                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: CYNTHIA CYNKO ZIPSER,                     No.   16-60027

          Debtor,                                BAP No. 15-1258
______________________________

CYNTHIA CYNKO ZIPSER,                            MEMORANDUM*

              Appellant,

 v.

OCWEN LOAN SERVICING, LLC,

              Appellee.


                          Appeal from the Ninth Circuit
                           Bankruptcy Appellate Panel
              Kurtz, Taylor, and Faris, Bankruptcy Judges, Presiding

                      Argued and Submitted October 3, 2017
                              Pasadena, California

Before: FERNANDEZ, RAWLINSON, and N.R. SMITH, Circuit Judges.

      Appellant Cynthia Zipser (Zipser) appeals the decision of the Bankruptcy

Appellate Panel (BAP) affirming the bankruptcy court’s overruling of Zipser’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
objection to a secured claim asserted by Appellee Ocwen Loan Servicing, Inc.

(Ocwen) during Zipser’s Chapter 13 bankruptcy proceedings.

      Zipser has the burden on appeal of demonstrating error in the bankruptcy

court’s decision. Although her brief includes many citations to authority, it is not a

model of clarity. She has not identified any error in the authority relied on by the

bankruptcy court in making its decision. And little of the authority she cites is on

point. The best we can tell, she challenges Ocwen’s standing to file the proof of

claim and the bankruptcy court’s ultimate decision to deny her objection to

Ocwen’s proof of claim without an evidentiary hearing. Neither claim has merit.

      The bankruptcy court properly applied California law in holding that Ocwen

had standing to enforce its claim as the possessor of a promissory note endorsed in

blank. See Spencer v. Sterling Bank, 63 Cal. App. 4th 1055, 1059 (1998)

(articulating that “[w]hen indorsed in blank, an instrument becomes payable to the

bearer and may be negotiated by transfer of possession alone until specially

indorsed”) (citation omitted); see also Cedano v. Aurora Loan Servs., LLC (In re

Cedano), 470 B.R. 522, 526 n.2 (9th Cir. B.A.P. 2012) (explaining that, under

California law, if “the Note is endorsed in blank . . . whoever has possession may

enforce the Note”). Ocwen presented sufficient evidence establishing its authority




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to pursue the claim against Zipser based on its actual possession of the promissory

note. See id.

      Zipser fails to demonstrate that the bankruptcy court abused its discretion in

overruling her objection to the proof of claim. Bitters v. Networks Elec. Corp. (In

re Networks Elec. Corp.), 195 B.R. 92, 96 (B.A.P. 9th Cir. 1996). The bankruptcy

court applied the proper burden of proof. Ocwen’s proof of claim “constitute[d]

prima facie evidence of the validity and amount of the claim” and Zipser had the

burden to “come forward with sufficient evidence and show facts tending to defeat

the claim by probative force equal to that of the allegations of the proofs of claim

themselves.” Lundell v. Anchor Constr. Specialists, Inc. (In re Lundell), 223 F.3d

1035, 1039 (9th Cir. 2000) (citations and internal quotation marks omitted).

However, Zipser failed to present any evidence supporting her challenge to the

validity of Ocwen’s claim. Thus, Zipser’s assertion that Ocwen failed to

demonstrate the chain of possession of the promissory note, even if true, is

immaterial and would not render the bankruptcy court’s decision an abuse of

discretion.

      The record does not reflect that Zipser requested an evidentiary hearing. In

any event, Zipser fails to demonstrate that an evidentiary hearing was warranted

under the facts of this case in which Ocwen sufficiently demonstrated that it had


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standing to enforce the promissory note. As a result, the bankruptcy court did not

abuse its discretion in failing to conduct an evidentiary hearing because “there was

[an] adequate factual basis for the bankruptcy court’s decision” and “[a]dditional

evidentiary support [was] unnecessary.” Zurich Am. Ins. Co. v. Int’l Fibercom,

Inc. (In re Int’l Fibercom, Inc.), 503 F.3d 933, 946 (9th Cir. 2007).

      The decision of the bankruptcy court is AFFIRMED.




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