                                                                FILED
                                                                 FEB 01 2016
 1                          NOT FOR PUBLICATION
                                                            SUSAN M. SPRAUL, CLERK
 2                                                             U.S. BKCY. APP. PANEL
                                                               OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )        BAP No. NC-15-1095-JuKuW
                                   )
 6   STEPHEN LEE BECK and DONITA M.)        Bk. No.   11-54179-MEH
     BECK,                         )
 7                                 )
                    Debtors.       )
 8   ______________________________)
                                   )
 9   STEPHEN LEE BECK; DONITA M.   )
     BECK,                         )
10                                 )
                    Appellants,    )
11                                 )
     v.                            )        M E M O R A N D U M*
12                                 )
     WELLS FARGO HOME MORTGAGE,**  )
13                                 )
                    Appellee.      )
14   ______________________________)
15                  Argued and Submitted on January 21, 2016
                          at San Francisco, California
16
                            Filed - February 1, 2016
17
                 Appeal from the United States Bankruptcy Court
18                   for the Northern District of California
19       Honorable M. Elaine Hammond, Bankruptcy Judge, Presiding
                         _________________________
20
             Appearances:   John G. Downing argued for appellants
21                          Stephen Lee Beck and Donita M. Beck.
                            _________________________
22
23
24
25       *
          This disposition is not appropriate for publication.
26 Although it may be cited for whatever persuasive value it may
   have (see Fed. R. App. P. 32.1), it has no precedential value.
27 See 9th Cir. BAP Rule 8024-1.
28       **
              Wells Fargo Bank did not participate in this appeal.

                                      -1-
 1   Before:      JURY, KURTZ, and WANSLEE,*** Bankruptcy Judges.
 2            Debtors Stephen Lee Beck and Donita M. Beck (Debtors) filed
 3   a motion under Rule 3012 seeking to value their real property
 4   under § 506(a) and (d) (Valuation Motion) prior to confirming
 5   their fourth amended chapter 131 plan (FAP).       Their plan treated
 6   the second deed of trust held by Wells Fargo Bank, N.A. (Wells)
 7   against their property as unsecured.
 8            In the notice accompanying the Valuation Motion, Debtors
 9   identified (1) Wells as the creditor with a second deed of trust
10   on their property; (2) the address of their property; (3) the
11   underlying loan number associated with the security; and (4) the
12   amount of the debt.      They also stated that there was a lack of
13   equity in the property based on Stephen Beck’s opinion that the
14   value of the property was less than the sum owed to the creditor
15   who held the first deed of trust.        While the Valuation Motion
16   reiterated this information, instead of referring to Wells’
17   current deed of trust which was recorded against their property
18   in 2004, Debtors mistakenly referred to a deed of trust recorded
19   in 2002 by Wells which had been reconveyed.        The bankruptcy
20   court granted their Valuation Motion and the subsequent order
21   (Valuation Order) again listed the deed of trust recorded in
22   2002.
23
24        ***
             Hon. Madeleine C. Wanslee, United States Bankruptcy Judge
     for the District of Arizona, sitting by designation.
25
          1
26        Unless otherwise indicated, all chapter and section
   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
27 “Rule” references are to the Federal Rules of Bankruptcy
   Procedure and “Civil Rule” references are to the Federal Rules of
28 Civil Procedure.

                                        -2-
 1        The bankruptcy court then confirmed their FAP, which
 2   treated Wells as an unsecured creditor.   Having filed a proof of
 3   claim (POC), Wells received over $20,000 in distributions as an
 4   unsecured creditor over the course of Debtors’ plan.   After
 5   completing their plan payments, Debtors sought a judgment
 6   voiding Wells’ lien.   Although served with the Valuation Motion,
 7   the Valuation Order, the plan and amended plans, and Debtors’
 8   request for a judgment voiding its lien, Wells failed to
 9   respond.
10        After Debtors realized that they had mistakenly referenced
11   the 2002 deed of trust as opposed to the 2004 deed of trust in
12   the Valuation Order, they filed a motion to correct it (Motion
13   to Correct) and again sought a judgment avoiding Wells’ lien.
14   Wells did not respond or appear at the hearing.   The bankruptcy
15   court denied the motion, finding that relief under Civil
16   Rule 60(b)(1) was not available since the motion had been
17   brought more than one year after the Valuation Order was
18   entered.   The court further found there was no mistake as
19   defined by case law since the information regarding Wells’ deed
20   of trust was readily available from the public records.
21   Although Debtors’ Motion to Correct and request for judgment was
22   uncontested, the court declined to grant the motion on the basis
23   that Wells had not received adequate notice that Debtors
24   intended to strip its lien associated with the 2004 deed of
25   trust.
26        Debtors appeal from the bankruptcy court’s order denying
27   their Motion to Correct and request for judgment voiding lien.
28   For the reasons stated below, we REVERSE the bankruptcy court’s

