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In Re: Jowell A. Hernandez and v. National Capital Management LLC


March 4, 2013


Appeal from the United States Bankruptcy Court for the District of Nevada Honorable Bruce T. Beesley, Bankruptcy Judge, Presiding Bk. No. 10-15867



Argued and Submitted on January 25, 2013 at Las Vegas, Nevada

Filed - March 4, 2013

Before: JURY, KIRSCHER and DUNN, Bankruptcy Judges.

Chapter 13*fn2 debtors Jowell A. Hernandez and Anna Lee G. Hernandez filed an objection to National Capital Management, LLC's (NCM) proof of claim (POC) contending, among other things, that NCM failed to provide documentation showing that it had standing to file the claim or that it had an enforceable debt against them under § 502(b)(1). The bankruptcy court overruled their objection, finding debtors' Schedule F, which listed a credit card debt owed to GE Capital/Sam's Club, constituted an evidentiary admission of the debt contained in NCM's POC.

NCM subsequently sought sanctions against debtors' attorneys, Haines & Krieger, L.L.C. (Haines), on the grounds that Haines' claim objection was not well grounded in fact or law in violation of Rule 9011. NCM further alleged that Haines engaged in a persistent pattern of filing meritless claim objections in the present case and numerous bankruptcy cases in the District of Nevada. The bankruptcy court granted NCM's motion and awarded sanctions, payable to NCM, in the amount of $3,000. This appeal followed.

Without a more detailed explanation of the reasoning for imposing sanctions based on Haines' "persistent pattern" of filing "meritless" claim objections, the manner in which the bankruptcy court exercised its discretion cannot be determined.

Further, it does not appear that the safe harbor requirement under Rule 9011 was met. Accordingly, we VACATE the bankruptcy 1 court's order and REMAND the matter for the bankruptcy court to 2 provide a more detailed explanation as to why it considered 3 Haines' claim objections meritless under the standards of 4 Rule 9011 in Bankruptcy Case Nos: 08-21495, 09-26913, 10-19054, 5 10-20824, 10-21466, and 10-31316, and to explain how the safe 6 harbor requirement was met.


8 On April 5, 2010, debtors filed their chapter 13 petition. 9 In Schedule F, debtors listed a credit card debt of $2,274 owed 10 to "Gemb/Sam's Club Dc." Debtors listed the account number's 11 last four digits as 7699 and indicated that the credit card had 12 an open date of 8/1/09 and was last active 3/5/10. They left 13 blank the corresponding columns which would identify the debt as 14 "contingent, unliquidated, or disputed."

15 On April 29, 2010, NCM filed its POC (claim 4-1) in the 16 amount of $2,389.44, which was approximately 5% greater than the 17 sum on debtors' Schedule F for their Sam's Club credit card 18 debt. Under the heading "Account Information", NCM showed the 19 last four digits of the account number as 4623, not the same 20 four digit number listed on debtors' Schedule F. The 21 Supplemental Account Summary attached to the POC stated, among 22 other things, that NCM was the successor to GE Capital/Sam's 23 Club, that the date of the loan was 8/1/09 and that the last 24 payment date was 3/5/10.

25 The Claim Objection

26 On February 28, 2012, debtors filed an objection to NCM's 27 POC alleging that the claim lacked prima facie validity because 28 it was based on an insufficient writing in violation of 1 Rule 3001(c) and that the claim was not supported by any written 2 evidence of an enforceable agreement or a contract between NCM 3 and debtors or between debtors and an alleged predecessor-in- 4 interest in violation of § 502(b)(1).

