In re: Tammy Phillips, et al v. Kevan Gilman

Filing

FILED OPINION (MICHAEL DALY HAWKINS, BARRINGTON D. PARKER, JR. and SANDRA S. IKUTA) Phillips pending motions for judicial notice, motion to strike, and motion for sanctions [Dkt # 34, 50, 58, 59, 60 & 78] are DENIED. AFFIRMED in part, VACATED and REMANDED. Each party to bear its own costs on appeal. Judge: MDH Authoring, FILED AND ENTERED JUDGMENT. [10835336]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE KEVAN HARRY GILMAN,
Debtor,

TAMMY R. PHILLIPS; TAMMY R
PHILLIPS, A PROF. LAW CORP.,
Appellants,

No. 16-55436
D.C. No.
2:15-cv-02588DOC

OPINION
v.
KEVAN HARRY GILMAN,
Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted November 15, 2017
Pasadena, California
Filed April 13, 2018
Before: Michael Daly Hawkins, Barrington D. Parker, Jr.,*
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Hawkins
*

The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.

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IN RE GILMAN
SUMMARY**

Bankruptcy
The panel affirmed in part and vacated in part the district
court’s judgment affirming the bankruptcy court’s orders in
an adversary proceeding in which the bankruptcy court
ruled that a chapter 7 debtor was entitled to a homestead
exemption.
The panel held that it had jurisdiction to review the
district court’s order affirming the grant of the homestead
exemption. The panel concluded that Bullard v. Blue Hills
Bank, 135 S. Ct. 1686 (2015) (holding that a bankruptcy court
order is only a final, appealable order if it alters the status quo
and fixes the rights and obligations of the parties), was not
fundamentally inconsistent with Ninth Circuit precedent
holding that an order granting or denying an exemption
constitutes a final appealable order.
Affirming in part, the panel held that the bankruptcy court
did not abuse its discretion in granting the debtor’s motion for
relief from judgment on the ground of excusable neglect
under Federal Rule of Civil Procedure 60(b) and allowing
further proceedings even though the debtor did not initially
oppose creditors’ objection to the homestead exemption.
Vacating in part and remanding, the panel held that the
bankruptcy court erred in concluding that the debtor
established his claim to a homestead exemption under
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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IN RE GILMAN

3

California law because the bankruptcy court made no
determination as to whether the debtor intended to continue
to reside in the property.

COUNSEL
Charles Q. Jakob (argued), Gold River, California, for
Appellants.
Mark Ellis (argued), Ellis Law Group LLP, Sacramento,
California, for Appellee.

OPINION
HAWKINS, Circuit Judge:
Creditor-appellants Tammy Phillips and Tammy R.
Phillips, a Professional Law Corporation (collectively,
“Phillips”) appeals the bankruptcy court’s determination that
debtor-appellee Kevin Gilman (“Gilman”) was entitled to a
homestead exemption of $100,000. Because the bankruptcy
court did not determine whether Gilman had the requisite
intent to continue to reside in the property in question, we
vacate and remand for further fact finding.
I. FACTS AND PROCEDURAL HISTORY
Gilman filed a voluntary petition for Chapter 7
bankruptcy in the United States Bankruptcy Court for the
Central District of California. Gilman listed Phillips and
Tammy R. Phillips, a Professional Law Corporation, as

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IN RE GILMAN

creditors.1 On Gilman’s initial Schedule A (Real Property),
he listed two pieces of property: (1) 6553 Varna Ave.,Van
Nuys, California, and (2) 9010 Corbin Ave., Suite 16,
Northridge, California. He described the second property as
“in escrow.” On Gilman’s initial Schedule C (property
claimed as exempt), he claimed a household exemption for
the Varna Avenue property. Under the column, “Specify Law
Providing Each Exemption,” Gilman cited California Code of
Civil Procedure § 704.730 and stated “Debtor has Cancer and
has not been able to work in his business.” On Gilman’s
Schedule G (Executory Contracts and Unexpired Leases), he
did not list any contracts relating to the sale of the Varna
Avenue property.2 Gilman would later admit in an
interrogatory that escrow was open on this property on the
day he filed for bankruptcy.
Phillips filed an adversary proceeding against Gilman
alleging that Gilman’s debts to Phillips were nondischargeable because of various fraudulent actions. Id.
Phillips also objected to Gilman’s homestead exemption.
Gilman did not oppose the objection and did not appear at the
hearing. Therefore, the bankruptcy court sustained Phillips’
objections.
Shortly thereafter, Gilman filed an amended Schedule C,
claiming a reduced exemption on a reduced property value.
Like the initial Schedule C, the amended schedule continued

1

In 2008, Phillips obtained various judgments against Gilman in state
litigation.
2

Schedule G asks the debtor to “[d]escribe all executory contracts of
any nature . . . .”