                                    -3-
 1   determination that Wells' due process rights were violated,
 2   VACATE the order denying the Motion to Correct, and REMAND this
 3   matter to the bankruptcy court for further proceedings
 4   consistent with this memorandum.
 5                                I.   FACTS
 6        On June 27, 2002, Debtors obtained a home equity loan from
 7   Wells.   The underlying note was secured by a second deed of
 8   trust which was recorded on July 3, 2002, as Instrument Number
 9   2002-0010687 (2002 Deed of Trust).       On September 15, 2004, the
10   2002 Deed of Trust was reconveyed to Debtors.
11        On July 27, 2004, Stephen Beck executed a promissory note
12   for $97,000 in favor of Wachovia Bank of Delaware, N.A.
13   (Wachovia).   The note was secured by a second deed of trust
14   against Debtors’ property located at 901 Freedom Drive,
15   Hollister, California (Property).       The deed of trust was
16   recorded on August 3, 2004, as Instrument Number 2004-0013967
17   (2004 Deed of Trust).    At some point, Wells became the successor
18   by merger to Wachovia.   Its records identified Debtors’ loan by
19   a loan number ending in 6995.
20        On April 30, 2011, Debtors filed a chapter 13 petition.
21   One of their assets was their Property.       Debtors filed their
22   chapter 13 plan with the petition and both were served on Wells
23   at 3476 Stateview, Fort Mill, South Carolina 29715 (South
24   Carolina Address).   Among other things, the plan provided:
25        Debtors will file a motion to value lien of Wells
          Fargo (loan ending in 6995), currently secured by a
26        2nd deed of trust on Debtor’s [sic] residence, and
          seek treatment of that lien was [sic] completely
27        unsecured.
28        On June 2, 2011, Debtors filed the Valuation Motion.       In

                                       -4-
 1   the notice, Debtors stated the address of the Property, named
 2   Wells as the creditor, and valued the Property at $270,500,
 3   which was less than the approximately $296,900 owed on their
 4   first mortgage.    Based on this value, Debtors asserted in the
 5   notice that “0.00 of the Wells Fargo loan . . . ending in 6995
 6   and secured by a second deed of trust against the Residence is
 7   secured.”   The accompanying motion reiterated this information,
 8   but also stated:
 9        There is also a home equity loan (number ending in
          6995) made by Wells Fargo Bank (the “2nd Loan”). The
10        home equity loan is secured by a Short Form Deed of
          Trust, recorded against the Residence on July 3, 2002
11        as Instrument Number 2002-0010687 in the Official
          Public Records of San Benito County. Based on a claim
12        submitted by Wells Fargo Bank, there was $90,376.00
          owed pursuant to that second deed of trust.
13
14   Debtors supported the motion with the declaration of Stephen
15   Beck who opined that the value of the Property was $270,500 and
16   reiterated the paragraph above.
17        Debtors served the notice and motion on Wells by regular
18   mail at the South Carolina Address and by certified mail
19   addressed to Stanley Stoup, General Counsel, Wells Fargo &
20   Company, 420 Montgomery Street, San Francisco, CA 94104 (San
21   Francisco Address) and Wells Fargo c/o CSC Lawyers Incorporating
22   Service, 2730 Gateway Oaks Dr., Ste. 100, Sacramento, CA 95833
23   (Sacramento Address).    Wells did not respond to the motion.
24        On August 2, 2011, Debtors filed a second notice of
25   opportunity for hearing re the Valuation Motion.    The notice
26   again referenced the address of the Property, the asserted value
27   of $270,000 which was less than what was owed on the first deed
28   of trust, and the loan ending in 6995.    Debtors again asserted