5 Citing Campbell v. Capital One Bank, 336 B.R. 430 (9th Cir 6 BAP 2005) and Heath v. Am. Express Related Servs. Co., Inc. 7 (In re Heath), 331 B.R. 424 (9th Cir. BAP 2005), debtors further 8 contended that their objection was not simply based on NCM's 9 violation of Rule 3001(c). Debtors asserted that they had 10 listed the claim as disputed on the filed bankruptcy schedules, 11 they objected to charges, interest and fees that they believed 12 were included in the claim and they disputed that NCM could 13 assert a valid basis under state law to enforce the obligation. 14 Finally, debtors maintained that their objection was supported 15 by the district court case, In re Tran, 2007 WL 1470900 (S.D. 16 Tex. 2007), and other bankruptcy cases from Texas, Oklahoma, and 17 Ohio. Debtors argued that, collectively, these cases stood for 18 the proposition that a claim based on a credit card debt needed 19 to attach documentation showing some verification of ownership 20 by the claimant when the debt has been transferred or assigned 21 to comply with Rule 3001(c) and, if such documentation was not 22 attached, the POC was not entitled to prima facie validity under 23 Rule 3001(f). In that event, debtors submitted that the burden 24 of proof remained on the creditor (citing In re Long, 25 353 B.R. 1, 14 (Bankr. D. Mass. 2006) (POC not entitled to prima 26 facie validity when documentation evidencing security interest 27 or proof of perfection is not attached to POC) and In re White, 28 2008 WL 269897 (Bankr. N.D. Tex. 2008) (noting that while claim 1 objection arose from the lack of documentation, the burden was 2 on creditor to prove ownership of the claim in the same manner 3 as if they were suing the debtor in state court)).

For all 4 these reasons, debtors requested that NCM's claim be disallowed. 5 NCM filed a response reiterating the information on the 6 Supplemental Account Summary. NCM admitted that its POC did not 7 have supporting documents attached, but argued that its POC had 8 the account's unique identifiers: (1) the card was issued by 9 GE Capital, issuer of Sam's Club credit cards; (2) the sixteen 10 digit account number contained the digits 7699 as indicated on 11 debtors' Schedule F; (3) the date of the loan was 8/1/09; and 12 (4) the balance of $2,389.44 was owed. With respect to the 13 account number, NCM pointed out that debtors' Schedule F and 14 NCM's POC disclosed different four digit portions of the same 15 sixteen digit account number.*fn3 NCM also pointed out that 16 debtors' Schedule F listed, without dispute, an unsecured claim 17 for the credit card debt owed to Sam's Club, with an account 18 containing the digits 7699, having an opened date of 8/1/09 and 19 owing a balance of $2,274. In other words, NCM argued that its 20 POC had almost identical information about the debt owed to 21 Sam's Club as the undisputed listing in debtors' Schedule F. 22 Citing In re Minbatiwalla, 424 B.R. 104, 116 (Bankr. S.D.N.Y. 23 2010), NCM further asserted that debtors' judicial admission 24 that they owed the debt shifted the burden to them to refute the 25 claim even though NCM's POC may have lacked prima facie validity for lack of sufficient documentation.

NCM's remaining argument was that Haines "mass produced" its claim objections which were nothing more than a "collection of general restatements of the law that [d]ebtors' counsel uses as a facade to give the appearance that its papers are somehow not frivolous." NCM indicated that Haines filed nine other objections in debtor's case which were identical.*fn4 NCM further identified numerous bankruptcy cases in the District of Nevada where Haines allegedly filed meritless claim objections -- Bankruptcy Case Nos. 08-21495, 09-26913, 10-20824, 10-21466, and 10-31316. NCM asserted that it gave debtors' counsel the required 21-day notice under Rule 9011(c)(1)(A) and also noted that it might request the court to order debtors' counsel to pay its fees associated with responding to objections related to claim 4-1 in debtors' case and responding to objections to claim 9-1 in Bankruptcy Case No. 10-19054.

On April 17, 2012, the bankruptcy court heard argument on debtors' claim objection and overruled it. The transcript states in relevant part:

THE COURT: I have looked at your pleadings. I'm going to overrule your objection. Your firm, not you, but your firm -

. . . has I think a pattern of filing objections that have no merit whatsoever. Go back to your office and tell them to stop because if I get more of these I'm going to start sanctioning your firm. Approximately, how much time did it take you to oppose this?

