade, and (2) delivery of possession of the
24   Escalade passed title to the Jahrs (as that is when Frank
25   completed his performance). See RCW §§ 62A.2-401(1), (2);
     62A.2-501(1)(a). In other words, unless the bankruptcy court
26   found an explicit agreement to the contrary, the undisputed facts
     regarding the Contract, Franks’ delivery of the Escalade, and the
27   Jahrs’ driving it off of Franks’ lot would have been sufficient
     to establish that the Jahrs had an interest in the Escalade that
28
     made it estate property at the time of their bankruptcy filing.

                                     14
 1   Jahrs twice explicitly argued that the estate property issue
 2   needed to be addressed, if at all, in an adversary proceeding.
 3   The Jahrs raised this argument in their written brief in support
 4   of their contempt motion and reiterated this argument at the
 5   evidentiary hearing on the contempt motion.   But nothing in the
 6   record indicates that the bankruptcy court addressed this
 7   argument.
 8        4.     The factual record and the quality of the presentation
                 of the arguments likely would have been materially
 9               different had there been an adversary proceeding.
10        The above discussion of the first three Munoz factors also
11   convinces us that, under the fourth Munoz factor, the development
12   of the factual record and the quality of the parties'
13   presentations of argument, both likely would have benefitted from
14   the more formal and deliberate procedures associated with
15   adversary proceedings.
16        Jahrs' belated parol evidence argument further convinces us
17   that adversary proceeding procedures might have facilitated the
18   resolution of this dispute.   The Jahrs have argued for the first
19   time on appeal that the parol evidence rule should have kept the
20   bankruptcy court from considering evidence concerning the
21   parties' alleged oral agreements inconsistent with the written
22   terms on the face of the Contract.    Because the Jahrs did not
23   raise the parol evidence rule in the bankruptcy court, we decline
24   to either address or decide the specific parol evidence issues
25   they raise for the first time on appeal.   See Golden v. Chicago
26   Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir. BAP
27   2002); Branam v. Crowder (In re Branam), 226 B.R. 45, 55 (9th
28   Cir. BAP 1998), aff'd, 205 F.3d 1350 (table) (9th Cir. 1999).

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 1         Nonetheless, the lack of development of the record relating
 2   to parol evidence issues further suggests that adversary
 3   proceeding procedures might have had a salutary impact on this
 4   dispute.   Specifically, if the more extensive and formal
 5   discovery and pretrial procedures associated with an adversary
 6   proceeding had been followed, the parol evidence issues quite
 7   likely would have surfaced before trial, and the parties then
 8   would have been able to develop the record with the parol
 9   evidence rule in mind and to obtain a ruling from the bankruptcy
10   court on the applicability of the rule.
11         For all of the foregoing reasons, we agree with the Jahrs
12   that the bankruptcy court should not have determined the estate's
13   interest in the Escalade outside of an adversary proceeding, and
14   we hold that the bankruptcy court's circumvention of an adversary
15   proceeding was not harmless error.
16   C.   The Jahrs’ “arguable estate property” argument
17         There is another aspect of the Jahrs’ adversary proceeding
18   argument that we must discuss.   The Jahrs in essence contend that
19   Frank waived any argument that the Escalade was not estate
20   property because he did not file an adversary proceeding seeking
21   to determine whether the Escalade was property of the estate.
22         In support of this contention, the Jahrs rely upon Brown v.
23   Chestnut (In re Chestnut), 422 F.3d 298 (5th Cir. 2005).     But the
24   Jahrs’ reliance on Chestnut is misplaced.   Chestnut held that
25   property in which the debtor had an “arguable claim of right” on
26   the petition date (which Chestnut referred to as “arguable
27   property of the estate”) was protected by § 362(a)(3) and hence
28   any affirmative actions taken by a nondebtor party to seize,

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 1   possess or foreclose upon arguable estate property was a
 2   violation of the automatic stay.      Id. at 300, 302-03.
 3        Chestnut’s holding hinges on its extension of the meaning of
 4   “property of the estate” as used in § 362(a)(3) to include
 5   “arguable property of the estate” – property in which the debtor
 6   arguably might have an interest on the date the bankruptcy case
 7   is commenced.   See id. at 302-03.     We decline to follow Chestnut
 8   because we are convinced that its expansive reading of the term
 9   “property of the estate” is inconsistent with the plain language
10   of that term’s statutory definition.     See § 541(a)(1); see also
11   Moody v. Amoco Oil Co., 734 F.2d 1200, 1213 (7th Cir. 1984)
12   (stating that property of the estate under § 541(a) consists of
13   the debtor’s property rights as of the date of the bankruptcy
14   filing – “no more, no less”); Frazer v. Drummond (In re Frazer),
15   377 B.R. 621, 626–27 (9th Cir. BAP 2007) (same).
16        In any event, Chestnut also is distinguishable.        Unlike
17   Chestnut, where the action was brought under the predecessor of
18   § 362(k),11 the Jahrs sought sanctions for alleged contempt of
19   court.    As the party seeking contempt sanctions, the Jahrs were
20   required to prove that Frank violated a “specific and definite
21   court order.”   In re Dyer, 322 F.3d at 1190-91.     When the Jahrs
22   contend that § 362(a)(3) covers the Escalade as “arguable estate
23   property,” we begin to have trouble perceiving § 362(a)(3) as a
24   “specific and definite court order” on which to ground contempt
25
26
          11
           As part of Congress’s enactment of the Bankruptcy Abuse
27   Prevention and Consumer Protection Act of 2005, Pub. L. 109-8,
     119 Stat. 23 (2005), substantive amendments not relevant to this
28
     appeal were made to § 362, and former § 362(h) became § 362(k).

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 1   sanctions.     In other words, the scope of the automatic stay
 2   potentially becomes so broad and ill-defined when you start
 3   adding “arguable estate property” to its coverage that we no
 4   longer feel comfortable characterizing § 362(a)(3) as a “specific
 5   and definite court order” for purposes of a contempt proceeding.
 6        In sum, we hold that the Jahrs, not Frank, needed to
 7   commence an adversary proceeding if they desired to duly
 8   establish their entitlement to contempt sanctions based on
 9   Frank’s alleged violation of the automatic stay.    We acknowledge
10   that contempt sanctions ordinarily can be sought by motion.      See
11   Rule 9020 (providing that motions for contempt are governed by
12   Rule 9014 and not Rule 7001); see also In re Del Mission Ltd.
13   98 F.3d at 1152-53 (stay violation pursued as motion for
14   contempt).     However, because the contempt motion here required a
15   determination of whether certain property was property of the
16   estate, it was incumbent on the Jahrs to commence an adversary
17   proceeding before they could recover their requested contempt
18   sanctions.12
19                                 CONCLUSION
20        For the reasons set forth above, We VACATE the bankruptcy
21   court’s ruling on the Jahrs’ contempt motion, and we REMAND, with
22   an instruction for the bankruptcy court to enter an order
23   dismissing the contempt motion without prejudice to the Jahrs
24
          12
25         We further acknowledge that it might seem ironic for the
     Jahrs to succeed on appeal by arguing that their contempt motion,
26   a matter which they initiated, should have been disposed of by
     adversary proceeding. But much if not all of that seeming irony
27   disappears when one considers that the issue necessitating an
     adversary proceeding – the estate property issue – was raised by
28
     Frank in his response to the contempt motion.

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 1   commencing an adversary proceeding seeking the same relief or,
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