                                     -5-
 1   that Wells’ second deed of trust was wholly unsecured.     This
 2   notice was served on Wells at the three addresses set forth
 3   above.    Again, Wells did not respond.
 4        On August 17, 2011, Wells filed POC 3-1.     The POC asserted
 5   a secured claim in the amount of $98,809.30 and referenced the
 6   loan number “708xxxxxx6995.”    Attached as Exhibit “A” was an
 7   itemization of the total debt and arrearages as of the time of
 8   the filing.    This itemization stated that the principal balance
 9   as of the petition date (April 30, 2011) was $90,376.22, and
10   listed late charges as $262.45 and accrued interest of
11   $8,170.06.    No arrearages were listed on the face of the POC.
12   Also attached to the POC was the 2004 Deed of Trust and the
13   promissory note dated July 27, 2004.
14        On March 27, 2012, Debtors filed a third amended plan which
15   stated:
16        Debtors have file [sic] a motion to value lien of
          Wells Fargo (loan ending in 6995), currently secured
17        by a 2nd deed of trust on Debtor’s [sic] residence,
          and seek treatment of that lien as completely
18        unsecured. Wells Fargo shall receive payment pursuant
          to Class 2(d) above.
19
20   The third amended plan provided that the unsecured creditors in
21   Class 2(d) would receive twenty cents on the dollar.     Debtors
22   served Wells with the third amended plan at the South Carolina
23   Address.    Wells did not object to the third amended plan.
24        On April 23, 2012, Debtors filed the FAP which contained
25   the identical provision stated above.     The plan, as amended,
26   further stated:    “Notwithstanding section 2(d) above, general
27   unsecured creditors shall receive a minimum of $20,140.85.”       The
28   plan did not provide for Debtors to make any direct payments to

                                     -6-
 1   Wells.     Debtors served Wells with the FAP at the South Carolina
 2   Address.     Wells did not object.
 3           The bankruptcy court granted Debtors’ Valuation Motion by
 4   order dated May 2, 2012.     The Valuation Order referred to the
 5   2002 Deed of Trust and further stated:
 6           The court finds that notice of the motion upon [Wells]
             was proper. . . [Wells] having failed to file timely
 7           opposition to Debtors’ motion, the court hereby orders
             as follows:
 8
             (1) For purposes of Debtors’ Chapter 13 plan only, the
 9           Lien is valued at zero. Wells Fargo Bank[], does not
             have a secured claim, and the Lien may not be
10           enforced, pursuant to 11 U.S.C. §§ 506, 1322(b)(2) and
             1327.
11
             (2) This order shall become part of Debtors’ confirmed
12           Chapter 13 plan.
13           Debtors served Wells with the order by regular mail at the
14   South Carolina Address and by certified mail to Stanley Stroup,
15   General Counsel, Wells Fargo Bank, N.A., 101 N. Phillips Avenue,
16   Sioux Falls, South Dakota 57104 (South Dakota Address)2 and to
17   Wells at the Sacramento Address.
18           On June 5, 2012, the bankruptcy court confirmed the FAP.
19   Debtors elected to have property of the estate revest in Debtors
20   upon plan confirmation.
21           On October 17, 2014, the chapter 13 trustee filed her Final
22   Report and Account which stated that payments of $20,038.63 were
23   made to Wells on its unsecured claim.
24           On October 20, 2014, Debtors filed their application for
25   voiding lien.     There, Debtors sought a judgment stating that the
26
         2
27        The South Dakota Address used for Stanley Stroup was
   different from the San Francisco Address that was used previously
28 for service.

                                      -7-
 1   2004 Deed of Trust listing Wells as a beneficiary was “for all
 2   purposes void and unenforceable.”      Debtors served the
 3   application and accompanying declaration on Wells by regular
 4   mail at Wells Fargo Home Mortgage, 1 Home Campus, MAC
 5   #X2302-04C, Des Moines, IA 50328 (Iowa Address),3 and by
 6   certified mail to Stanley Stroup at the South Dakota Address and
 7   to Wells at the Sacramento Address.      Wells did not respond.
 8           At some point, Debtors discovered that they had mistakenly
 9   referred to the 2002 Deed of Trust in the Valuation Motion and
10   Valuation Order.     Accordingly, on February 12, 2015, Debtors
11   filed the Motion to Correct and again requested a judgment
12   voiding lien.     Through the Motion to Correct, Debtors sought to
13   have the Valuation Order reflect that the lien affected by the
14   valuation was the 2004 Deed of Trust.      The Motion to Correct was
15   based on Rule 9024, which incorporates Civil Rule 60(a),
16   Rule 3012, and the bankruptcy court’s Guidelines for Valuing and
17   Avoiding Liens in Chapter 11 and Chapter 13 cases.4
18
19
         3
          This address was listed on Wells’ POC as the address where
20 payment should be sent.
21       4
            The guidelines require the debtor to file a separate
     motion to obtain valuation of a secured creditor’s claim. The
22
     motion must be served upon the affected lienholder in accordance
23   with Bankruptcy Local Rule (BLR) 9014-1(b) & (c) and in the
     manner required by the Rules; “in particular, Rule 7004(b) and
24   7004(h).” The guidelines further provide that the motion must be
     resolved before the plan is confirmed. Finally, the guidelines
25   require that the motion be supported by a memorandum of points
26   and authorities and any declarations under penalty of perjury
     establishing all facts necessary to entitle debtor to the relief
27   required. “At minimum, required declarations include statements
     by competent witnesses regarding the value of the collateral and
28   the balance due on each lien relevant to the motion.”

