In re: Marcos Alonzo Nieto and Hildy Jean Ortiz

FILED DEC 06 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 Nos. EC-11-1607-DJuKi ) EC-11-1619-DJuKi 6 MARCOS ALONZO NIETO and ) EC-11-1643-DJuKi HILDY JEAN ORTIZ, ) EC-12-1015-DJuKi 7 ) Debtors. ) Bk. No. 11-26173 8 ______________________________) In re: ) 9 ) BAP Nos. EC-11-1613-DJuKi HARVEY P. MICKELSEN and ) EC-12-1017-DJuKi 10 STEPHANIE B. MICKELSEN, ) EC-12-1018-DJuKi ) EC-12-1019-DJuKi 11 Debtors. ) ) Bk. No. 09-42649 12 ______________________________) In re: ) 13 ) BAP Nos. EC-11-1641-DJuKi BEN LEANDO DYE and KAELYN ) EC-12-1016-DJuKi 14 MARIE DYE, ) ) Bk. No. 11-22020 15 Debtors. ) ______________________________) 16 ) JAMES PATRICK CHANDLER; SEAN ) 17 GJERDE, ) ) 18 Appellants, ) ) 19 v. ) M E M O R A N D U M1 ) 20 J. MICHAEL HOPPER, Trustee; ) JAN P. JOHNSON, Chapter 13 ) 21 Trustee; AUGUST BURDETTE ) LANDIS, Acting United States ) 22 Trustee; MARCUS ALONZO NIETO; ) HILDY JEAN ORTIZ; HARVEY P. ) 23 MICKELSEN; STEPHANIE B. ) MICKELSEN; BEN LEANDO DYE; ) 24 KAELYN MARIE DYE; MICHAEL G. ) PETERS; JENNIFER PETERS, ) 25 ) Appellees. ) 26 ______________________________) [1] 28 This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. 1 Argued and Submitted on October 19, 2012 at Sacramento, California [2] Filed - December 6, 2012 [3] Appeal from the United States Bankruptcy Court 4 for the Eastern District of California 5 Honorable Christopher M. Klein, Chief Bankruptcy Judge, Presiding [6] Appearances: Appellant James Patrick Chandler, appeared in pro 7 per; Appellant Sean Gjerde appeared in pro per; Kristen A. Koo appeared for Appellee Jan P. 8 Johnson, Chapter 13 Trustee; Antonia G. Darling appeared for Appellee, August B. Landis, Acting 9 United States Trustee. [10] 11 Before: DUNN, JURY, and KIRSCHER, Bankruptcy Judges. [12] 13 What all parties anticipated would be a relatively 14 straightforward no asset chapter 72 case spawned litigation 15 resulting in ten judgments in three different bankruptcy cases 16 now before the panel on appeal, all of which relate in some 17 fashion to sanctions against the debtors’ counsel and his 18 partner. Because the judgments were entered on a default basis, 19 and because neither appellant sought relief from the default 20 judgments from the bankruptcy court in the first instance, we 21 DISMISS each of these appeals. 22 / / / 23 / / / [2] Unless otherwise indicated, all chapter and section 26 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532 , and 27 all “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure 28 are referred to as “Civil Rules.” -2- 1 I. FACTUAL BACKGROUND 2 A. Setting the Stage: Bankruptcy Court Matters October 19, 2009 Through April 18, 2011.3 [3] 4 Harvey P. and Stephanie B. Mickelsen paid Attorney Sean P. 5 Gjerde $2,000 to file a chapter 7 bankruptcy petition on their 6 behalf, which he did on October 19, 2009. Ultimately 7 dissatisfied with the services Mr. Gjerde had performed, the 8 Mickelsens retained substitute counsel (“Substitute Counsel”) on 9 February 10, 2010. The Mickelsens thereafter sent Mr. Gjerde a 10 letter dated May 6, 2010, outlining why they believed he should 11 refund the $2,000 in fees they had paid him. Mr. Gjerde 12 responded by letter dated May 11, 2010, stating that all problems 13 with the Mickelsens’ case were caused by the chapter 7 trustee, 14 Prem N. Dhawan (“Chapter 7 Trustee”). In this letter, Mr. Gjerde 15 expressed his opinion that he did not think the Mickelsens would 16 “get much sympathy from the bankruptcy court,” if they brought 17 the matter to its attention. As their response, the Mickelsens 18 amended their schedules on May 27, 2010 to exempt a claim against 19 Mr. Gjerde. 20 Substitute Counsel then sent a letter to Mr. Gjerde on 21 June 3, 2010, restating the Mickelsens’ request for a refund, and 22 giving Mr. Gjerde explicit notice and opportunity to respond as 23 contemplated by Rule 9011(c). After Mr. Gjerde failed to 24 respond, on July 21, 2010, Substitute Counsel filed a Motion to [25] 26 3 A substantial portion of this Memorandum sets out facts 27 prior to the events actually involved in the pending appeals. Nevertheless, the historic facts are important to a full 28 understanding of these appeals. -3- 1 Disgorge Legal Fees (“Motion to Disgorge”) and set the matter for 2 hearing to be held August 31, 2010 (“August 31 Hearing”). The 3 Motion to Disgorge sought the disgorgement of the attorneys fees 4 the Mickelsens had paid to Mr. Gjerde and an order compelling 5 Mr. Gjerde to pay the attorneys fees of Substitute Counsel 6 required to “repair [the] damage caused by [Mr.] Gjerde’s 7 incompetent handling of [the Mickelsens’] case.” 8 Mr. Gjerde timely filed his response under the local rules 9 of the Bankruptcy Court for the Eastern District of California 10 (“LBRs”) on August 16, 2010. Notwithstanding his opposition to 11 the Motion to Disgorge, Mr. Gjerde did not appear at the 12 August 31 Hearing. At the August 31 Hearing, the bankruptcy 13 court continued the hearing on the Motion to Disgorge to 14 September 28, 2010 (“September 28 Hearing”) and directed 15 Substitute Counsel to provide Mr. Gjerde notice of the 16 September 28 Hearing. Substitute Counsel served Mr. Gjerde with 17 notice of the September 28 Hearing via email and certified mail 18 on August 31, 2010, and via telecopier and regular mail on 19 September 1, 2010. Substitute Counsel filed a declaration of 20 service with the bankruptcy court on September 3, 2010. 21 Mr. Gjerde did not appear at the September 28 Hearing. 22 However, Mr. Gjerde ostensibly was represented at the 23 September 28 Hearing by attorney Matthew Pearson, who reported he 24 was appearing on behalf of Mr. Gjerde. The record suggests that 25 Mr. Pearson did not represent to the bankruptcy court at the 26 September 28 Hearing that he was acting as Mr. Gjerde’s counsel. 27 Following the conclusion of the September 28 Hearing, on 28 October 5, 2010, the bankruptcy court entered on the docket an -4- 1 unsigned civil minute order (“Minute Order”). The Minute Order 2 provided: “Findings of fact and conclusions of law having been 3 stated orally on the record and good cause appearing. IT IS 4 ORDERED that the motion is granted, fees disgorged in the amount 5 of $2,000.” 6 Substitute Counsel served the Minute Order on Mr. Gjerde via 7 telecopier, certified U.S. Mail, and First Class U.S. Mail, all 8 on October 7, 2010. Included with the Minute Order was a letter 9 (“Demand Letter”) from Substitute Counsel requesting that 10 Mr. Gjerde send a check payable to the Mickelsens in care of 11 Substitute Counsel. Mr. Gjerde responded to the Demand Letter on 12 October 7, 2010, taking the position that because the Minute 13 Order did not refer to him by name, he intended to ignore it. He 14 also demanded that Substitute Counsel not contact him again 15 because he was represented by counsel, although Mr. Gjerde did 16 not state who was serving as his counsel. Substitute Counsel 17 then sent, via telecopier, e-mail, and U.S. Mail, a copy of the 18 Minute Order and a letter requesting the disgorged fees to 19 Mr. Pearson on October 8, 2010, and when no response was 20 received, began calling Mr. Pearson’s office on October 21, 2010, 21 to inquire regarding the status of payment of the disgorged fees. 22 Despite leaving five voice mail messages requesting a return 23 telephone call, Substitute Counsel received no call from 24 Mr. Pearson. 25 On November 3, 2010, Substitute Counsel filed a Motion to 26 Compel Sean P. Gjerde to Comply with Court Order and/or for 27 Coercive Contempt Sanctions (“Motion to Compel”), and set the 28 matter for hearing to be held November 23, 2010 (“November 23 -5- 1 Hearing”). The Motion to Compel sought an order compelling 2 Mr. Gjerde to disgorge the attorneys fees the Mickelsens had paid 3 him and the attorneys fees the Mickelsens had incurred for the 4 services performed by Substitute Counsel. The Motion to Compel 5 also sought an order granting coercive contempt sanctions against 6 Mr. Gjerde until he complied with the Minute Order. Substitute 7 Counsel served both the Motion to Compel and a notice of hearing 8 on the Motion to Compel on Mr. Gjerde and Mr. Pearson via first 9 class mail on November 3, 2010. 10 Under the LBRs, because the motion was set for hearing on 11 less than 28 days’ notice, Mr. Gjerde had until the time of the 12 November 23 Hearing to file or to present his opposition to the 13 Motion to Compel. See LBR 9014-1(f)(2)(C). Mr. Gjerde neither 14 filed an opposition nor appeared at the November 23 Hearing to 15 present one. 16 At the conclusion of the November 23 Hearing, an unsigned 17 civil minute order (“Second Minute Order”) was entered on the 18 bankruptcy court docket. The Second Minute Order provided: 19 “Findings of fact and conclusions of law having been stated 20 orally on the record and good cause appearing. IT IS ORDERED 21 that the motion is granted. IT IS FURTHER ORDERED, Sean Gjerde 22 (California State Bar 217467) shall appear before the undersigned 23 Judge on December 14, 2010 at 9:30 a.m., to explain why he has 24 not complied with this Court’s order. FURTHER: Chambers to 25 issue Order to Show Cause regarding electronic filing 26 privileges.” 