1 MR. ALDOUS [sic]: Your Honor, I'm sorry. I'll have to go through and look at my billing for this one.

THE COURT: Okay. I'm not going to sanction them this time. But if I see any more of these, I'm going to start sanctioning probably [$]1,000 or $2,000, and I don't think your 4 firm wants to have that happen, but stop filing frivolous objections.

MR. ALDOUS: Sure. And, your Honor, if I may speak in our 6 defense? In this case there's really nothing tying National Capital Management to the Sam's Club debt. The only evidence he 7 presented was the debtors' own schedules saying they owed money to Sam's Club.

THE COURT: That's an admission. That's an evidentiary 9 admission.

10 MR. ALDOUS: But he's not Sam's Club.

11 THE COURT: Okay.

12 MR. MUCKLEROY: Your Honor, that transfer occurred prior to the filing of the claim, so we weren't required to file that 13 documentation. If the objection specifically stated that there was an issue regarding that, that's what we were provided. 14 However, the objection states a false statement, your Honor, actually. It states on page 3, [i]t disputes the objected-to 15 claim on the filed bankruptcy schedules. That is blatantly false.

THE COURT: I agree. I agree. Your objection is 17 overruled. Go back and tell your office, all the lawyers who work there, that they've got to stop doing this and all the 18 paralegals that work there that they've got to stop doing this.

19 MR. ALDOUS: Understood.

20 The Sanctions

21 On May 24, 2012, NCM filed its Rule 9011 motion for 22 sanctions against Haines. NCM asserted that the basis for 23 debtors' objection to its POC was that they disputed the claim 24 on their Schedules. According to NCM, debtors' counsel made a 25 "patently false factual contention that ha[d] no evidentiary 26 support" and therefore, they were subject to sanctions. NCM 27 further argued that there was no legal basis for disallowance of 28 its insufficiently documented claim when the claim corresponded 1 to a scheduled and undisputed debt. Thus, NCM argued, the 2 remedy of disallowance was not warranted by existing law. NCM 3 also again noted Haines' persistent pattern of filing baseless 4 claim objections in bankruptcy cases in the District of Nevada. 5 The motion made reference to NCM's compliance with the safe 6 harbor but did not attach the letters or proposed motion to 7 demonstrate the proper timeline.

8 On June 12, 2012, Haines filed its opposition to NCM's 9 motion for sanctions. Haines argued that debtors' claim 10 objection met the standards for Rule 9011 because it believed 11 NCM's POC was defective. Haines acknowledged that while the POC 12 referenced a debt scheduled by debtors, it did not show how NCM 13 acquired the prior creditor's rights. Haines further contended 14 that its various case citations supported its position. 15 Finally, Haines maintained that NCM's motion for sanctions under 16 Rule 9011 was procedurally defective because NCM filed its 17 motion after the bankruptcy court had already decided the 18 matter, thereby depriving Haines of the safe harbor period and 19 its ability to withdraw the objection. In the end, Haines 20 informed the bankruptcy court that it had changed its practices 21 to provide more clarity in its objections to claims regarding 22 specific defects.

23 On June 25, 2012, the bankruptcy court heard the matter. 24 At the hearing, the bankruptcy court clarified that it had not 25 previously denied sanctions and that NCM's counsel sent Haines 26 two letters, one at the end of March and the other on April 3, 27 2012, prior to the April 17, 2012 hearing on the claim objection.*fn5 Those letters purportedly alerted Haines of the Rule 9011 violation, but the court made no specific finding that the letters actually complied with the safe harbor requirement under Rule 9011(c)(1)(A). NCM's counsel reiterated that it pursued the motion because Haines engaged in a persistent pattern of filing objections to its claims and then, after NCM responded and came to court, Haines would withdraw the objection. Apparently because it had found debtors "admitted" the debt in their Schedules, the bankruptcy court placed the burden of proof on Haines to come forth with evidence that NCM was not the successor in interest to GE Capital/Sam's Club. The court asked Haines if it had any such evidence and Haines replied that it did not. Accordingly, the bankruptcy court awarded NCM its attorneys' fees of $3,000 in defending the objections to its claim in this case and the other bankruptcy cases noted.