                                      -8-
 1        Attached to the motion was the supporting declaration of
 2   Debtors’ attorney, John G. Downing.    Downing declared that at
 3   the time the Valuation Motion was filed (1) the only deed of
 4   trust in his file was the 2002 Deed of Trust; (2) this deed of
 5   trust was reconveyed on September 15, 2004; and (3) Wells had
 6   not filed its POC until after the Valuation Motion was decided.
 7   Based on these facts, Downing contended that the Valuation Order
 8   contained a clerical mistake and should be corrected pursuant to
 9   Civil Rule 60(a) to reference the 2004 Deed of Trust and the
10   requested judgment should reflect that lien.    Also attached to
11   the motion was the 2002 Deed of Trust and the reconveyance of
12   that deed of trust recorded on September 15, 2004.
13        On February 13, 2015, Debtors served a corrected notice of
14   hearing on Wells in connection with the Motion to Correct and
15   their request for judgment.   This notice was served on Wells by
16   regular mail at the Iowa Address and by certified mail to
17   Stanley Stroup at the South Dakota Address and Wells at the
18   Sacramento Address.   Wells did not respond.
19        On March 12, 2015, the bankruptcy court heard the matter.
20   Wells did not appear at the hearing.    Downing argued that Wells
21   received notice and that it was effective because the Valuation
22   Motion referenced the loan ending in 6995, which was the correct
23   loan number.   Downing further argued that Wells had notice of
24   their Motion to Correct and request for judgment voiding lien
25   and, therefore, Debtors were entitled to entry of default
26   against Wells under Civil Rule 55(a), made applicable to
27   contested matters by Rule 9014(c).
28        The bankruptcy court denied the motion on several grounds.

                                    -9-
 1   First, referring to Rule 60(b)(1), the court found that the
 2   motion was untimely since motions under that subsection had to
 3   be brought within a year.     Second, the court did not find there
 4   was a mistake or excusable neglect as the original Valuation
 5   Motion and Valuation Order clearly stated that Debtors were
 6   seeking to avoid a junior lien that was recorded on July 3,
 7   2002, and described a document number recorded in 2002.      The
 8   bankruptcy court stated that there was no such lien in existence
 9   at that time so there was no basis for Wells to object to the
10   Valuation Motion, and they did not.
11        The court also denied Debtors’ motion and request for
12   judgment on due process grounds.       The court found that although
13   the notice to Wells may have had the correct loan number for a
14   loan they had pending, this was not sufficient notice when other
15   information was incorrect.    The bankruptcy court further opined
16   that the information was publicly available at the time and
17   could have been obtained, but it was not.
18        The bankruptcy court entered the order denying Debtors’
19   Motion to Correct and request for judgment voiding lien on
20   March 12, 2015.   Debtors filed a timely notice of appeal.
21                           II.    JURISDICTION
22        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
23   §§ 1334 and 157(b)(2)(A).     We have jurisdiction under 28 U.S.C.
24   § 158.
25                                III.    ISSUES
26        Did the bankruptcy court err by finding that Wells had
27   inadequate notice of Debtors’ intent to value their Property for
28   the purpose of treating Wells’ claim as wholly unsecured and

