In re: Jonathan D. Cole
CC-17-1176-KuSA
| 9th Cir. BAP | Dec 4, 2017Background
- Debtor Jonathan D. Cole filed Chapter 13 in April 2016 with attorney Clifford Bordeaux; they signed a court-approved RARA showing total fees of $4,000.
- Cole’s plan was not confirmed and the case was dismissed in March 2017; Bordeaux sought the remaining $3,300 under the RARA.
- The chapter 13 trustee objected, arguing the RARA "no-look" fee applies only when a plan is confirmed; Bordeaux then filed a Second Application with an itemization and a noticed hearing.
- Bordeaux’s Second Application and notice of hearing were mailed to Cole’s Franklin Avenue address; Cole did not timely file opposition but appeared at the scheduled hearing.
- The bankruptcy court stated it had posted a tentative ruling after independent review and declined to reopen the hearing; it later entered an order awarding Bordeaux $3,300. Cole appealed, asserting lack of notice and denial of a hearing (procedural due process).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cole was denied procedural due process (adequate notice & opportunity to be heard) | Cole: He did not receive the Second Application/notice and was thereby denied the opportunity to timely oppose and obtain an oral hearing. | Bordeaux/BK court: Certificate of mailing presumes proper service; Cole received notice and omitted timely opposition, permitting the court to grant relief after independent review. | Court: No due process violation. Mail presumption of receipt controls; Cole’s non-receipt declaration insufficient to overcome it; court properly declined to reopen and independently reviewed the application. |
Key Cases Cited
- Price v. Lehtinen, 564 F.3d 1052 (9th Cir.) (de novo review for procedural due process claims)
- HSBC Bank USA, Nat’l Ass’n v. Blendheim, 803 F.3d 477 (9th Cir.) (notice adequacy reviewed as mixed question of law and fact)
- Moody v. Bucknum, 951 F.2d 204 (9th Cir.) (mailbox rule creates presumption of receipt of mailed process)
- Weiner v. Perry, Settles & Lawson, 161 F.3d 1216 (9th Cir.) (decision not to reopen record reviewed for abuse of discretion)
- Padgett v. Wright, 587 F.3d 983 (9th Cir.) (courts need not address arguments not distinctly raised in opening brief)
- Hebbe v. Pliler, 627 F.3d 338 (9th Cir.) (pro se filings construed liberally)