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IN RE GILMAN

5

to seek an exemption under § 704.730 and stated “Debtor has
Cancer and has not been able to work in his business.”
Having already prevailed on the exemption issue, Phillips
objected to the amended exemptions. Gilman then moved for
relief from the bankruptcy court’s order, arguing that his
counsel’s mistaken failure to oppose Phillips’ objections
constituted excusable neglect and warranted relief under
Federal Rule of Civil Procedure 60(b)(1). Following a
hearing, the bankruptcy court granted Gilman’s request for
relief (“the Rule 60(b) Order”).
Phillips renewed the objection to the amended exemption,
which the bankruptcy court denied, except for agreeing to
hold an evidentiary hearing on Gilman’s entitlement to an
enhanced homestead exemption based on disability. Phillips
moved for reconsideration, pointing out newly discovered
evidence that the Varna Avenue property was in escrow at the
time of filing, and arguing Gilman was thus not entitled to a
homestead exemption. The bankruptcy court denied the
motion, concluding that escrow did not eliminate Gilman’s
right to a homestead exemption (the “Homestead Exemption
Order”).3
Phillips then appealed the Homestead Exemption Order
to the district court. Phillips also purported to appeal all
“associated and fairly incorporated interlocutory orders,”
including the Rule 60(b) Order. The district court eventually

3
The bankruptcy court held an evidentiary hearing on Gilman’s
entitlement to an enhanced disability exemption in his homestead, and
concluded that Gilman was not entitled to such an exemption because the
evidence showed that he was not disabled on the petition date (the
“Disability Exemption Order”).

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affirmed the bankruptcy court on all orders, and Phillips
appeals to this court.
II. JURISDICTION
We must first consider whether we have jurisdiction to
entertain Gilman’s appeal. In re Gugliuzza, 852 F.3d 884,
889 (9th Cir. 2017). We have jurisdiction to determine our
own jurisdiction and consider the issue de novo. Id.
The bankruptcy court had jurisdiction because the
“allowance or disallowance of claims against the estate or
exemptions from property of the estate” constitutes a “core
proceeding” under Title 11. 28 U.S.C. § 157. District courts
have jurisdiction over bankruptcy appeals “from final
judgments, orders, and decrees . . . [and] with leave of the
court, from interlocutory orders and decrees . . . .” 28 U.S.C.
§ 158(a).4 Appellate courts have jurisdiction to hear appeals
in bankruptcy cases under 28 U.S.C. §§ 1291, 1292, and
158(d)(1).

4

We note that the district court initially concluded that the bankruptcy
court’s Homestead Exemption Order was not final, as it left unresolved
Phillips’ objection to the enhanced disability exemption. The district court
nonetheless concluded that the bankruptcy court’s prior order constituted
an appealable interlocutory order, under this court’s “‘pragmatic
approach’ to finality in bankruptcy [which] emphasizes the need for
immediate review, rather than whether the order is technically
interlocutory.” In re Rosson, 545 F.3d 764, 769 (9th Cir. 2008) (quoting
Bonham v. Compton (In re Bonham), 229 F.3d 750, 761 (9th Cir. 2000)).
In any event, the bankruptcy court’s subsequent Disability Exemption
Order cured any prematurity in Phillips’ appeal. See In re Rains, 428 F.3d
893, 901 (9th Cir. 2005) (“[S]ubsequent events can validate a prematurely
filed appeal.”(quoting Ethridge v. Harbor House Restaurant, 861 F.2d
1389, 1402 (9th Cir. 1988))).