On July 18, 2012, the court entered the order granting NCM's motion for sanctions. The order stated that Haines filed objections to NCM's POC's in Bankruptcy Cases Nos. 09-26913 (Dkt. Nos. 81, 83, 96, 97, and 112); 10-20824 (Dkt. Nos. 116, 184 and 188; 10-31316 (Dkt. Nos. 54 and 63); 10-21466 (Dkt. Nos. 69 and 95); 08-21495 (Dkt. Nos. 42, 75, 78 and 79); and 10-19054 (Dkt. Nos. 83 and 85).*fn6 The order further stated that NCM filed 1 a motion in this case alleging that Haines engaged "in a 2 persistent pattern of filing meritless claims objections in this 3 case as well as other bankruptcy cases in the district."

The 4 "Court conclude[d] that such objections to NCM's claims were 5 filed with no or nearly no inquiry into the circumstances, 6 contained factual allegations that were false and put forth 7 legal contentions that were not warranted by existing law and 8 that the filing of such objections constituted a pattern on 9 behalf of Haines & Kreiger, L.L.C. and that such a persistent 10 pattern is legal grounds for sanctions pursuant to [Rule] 11 9011(b)(1)-(3)."

12 The Appeal

13 On July 23, 2012, debtors filed a notice of appeal of the 14 order. On November 5, 2012, the Panel issued an order that gave 15 Haines fourteen days to file a written response indicating 16 whether it would substitute as the appellant and pursue the 17 appeal filed by debtors. Haines filed a timely response and on 18 November 7, 2012, the Panel entered an order substituting Haines 19 as the appellant in place of debtors in this appeal.


21 The bankruptcy court had jurisdiction over this proceeding 22 under 28 U.S.C. §§ 1334 and 157(b)(2)(A) and (B). We have 23 jurisdiction under 28 U.S.C. § 158.


25 Did the bankruptcy court abuse its discretion in granting 1 NCM's motion for sanctions under Rule 9011?


3 We review all aspects of a bankruptcy court's decision to 4 impose Rule 9011 sanctions for abuse of discretion. Valley 5 Nat'l Bank v. Needler (In re Grantham Bros.), 922 F.2d 1438, 6 1441 (9th Cir. 1991). A bankruptcy court abuses its discretion 7 when it applies the incorrect legal rule or its application of 8 the correct legal rule is "(1) illogical, (2) implausible, or 9 (3) without support in inferences that may be drawn from the 10 facts in the record." United States v. Loew, 593 F.3d 1136, 11 1139 (9th Cir. 2010) (quoting United States v. Hinkson, 585 F.3d 12 1247, 1261-62 (9th Cir. 2009)(en banc))(internal quotation marks 13 omitted).


15 Rule 9011 states in relevant part: 16 (b) Representation to the court 17 By presenting to the court . . . a petition, pleading, written motion, or other paper, an attorney or 18 unrepresented party is certifying that to the best of the person's knowledge, information, and belief, 19 formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper 21 purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions 23 therein are warranted by existing law or by a non-frivolous argument for the extension, modification, 24 or reversal of existing law or the establishment of new law;

(3) the factual contentions have evidentiary support 26 or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; . . .

1 "The language of Rule 9011 parallels that of [Civil 2 Rule] 11. Therefore, courts analyzing sanctions under Rule 9011 3 may appropriately rely on cases interpreting [Civil Rule] 11." 4 Winterton v. Humitech of N. Cal., LLC (In re Blue Pine, Inc.), 5 457 B.R. 64, 75 (9th Cir. BAP 2011) (citing Marsch v. Marsch 6 (In re Marsch), 36 F.3d 825, 829 (9th Cir. 1994)).