                                         -10-
 1   stripping its lien after completing their chapter 13 plan?
 2        Did the bankruptcy court abuse its discretion by denying
 3   Debtors’ Motion to Correct under Civil Rule 60(a)?
 4                         IV.   STANDARDS OF REVIEW
 5        Whether adequate due process notice was given in any
 6   particular instance is a mixed question of law and fact that we
 7   review de novo.    Berry v. U.S. Trustee (In re Sustaita),
 8   438 B.R. 198, 207 (9th Cir. BAP 2010).        However, to the extent
 9   an issue within the mixed question can be identified as solely a
10   question of fact, it is subject to a clearly erroneous standard
11   of review.    See Rose v. United States, 905 F.2d 1257, 1259 (9th
12   Cir. 1990).
13        A bankruptcy court’s denial of a motion under Civil Rule 60
14   is reviewed for an abuse of discretion.       Lemoge v. United
15   States, 587 F.3d 1188, 1191–92 (9th Cir. 2009).
16        Review for abuse of discretion has two parts.       First, “we
17   determine de novo whether the bankruptcy court identified the
18   correct legal rule to apply to the relief requested.”       U.S. v.
19   Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).       If
20   so, we then determine under the clearly erroneous standard
21   whether the bankruptcy court’s factual findings and its
22   application of the facts to the relevant law were
23   “(1) illogical; (2) implausible; or (3) without support in
24   inferences that may be drawn from the facts in the record.”       Id.
25   at 1262.
26                               V.   DISCUSSION
27   A.   Due Process
28        The bankruptcy court concluded that to modify the Valuation

                                       -11-
 1   Order to pertain to the 2004 Deed of Trust would deny Wells due
 2   process.   We disagree with this conclusion because due process
 3   was served.    “The standard for what amounts to constitutionally
 4   adequate notice, [], is fairly low; it’s ‘notice reasonably
 5   calculated, under all the circumstances, to apprise interested
 6   parties of the pendency of the action and afford them an
 7   opportunity to present their objection.’”   Espinosa v. United
 8   Student Aid Funds, Inc., 553 F.3d 1193, 1202 (9th Cir. 2008)
 9   (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
10   314–15, (1950)), aff’d, 559 U.S. 260 (2010).
11        Here, the key inquiry is in connection with the second part
12   of the Mullane test which requires that the notice provided must
13   afford the affected party an opportunity to present objections.
14   Mullane, 339 U.S. at 314.   While Mullane revolved principally
15   around the constitutional adequacy of service by publication,
16   the court stated that “[t]he notice must be of such nature as
17   reasonably to convey the required information.”   Id.; see also
18   Fogel v. Zell, 221 F.3d 955, 962 (7th Cir. 2000) (“If notice is
19   unclear, the fact that it was received will not make it
20   adequate.”).
21        In the notice accompanying their Valuation Motion, Debtors
22   identified the address of their Property and stated that its
23   value was less than owed on the first deed of trust.   Debtors
24   also identified (1) Wells as the creditor whose lien in the
25   second position was affected; (2) the loan number associated
26   with its security; and (3) the amount of the loan.   Both the
27   loan number and the amount of the loan were identical to that
28   identified by Wells in its POC which was based on the 2004 Deed

                                     -12-
 1   of Trust.      This information was sufficient to allow Wells to
 2   identify the loan in question as the one secured by its current
 3   deed of trust and that the basis for treating Wells as wholly
 4   unsecured was the lack of equity in the Property and § 506(a).5
 5   In sum, the notice reasonably conveyed the required information
 6   under the standards set forth in Mullane and thus satisfied
 7   Wells’ due process rights.
 8            Further, the record shows that Wells was served with
 9   Debtors’ plan and amended plans which clearly stated the
10   proposed treatment of Wells’ claim was as an unsecured creditor.
11   The plans referred to Debtors’ pending Valuation Motion in
12   connection with Wells’ second deed of trust and loan number
13   ending in 6955.      Again, this was sufficient to put Wells on
14   notice that its in rem rights associated with its current deed
15   of trust in the second position would be affected.      Wells had
16   notice of its treatment under Debtors’ plan and amended plans
17   and yet failed to timely object.
18            There is no indication in the record that Wells expected
19   direct payments from Debtors to satisfy its secured debt over
20   the long term.      Indeed, the confirmed plan did not provide for
21   any such payments.      In accordance with the terms of the
22
          5
23          Section 506(a) governs the amount and treatment of secured
     claims. In a reorganization case, § 506 is relevant regarding
24   what claims get paid through the plan, “and the would-be secured
     creditor whose claim is allowed only as unsecured gets paid as an
25   unsecured creditor.” Laskin v. First Nat’l Bank of Keystone
26   (In re Laskin), 222 B.R. 872, 876 (9th Cir. BAP 1998). Rule 3012
     implements the substantive rights of § 506(a). It provides that
27   the bankruptcy court may determine the value of a secured claim,
     upon motion of a party in interest, and after hearing on notice
28   to the holder of the secured claim.