27 On November 24, 2010, the bankruptcy court entered its Order 28 to Appear (“Show Cause Order”), which provided: -6- 1 IT IS ORDERED that Sean P. Gjerde (State Bar No. 217467) shall appear before the undersigned judge on 2 December 14, 2010, at 9:30 a.m. and explain why he has not complied with this court’s order to disgorge $2,000 3 pursuant to 11 U.S.C. § 329 . 4 IT IS FURTHER ORDERED that Mr. Gjerde shall show cause why his electronic filing privilege should not be 5 terminated. 6 The deputy clerk’s certificate of service attached to the Show 7 Cause Order states that on November 29, 2010, she served the Show 8 Cause Order by placing true and correct copies in postage paid 9 envelopes addressed to Mr. Gjerde and to Substitute Counsel and 10 by depositing the envelopes in the U.S. Mail or by placing the 11 copies in an interoffice delivery receptacle located in the 12 Clerk’s Office. 13 Mr. Gjerde did not appear at the hearing on the Order to 14 Show Cause. At the conclusion of the hearing on the Order to 15 Show Cause, an unsigned civil minute order (“Third Minute Order”) 16 was entered on the bankruptcy court docket on December 14, 2010. 17 The Third Minute Order provided: “Findings of fact and 18 conclusions of law having been stated orally on the record and 19 good cause appearing. The Court finds Mr. Sean P. Gjerde held in 20 contempt of court.” The Third Minute Order directed that an 21 order be prepared by Chambers. 22 On January 10, 2011, the bankruptcy court entered its Order 23 of Contempt (“Contempt Order”), which states in its entirety: 24 Sean P. Gjerde having failed to explain why he has not disgorged $2,000 as ordered by this court on October 5, 25 2010, which order has not been appealed by Sean P. Gjerde or the Northern California Law Center, and 26 having failed to appear before the undersigned on December 14, 2010, [27] IT IS ORDERED that Sean P. Gjerde is held in contempt 28 of court. -7- 1 IT IS FURTHER ORDERED that all filing privileges of Sean P. Gjerde, Northern California Law Center, or any 2 attorney associated with Northern California Law Center are revoked. [3] IT IS FURTHER ORDERED that no case may be filed in the 4 Eastern District of California by Sean P. Gjerde, Northern California Law Center, or any attorney 5 associated with Northern California Law Center without prior permission from the Chief Judge of this court. [6] 7 The deputy clerk’s certificate of service attached to the 8 Contempt Order states that on January 11, 2011, she served the 9 Contempt Order by placing true and correct copies in postage paid 10 envelopes addressed to Mr. Gjerde and to Substitute Counsel and 11 by depositing the envelopes in the U.S. Mail or by placing the 12 copies in an interoffice delivery receptacle located in the 13 Clerk’s Office. 14 The next day, Mr. Gjerde directed a letter to the attention 15 of the bankruptcy judge who issued the Contempt Order. In this 16 letter, Mr. Gjerde asserted that his primary problem with the 17 Minute Order was the correct amount. He asserted he should not 18 have been required to disgorge $2,000, when only $1,701 was paid 19 for or on account of his attorneys fees. The remaining $299 was 20 paid to him by the Mickelsens as the court filing fee in the 21 case, and he had used the funds for that purpose. Mr. Gjerde 22 stated in the letter that he had offered to pay the $1,701 amount 23 without success, but that he now “would be willing to pay the 24 $2,000 to have my filing privileges reinstated.” He explained 25 the hardship the Contempt Order had placed on his other clients. 26 He also informed the bankruptcy court that, absent reinstatement 27 of his filing privileges, “there would appear little reason to 28 pay out this money which I assume was your intention.” -8- 1 Mr. Gjerde further took the bankruptcy court to task for 2 suspending the filing privileges of Mr. Gjerde’s partner, James 3 Chandler, asserting that because Mr. Chandler had no notice of 4 the proceedings, Mr. Chandler’s privileges were removed in 5 violation of his due process rights. 6 The bankruptcy court deemed Mr. Gjerde’s letter to be a 7 motion for reconsideration of the Minute Order and the Order of 8 Contempt, and entered a further order on January 14, 2011, which 9 set a hearing on the motion for reconsideration to be held 10 January 25, 2011 (“January 25 Hearing”). When Mr. Gjerde did not 11 appear at the January 25 Hearing, the bankruptcy court continued 12 the hearing to February 1, 2011 (“February 1 Hearing”). Notably, 13 the United States Trustee (“UST”) joined in the proceedings 14 beginning with the January 25 Hearing, signaling that broader 15 concerns were developing with respect to Mr. Gjerde’s bankruptcy 16 practice. On January 25, 2011, Substitute Counsel served a 17 notice of the February 1 Hearing on Mr. Gjerde via email, 18 telecopier, and first class mail. 19 Mr. Gjerde did appear at the February 1 Hearing. The civil 20 minutes of the February 1 Hearing reflect only that the hearing 21 was continued to April 5, 2011 (“April 5 Hearing”). What was 22 discussed at the February 1 Hearing we do not know, as we have 23 not been provided a transcript of those proceedings. What is 24 clear from the record that has been presented to us is that after 25 the February 1 Hearing the proceedings expanded significantly in 26 scope. 27 On March 8, 2011, Substitute Counsel filed a motion 28 (“Prevailing Party Fees Motion”), seeking $6,582.52, an amount -9- 1 which purported to represent the reasonable expenses and 2 attorneys fees incurred in presenting the earlier Motion to 3 Compel and participating in the resulting contempt proceedings 4 against Mr. Gjerde. Substitute Counsel scheduled the Prevailing 5 Party Fees Motion to be heard at the April 5 Hearing, and on 6 March 8, 2011, served the Prevailing Party Fees Motion and the 7 notice of its scheduled hearing on Mr. Gjerde via U.S. Mail. 8 Declarations in support of the underlying Motion for 9 Contempt were filed by Substitute Counsel (“Substitute Counsel 10 Declaration”) on March 22, 2011, by the Chapter 7 Trustee 11 (“Chapter 7 Trustee Declaration”)(at the direction of the UST) on 12 March 22, 2011, by an assistant UST (“UST Declaration”) on 13 March 28, 2011, and by the Chapter 13 Trustee for the Eastern 14 District of California, Sacramento Division (“Chapter 13 Trustee 15 Declaration”). Pared to their essences, the respective 16 declarations stated: 17 Substitute Counsel Declaration - Substitute Counsel had been 18 attempting since the spring of 2010 to assist the Mickelsens to 19 obtain a refund of the monies they paid in conjunction with their 20 bankruptcy filing. Those funds were paid either to Sean P. 21 Gjerde and Associates, the Law Office of Sean P. Gjerde, or the 22 Northern California Law Center, P.C. (“NCLC”). In May 2010, 23 Mr. Gjerde acknowledged in writing that both he and Mr. Chandler 24 comprised the NCLC. Mr. Gjerde initially took the position that 25 because the Minute Order did not name him personally, it was not 26 directed to him. Beginning in January, 2011, Mr. Gjerde began to 27 assert that notice had not been given to “the firm.” Despite 28 Mr. Gjerde’s claim to the contrary in his January 12, 2011 letter -10- 1 to the bankruptcy court, Mr. Gjerde had made no attempt to meet 2 with Substitute Counsel to resolve the dispute. The last 3 communication Substitute Counsel received from Mr. Gjerde was a 4 letter dated March 9, 2011, which stated that his counsel had 5 advised him not to communicate with the Mickelsens so he would 6 not be able to “resolve the money issue” at that time. 7 Chapter 7 Trustee Declaration - The UST requested that the 8 Chapter 7 Trustee apprise the bankruptcy court of his experience 9 regarding the quality of Mr. Gjerde’s work, and of Mr. Gjerde’s 10 attitude in dealing with the issues in the Mickelsens’ case. 11 The Chapter 7 Trustee determined that the Mickelsens had 12 improperly asserted federal exemptions, rather than California 13 state exemptions, in assets. Most significantly, Mr. Gjerde had 14 listed on Schedule B two life insurance policies with a total 15 value of $175,000, and then fully exempted those policies under 16 § 522(d)(7). Mr. Gjerde was unresponsive to the Chapter 7 17 Trustee’s efforts to contact him regarding the improper use of 18 federal exemptions. The failure to cite the proper exemptions 19 required the Chapter 7 Trustee to retain counsel to preserve the 20 bankruptcy estate’s interest in the insurance policies. 21 Following a subsequent request for documentation concerning 22 the insurance policies, Mr. Gjerde asserted the policies had no 23 cash value and offered to amend the Mickelsens’ schedules to so 24 reflect. After the Chapter 7 Trustee and his counsel reviewed 25 the insurance policy documentation, they determined that the 26 combined cash surrender value was approximately $22,116.63. The 27 Chapter 7 Trustee requested confirmation of this cash surrender 28 value from the insurance companies. In response, Mr. Gjerde -11- 1 filed an amended schedule C asserting $11,070 of the value exempt 2 pursuant to Cal. Code Civ. P. § 703.140(b). Following the filing 3 of the amendment, the Chapter 7 Trustee obtained turnover of the 4 full cash value of the insurance policies from the insurance 5 companies, subject to the Mickelsens’ allowed exemption in the 6 amount of $11,070. 