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7

Section 158(d)(1) gives the courts of appeal “jurisdiction
of appeals from all final decisions, judgments, orders, and
decrees entered under subsections (a) [defining the district
courts’ jurisdiction] and (b) [defining the jurisdiction of the
bankruptcy appellate panels].” Thus, this court may only
consider “final decisions, judgments, orders, and decrees” of
the district court and BAP. Gugliuzza, 852 F.3d at 891.
We have previously held that an order denying an
exemption constitutes a final appealable order. Preblich v.
Battley, 181 F.3d 1048, 1056 (9th Cir. 2008). We
emphasized that an order “denying a claim of exemption
finally determines the discrete matter to which it was
addressed, determines and seriously affects substantial rights
and can ‘cause irreparable harm if the losing party must wait
until bankruptcy proceedings terminate before appealing.’”
Id. (quoting In re Allen, 896 F.2d 416, 418 (9th Cir. 1990)).
In re White similarly held that an order disallowing an
exemption was appealable as a final judgment because it
“finally determined all issues regarding the claimed
exemption.” 727 F.2d 884, 886 (9th Cir. 1984). In so
holding, In re White noted that our court had “previously
held that a [] need exists for immediate review of orders
granting or denying exemptions.” Id. (citing In re Brissette,
561 F.2d 779 (9th Cir. 1977)) (emphasis added).5 Other

5

As In re White further explained, the reasoning of In re Brissette
made clear that the need for immediate appellate review would apply
whether the lower court determination was granting or denying an
exemption:
A decision that property is exempt may so deplete the
potential estate that creditors will decline to participate
further in the proceeding; a decision that it is not
exempt will cause title to it to vest in the trustee during

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circuits have agreed. See, e.g., Matter of England, 975 F.2d
1168, 1172 (5th Cir. 1992); In re Brayshaw, 912 F.2d 1255,
1256 (10th Cir. 1990); Matter of Barker, 768 F.2d 191, 194
(7th Cir. 1985); Sumy v. Schlossberg, 777 F.2d 921, 923 (4th
Cir. 1985).
In 2015, the Supreme Court decided Bullard v. Blue Hills
Bank, 135 S. Ct. 1686 (2015), and we must consider whether
this case calls into question our existing case law regarding
the appealability of orders granting or denying homestead
exemptions. In Bullard, the Supreme Court clarified that a
bankruptcy court order is only a final, appealable order if it
“alters the status quo and fixes the rights and obligations of
the parties.” Id. at 1692. Bullard involved an appeal from a
refusal to confirm a plan, in circumstances where nothing in
the denial order prevented the debtor from proposing an
alternative plan to the court. The Court explained that an
order confirming a plan would be appealable, as would a

the pendency of the action, with all the attendant
consequences of vesting. . . . Erroneous determinations
that property is nonexempt encourage creditors to press
claims and to divide assets only to be told on appeal
that there is nothing to divide. Of greater moment,
however, the bankrupt may be thereby deprived of the
necessities of life which Section 6 was designed to
preserve to him during the pendency of the action. On
the other hand, an erroneous decision of exemption will
leave property in the hands of the bankrupt and subject
to dissipation without the appropriate satisfaction of
any creditor.
Id. at 886 (quoting In re Brissette, 561 F.2d at 782–83). The reasoning of
In re White compels the conclusion that an order granting an exemption
also constitutes a final, appealable order.

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denial that dismissed the case, but not so for a mere denial
with no additional consequences. Id. at 1692–93.
As a three-judge panel, we are bound to follow existing
Ninth Circuit precedent and can only reexamine such cases
when their “reasoning or theory” is “‘clearly irreconcilable’
with the reasoning or theory of intervening higher authority.”
See Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975,
979 (9th Cir. 2013) (quoting Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc)). “This is a high standard.”
Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (quoting
United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th
Cir. 2011)). In order for us to ignore existing Ninth Circuit
precedent reasoning that orders granting or denying
exemptions are immediately appealable, the reasoning and
principles of Bullard would need to be so fundamentally
inconsistent with our prior cases that our prior decisions
cannot stand.
However, the pre-Bullard test for appealable final orders
in our circuit similarly looked to whether the bankruptcy
court’s decision: “1) resolves and seriously affects
substantive rights and 2) finally determines the discrete issue
to which it is addressed.” In re SK foods LP, 676 F.3d 798,
802 (9th Cir. 2012) (quoting In re AFI Holding, Inc.,
530 F.3d 832, 836 (9th Cir. 2008)). Post-Bullard, we have
even noted that our previous standard is “generally consistent
with Bullard.” Gugliuzza, 852 F.3d at 893.6 As the Bullard

6
We also note that other courts have continued to apply existing
Ninth Circuit precedent permitting immediate appeal of such orders after
Bullard. See, e.g., In re Diaz, 547 B.R. 329, 333 (9th Cir. BAP 2016); In
re Elliot, 544 B.R. 421, 430 (9th Cir. BAP 2016); In re Old Canal Fin.
Corp., 550 B.R. 519, 525 (C.D. Cal. 2016).