7 A. Standards for Imposition of Sanctions Under Rule 9011

8 Under the Rule, a filing is frivolous if it is "both 9 baseless -- lacks factual foundation -- and made without a 10 reasonable and competent inquiry." In re Blue Pine, Inc., 11 457 B.R. at 75 (citing Townsend v. Holman Consulting Corp., 12 929 F.2d 1358, 1362 (9th Cir. 1991) (en banc)). The attorney 13 "has a duty to conduct a reasonable factual investigation as 14 well as to perform adequate legal research that confirms that 15 his position is warranted by existing law (or by a good faith 16 argument for a modification or extension of existing law)." Id. 17 (citing Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 18 2002)). "Thus, a finding that there was no reasonable inquiry 19 into either the facts or the law is tantamount to a finding of 20 frivolous." Id. (citing Townsend, 929 F.2d at 1362).

21 To determine whether Haines violated Rule 9011, the 22 bankruptcy court must have judged Haines' conduct under an 23 objective standard of reasonableness. G.C. & K.B. Invs., Inc. 24 v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003) (citing Townsend, 25 929 F.2d at 1362)). The reasonableness of attorney conduct is 26 measured against "the conduct of a competent attorney admitted 27 to practice before the involved court." In re Grantham Bros., 28 922 F.2d at 1441.

B. The Claim Objection In this Case Was Not Frivolous

Haines objected to NCM's POC on not one, but several grounds.*fn7 Haines challenged NCM's POC because it lacked documentary proof under Rule 3001(c)(1) and thus contended that the POC was not entitled to prima facie validity. Haines also asserted as a defense under § 502(b)(1) that NCM failed to provide evidence of an enforceable contract that would entitle it to make the claim against debtor under Nevada law.*fn8 Finally, the claim objection included a statement that debtors disputed the "objected to claim on the Filed Bankruptcy Schedules." For all these reasons, Haines' requested the disallowance of NCM's POC.

A fair reading of Haines' claim objection shows that its argument regarding the lack of documentation was directed towards the prima facie validity of NCM's POC and the burden of proof in the claims objection process. Specifically, Haines questioned NCM's standing to file the claim and maintained, because of that deficiency, debtors had no evidentiary burden to overcome in objecting to NCM's POC. Haines' citation to In re Tran, 369 B.R. 312 (S.D. Tex. 2007) supported its arguments. In Tran, the debtor objected to eCast Settlement Corp.'s POCs because eCast, who was an assignee of three banks which allegedly issued credit cards to Tran, was a "stranger" and therefore she owed them no money. ECast responded by providing addition evidence consisting primarily of general assignment agreements between eCast and the three banks, but those assignments did not specifically identify Tran or her respective accounts. At an evidentiary hearing, eCast was assigned the burden to overcome Tran's objections. ECast attempted to introduce evidence supporting its POCs, but the assignments were excluded as hearsay. In the end, the bankruptcy court found that eCast failed to file a proper POC based upon a writing and thus its POCs were not entitled to prima facie validity. Therefore, the court found that under Fifth Circuit law, Tran had no evidentiary burden to overcome in objecting to eCast's claims. The bankruptcy court also found that eCast failed to satisfy its evidentiary burden of providing the validity and amounts of its claims under a contractual analysis under Texas law and thus disallowed its POCs. On appeal, the district court affirmed.*fn9

The other cases cited by Haines also legally supported its position. In re Rochester, 2005 WL 3670877 (Bankr. N.D. Tex. 2006)(holding that for a claim based upon a writing, the underlying documents and the assignment or transfer document are needed to comply with Rule 3001(c)); In re Kendall, 380 B.R. 37 (Bankr. N.D. Okla. 2007) (same). Thus, objectively, Haines' claim objection was warranted by existing law and thus could not have violated 9011(b)(2).*fn10 NCM conceded that it had attached no documentation to its POC,*fn11 but argued that its POC still provided sufficient indicia of the claim's validity and amount in light of debtors' admissions on their schedules. Thus, according to NCM, there was enough information in the POC to shift the burden of production to debtors. See In re Minbatiwalla, 424 B.R. at 113 (citing In re Jorczak, 314 B.R. 474, 483 n.11 (Bankr. D. Conn. 2004) ("[W]hen a 'proof of claim' [against an estate surplus] has been filed in a chapter 7 case and the chapter 7 debtor objects to the same but scheduled the relevant claim as 1 undisputed, the burden is on the debtor to offer some adequate 2 level of explanation as to why his scheduling of that claim as 3 undisputed was incorrect.") (credit card claim)). NCM further 4 argued at the claims objection hearing that Haines' statement in 5 the objection that debtors "disputed the objected to claim on 6 the Filed Bankruptcy Schedules" was "false".