7 Thereafter the Mickelsens retained Substitute Counsel, who 8 amended schedule C to claim the entire life insurance proceeds as 9 exempt under the “wild card exemption.” Ultimately, the 10 Chapter 7 Trustee was required to turn over all of the life 11 insurance proceeds to the Mickelsens. 12 As a second matter, the Chapter 7 Trustee wrote to instruct 13 the Internal Revenue Service (“IRS”) to forward the Mickelsens’ 14 scheduled (and exempted) 2009 federal income tax refund to the 15 Chapter 7 Trustee. Mr. Gjerde questioned the Chapter 7 Trustee’s 16 counsel about the legal authority under which the Chapter 7 17 Trustee was asserting that the 2009 refund was property of the 18 bankruptcy estate. Chapter 7 Trustee’s counsel had to write to 19 Mr. Gjerde to provide the authority. 20 Finally, the Mickelsens had been involved in a prepetition 21 automobile accident, resulting in (1) a personal injury claim 22 that was neither scheduled nor exempted, and (2) loss of their 23 vehicle which was not disclosed in their Statement of Financial 24 Affairs. A recent sale by the Mickelsens of their prior Arizona 25 residence also was not disclosed in their bankruptcy documents. 26 These errors were corrected by Substitute Counsel. 27 The Chapter 7 Trustee conducted a total of three § 341(a) 28 meetings in the Mickelsens’ case. The first, on November 24, -12- 1 2009, was continued by the Chapter 7 Trustee, because Mr. Gjerde 2 failed to appear with the Mickelsens. While Mr. Gjerde’s 3 partner, Mr. Chandler, did appear, Mr. Chandler admitted he knew 4 nothing about the Mickelsens’ bankruptcy petition, schedules and 5 statement of financial affairs. As a result, the Chapter 7 6 Trustee believed the Mickelsens were not well represented at the 7 first § 341(a) meeting. Mr. Gjerde did attend the second 8 § 341(a) meeting on December 9, 2009, at which time, Mr. Gjerde 9 misrepresented to the Chapter 7 Trustee that the insurance 10 policies had no cash surrender value. Mr. Gjerde also admitted 11 his lack of experience with bankruptcy matters, leading the 12 Chapter 7 Trustee to continue the § 341(a) meeting again to 13 provide Mr. Gjerde with time to correct problems with the 14 asserted exemptions and to provide additional documentation to 15 the Chapter 7 Trustee. 16 The Chapter 7 Trustee emphasized that, because of a lack of 17 adequate disclosures, improperly asserted exemptions, and a lack 18 of cooperation and communication from Mr. Gjerde, the Chapter 7 19 Trustee believed it was necessary to engage legal counsel to 20 assist him in administering the Mickelsens’ case. 21 Mr. Gjerde wrote to the Chapter 7 Trustee and his counsel on 22 February 1, 2010, demanding that the Mickelsens’ case be closed, 23 and threatening to file a motion against the Chapter 7 Trustee 24 and his counsel for “holding up this case” and “for wasting the 25 time and resources of the United States, of the Court and of 26 [Mr. Gjerde’s] time.” The gist of Mr. Gjerde’s complaint was 27 that the Chapter 7 Trustee and his counsel were making excessive 28 demands and had no right to all the “needless information” -13- 1 requested. In the letter, Mr. Gjerde implied he would file a 2 motion to have the Chapter 7 Trustee removed; Mr. Gjerde had made 3 a similar, more specific, threat in the case of another of his 4 clients also being administered by the Chapter 7 Trustee. 5 The Chapter 7 Trustee next discussed his experience with 6 Mr. Gjerde in the other case. The Chapter 7 Trustee was 7 appointed in that case on August 29, 2009, following conversion 8 of the case from chapter 13 to chapter 7. In that case, 9 Mr. Gjerde also improperly used federal rather than California 10 exemptions, requiring the Chapter 7 Trustee to retain counsel to 11 object to the exemptions. 12 In addition, the Chapter 7 Trustee advised Mr. Gjerde that 13 chapter 7 debtors were not authorized to operate a business 14 without court approval and requested that Mr. Gjerde provide 15 evidence of insurance and instruct his clients to close their 16 business. Mr. Gjerde was not responsive. Mr. Gjerde did not 17 appear at the § 341(a) meeting. The substitute attorney who did 18 appear was unfamiliar with the case. At this § 341(a) meeting, 19 the debtors stated under oath that the fair market value of the 20 business was $100,000. The debtors and Mr. Gjerde failed to 21 appear at the continued § 341(a) meeting. Instead, Mr. Gjerde 22 sent correspondence to counsel for the Chapter 7 Trustee, stating 23 that unless the Chapter 7 Trustee concluded the § 341(a) meeting 24 and either closed the case as a no asset case, thereby abandoning 25 the business to the debtors, or agreed to the dismissal of the 26 case, he would file a motion to remove the Chapter 7 Trustee. 27 Ultimately, the bankruptcy court entered an order requiring the 28 debtors to attend a continued § 341(a) meeting; the order also -14- 1 provided that no discharge would be entered in the case until 2 thirty days after the § 341(a) meeting was concluded. 3 Rather than comply with any of the requests of the Chapter 7 4 Trustee, Mr. Gjerde filed a motion to dismiss the case, proposing 5 that the debtors would re-file it at a later date. When advised 6 that the Chapter 7 Trustee intended to object to the dismissal, 7 Mr. Gjerde wrote to the Chapter 7 Trustee and his counsel stating 8 that the Chapter 7 Trustee had no standing to object to dismissal 9 of the case, and that he would take legal action against the 10 Chapter 7 Trustee if the Chapter 7 Trustee objected to dismissal. 11 After the bankruptcy court denied the debtors’ motion to dismiss, 12 the debtors retained substitute counsel. 13 UST Declaration - The UST reviewed the bankruptcy court files of 14 all 77 bankruptcy cases filed in the Eastern District of 15 California by Mr. Gjerde and summarized the issues or problems in 16 those cases. Most notably, the UST stated that in only four of 17 the 77 cases were no “issues seen.” Thirty of the cases were 18 chapter 13 cases; only two of those cases reached plan 19 confirmation. Twenty-seven of the cases were dismissed before 20 confirmation, and one case had plan confirmation denied in 21 December, 2010, with no new plan filed as of the date of the UST 22 Declaration. Forty-seven of the cases were chapter 7 cases. 23 Eleven of the cases were dismissed for failure to file documents. 24 Mr. Gjerde either quit or was fired in five of the cases. 25 Twenty-four cases resulted in debtor discharge. One case was 26 closed without a discharge and has not been reopened. Six cases 27 were pending. 28 The UST chronicled the most common errors and issues seen in -15- 1 Mr. Gjerde’s filings: incomplete social security number 2 declarations submitted with the petition in 20 cases; no master 3 address list filed with the petition in 15 cases; no Exhibit D 4 and certificate filed with the petition in 25 cases; no plan was 5 filed in 21 chapter 13 cases; Mr. Gjerde failed to appear at 6 least once at a § 341(a) meeting in 10 cases; the § 341(a) 7 meeting was continued in 11 cases for corrections or for late 8 submitted documents; and blank documents were filed in three 9 cases. The UST also pointed out that 14 of the cases were repeat 10 filings where Mr. Gjerde or his firm were counsel in the prior 11 cases as well, but where the prior cases were not listed on the 12 petition. 13 To ensure that the analysis of Mr. Gjerde’s work was fair, 14 the UST also reviewed the cases of two other attorneys in 15 practice since 2008. After setting out the results of that 16 review, the UST concluded that Mr. Gjerde was incompetent to 17 practice law. The UST further stated that Mr. Gjerde had shown 18 no interest in improving his skills, despite being told by many 19 trustees that his work was substandard. 20 Chapter 13 Trustee Declaration - The Chapter 13 Trustee provided 21 in detail a chronicle of the problems in each of the 22 17 chapter 13 cases in which he was the trustee and Mr. Gjerde 23 served as counsel for the debtor(s). 24 Mr. Gjerde filed pleadings in preparation for the April 5 25 Hearing as follow: 26 - Sean P. Gjerde’s Brief Re: Reconsideration of [the Contempt 27 Order]. Mr. Gjerde asserted that the NCLC accepted $2,000 from 28 the Mickelsens, which constituted a payment of $1,701 toward -16- 1 attorneys fees and $299 toward the filing fee for the Mickelsens’ 2 case. Mr. Gjerde therefore requested that the bankruptcy court 3 modify the Order of Contempt to provide that only $1,701 be 4 disgorged. Mr. Gjerde asserts that on March 22, 2011, he paid 5 the Mickelsens $1,701 by transmitting payment to Substitute 6 Counsel. The ultimate sentence of this brief stated: “With 7 regard to the suspension of filing rights in the [Contempt 8 Order], Gjerde wishes to inform the Court that he is withdrawing 9 from practicing before the Eastern District Bankruptcy Court at 10 this time.” 11 - Sean P. Gjerde’s Opposition to Debtors’ Motion for Attorneys 12 Fees and Costs. Mr. Gjerde asserted that “it is clear” that 13 Substitute Counsel took the Mickelsens’ request for disgorgement 14 of fees “as a ‘make-work’ project” for which they now sought 15 $6,534 fees and $48.62 costs for a motion that requested 16 disgorgement of only $1,701, making the amount of Substitute 17 Counsel’s attorneys fees unreasonable. He complained as to the 18 amount in part because the “case has long been closed and the 19 [Mickelsens] have been discharged for over 6 months.” Mr. Gjerde 20 pointed out that because the original Motion to Disgorge 21 contained a request for Substitute Counsel fees that were not 22 granted, it was not appropriate to grant those fees in the 23 context of a separate motion. Finally, he asserted that 24 Substitute Counsel’s Declaration “coyly” stated that the fees 25 were supported by a billing report, not that the fees had been, 26 or were expected to be, paid by the Mickelsens. 