FILED

NOT FOR PUBLICATION

MAY 14 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: NATIONS FIRST CAPITAL, LLC, No. 20-60037

Debtor, BAP No. 19-1201

------------------------------

MEMORANDUM*

JEAN G. DECEMBRE, DBA Ale Transportation,

Appellant,

v.

NATIONS FIRST CAPITAL, LLC,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Gan, Lafferty III, and Brand, Bankruptcy Judges, Presiding

Submitted May 11, 2021** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,*** Judge.

Jean Decembre appeals from a decision by the Bankruptcy Appellate Panel

(“BAP”) reversing the bankruptcy court’s vacatur of an order disallowing

Decembre’s claim against debtor Nations First Capital (“NFC”). We have

jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.

I

We review the BAP’s decision de novo and may affirm “on any ground

supported by the record.” Cal. Franchise Tax Bd. v. Kendall (In re Jones), 657

F.3d 921, 924 (9th Cir. 2011) (citation omitted). “[A]pply[ing] the same standard

of review that the BAP applied to the bankruptcy court’s ruling,” Brace v. Speier

(In re Brace), 979 F.3d 1228, 1232 (9th Cir. 2020), we ask whether the bankruptcy

court abused its discretion when it denied Decembre relief under Federal Rule of

Civil Procedure (“Rule”) 60(b)(1), but granted him relief under Rule 60(b)(6). See

Phillips v. Gilman (In re Gilman), 887 F.3d 956, 963 (9th Cir. 2018) (reviewing

bankruptcy court’s order granting Rule 60(b) relief for an abuse of discretion).

The bankruptcy court abuses its discretion if it does “not identify the correct legal

rule.” USAA Fed. Sav. Bank v. Thacker (In re Taylor), 599 F.3d 880, 887–88 (9th

*** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 Cir. 2010). We accept the bankruptcy court’s factual findings “unless [they] leave

the definite and firm conviction that a mistake has been committed.” Khan v.

Barton (In re Khan), 846 F.3d 1058, 1063 (9th Cir. 2017); see also United Student

Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204, 211 (B.A.P. 9th Cir. 2006) (“The

bankruptcy court’s factual findings regarding service of process and other

documents are reviewed for clear error.”).

II

The BAP properly held that the bankruptcy court properly declined to grant

Decembre relief from the order disallowing his claim (“Disallowance Order”)

under Rule 60(b)(1), but erred in granting him relief from that order under Rule

60(b)(6). See 11 U.S.C. § 502(j) (“A claim that has been allowed or disallowed

may be reconsidered for cause.”); Fed. R. Bankr. P. 9024 (providing that Rule 60

applies to motions for relief from a judgment or order in a bankruptcy case); see

also Wylie, 349 B.R. at 209 (explaining that motions for reconsideration of a claim

disallowance filed “after the 10-day appeal period has expired” are “subject to the

constraints of [Rule] 60(b) as incorporated by [Bankruptcy] Rule 9024”).

3 A

The bankruptcy court properly declined to conclude that Decembre’s failure

to timely respond to NFC’s claim objection resulted from “excusable neglect”

within the meaning of Rule 60(b)(1). See Fed. R. Civ. P. 60(b)(1) (permitting a

court to relieve a party from an order upon a showing of “mistake, inadvertence,

surprise, or excusable neglect”). Decembre has not demonstrated that any of the

following factors favor Rule 60(b)(1) relief on the basis of excusable neglect: “the

danger of prejudice to the debtor, the length of the delay and its potential impact on

judicial proceedings, the reason for the delay, including whether it was within the

reasonable control of the movant, and whether the movant acted in good faith.”

Iopa v. Saltchuk-Young Brothers, Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (per

curiam) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395 (1993)).

The length of the delay between entry of the Disallowance Order and

Decembre’s request for relief from that order—roughly two months—was

substantial. See Harvest v. Castro, 531 F.3d 737, 747 (9th Cir. 2008) (concluding

that 64-day delay was “substantial” and cut against granting Rule 60(b)(1) relief).

Additionally, the explanation that Decembre’s counsel provided for the delay does

not demonstrate a genuine, good faith mistake. The proof of service for the

4 objection and notice of hearing reflects that NFC properly mailed those documents

to counsel’s law firm (consistent with Decembre’s request in his proof of claim)

and Decembre’s personal address.1 Counsel’s bare assertions that he did not see

and “doubts that his office received” this mail do not overcome the presumption of

receipt. See Moody v. Bucknum (In re Bucknum), 951 F.2d 204, 207 (9th Cir.

1991) (per curiam). Although counsel may have been unaware of the claim

objection because of garden-variety negligence on his or his staff’s part, there is no

explanation to that effect in the record. Decembre has also failed to explain how

the prejudice factor favors a finding of excusable neglect. See Iopa, 916 F.3d at

1301.

The BAP properly concluded that the bankruptcy court properly denied Rule

60(b)(1) relief. Compare Tracht Gut, LLC v. Los Angeles Cnty. Treasurer & Tax

Collector (In re Tracht Gut, LLC), 836 F.3d 1146, 1155 (9th Cir. 2016) (affirming

denial of Rule 60(b)(1) relief where the movant failed “to identify any instance of

neglect that was excusable”) with Gilman, 887 F.3d at 963–64 (affirming grant of

Rule 60(b)(1) relief where counsel explained that she failed to respond to an

1 On appeal, Decembre takes issue with the fact that NFC addressed the mail to “Jean G. Decembre c/o Crowley & Crowley,” rather than to Crowley himself. NFC addressed the mail in the manner that Decembre requested in his proof of claim. In any event, because Decembre did not raise this issue below, we need not consider it. See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010). 5 objection “because of a calendaring error,” “her secretary’s disability,” and the fact

that she had “too many balls in the air”).

B

The BAP did not err in holding that the bankruptcy court should have

declined to vacate the Disallowance Order under Rule 60(b)(6). Under that catch-

all provision, a court may relieve a party from an order for “any other reason that

justifies relief,” Fed. R. Civ. P. 60(b)(6), but only “to prevent manifest injustice”

and “only where extraordinary circumstances prevented a party from taking timely

action.” Zurich Am. Ins. Co. v. Int’l Fibercom, Inc. (In re Int’l Fibercom, Inc.),

503 F.3d 933, 941 (9th Cir. 2007) (quoting United States v. Washington, 394 F.3d

1152, 1157 (9th Cir. 2005)); see also Delay v. Gordon, 475 F.3d 1039, 1044 (9th

Cir. 2007) (Rule 60(b)(6) “applies only when the reason for granting relief is not

covered by any of the other reasons set forth in Rule 60.”). Decembre did not

demonstrate such circumstances. The bankruptcy court improperly granted relief

on the sole ground that Decembre had a “potential meritorious defense” to NFC’s

claim objection. See United States v. Signed Pers. Check No. 730 of Yurban S.

Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (explaining that a court “must consider

three factors,” any of which, if met, is alone “sufficient reason for the district court

to refuse to set aside the default” (quotation marks omitted)).

6

AFFIRMED.

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