7 The bankruptcy court agreed, essentially adopting NCM's 8 argument that debtors had admitted in their Schedule F owing the 9 debt set forth in NCM's POC. Therefore, it followed that the 10 objected-to claim could not have been "disputed" in those same 11 schedules and thus the statement in the claim objection was 12 "false." It is true, of course, that Haines' statement was 13 indeed incorrect because NCM was nowhere to be found on debtors' 14 schedules. This is not surprising in light of Haines' objection 15 to NCM's claim based on its lack of standing.

16 However, when Haines' statement about the "disputed" debt 17 is considered in relation to the claim objection as a whole, see 18 Townsend, 929 F.2d at 1364, we do not believe that this single 19 statement was so significant as to cause Haines to be liable for 20 sanctions for violating Rule 9011(b)(3). There are no hard and 21 fast rules for describing the role of the debtor's schedules to 22 fill in gaps in a POC that otherwise lacks prima facie 23 evidentiary status under Rule 3001(f). See In re Minbatiwalla, 24 424 B.R. at 116-17 (discussing the various approaches to the 25 role of the debtor's schedules in claim objection proceedings). 26 Further, because debtors can amend the schedules at any time 27 before the case is closed, a change in the listing from 28 undisputed to disputed has no effect on the burden associated 1 with the claim and the courts will not rely on such admissions.

2 Heath, 331 B.R. at 431. See also In re Veal, 450 B.R. at 921 3 ("admissions" in debtors' bankruptcy schedules not conclusive 4 evidence on issue of claimant's standing); B-Real, LLC v. 5 Melillo (In re Melillo), 392 B.R. 1, 6 (1st Cir. BAP 2008) 6 (information in the debtor's bankruptcy schedules that tended to 7 establish the existence of the underlying debt "provide[d] an 8 inadequate showing of the Appellant's ownership as a 9 transferree.").

10 C. Persistent Pattern of "Meritless" Claims Objections

11 Our inquiry into the appropriateness of the sanctions does 12 not end here because the Rule 9011(b)(1) improper purpose 13 inquiry remains. Even if the claim objection in this case is 14 not considered frivolous, "if a court finds that a motion or 15 paper, . . . , is filed in the context of a persistent pattern 16 of clearly abusive litigation activity, it will be deemed to 17 have been filed for an improper purpose and sanctionable."

18 Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 855 F.2d 1470, 19 1476 (9th Cir. 1988). On this record, we cannot tell whether 20 Haines' conduct rises to the level of abusive litigation 21 activity that Rule 9011 was meant to protect against -- namely 22 conduct that harasses, causes unnecessary delay, or needlessly 23 increases the cost of litigation. See Rule 9011(b)(1). 24 Because the sanction motion was a contested matter subject 25 to Rule 9014, the bankruptcy court was required to make findings 26 of fact, either orally on the record, or in a written decision.

27 See Rule 9014(c) (incorporating Rule 7052, which in turn 28 incorporates Civil Rule 52). "These findings must be sufficient 1 to enable a reviewing court to determine the factual basis for 2 the court's ruling." In re Veal, 450 B.R. at 919.

3 Although the record indicates that the bankruptcy court was 4 concerned with Haines' conduct in other bankruptcy cases, the 5 court never made specific factual findings with respect to the 6 claim objections which were part of Haines' "persistent pattern 7 of filing meritless claim objections" as stated in its order.