27 - Rebuttal of [Substitute Counsel Declaration]. Mr. Gjerde 28 asserted that the Substitute Counsel Declaration supported the -17- 1 point he had made from the beginning of the controversy: the 2 Mickelsens hired Sean P. Gjerde, such that any disgorgement order 3 should be directed to Sean P. Gjerde, not to the NCLC. He 4 protested that he had never refused to disgorge the fees paid by 5 the Mickelsens, but rather had repeatedly asserted the order 6 should be directed to him personally and he would disgorge the 7 fees accordingly. He contended that the statement he had made in 8 his initial brief regarding reconsideration of the Contempt Order 9 that “[the NCLC] accepted a total of $2,000 from the Mickelsens” 10 was inaccurate, because the money was paid to him. He stated 11 that even where cases were filed by him under the name of the 12 NCLC, in reality, his practice as to bankruptcy cases always was 13 kept separate from those bankruptcy cases filed and administered 14 by the co-owner of the NCLC, Mr. Chandler. Mr. Gjerde then urged 15 the bankruptcy court to avoid prejudicing Mr. Chandler’s clients, 16 stating that Mr. Chandler’s ability to represent his clients in 17 pending matters has been hampered significantly by the bankruptcy 18 court’s termination of Mr. Chandler’s electronic filing rights by 19 way of the Contempt Order, with which Mr. Chandler never had been 20 served. 21 While the vast majority of his clients were, in Mr. Gjerde’s 22 view, “pleased with his services,” repeated mistakes and actual 23 misconduct by his former assistants made his continued practice 24 impractical, and responding to the “false and unsubstantiated 25 accusations of Trustee Jan P. Johnson, the false accusations of 26 the [UST] and Ms. Antonia G. Darling of the Department of Justice 27 [had] become too onerous a burden to justify continuing to 28 practice before this court.” -18- 1 Notwithstanding the written opposition to the matters to be 2 determined at the April 5 Hearing, no appearance was made by or 3 on behalf of Mr. Gjerde at the April 5 Hearing. At the 4 conclusion of the April 5 Hearing, the bankruptcy court entered 5 civil minutes to the effect that findings of fact and conclusions 6 of law were stated orally on the record, that the Prevailing 7 Party Fees Motion was granted, and that the order was to be 8 prepared by Substitute Counsel. On April 11, 2011, Substitute 9 Counsel filed a supplemental declaration (“Supplemental 10 Declaration”) (1) to advise the bankruptcy court that on April 5, 11 2011, two cashier’s checks were delivered to her office - one in 12 the amount of $2,000 and one in the amount of $3,000, the 13 remitter of both having been Mr. Chandler; and (2) to support, as 14 directed by the bankruptcy court at the April 5 Hearing, 15 additional attorneys fees and costs incurred between the period 16 March 5, 2011 and April 5, 2011. 17 On April 14, 2011, the bankruptcy court entered an order 18 (“Prevailing Party Fee Order”) “pursuant to [§ 105(a)] and [the] 19 court’s inherent authority to prevent abuse,” granting the 20 Prevailing Party Fees Motion and requiring Mr. Gjerde and the 21 NCLC to pay the Mickelsens the sum of $10,072.62 in addition to 22 the $2,000 previously ordered disgorged in the Minute Order. 23 Recognizing the $3,000 paid on April 5, 2011, the Prevailing 24 Party Fee Order directed that Mr. Gjerde and the NCLC remit, 25 forthwith, the remaining balance due of $7,072.62 to Substitute 26 Counsel. 27 On April 18, 2011, the bankruptcy court entered a civil 28 minute order which denied Mr. Gjerde’s Motion for Reconsideration -19- 1 (“Fourth Civil Minute Order”). 2 On April 28, 2011, Mr. Gjerde filed his document entitled 3 Motion for Stay of Attorney Fee Award, Request to Have Online 4 Access Reinstated Pending Appeal ("Stay Motion”). Mr. Gjerde 5 contended that the April 5 Hearing should not have proceeded 6 without the presence of either himself or his attorney, 7 Mr. Pearson, in light of the notation on the April 4 pre-hearing 8 disposition calendar which stated that no appearance was 9 necessary. He asserted he was deprived of due process when the 10 court conducted the April 5 Hearing because, in reliance on the 11 “posting of no appearance” he “made plans to appear in another 12 court.” He asserted that he was prejudiced by what he considered 13 the “late filings” of the UST Declaration and the Chapter 13 14 Trustee Declaration. Mr Gjerde contended that the fee award was 15 unconscionable where it was for an amount more than five times 16 the amount of the disgorgement itself. 17 A substantial portion of the Stay Motion is 18 incomprehensible. Mr. Gjerde noticed the hearing on the Stay 19 Motion for June 21, 2011. Before the hearing could take place, 20 Mr. Gjerde filed, on May 9, 2011, a notice of appeal (“First 21 Appeal”), stating that he was appealing the bankruptcy court’s 22 order entered April 18, 2011, and all interlocutory orders that 23 gave rise to that order, including but not limited to the Minute 24 Order, the Contempt Order, and the Prevailing Party Fee Order. 25 The Notice of Appeal was dated April 21, 2011. 26 The bankruptcy court transmitted the First Appeal to this 27 panel on May 11, 2011, and the First Appeal was assigned BAP 28 No. EC-11-1227. On May 13, 2011, our motions panel issued a -20- 1 “Notice of Deficient Appeal and Impending Dismissal” (“BAP 2 Deficiency Notice”) on the basis that the First Appeal was 3 untimely, having been filed more that fourteen days after entry 4 of the Fourth Minute Order, which denied Mr. Gjerde’s motion for 5 reconsideration. The BAP Deficiency Notice required that 6 Mr. Gjerde, within fourteen days, provide an adequate legal 7 explanation as to why the First Appeal should not be dismissed. 8 See Docket #3 in BAP Case No. EC-11-1227. On June 16, 2011, the 9 panel received from the bankruptcy court a notice indicating that 10 Mr. Gjerde had failed to file a designation of record, a 11 statement of issues, a reporter’s transcript, and/or a notice 12 regarding the transcript. In addition, the notice indicated 13 Mr. Gjerde had not paid the filing fee for the First Appeal. See 14 Docket #6 in BAP Case No. EC-11-1227. On June 20, 2011, our 15 motions panel dismissed the First Appeal (1) for non-payment of 16 the appeal filing fee, and (2) for lack of jurisdiction, noting 17 that Mr. Gjerde had failed to respond to the BAP Deficiency 18 Notice. See Docket #7 in BAP Case No. EC-11-1227. 19 On June 27, 2011, Mr. Gjerde filed a motion for 20 reconsideration of the dismissal order entered in the First 21 Appeal. See Docket #8 in BAP Case No. EC-11-1227. In that 22 motion, Mr. Gjerde asserted he had been unable to file the First 23 Appeal properly because the Contempt Order entered January 10, 24 2011 “made it impossible to file anything with the court in any 25 proper fashion.” He also asserted that prior attempts to file 26 the First Appeal had been rejected by the bankruptcy court on two 27 separate occasions. On August 1, 2011, the motions panel entered 28 a limited remand to the bankruptcy court to issue findings of -21- 1 fact regarding the timeliness of the notice of appeal that 2 initiated the First Appeal. See Docket #14 in BAP Case 3 No. EC-11-1227. 4 On remand, the bankruptcy court conducted an evidentiary 5 hearing on the issue of whether Mr. Gjerde had attempted to file 6 a timely notice of appeal that had been rejected by the Clerk of 7 the Bankruptcy Court (“Court Clerk”). The bankruptcy court 8 determined that neither Mr. Gjerde nor his paralegal, Shaun 9 Smith, were credible witnesses. Each testified he had received a 10 notice from the Court Clerk returning a notice of appeal tendered 11 through the mail on April 26, 2011, yet neither could produce the 12 writing to evidence this communication from the Court Clerk or 13 the envelope in which it had been mailed. In contrast, a deputy 14 Court Clerk testified regarding the bankruptcy court’s internal 15 procedure for returning documents that were tendered but not 16 accepted for filing. This procedure included (1) preparation of 17 a memorandum to accompany the document returned, and (2) notation 18 of the memorandum on the court’s administrative docket. The 19 administrative docket in the case reflected that no such 20 memorandum had been prepared. 