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standard is similar to the appealability standard we already
apply, and the factual situation present in Bullard (denial of
plan confirmation) is also distinguishable, we do not find
Bullard to be so fundamentally inconsistent with our existing
case law as to require a different result. Accordingly, we will
continue to apply In re Preblich and In re White and the
reasoning contained therein to hold we have jurisdiction over
the district court’s order in this case, affirming the grant of
the homestead exemption.
III. MERITS
“On appeal from a district court’s affirmance of a
bankruptcy court decision, we independently review the
bankruptcy court’s decision, without giving deference to the
district court. . . . We review the bankruptcy court’s legal
conclusions de novo and its factual findings for clear error.”
Rosson, 545 F.3d at 770–71 (internal quotations and citations
omitted).
A. Whether the bankruptcy court abused its
discretion in granting Gilman’s Rule 60(b)(1)
Motion
Phillips argues that the district court erred in affirming the
bankruptcy court’s decision granting Gilman’s motion for
relief from the August 2011 judgment. We “review a
bankruptcy court’s grant of a motion for relief from an order
under Federal Rule of Civil Procedure 60(b) for an abuse of

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discretion.” In re Int’l Fibercom, Inc., 503 F.3d 933, 939 (9th
Cir. 2007).7
Here, the bankruptcy court initially sustained Phillips’
objections because Gilman failed to respond. After Gilman
moved for relief, the bankruptcy court set aside its prior
order, finding that Gilman’s default stemmed from the
neglect of his counsel, Shirlee Bliss. In Bliss’s declaration
she indicated she failed to respond because of a “calendaring
error” and her secretary’s disability; as a result, Bliss had “too

7

Federal Rule of Bankruptcy Procedure 9024 incorporates Federal
Rule of Civil Procedure 60. Rule 60(b) allows a court, “[o]n motion and
just terms . . . [to] relieve a party or its legal representative from a final
judgment, order, or proceeding . . . .” Fed. R. Civ. P. 60(b). The rule
provides six potential reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
Id.

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many balls in the air” and “dropped the ball in Mr. Gilman’s
bankruptcy matter with regard to the homestead exemption.”
The bankruptcy court concluded that equitable factors
favored granting Gilman relief because Phillips would not
suffer prejudice, setting aside the order would not
substantially delay the case, and Bliss acted in good faith.
The court also noted that Gilman might succeed on the
merits. Therefore, the bankruptcy court granted relief, and
the district court affirmed.
This was not an abuse its discretion. Rule 60(b) allows
for relief in cases of “excusable neglect”—including
negligence. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 394 (1993). Excusable neglect under
the federal rules “is a somewhat elastic concept and is not
limited strictly to omissions caused by circumstances beyond
the control of the movant.” Id. at 392 (footnotes and internal
quotations omitted). Therefore, Rule 60(b) allows relief even
when counsel makes an unreasonable mistake. Moreover, we
prefer to resolve cases on the merits. See United States v.
Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d
1085, 1091 (9th Cir. 2010).8 We thus affirm the bankruptcy
court’s Rule 60(b) Order.

8

Phillips further argues that the bankruptcy court erred because
Gilman did not appeal or move for relief within the fourteen-day appellate
deadline. Phillips argues that moving for relief after the time to appeal has
passed allows a litigant to undermine federal appellate rules. But Rule
60(c)(1) forecloses this argument—it uses the discretionary language “a
reasonable time” and imposes a hard limit of “no more than a year after
the entry of the judgment or order or the date of the proceeding.” See
Pioneer, 507 U.S. at 393 (“If a party is partly to blame for the delay, relief
must be sought within one year under subsection (1) and the party’s
neglect must be excusable.”) (emphasis added).

