Peabody v. Jensen (In re Jensen)

CC-13-1606-KiKuD (March 10, 2015) Unpublshed
In the unpublished decision, the Ninth Circuit Bankruptcy Appellate Panel held that a motion for relief from judgment under Rule 9024 is a contested matter; therefore, the bankruptcy court must find facts specifically and state is conclusions of law separately. Because the bankruptcy court did not engage Pioneer-Briones analys required for evaluating Fed.R.Civ.P. 60(b)(1) excusable neglect, or to make any findings and conclusions sufficient for review, the bankruptcy court's order was vacated and remanded.
Procedural context:
Debtor's Counsel appealed the bankruptcy court's denial of Counsel's motion to reconsider the bankruptcy court's prior order disgorging the $10,000 retainer Counsel received.
Debtor originally filed a Chapter 11 case, and during the Chapter 11 commenced an adversary against her former business partner pro se. Debtor later retained Timothy Peabody ("Peabody or Counsel"). Peabody never filed an application to get employed. The Chapter 11 case was converted to Chapter 7, and the Trustee sought to disgorge the $10,000 retainer Debtor paid to Peabody. Peabody did not respond to the Trustee's motion or appear at the respective hearing. The bankruptcy court entered an order directing Peabody to disgorge $10,000 within 30 days; however, Peabody did not comply. Approximately 4 months after the entry of the order, Peabody filed a motion to set aside the disgorgement order pursuant to 11 U.S.C. Sec. 105. Peabody based his prior non-responsive conduct on a miscalendaring by his staff. The Trustee contested Peadbody's motion asserting that the factors set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) were not met. Peabody contended that his non-responsiveness was excusable neglect. After the conclusion of the respective arguments, the bankruptcy court announced it would deny Peabody's motion, and directed turnover of the retainer.
KIRSCHER, KURTZ and DUNN, Bankruptcy Judges.

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