21 The bankruptcy court found that the notice of appeal was not 22 tendered to the Court Clerk until May 9, 2011, and that it was 23 accepted for filing on that date. The bankruptcy court also 24 noted that Mr. Gjerde failed to appear at the June 21, 2011 25 hearing he had set on his Stay Motion regarding the Prevailing 26 Party Fee Order. As a consequence, the bankruptcy court denied 27 the Stay Motion and awarded $627.00 to Substitute Counsel, who 28 prepared for and attended the hearing on Mr. Gjerde’s Stay -22- 1 Motion. That order was entered July 8, 2011, and was never 2 appealed. 3 Based on the findings of the bankruptcy court, the motions 4 panel denied Mr. Gjerde’s motion for reconsideration of the order 5 dismissing the First Appeal for lack of jurisdiction based on an 6 untimely filed notice of appeal. See Docket #21 in BAP Case 7 No. EC-11-1227. The motions panel thereafter denied Mr. Gjerde’s 8 request for certification of the appeal directly to the Ninth 9 Circuit Court of Appeals. See Docket #24 in BAP Case 10 No. EC-11-1227. 11 These background facts are recited here to make clear that 12 no effective appeal was taken from any order of the bankruptcy 13 court in the Mickelsen case entered on or before April 18, 2011, 14 and that all such orders are final orders. 15 B. Facts Relating to the Current Appeals. 16 Currently before the panel are ten orders entered by the 17 bankruptcy court on or after October 25, 2011. Mr. Gjerde is the 18 appellant in three of the appeals. Mr. Chandler is the appellant 19 in the remaining seven appeals. We now turn to the facts 20 relating to these appeals. 21 Additional Facts 22 Mr. Chandler came to the attention of the UST indirectly as 23 a result of a new complaint against Mr. Gjerde. In January 2011, 24 the UST was contacted by Kimberley Jorgensen, one of the debtors 25 in Case No. 10-43436-E13L, with a complaint that her bankruptcy 26 case had been dismissed because her attorney, Mr. Gjerde, had 27 failed to perform the necessary services to maintain her case. 28 Ms. Jorgensen had located a new attorney, but needed her records -23- 1 back as well as the money she had paid for Mr. Gjerde’s 2 representation. Neither Mr. Gjerde nor his law office was 3 responding to her requests for her records and the return of 4 attorneys fees paid to Mr. Gjerde. In verifying the dismissal of 5 Ms. Jorgensen’s case on PACER, the UST noted that Mr. Chandler, 6 not Mr. Gjerde, was the attorney of record in the case, despite 7 the fact that Ms. Jorgensen hired Mr. Gjerde and paid Mr. Gjerde 8 $3,500 with her credit card. Ms. Jorgensen further advised the 9 UST that neither she nor her husband had ever met with 10 Mr. Chandler before their case was filed, nor had they signed any 11 of the documents filed in the case. 12 The UST faxed a letter to Mr. Chandler on January 24, 2011, 13 requesting that he fax to the UST copies of “all the wet 14 signatures in the case” by the close of the next business day, 15 and that he deliver the originals to the UST within three working 16 days. Mr. Chandler sent no return fax; nor did he respond to the 17 UST’s telephone messages of January 26 and January 28, 2011, or 18 to her email communication of February 1, 2011. As of March 16, 19 2011, Mr. Chandler had not responded to any attempt by the UST to 20 obtain the wet signatures for the documents filed in the 21 Jorgensens’ case. 22 In the February 1, 2011 email communication, the UST advised 23 Mr. Chandler that, as an attorney associated with the NCLC, the 24 Contempt Order entered in the Mickelsen case prohibited him from 25 filing any bankruptcy cases. Mr. Chandler was advised that if he 26 disputed the Order of Contempt he should challenge it rather than 27 ignore it. 28 On January 27, 2011, Mr. Chandler filed a chapter 13 -24- 1 petition on behalf of Ben and Kaelyn Dye (“Dye Case"). Although 2 the Dyes failed to appear at their § 341(a) meeting on March 3, 3 2011, Mr. Chandler did appear. At that time the Chapter 13 4 Trustee discussed with Mr. Chandler the fact that the Dye Case 5 had been filed after Mr. Chandler’s privilege to file new cases 6 had been revoked through the Contempt Order entered January 10, 7 2011 in the Mickelsen case. The Chapter 13 Trustee personally 8 handed Mr. Chandler a copy of the Contempt Order at that time 9 because Mr. Chandler asserted he was not aware of the Contempt 10 Order. 11 Chapter 13 Trustee’s Motions and Related Proceedings 12 On March 12, 2011, nine days after the Chapter 13 Trustee 13 delivered the Contempt Order to Mr. Chandler, Mr. Chandler filed 14 a joint chapter 13 case (“Nieto/Ortiz Case”) for Marcus Alonzo 15 Nieto and Hildy Jean Ortiz. Two days later, on March 14, 2011, 16 the Chapter 13 Trustee filed a motion in the Nieto/Ortiz case 17 (“Chapter 13 Trustee Nieto/Ortiz Motion”) seeking to have 18 Mr. Chandler’s fees disgorged and for the imposition of sanctions 19 against Mr. Chandler, solely on the basis that he had filed the 20 Nieto/Ortiz case in violation of the Contempt Order. On 21 March 16, 2011, the Chapter 13 Trustee filed a motion in the Dye 22 case (“Chapter 13 Trustee Dye Motion”) seeking to have 23 Mr. Chandler’s fees disgorged and for the imposition of sanctions 24 against Mr. Chandler, solely on the basis that he had filed the 25 Dye case in violation of the Contempt Order. A hearing on both 26 of the Chapter 13 Trustee’s motions was scheduled for 27 April 26, 2011 (“April 26 Hearing”). 28 On April 6, 2011, Mr. Chandler filed an opposition to the -25- 1 Chapter 13 Trustee Nieto/Ortiz Motion, on the basis that the 2 debtors had hired Mr. Chandler individually, not NCLC. The 3 opposition stated that the “current action,” by which it appears 4 Mr. Chandler meant the Nieto/Ortiz Case, had been filed without 5 the approval of either the debtors or Mr. Chandler. Mr. Chandler 6 stated that an unnamed assistant in his office, an “independent 7 contractor” since terminated, had filed the petition without the 8 debtors’ signatures and without presenting the documents to 9 Mr. Chandler for approval or direction. The “prayer” in the 10 opposition requested that the court deny the Chapter 13 Trustee 11 Nieto/Ortiz Motion, that the debtors be permitted to proceed in 12 the case “with their chosen attorney,” and that a different 13 trustee be appointed “to avoid any potential prejudice against 14 Debtors.” (Emphasis added.) Mr. Chandler filed a declaration in 15 support of the Opposition, in which he chronicled a history of 16 improper actions taken by two unnamed assistants over the course 17 of more than six months. Mr. Chandler denied that he willfully 18 had violated the Contempt Order, complaining that he did not have 19 adequate due process notice of the proceedings leading to the 20 entry of the Contempt Order. Nevertheless, having learned of the 21 Contempt Order on March 3, 2011, he “would have sought the 22 permission of the presiding judge” before filing the Nieto/Ortiz 23 Case, “if [he] had been given the opportunity to review and 24 approve the case before it was filed.” 25 On April 13, 2011, Mr. Chandler filed with the bankruptcy 26 court an “Application for Reinstatement of Filing Privileges” [28] -26- 1 (“Chandler Application”),4 reciting that on March 16, 2011, the 2 bankruptcy court had revoked his filing privileges based on the 3 Contempt Order against Mr. Gjerde and the NCLC. Mr. Chandler did 4 not attach to the Chandler Application a copy of the March 16, 5 2011 action of the bankruptcy court from which he sought relief; 6 nor does it appear anywhere in the record before the panel.5 7 In his declaration incorporated into the Chandler 8 Application, Mr. Chandler faulted multiple unnamed employees for 9 any and all filing problems. He asserted that he and Mr. Gjerde [4] 11 The Chandler Application was not filed with any caption or in any particular case. [5] The Chandler Application appears to relate to four 13 identical orders entered by the bankruptcy court on April 6, 14 2011, in four separate cases: (1) Joy Lynn Tabura, Case No. 11-23433-C-7; (2) Sally Rose Kremere, Case No. 11-23434-C-7; 15 (3) Diane R. Britton, Case No. 11-23435-C-7; and (4) Sergy R. Lakhno, Case No. 11-23436-C-7. Each order is entitled “Order on [16] Order to Show Cause re Dismissal.” The text of each order reads 17 in its entirety: 18 This is a motion to dismiss a case where the filing fee 19 of $299 was not paid. Debtor’s counsel, [NCLC], appeared and urged the case be dismissed as a duplicate 20 of another case. The case shall be dismissed. The filing fee, however, remains due as a post-petition 21 debt in the duplicate case. Moreover, James C. 22 Chandler, Esq., and his colleague Sean P. Gjerde, who have practiced law under the name [NCLC], have been 23 barred by this court from electronic filing privileges for the reasons stated orally on the record April 5, [24] 2011, in the case In re Mickelsen, No. 09-42649-C-7. 