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B. Whether the bankruptcy court erred in
determining that Gilman was entitled to a
homestead exemption
Turning to the merits, Phillips argues that the bankruptcy
court erred when it concluded that Gilman established his
claim to a homestead exemption. Specifically, Phillips
argues that the court wrongfully ignored the doctrine of
equitable conversion and evidence that Gilman did not intend
to reside on the property. “The scope of the statutory
exemption is a question of law, which we review de novo.”
In re Bloom, 839 F.2d 1376, 1378 (9th Cir. 1988). We review
the issue of a debtor’s intent, along with other factual
findings, for clear error. Rosson, 545 F.3d at 770–71 (court
reviews factual findings for clear error).
Filing a Chapter 7 bankruptcy petition creates a
bankruptcy estate. 11 U.S.C. § 541(a). At filing, all of the
debtor’s assets become property of the estate unless they are
exempt. See id.; 11 U.S.C. § 522. Section 522 provides a
default list of exemptions, but allows states to opt out of the
federal scheme and define their own exemptions. 11 U.S.C.
§§ 522(b)(2), (b)(3)(A), (d).
California has opted out of the federal system. Cal. Civ.
Proc. Code § 703.130. As a result, “[t]he bankruptcy court
decides the merits of state exemptions, but the validity of the
exemption is controlled by California law.” Diaz, 547 B.R.
at 334; see also In re LaFortune, 652 F.2d 842, 846 (9th Cir.
1981). Courts liberally construe the “the law and facts to
promote the beneficial purposes of the homestead legislation
to benefit the debtor.” Tarlesson v. Broadway Foreclosure
Invs., LLC, 184 Cal. App. 4th 931, 936 (2010); see also In re
Pladson, 35 F.3d 462, 465 (9th Cir. 1994).

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California provides for an “automatic” homestead
exemption. Cal. Civ. Proc. Code § 704.720(a). The
automatic homestead exemption protects a debtor “who
resides (or who is related to one who resides) in the
homestead property at the time of a forced judicial sale of the
dwelling.” In re Anderson, 824 F.2d 754, 757 (9th Cir.
1987); see also Diaz, 547 B.R. at 334 (“The filing of a
bankruptcy petition constitutes a forced sale for purposes of
the automatic homestead exemption.”).
Under Cal. Civ. Proc. Code § 704.710(c), a “homestead”
is “the principal dwelling (1) in which the judgment debtor or
the judgment debtor’s spouse resided on the date the
judgment creditor’s lien attached to the dwelling, and (2) in
which the judgment debtor or the judgment debtor’s spouse
resided continuously thereafter until the date of the court
determination that the dwelling is a homestead.” This
“requires only that the judgment debtor reside in the property
as his or her principal dwelling at the time the judgment
creditor’s lien attaches and continuously thereafter until the
court determines the dwelling is a homestead.” In re Elliott,
523 B.R. 188, 196 (BAP 9th Cir. 2014) (quoting Tarlesson,
184 Cal. App. 4th at 937). It does not require that the debtor
continuously own the property. Id.
To determine whether a debtor resides in a property for
homestead purposes, courts consider the debtor’s physical
occupancy of the property and the intent to reside there.
Diaz, 547 B.R. at 335; Ellsworth v. Marshall, 196 Cal. App.
2d 471, 474 (1961) (“The physical fact of the occupancy and
the intention with which the premises are occupied ‘are both
elements to be considered in determining the actual
residence.’”) (quoting Lakas v. Archambault, 38 Cal. App.
365, 372 (1918)).

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Here, the bankruptcy court concluded that Gilman’s filing
of a bankruptcy petition qualified as a forced sale, thus
triggering the automatic homestead exemption. The
bankruptcy court relied on Gilman’s undisputed occupancy
of the premises. The bankruptcy court further held that “the
fact that [Gilman] was in escrow on a voluntary sale does not
mean that he doesn’t have his Article 4 automatic homestead
exemption because he filed a bankruptcy case and the trustee
basically could have taken control of that property and forced
a sale of the property . . . .” The court further noted that,
“[p]ending the potential close of escrow he retained legal title
to his residence and movants do not contend that Mr. Gilman
did not occupy the residence at the time he filed his Chapter
7 petition . . . .”
The district court affirmed this conclusion, holding that
the bankruptcy court “properly considered the relevant
factors” because “the record is replete with evidence that
Debtor was a continuous resident of the property in question.”
The district court, like the bankruptcy court, relied primarily
on the undisputed fact that Gilman lived at the residence
when he filed his petition. It also relied on Gilman’s
statement in an interrogatory that “[e]scrow was open.
However as no lien amount could be obtained from attorney
Jakob, escrow was in the process of being cancelled and the
sale terminated on the date the petition was filed . . . .”9
Phillips argues that, at the time of filing bankruptcy,
Gilman only held the property in trust for the buyer;
therefore, Phillips contends, Gilman lacked a sufficient
ownership interest to support an exemption. Phillips does not
9