8 The transcript of the sanctions hearing shows the following 9 discussion:

10 THE COURT: . . . It appears to me you've tried to sidestep the Court's objection by moving back a step and listing claims 11 with an unfounded dispute. . . . That's how it appears to me.

12 MR. ALDOUS: Okay. Is there a specific case you're .referring to?

THE COURT: We'll discuss that later.


THE COURT: I'm having a meeting with the other judges this 16 afternoon to see if we can address this globally.

17 MR. ALDOUS: Okay.

18 While a bankruptcy court's discretion in imposing sanctions 19 under Rule 9011 is substantial, discussion of its analysis is 20 crucial both to insure that its discretion has not been abused 21 and to properly inform the involved parties of the precise basis 22 upon which any sanctions have been imposed. If each of the 23 claims objections was "meritless" as stated in the court's 24 order, the bankruptcy court should have discussed each objection 25 and told Haines why it was without merit. Instead, the 26 bankruptcy court simply said: "We'll discuss that later."

27 Accordingly, neither Haines nor this court can discern the 28 precise basis upon which the sanctions were imposed. "[W]hen 1 the record does not contain a clear basis for the court's 2 ruling, we must vacate the court's order and remand for further 3 proceedings." In re Veal, 450 B.R. at 920.

4 D. Safe Harbor

5 Generally, as an initial inquiry, the bankruptcy court must 6 determine whether the party seeking sanctions complied with the 7 so-called safe harbor provision. Rule 9011(c)(1)(A) sets forth 8 the requirements for how a motion for sanctions is initiated.

9 The Rule requires that a motion must be served, but not filed or 10 be presented to the court if the challenged paper, claim, 11 defense, contention, or denial is withdrawn or appropriately 12 corrected within 21 days after service or within another time 13 the court sets. The safe harbor requirements have been 14 described as follows: "The movant serves the allegedly 15 offending party with a filing-ready motion as notice that it 16 plans to seek sanctions. After 21 days, if the offending party 17 has not withdrawn the filing, the movant may file the Rule 11 18 motion with the court." Truesdell v. S. Cal. Permanente Med. 19 Grp., 293 F.3d 1146, 1151 (9th Cir. 2002).

20 The bankruptcy court made no express finding that the safe 21 harbor requirement under Rule 9011(c)(1)(A) was met and the 22 record on this point is sparse. NCM made a vague reference at 23 the sanctions hearing that it sent Haines two letters 24 accompanied by a proposed motion but none of those documents 25 were in the record on appeal. As a result, there is no 26 indication that the letters/motion were timely served.

27 Haines raised the issue of the safe harbor in the 28 bankruptcy court, but does not specifically pursue the issue on 1 appeal. Although we generally do not consider a matter on 2 appeal that is not specifically and distinctly argued in 3 appellant's opening brief, Affordable Housing Dev. Corp. v. 4 Fresno, 433 F.3d 1182, 1193 (9th Cir. 2006), we consider the 5 issue here because the Ninth Circuit has stated that the safe 6 harbor requirement is not only strictly enforced, but is 7 mandatory. Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir. 8 2005); Barber v. Miller, 146 F.3d 707 (9th Cir. 1998). Further, 9 informal letters or warnings do not meet the safe harbor 10 requirements. Barber, 146 F.3d at 710-11. "It is the service 11 of the motion that gives notice to a party and its attorneys 12 that they must retract or risk sanctions." Radcliffe v. Rainbow 13 Constr. Co., 254 F.3d 772, 789 (9th Cir. 2001). It does not 14 appear that the bankruptcy court followed this precedent.


16 For the reasons stated, we VACATE the sanctions order and 17 REMAND to the bankruptcy court to allow it to make specific 18 factual findings and conclusions of law as to why sanctions 19 under Rule 9011 were warranted based on Haines' "persistent 20 pattern" of filing "meritless" claim objections and to also 21 articulate findings which support a conclusion that the moving 22 party complied with the safe harbor requirements.

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