25 The filing privileges of Mr. Chandler, Mr. Gjerde, and [NCLC], will not be eligible for consideration of 26 reinstatement unless and until the filing fee in this 27 case has been paid. 28 SO ORDERED. -27- 1 always had maintained separate bankruptcy practices even while 2 jointly using the NCLC name. He further asserted that effective 3 January 1, 2011, his staff had been directed to file all of his 4 new bankruptcy cases in the Eastern District of California 5 reflecting his affiliation with the Law Offices of James P. 6 Chandler, not with the NCLC. 7 Mr. Chandler conceded at oral argument that he never made 8 any attempt to obtain a hearing on the Chandler Application, or 9 that his filing privileges ever were reinstated despite his 10 assertion in the Chandler Application that he had paid the $1,196 11 to cover unpaid filing fees in four cases apparently identified 12 in the March 16, 2011 action. To the extent the March 16, 2011 13 action of the bankruptcy court was an order, Mr. Chandler took no 14 appeal from that order. 15 The Bankruptcy Court’s Order to Show Cause 16 At the April 26 Hearing, at which Mr. Chandler was present, 17 the bankruptcy court continued proceedings on the Chapter 13 18 Trustee motions to June 22, 2011 (“June 22 Hearing”). Following 19 the April 26 Hearing, the bankruptcy court issued an Order to 20 Show Cause (“April 27 Show Cause Order”) directing both 21 Mr. Gjerde and Mr. Chandler to appear at the June 22 Hearing and 22 show cause why they should not be sanctioned pursuant to 23 Rule 9011 for filing petitions without first obtaining client 24 signatures. The April 27 Show Cause Order also consolidated the 25 proceedings on both motions of the Chapter 13 Trustee and set a 26 discovery schedule. 27 On May 3, 2011, the Chapter 13 Trustee propounded discovery 28 requests to Mr. Gjerde and to Mr. Chandler. When neither -28- 1 Mr. Gjerde nor Mr. Chandler provided responses to the discovery 2 requests, other than to serve objections, the Chapter 13 Trustee 3 filed a motion on June 14, 2011, to compel discovery (“Discovery 4 Motion”) pursuant to Civil Rule 37 and set it to be heard with 5 other pending matters at the June 22 Hearing. 6 On May 18, 2011, Mr. Gjerde filed a motion to strike 7 (“Gjerde Motion to Strike”) the April 27 Show Cause Order on the 8 basis that it violated Rule 9011. In effect, he asserted that 9 the April 27 Show Cause Order served to join him improperly as a 10 party to the Chapter 13 Trustee motions in the Nieto/Ortiz and 11 Dye cases. 12 The June 22 Hearing 13 Both Mr. Chandler and Mr. Gjerde appeared at the June 22 14 Hearing. The bankruptcy court denied Mr. Gjerde’s Motion to 15 Strike after reading the April 27 Show Cause Order into the 16 record and establishing through Mr. Gjerde’s testimony under oath 17 that he had received and read the April 27 Show Cause Order. 18 In defending the Discovery Motion, Mr. Chandler asserted 19 that in light of the fact that the Chapter 13 Trustee motions 20 raised the issue of contempt, he had requested representation 21 from his insurance carrier that had not yet been provided. He 22 further asserted he simply had not had sufficient time to gather 23 the documents requested, in part because of a serious back 24 injury. He also complained that the Discovery Motion was filed 25 on shortened notice that gave him insufficient time to respond. 26 Mr. Gjerde also asserted that he had been attempting to 27 obtain representation through his insurance carrier. Mr. Gjerde 28 complained about needing to produce “wet signatures” for “every -29- 1 single last file.” He further asserted that the Bankruptcy Code 2 did not authorize a trustee to request the wet signatures, 3 although he did concede that the bankruptcy court could make the 4 request. Mr. Gjerde requested an additional four weeks to locate 5 all of his files. 6 The discovery propounded by the Chapter 13 Trustee also 7 requested identification of the employees whom Mr. Chandler and 8 Mr. Gjerde were blaming for improper filings. Mr. Chandler and 9 Mr. Gjerde had objected to providing that information, citing the 10 need to protect the privacy of third parties and their own 11 payroll matters. The bankruptcy court determined it was 12 appropriate to redact any social security information, but ruled 13 that the Chapter 13 Trustee was entitled to learn the names of 14 the persons accused of filing cases without authority and to 15 depose them, if appropriate. 16 The bankruptcy court set a further hearing for July 25, 2011 17 (“July 25 Hearing”) to take evidence on an award of sanctions 18 under Civil Rule 37(a)(5). Because of the lack of discovery, the 19 hearing on the Chapter 13 Trustee motions and the April 27 Show 20 Cause Order were continued to the same date. 21 UST’s Sanctions Motion 22 On June 14, 2011, the UST filed its Motion for Order of 23 Civil Contempt and Sanctions (“UST Sanctions Motion”) against 24 both Mr. Gjerde and Mr. Chandler for (1) violating the Order of 25 Contempt, and (2) violating LBR 9004-1(c)(1)(C), which provides: 26 All pleadings and non-evidentiary documents shall be signed by the individual attorney for the party 27 presenting them, or by the party involved if that party is appearing in propria persona. Affidavits and 28 certifications shall be signed by the person offering -30- 1 the evidentiary material contained in the document. The name of the person signing the document shall be 2 typed underneath the signature. (1) Signatures on Documents Submitted 3 Electronically . . . 4 (C) The Use of “/s/ Name” or a Software GeneratedElectronic Signature. The use of “/s/ Name” or a 5 software-generated electronic signature on documents constitutes the registered user’s representation that 6 an originally signed copy of the document exists and is in the registered user’s possession at the time of 7 filing. 8 The UST Sanctions Motion was filed in the Mickelsen case, 9 notwithstanding that the case at issue involved debtors 10 Michael G. Peters and Jennifer L. Peters.6 In particular, the 11 UST alleged in the UST Sanctions Motion that three cases were 12 filed by or on behalf of Mr. Gjerde, Mr. Chandler, and/or the 13 NCLC as follows: 14 The Peters hired Mr. Gjerde to file a chapter 13 case for 15 them in May of 2010. The Peters met with Mr. Gjerde on May 4, [6] The Mickelsen case had been closed by the court on 18 November 10, 2010. On June 15, 2011, the UST filed a motion to 19 reopen the Mickelsen case on the basis that further proceedings were necessary on the Contempt Order previously entered in that 20 case. The bankruptcy court entered an order reopening the Mickelsen case on June 17, 2011, and an amended order reopening 21 the case on June 24, 2011 (“Amended Reopening Order”) in order to 22 clarify that no trustee need be appointed in the reopened case. On July 7, 2011, Mr. Gjerde filed a notice of appeal (“Second 23 Appeal”) from the Amended Reopening Order, on the basis that the Mickelsen case currently was with the Ninth Circuit Court of [24] Appeals. The Second Appeal, BAP No. EC-11-1363, was dismissed by 25 our motions panel on October 11, 2011, because Mr. Gjerde had failed to comply with the briefing schedule issued on July 19, 26 2011, and also had failed to respond to the panel’s conditional 27 order of dismissal relating to the delinquent brief. The motions panel further noted that the Second Appeal was interlocutory and 28 determined that leave to continue the appeal was not warranted. -31- 1 2010, and he agreed to represent them. The Peters paid NCLC 2 $1,000 by credit card on that date, and on September 30, 2010, 3 wrote a check to Mr. Gjerde in the amount of $1,274. The Peters 4 also provided Mr. Gjerde a post-dated check for the balance of 5 his fees, which he deposited prior to its date with the result 6 that it was returned for insufficient funds. The Peters replaced 7 that check with cash. In total Mr. Peters believes he paid 8 $3,226 plus the filing fee. 9 The Peters’ first case (“Peters I”) was filed by Mr. Gjerde 10 on October 21, 2010, but was dismissed because of the inadequacy 11 of the unconfirmed plan. In particular, the Chapter 13 Trustee 12 filed both an objection to confirmation and a motion to dismiss, 13 neither of which Mr. Gjerde addressed. Peters I was dismissed 14 on March 11, 2011. The Peters’ second case (“Peters II”) was 15 filed on March 14, 2011, after the Contempt Order had been 16 entered, in the face of a pending foreclosure. Peters II was 17 filed by Mr. Chandler, not by Mr. Gjerde or the NCLC. When 18 Mr. Chandler filed Peters II, he had not met with the Peters, nor 19 had he obtained the Peters’ signatures on the Peters II petition 20 in violation of LBR 9004-1. Peters II was dismissed April 1, 21 2011, after Mr. Chandler failed to file missing documents in the 22 case. 23 After Peters II was filed, the Chapter 13 Trustee Dye Motion 24 was filed, seeking to sanction Mr. Chandler for filing new cases 25 in violation of the Contempt Order. Therefore, Mr. Chandler did 26 not file the Peters’ third case (“Peters III”). Instead, the 27 documents for Peters III were prepared by NCLC, and the documents 28 were filed with the court on April 13, 2011, by NCLC’s paralegal, -32- 1 Shaun Smith. The Peters assert they did sign the petition for 2 Peters III before it was filed. Unbeknownst to the Peters, the 3 Peters III petition listed the Peters as filing in pro per. In 4 his affidavit in support of the UST Sanctions Motion, Mr. Peters 5 stated that when Peters III was filed, he and his wife still 6 believed they were being represented by Mr. Gjerde. They 7 confirmed with Mr. Gjerde’s office that he would be representing 8 them at the § 341(a) meeting in Peters III. It was at that 9 § 341(a) meeting that the Peters realized they were 10 unrepresented. Although Mr. Gjerde appeared at the § 341(a) 11 meeting, he took the questionnaire the UST had given the Peters 12 as debtors not represented by counsel, he filled in the space for 13 attorney compensation to reflect the Peters had paid no fees to 14 him, and he had the Peters sign the questionnaire. The 15 Chapter 13 Trustee then refused to allow Mr. Gjerde to represent 16 the Peters at the § 341(a) meeting because he was not listed as 17 counsel of record. 