At the hearing on Gilman’s enhanced disability exemption he also
testified that Phillips’ counsel “prevented the escrow from closing.”

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dispute that, at the time of filing, Gilman inhabited the
property, but argues that Gilman could not “intend” to reside
in the property because he was in the process of selling it.
California law rejects Phillips’ argument that title to the
property is necessary to claim a homestead exemption. For
instance, Tarlesson held that “judgment debtors who
continuously reside in their dwellings retain a sufficient
equitable interest in the property to claim a homestead
exemption even when they have conveyed title to another.”
184 Cal. App. 4th at 937. The court further noted that “[s]uch
a result is consistent with the purpose of California’s
homestead exemption to protect one’s dwelling against
creditors.” Id. Likewise, Elliott held that conveyance to a
third party does not defeat a debtor’s right to an automatic
exemption, “because continuous residency, rather than
continuous ownership,” controls the analysis. 523 B.R. at
196.
At the same time, the bankruptcy court made no findings
regarding Gilman’s intent to continue to reside in the
property. “[P]hysical occupancy on the filing date without
the requisite intent to live there, is not sufficient to establish
residency.” See Diaz, 547 B.R. at 336 (emphasis added). For
instance, Ellsworth held that a couple claiming a homestead
exemption did not actually reside in the property—despite
their legal title and physical occupancy—because they moved
into the property a day before a scheduled sale and lacked the
“bona fide intention to make the premises their home or
residence.” 196 Cal. App. 2d at 474–76. Likewise, Diaz
vacated and remanded a bankruptcy court decision that
focused on the debtor’s physical occupancy and failed to
consider his intent. 547 B.R. at 336.

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Because the bankruptcy court made no determination as
to whether Gilman intended to continue to reside in the
property, we vacate the decision and remand so that the
bankruptcy court can apply the correct law to the facts, and
conduct such additional factfinding as may be necessary. See
Diaz, 547 B.R. at 336.10 On remand, the parties are free to
argue anew, and the bankruptcy court may consider, any
additional issues related to the homestead exemption, such as
whether under California law equitable estoppel could apply
to preclude the exemption. The bankruptcy court previously
held that it was not permitted to deny the homestead
exemption because of alleged bad faith, citing Law v. Siegel,
134 S. Ct. 1188, 1196–97 (2014). It did not, however,
consider whether California equitable law could be used to
deny the exemption. See In re Gray, 523 B.R. 170, 175 (9th
Cir. BAP 2014) (vacating court’s finding of bad faith under
Siegel, but remanding for consideration of “whether under
Arizona law equitable considerations may be used to disallow
exemptions”). We leave it to the bankruptcy court to
determine in the first instance whether it has the power to
disallow Gilman’s exemption under California state law and,
if so, whether such doctrines apply here.11

10

Because the bankruptcy court did not correctly apply California
law, we need not address Phillips’ contention that the bankruptcy court
erroneously placed the burden of proof on Phillips.
11

Because we vacate and remand on the issue of Gilman’s entitlement
to the homestead exemption, we need not address Phillips’ alternative
arguments that federal law preempts the homestead exemption and that the
bankruptcy court erred in awarding an exemption greater than $75,000.

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CONCLUSION

We affirm the Rule 60(b) Order. We vacate the
Homestead Exemption Order and remand to the district court
with instructions to remand to the bankruptcy court for
further proceedings consistent with this opinion.
AFFIRMED in part, VACATED and REMANDED.
Each party to bear its own costs on appeal.12

12

Phillips’ pending motions for judicial notice, motion to strike, and
motion for sanctions [Dkt # 34, 50, 58, 59, 60 & 78] are DENIED.