                                       -13-
 1   confirmed plan, the chapter 13 trustee made payments to Wells
 2   over forty-two months on the basis that its claim was unsecured.
 3   The plan is preclusive as to the treatment of Wells’ claim.    See
 4   Lomas Mortgage USA v. Wiese, 980 F.2d 1279, 1284 (9th Cir.
 5   1992), vacated on other grounds, 508 U.S. 958 (1993) (“An order
 6   confirming a Chapter 13 plan is res judicata as to all
 7   justiciable issues which were or could have been decided at the
 8   confirmation hearing.”); see also Fietz v. Great W. Sav.
 9   (In re Fietz), 852 F.2d 455, 458 (9th Cir. 1988) (“Once a
10   Chapter 13 plan is confirmed, all of the property of the estate
11   vests in the debtor and creditors are precluded from asserting
12   any other interest than that provided for them in the confirmed
13   plan.”).
14        Under these circumstances, we conclude that Wells had
15   adequate notice regarding the stripping of its current deed of
16   trust recorded in 2004 and Debtors’ proposed treatment of its
17   wholly unsecured claim in their confirmed FAP.   It is not
18   possible to tell from the record whether the bankruptcy court
19   applied the legal standards for notice and due process set forth
20   in Mullane.   Assuming that it did not, under a de novo review,
21   the court’s ruling that Wells had inadequate notice was in
22   error.   Moreover, to the extent the finding of inadequate notice
23   is purely one of fact, it is not supported by the record and
24   thus is clearly erroneous.
25   B.   Civil Rule 60(a):   Clerical Mistakes, Oversights and
          Omissions
26
27        In their Motion to Correct, Debtors requested the
28   bankruptcy court to correct the Valuation Order based on Civil

                                    -14-
 1   Rule 60(a), incorporated by Rule 9024.6     Under Civil Rule 60(a),
 2   a bankruptcy court may “correct a clerical mistake or a mistake
 3   arising from oversight or omission whenever one is found in a
 4   judgment, order, or other part of the record.”     Relief under
 5   Civil Rule 60(a) is not limited to clerical mistakes committed
 6   only by the clerk; the rule applies to mistakes by the court,
 7   the parties, and the jury as well.      Icho v. Hammer, 434 F.Appx.
 8   588, 2001 WL 1979163, at *1 (9th Cir. May 23, 2011 (citing Day
 9   v. McDonough, 547 U.S. 198, 210–11 (2006)); see also Warner v.
10   Bay St. Louis, 526 F.2d 1211, 1212 (5th Cir. 1976) (mistakes
11   correctable by [Civil] Rule 60(a) are “not necessarily made by
12   the clerk”); Pattiz v. Schwartz, 386 F.2d 300, 303 (8th Cir.
13   1968) (mistakes by parties correctable by [Civil] Rule 60(a)).
14   Corrections pursuant to Civil Rule 60(a) have no time limit.
15           In determining whether a mistake may be corrected under
16   Civil Rule 60(a), the Ninth Circuit focuses on what the court
17   originally intended to do.     Tattersalls, Ltd. v. Dehaven,
18   745 F.3d 1294, 1297 (9th Cir. 2014).     Further, Civil Rule 60(a)
19   covers more than the “quintessential clerical error” such as
20   where the court errs in transcribing the judgment or makes a
21   computational mistake.     See Korea Exchange Bank v. Hanil Bank,
22   Ltd. (In re Jee),     799 F.2d 532 (9th Cir. 1986) (Civil
23   Rule 60(a) used to amend a prior dismissal order where the
24   record and the recollection of the judge who entered the order
25   indicated that the dismissal was intended to be without
26
27
         6
          In denying the motion, the court referenced Civil
28 Rule 60(b), not 60(a).