18 On June 22, 2011, Mr. Gjerde filed a request that the UST 19 Sanctions Motion be dismissed on the basis that it was filed in 20 violation of LBR 8020-1. In essence, Mr. Gjerde asserted that 21 the bankruptcy court was without jurisdiction over the Mickelsen 22 case, or any matter filed in that case, so long as the First 23 Appeal was pending. Mr. Gjerde filed an alternative pleading on 24 the same date, through which he demanded a jury trial and 25 appointment of counsel, pursuant to Fed. R. Crim. P. 42, if the 26 UST Sanctions Motion were allowed to proceed. 27 The hearing on the UST Sanctions Motion was scheduled for 28 July 25, 2011 (“July 25 Hearing”), at the same time as the -33- 1 Chapter 13 Trustee motions, the Discovery Motion, and the court’s 2 April 27 Show Cause Order. 3 The July 25 Hearing 4 Mr. Chandler did not appear at the July 25 Hearing. As a 5 consequence, the bankruptcy court entered default against him on 6 all pending matters, i.e., the Chapter 13 Trustee Nieto/Ortiz 7 Motion, the Chapter 13 Trustee Dye Motion, the Discovery Motion, 8 the UST Sanctions Motion, and the April 27 Show Cause Order. 9 Mr. Gjerde was represented at the July 25 Hearing by 10 Tom Johnson. Mr. Johnson advised the bankruptcy court that in 11 June 2010, Mr. Gjerde had been indicted in a criminal matter 12 involving his law practice and mortgage fraud. Although 13 Mr. Johnson had begun representing Mr. Gjerde while Mr. Gjerde 14 was under investigation prior to the indictment, he only recently 15 had been asked to represent Mr. Gjerde in the bankruptcy court 16 matters. Because the discovery requests involved matters 17 potentially related to the federal indictment, Mr. Johnson asked 18 for additional time to evaluate the discovery requests to protect 19 Mr. Gjerde from possible self-incrimination. Although skeptical 20 that the bankruptcy court matters could impact Mr. Gjerde’s 21 rights with respect to the federal indictment, where the actions 22 concerned in the indictment took place before June 2010 and the 23 matters before the bankruptcy court took place beginning after 24 the Contempt Order was entered in January 2011, the bankruptcy 25 court nevertheless granted Mr. Gjerde a further continuance and 26 set the evidentiary hearing for September 8, 2011 (“September 8 27 Hearing”). 28 / / / -34- 1 The September 8 Hearing 2 Mr. Johnson’s appearance for Mr. Gjerde at the September 8 3 Hearing was limited to the Chapter 13 Trustee Nieto/Ortiz Motion 4 and the Chapter 13 Trustee Dye Motion. Mr. Gjerde represented 5 himself with respect to the other matters.7 6 Once again Mr. Johnson requested a stay of the matters in 7 bankruptcy court, this time pending resolution of Mr. Gjerde’s 8 trial in the federal case, which was then set to commence on 9 January 23, 2012. The UST and the bankruptcy court expressed 10 concern as to continuing harm to the public in the event 11 Mr. Gjerde and/or the NCLC still were filing bankruptcy cases. 12 The bankruptcy court continued all hearings to October 19, 2011 13 (“October 19 Hearing”), to permit the parties to determine 14 whether a stay of the proceedings would harm the public. 15 The October 19 Hearing. 16 At the October 19 Hearing, Kristy Kellogg “stood in” for 17 Mr. Johnson, who was unavailable because of a jury verdict just 18 received in a pending state court matter that required his 19 attendance. Ms. Kellogg stated that Mr. Johnson had filed a 20 substitution of counsel earlier in the day, and that she had a 21 written statement from Mr. Gjerde requesting that the bankruptcy 22 court allow Mr. Johnson to withdraw as his attorney of record, 23 and permitting Mr. Gjerde to represent himself in future matters. 24 Finally, when asked by the bankruptcy court where Mr. Gjerde was, 25 Ms. Kellogg stated: “I was informed that Mr. Gjerde was not [26] 27 7 These matters included the UST’s Sanctions Motion and 28 the evidentiary hearing on the remand from the First Appeal. -35- 1 going to be present at the hearing today.” Colloquy with counsel 2 established that Mr. Gjerde had clearly signaled his intent not 3 to appear at any future hearings. In light of that intent, the 4 bankruptcy court proceeded on all matters pending against 5 Mr. Gjerde. 6 The record of the October 19 Hearing reflects that the 7 bankruptcy court had ordered a stay contingent on Mr. Gjerde 8 placing on his website and all advertisements a notification that 9 he was not allowed to accept any new cases for filing without 10 prior approval of the bankruptcy court. The UST reported that 11 Mr. Gjerde had made no such disclosure on his website. 12 The bankruptcy court admitted exhibits which established the 13 amounts paid to Mr. Gjerde and/or the NCLC by the debtors in the 14 Peters, Dye, and Nieto/Ortiz cases, and took testimony from the 15 UST and counsel for the Chapter 13 Trustee on their attorneys 16 fees. Thereafter, the bankruptcy court entered judgments on all 17 matters, and these appeals followed: 18 Nieto/Ortiz - 19 Mr. Gjerde and Mr. Chandler, identified as doing business as 20 the NCLC, were ordered jointly and severally to disgorge $3,000 21 to the debtors. This judgment is before the panel as EC-11-1607 22 on Mr. Gjerde’s Notice of Appeal and as EC-11-1643 on 23 Mr. Chandler’s Notice of Appeal. 24 Mr. Gjerde and Mr. Chandler, identified as doing business as 25 the NCLC, were ordered jointly and severally to pay $19,500 to 26 the Chapter 13 Trustee as the cost of “additional professional 27 services occasioned by their intentional civil contempt.” This 28 judgment is before the panel as EC-11-1619 on Mr. Gjerde’s Notice -36- 1 of Appeal and as EC-12-1015 on Mr. Chandler’s Notice of Appeal. 2 Dye - 3 Mr. Gjerde and Mr. Chandler, identified as doing business as 4 the NCLC, were ordered jointly and severally to disgorge $2,000 5 to the debtors. This judgment is before the panel as EC-11-1641 6 on Mr. Chandler’s Notice of Appeal. 7 Mr. Gjerde and Mr. Chandler, identified as doing business as 8 the NCLC, were ordered jointly and severally to pay $19,500 to 9 the Chapter 13 Trustee as the cost of “additional professional 10 services occasioned by their intentional civil contempt.” This 11 judgment is before the panel as EC-12-1016 on Mr. Chandler’s 12 Notice of Appeal. 13 Peters - 14 Mr. Gjerde and Mr. Chandler, identified as doing business as 15 the NCLC, were ordered jointly and severally to disgorge $2,274 16 to the debtors. This judgment is before the panel as EC-12-1018 17 on Mr. Chandler’s Notice of Appeal. 18 Mickelsen - 19 Mr. Gjerde and Mr. Chandler, identified as doing business as 20 the NCLC, were ordered jointly and severally to pay $16,020 to 21 the Chapter 13 Trustee as the cost of “additional professional 22 services occasioned by their intentional civil contempt.” This 23 judgment is before the panel as EC-11-1613 on Mr. Gjerde’s Notice 24 of Appeal and as EC-12-1017 on Mr. Chandler’s Notice of Appeal. 25 However, it appears that this judgment was amended by the 26 bankruptcy court on October 27, 2011 to reflect that the 27 appropriate payee was the UST rather than the Chapter 13 Trustee. 28 This amended judgment is before the panel as EC-12-1019 on -37- 1 Mr. Chandler’s Notice of Appeal. 2 II. JURISDICTION 3 The bankruptcy court had jurisdiction under 28 U.S.C. 4 §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. 5 § 158. 6 III. ISSUES 7 The broad issue before us is whether the bankruptcy court 8 abused its discretion when it entered the default judgments now 9 on appeal. However, two preliminary issues exist. The first is 10 whether the panel may consider appeals from default judgments 11 where no motions to set aside either the entry of default or the 12 entry of the default judgment were first brought before the 13 bankruptcy court. The second is whether Mr. Gjerde and/or 14 Mr. Chandler have waived the issues on appeal. 15 IV. STANDARDS OF REVIEW 16 A trial court’s decision to enter a default judgment is 17 reviewed for an abuse of discretion. See Estrada v. Speno & 18 Cohen, 244 F.3d 1050, 1056 (9th Cir. 2001). “We review sanctions 19 and the terms of a disciplinary order for abuse of discretion.” 20 In re Nguyen, 447 B.R. 268, 276 (9th Cir. BAP 2011)(en banc). 21 The bankruptcy court’s choice of sanction is reviewed for abuse 22 of discretion. U.S. Dist. Ct. for E.D. Wash. v. Sandlin, 12 F.3d 23 861, 865 (9th Cir. 1993). 