In re: ARNOLD BELLOW; GAYLE BELLOW v. Arnold Bellow; Gayle Bellow

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ARNOLD BELLOW; GAYLE
BELLOW,
Debtors,
NORTHERN CALIFORNIA SMALL
BUSINESS FINANCIAL
DEVELOPMENT CORPORATION,
Appellant,
v.
ARNOLD BELLOW; GAYLE BELLOW,
Appellees.
No. 11-60049
BAP No. 10-1327
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Pappas, and Jury, Bankruptcy Judges, Presiding
Submitted November 6, 2013 **
San Francisco, California
FILED
NOV 08 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 5 --

Before: KLEINFELD, THOMAS, and RAWLINSON, Circuit Judges.
Northern California Small Business Financial Development Corporation
(“Nor-Cal”) appeals from the Bankruptcy Appellate Panel’s (“BAP”) affirmance of
the bankruptcy court’s entry of judgment against it following a bench trial on an
adversary proceeding filed by Nor-Cal against chapter 7 debtors Arnold and Gayle
Bellow (“the Bellows”). We have jurisdiction under 28 U.S.C. § 158(d). We
review de novo BAP decisions, and apply the same standard of review that the
BAP applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re
Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We affirm. Because the parties
are familiar with the history of this case, we need not recount it here.
I
Under our deferential standard of review, we conclude that the bankruptcy
court did not abuse its discretion in denying the joint motion for a continuance of
the trial. Motions for continuance are generally evaluated according to the factors
articulated in United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). 1 Those
factors are: (1) the extent of appellant’s diligence in his efforts to ready his case
prior to the date set for hearing; (2) how likely it is that the need for a continuance
1 Nor-Cal argues that the analysis of the motion should have been conducted
under Bankruptcy Rule 9006(b). We need not decide whether this is so, because, even if
we applied Rule 9006(b), it would not alter our analysis.
-2-

-- 2 of 5 --

could have been met if the continuance had been granted; (3) the extent to which
granting the continuance would have inconvenienced the court and the opposing
party, including its witnesses; and (4) the extent to which the appellant might have
suffered harm as a result of the district court’s denial. Id. at 1359.
The record supports the bankruptcy court’s conclusion that Nor-Cal had not
been diligent; that the potential usefulness of the continuance was questionable
given the history of delay; and that the continuance would have greatly
inconvenienced the court. Thus, the BAP properly determined that the first three
Flynt factors weighed in favor of the bankruptcy court’s decision to deny the
continuance. The final factor is the harm resulting from the court’s denial.
Certainly Nor-Cal suffered some prejudice because, as the bankruptcy court
observed, it had done nothing to prepare for trial. However, given our very
deferential standard of review, we agree with the BAP that the bankruptcy court
did not abuse its discretion in analyzing the Flynt factors and denying the
continuance sought on the eve of trial.
Nor did the bankruptcy court abuse its discretion in denying the mid-trial
motion for a continuance to secure testimony. As the BAP pointed out, Nor-Cal
did not show that it could have secured the testimony and, in fact, Nor-Cal had
admitted that the witness had refused to testify. The record also supports the
-3-

-- 3 of 5 --

bankruptcy court’s conclusion that Nor-Cal had not exercised due diligence in its
efforts to obtain the testimony. These facts sufficiently justify the bankruptcy
court’s denial of the motion for a recess. See United States v. Fowlie, 24 F.3d
1059, 1070 (9th Cir. 1994).
For these reasons, we join the BAP in concluding that the bankruptcy court
did not abuse its discretion in denying the motions to vacate the trial date and
recess the trial.
II
The bankruptcy court did not err in granting the Bellows’ motion for a
judgment on partial findings. The bankruptcy court properly determined that Nor-
Cal had failed to carry its burden of proof on any of its claims. There was little, if
any, relevant documentary evidence provided at trial, and only speculative witness
testimony.
Section 523(a)(2) of the Bankruptcy Code excepts from discharge any debt
obtained according to a fraudulent act or false representation. Nor-Cal did not
present evidence of any false representation. Section 523(a)(4) excepts from
discharge any debt “for fraud or defalcation while acting in a fiduciary capacity,
embezzlement, or larceny,” but Nor-Cal was not able to establish a fiduciary
relationship between Nor-Cal and the entity at issue. Nor was Nor-Cal able to
-4-

-- 4 of 5 --

prove any misappropriation of funds from Nor-Cal. Section 523(a)(6) excepts
from discharge any debt incurred “for willful and malicious injury by the debtor to
another entity or to the property of another entity.” Nor-Cal was unable to
establish that an intentional, wrongful act occurred that necessarily caused injury
without just cause or excuse. See In re Su, 290 F.3d 1140, 1146-47 (9th Cir. 2002)
(describing elements).
In sum, a careful review of the record supports the bankruptcy court’s
conclusion that Nor-Cal was unable to sustain its burden of proof at trial.
AFFIRMED.
-5-

-- 5 of 5 --