                                      -15-
 1   prejudice); Jones & Guerrero Co. v. Sealift Pac., 650 F.2d 1072
 2   (9th Cir. 1981) (Civil Rule 60(a) used to correct a blanket
 3   order dismissing twenty-two diversity cases, where the court
 4   intended to remand one of those cases — the only one not
 5   originally filed in federal court — to territorial court); Robi
 6   v. Five Platters, Inc., 918 F.2d 1439, 1444-45 (9th Cir. 1990)
 7   (uncorrected judgment “ordered, among other things, that [a
 8   party’s trademark] be canceled,” but it “failed to identify the
 9   particular trademark to be canceled or to include any trademark
10   registration numbers or dates of issuance.”   The United States
11   Patent and Trademark Office was unable to identify the
12   trademarks to be cancelled, the district court amended its
13   judgment under Civil Rule 60(a) to identify the trademarks with
14   more particularity.); Garamendi v. Henin, 683 F.3d 1069, 1180-81
15   (9th Cir. 2012) (Civil Rule 60(a) used to clarify a judgment
16   that could not be domesticated in a foreign country because its
17   reasoning was not sufficiently detailed).
18        In short, the Ninth Circuit has construed Civil Rule 60(a)
19   broadly, holding that the “[r]ule ‘allows a court to clarify a
20   judgment in order to correct a failure to memorialize part of
21   its decision, to reflect the necessary implications of the
22   original order, to ensure that the court’s purpose is fully
23   implemented, or to permit enforcement.”   Garmendi, 683 F.3d at
24   1079.
25        We thus conclude that the bankruptcy court erred by not
26   considering and applying Civil Rule 60(a) to correct the error
27   in the Valuation Order.   We provide our analysis on the
28   applicability of Civil Rule 60(a) with the hope that such

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 1   guidance might be utilized by Debtors and the bankruptcy court
 2   on remand.   McDonald v. Sperna (In re Sperna), 173 B.R. 654 (9th
 3   Cir. BAP 1994) (providing guidance to the bankruptcy court on
 4   remand); Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1072 (9th
 5   Cir. 1983) (addressing a question to provide guidance on
 6   remand).
 7        As noted above, the error can be made by a party and here
 8   it appears to have been a mistake arising from oversight on the
 9   part of Debtors and their counsel.    Furthermore, the correction
10   proposed by Debtors would not change the Valuation Order’s
11   operative substantive terms or result in a different outcome —
12   the value of Debtors’ Property remains the same and Wells’
13   second deed of trust (which had been correctly identified by
14   loan number and amount) was wholly unsecured due to that value.
15   Wells suffers no prejudice because the relief sought by Debtors
16   is the very same relief that would have been granted in May 2012
17   in connection with the Valuation Order, but for the unfortunate
18   oversight of Debtors regarding the date of Wells’ deed of trust.
19   Moreover, Wells received payments as an unsecured creditor over
20   the course of Debtors’ plan.   In addition, the use of Civil
21   Rule 60(a) is not precluded by the fact that Debtors submitted
22   new evidence relating to the lien in question.   Tattersalls,
23   745 F.3d at 1299 (permitting new evidence relating to loss of
24   value) (citing Robert Lewis Rosen Assocs., Ltd. v. Webb,
25   473 F.3d 498, 504–06 (2d Cir. 2007) (permitting the admission of
26   new evidence to correct a judgment)).   Finally, the proposed
27   correction would not reflect any change in reasoning that led
28   the bankruptcy court to enter the Valuation Order in the first

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 1   place.   Accordingly, modifying the Valuation Order to reflect
 2   the 2004 Deed of Trust is warranted as there are no obstacles to
 3   a proper application of Civil Rule 60(a).
 4   C.   Civil Rule 60(b)(1):   Mistake or Excusable Neglect
 5        Civil Rule 60(b)(1) permits a court to reopen judgments for
 6   reasons of “mistake, inadvertence, surprise, or excusable
 7   neglect, but only on motion made within one year of the
 8   judgment.”   Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
 9   P’ship, 507 U.S. 380, 393 (1993).     If a Civil Rule 60(b)(1)
10   motion is untimely, the bankruptcy court lacks jurisdiction to
11   consider the merits of the motion.     Nevitt v. United States,
12   886 F.2d 1187, 1188 (9th Cir. 1989).     The bankruptcy court
13   correctly concluded that to the extent Debtors relied upon Civil
14   Rule 60(b)(1) to correct the Valuation Order, their motion was
15   untimely.
16                            VI.   CONCLUSION
17        For the reasons stated below, we REVERSE the bankruptcy
18   court’s determination that Wells' due process rights were
19   violated, VACATE the order denying the Motion to Correct, and
20   REMAND this matter to the bankruptcy court for further
21   proceedings consistent with this memorandum.
22
23
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27
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