24 We apply a two-part test to determine whether the bankruptcy 25 court abused its discretion. United States v. Hinkson, 585 F.3d 26 1247, 1261-62 (9th Cir. 2009)(en banc). First, we consider de 27 novo whether the bankruptcy court applied the correct legal 28 standard to the relief requested. Id. Then, we review the -38- 1 bankruptcy court’s fact findings for clear error. Id. at 1262 & 2 n.20. We must affirm the bankruptcy court’s fact findings unless 3 we conclude that they are “(1) ‘illogical,’ (2) ‘implausible,’ or 4 (3) without ‘support in inferences that may be drawn from the 5 facts in the record.’” Id. 6 We may affirm the bankruptcy court’s ruling on any basis 7 supported by the record. See, e.g., Heilman v. Heilman 8 (In re Heilman), 430 B.R. 213, 216 (9th Cir. BAP 2010); FDIC v. 9 Kipperman (In re Commercial Money Center, Inc.), 392 B.R. 814 , 10 826-27 (9th Cir. BAP 2008); see also McSherry v. City of Long 11 Beach, 584 F.3d 1129, 1135 (9th Cir. 2009). 12 Generally, we do not consider an issue that was raised but 13 thereafter conceded by the Appellant in the trial court. See 14 CDN, Inc. v. Kapes, 197 F.3d 1256, 1258-59 (9th Cir. 1999) (“The 15 withdrawal of an objection is tantamount to a waiver of an issue 16 for appeal.”). 17 V. DISCUSSION 18 A. Mr. Gjerde’s Appeals: EC-11-1607, EC-11-1613, EC-11-1610 19 We begin our examination of the record with a clarification 20 of what we will not be deciding in these appeals. The validity 21 of the Contempt Order is not before us. It is a final order that 22 was not timely appealed by Mr. Gjerde, as evidenced by the 23 dismissal of his First Appeal. Consequently, we do not address 24 the issues Mr. Gjerde raised in his Opening Brief on Appeal that 25 relate to the bankruptcy court’s jurisdiction to enter the 26 Contempt Order or whether Mr. Gjerde was denied due process by 27 the entry of the Contempt Order. 28 What is left are the issues relating to the bankruptcy -39- 1 court’s enforcement of the Contempt Order, which were wrapped 2 together with the bankruptcy court’s rulings relating to other 3 pleadings which sought the imposition of sanctions on other 4 bases, in particular, Mr. Gjerde’s failure to comply with 5 LBR 9004-1(c)(1)(C). We are compelled to observe that any 6 argument Mr. Gjerde makes that he was not apprised of the actions 7 to be taken against him are specious. He contested his joinder 8 to the Chapter 13 Trustee Nieto/Ortiz Motion and the Chapter 13 9 Trustee Dye Motion. The April 27 Show Cause Order and the UST 10 Sanctions Motion both were explicitly addressed to the issue of 11 “wet signatures,” and the Discovery Motion was brought in part 12 because of Mr. Gjerde’s failure to produce “wet signatures.” 13 At the June 22 Hearing, the bankruptcy court put Mr. Gjerde 14 under oath to establish that he had actual knowledge that the 15 proceedings related to the April 27 Show Cause Order went to the 16 issue of “wet signatures.” 17 THE COURT: You have an order from me dated April 27? 18 MR. GJERDE: Yes. 19 . . . 20 THE COURT: Would it surprise you to know that the only order issued on April 27 is the order that you’re 21 looking at? 22 MR. GJERDE: That would surprise me, your Honor. I thought there was an order to show cause that talked 23 about wet signatures. That’s what I recall seeing. But I don’t see where it says wet signature. So I’m 24 somewhat confused, your Honor. But, yeah, I did receive an order to show cause. [25] THE COURT: You don’t see any reference to wet 26 signatures? 27 THE WITNESS: No, I don’t, your Honor. 28 THE COURT: Would it surprise you to know that page 2, -40- 1 lines 7 to 8, contain the clause “notwithstanding that the debtors have not actually signed the petition”? [2] 3 Tr. of June 22 Hearing at 12:8-13:3. 4 At the conclusion of the colloquy, the bankruptcy court made 5 the following finding: “. . . I find as fact that Mr. Gjerde has 6 seen [the April 27 Show Cause Order], and I so conclude.” Id. at 7 14:19-20. 8 In the end, Mr. Gjerde’s own actions preclude us from 9 reviewing the judgments on appeal. Specifically, Mr. Gjerde 10 failed to appear at the ultimate hearing on the proceedings that 11 resulted in the entry of the judgments he has appealed. As noted 12 by the bankruptcy court at the October 19 Hearing: “It appears 13 that it is established (A) that Mr. Gjerde is representing 14 himself and (B) that he does not intend to appear in this court 15 now or in the future in this case.” Tr. of October 19 Hearing at 16 4:20-22. Accordingly, the proceedings that resulted in the 17 judgments were conducted “on a default basis.” Id. at 4:24. 18 In light of Mr. Gjerde’s default, the bankruptcy court was 19 entitled to assume as true the facts alleged in the outstanding 20 pleadings, except as to the amount of damages. Geddes v. United 21 Fin. Group, 559 F.2d 557 , 560 (9th Cir. 1977). As it was 22 required to do, before entering the default judgments, the 23 bankruptcy court took evidence as to “damages” in the form of 24 fees paid by Mr. Nieto and Ms. Ortiz, by the Dyes, and by the 25 Peters, and as to the attorneys fees incurred by the Chapter 13 26 Trustee and the UST based upon the improper conduct of Mr. Gjerde 27 as alleged. The actual damages found by the bankruptcy court 28 constitute an appropriate sanctions amount. -41- 1 Only after the default judgments were entered did Mr. Gjerde 2 reassert his interest in the proceedings. Unfortunately, that 3 action, the filing of the appeals, was insufficient to entitle 4 Mr. Gjerde to relief from the default judgments. 5 First, whether Mr. Gjerde was entitled to relief from the 6 default judgments was a matter within the discretion of the 7 bankruptcy judge in the first instance. Madsen v. Bumb, 419 F.2d 8 4, 6 (9th Cir. 1969). Under Civil Rule 55(c), applicable in 9 bankruptcy contested matters pursuant to Rule 9014(c), the 10 bankruptcy court has discretion (1) to set aside an entry of 11 default “for good cause” and (2) to set aside a default judgment 12 under Rule 60(b). “Relief from a default judgment must be 13 requested by a formal application as required by Rule 60(b).” 14 10A Wright, Miller & Kane, Fed. Practice and Proc. 2d § 2692 15 (2010). “Relief under Rule 60(b) ordinarily is obtained by motion 16 in the court that rendered the judgment.” 11 Wright, Miller & 17 Kane, Fed. Practice and Proc. 2d § 2865 (2010) (emphasis added). 18 “Motions to vacate default judgments . . . are addressed to the 19 broad equitable discretion of the court where the default was 20 taken.” State Bank of India v. Chalasani (In re Chalasani), [21] 92 F.3d 1300, 1307 (2d Cir. 1996), cited by Investors Thrift v. 22 Lam (In re Lam), 192 F.3d 1309, 1311 (9th Cir. 1999). 23 Mr. Gjerde did not seek relief from the default judgments in 24 the bankruptcy court. As an appellate body, our role with regard 25 to a Rule 60(b) motion is limited to reviewing the bankruptcy 26 court’s decision to determine if there was an abuse of 27 discretion. First Beverages, Inc. v. Royal Crown Cola Co., [28] 612 F.2d 1164, 1172 (9th Cir. 1980). “An appeal to this court -42- 1 cannot be used as a substitute for the timely procedure set forth 2 by Rule 60(b).” Rohauer v. Friedman, 306 F.2d 933, 937 (9th Cir. 3 1962). 4 The Ninth Circuit, when faced with a defaulted party who 5 appealed a default judgment rather than seek relief from the 6 trial court under Rule 60(b), dismissed the appeal, stating: 7 Federal courts are not run like a casino game in which players may enter and exit on pure whim. A defaulted 8 party may not re-enter litigation, particularly on appeal, on sheer caprice. It must follow proper procedure to set 9 aside the default. 10 In re Lam, 192 F.3d at 1311 . Accord Consorzio del Prosciutto v. 11 Domain Name Clearing, 346 F.3d 1193, 1195 (9th Cir. 2003)(appeal 12 of default judgment dismissed where defaulting party had not 13 first moved the trial court to set aside entry of default or 14 relief from the default judgment). 15 Second, we deem the issues raised on appeal to have been 16 waived by Mr. Gjerde when he voluntarily absented himself from 17 the October 19 Hearing. CDN, Inc. v. Kapes, 197 F.3d at 1258 -59 18 (9th Cir. 1999). 19 B. Mr. Chandler’s Appeals: EC-11-1641, EC-11-1643, EC-12-1015, EC-12-1016, EC-12-1017, EC-12-1018, EC-12-1019 [20] 21 Our analysis of the viability of Mr. Chandler’s appeals is 22 similar to that stated above for Mr. Gjerde’s appeals. We note 23 that Mr. Chandler asserted somewhat vigorously that the Contempt 24 Order was not enforceable against him where he was not a party to 25 the proceedings which led to its entry. In the end, Mr. Chandler 26 abandoned this position when he chose to absent himself from all 27 further proceedings beginning with the July 25 Hearing, at which 28 hearing the bankruptcy court noted Mr. Chandler’s default on the -43- 1 record. Because Mr. Chandler did not seek relief from the 2 bankruptcy court from the entry of default or the default 3 judgments subsequently entered against him, we have no basis upon 4 which to consider the issues Mr. Chandler raised in the seven 5 appeals pending before this panel. Further as an appellate 6 court, we will not consider an issue explicitly abandoned by an 7 appellant in the trial court proceedings. 8 VI. CONCLUSION 9 Consistent with Ninth Circuit precedent, we DISMISS each of 10 these appeals. [28] -44-