-3, 
in Appellant’s App. at 144-45; Opinion on 2004 Exam at 2, in Appellant’s
App. at 2863 (summarizing allegations from Debtor’s October 2014 amended state court
complaint).
        10
           The Abruzzos asked for attorneys’ fees and costs, and were awarded about $666,000
by the state court for the same. Opinion on Confirmation at 3, in Appellant’s App. at 3843.
        11
           Opinion on 2004 Exam at 4, in Appellant’s App. at 2865.
        12
           Opinion on Stay at 3, in Appellant’s App. at 2974.
        13
           Opinion on 2004 Exam at 5-6, in Appellant’s App. at 2866-67.
        14
           Opinion on Stay at 3, in Appellant’s App. at 2974.
        15

           Id., in Appellant’s App. 
at 2974.
                                                   5
       -    During the trial on the merits of Debtor’s claims, the state court concluded
            Debtor had “significant credibility issues.” 16

       Damages were awarded by the state court against Debtor, and the additional

matter of the appointment of a successor trustee was to be determined at a separate

hearing on September 5, 2017. (By this point, Debtor had resigned as co-trustee.)

       Before that September 5, 2017 state court hearing occurred, on September 1, 2017,

Debtor filed a chapter 11 bankruptcy petition. 17 An Unsecured Creditors Committee was

appointed by the U.S. Trustee to represent Debtor’s unsecured creditors. 18

       Debtor battled with the Abruzzos and the Unsecured Creditors Committee early

and often, and little progress was made in his reorganization. 19 The Bankruptcy Court

ultimately denied Debtor’s request for a second extension of the exclusivity period to file

his own plan (and reconsideration thereof) in June 2018. 20 A proposed plan by the

Unsecured Creditors Committee (the “UCC plan”) required the Bankruptcy Court to

grant stay relief for a return to state court to allow that court to separate Debtor from

ARCO and the trusts. 21 The UCC plan provided that the Abruzzos would sell the trusts’


       16
          Opinion on 2004 Exam at 6, in Appellant’s App. at 2867.
       17
          Petition, in Appellant’s App. at 169.
       18
          Appointment of a Committee of Unsecured Creditors in a Chapter 11 Case, in
Appellant’s App. at 701.
       19
          For example, the Abruzzos objected to the nunc pro tunc employment of Debtor’s
bankruptcy counsel. In re Kearney, 
581 B.R. 644 
(Bankr. D.N.M. 2018). In addition, a mediation
was conducted in February 2018, Mediation Order, in Appellant’s App. at 742-46, but mediation
was not successful. Debtor also filed an adversary proceeding against the Abruzzos in their
capacity as trustees, to recover alleged preferential and improper transfers. Opinion on 2004
Exam at 7, in Appellant’s App. at 2868.
       20
          Order Denying Debtor’s Renewed Motion for Order Extending Exclusivity Period, in
Appellant’s App. at 1509.
       21
          Order Granting in Part the Abruzzo Trustees’ Motion for Relief from Automatic Stay,
in Appellant’s App. at 2809; Order Granting the Supplemental Motion for Relief from Automatic
                                                  6
ARCO stock back to ARCO for about $12 million, and would pay $3 million to the

bankruptcy estate in exchange for releases of claims against the trusts, the Abruzzos,

ARCO, and related parties. As a result, the state court had to approve trust modifications

necessary to complete these transactions. 22

       The state court set a hearing for these issues on October 3, 2018. The day before

the hearing, Debtor did two things: (1) he removed the state court action to the United

States District Court for the District of New Mexico, claiming diversity jurisdiction, and

(2) he filed a new lawsuit against the trustees in the United States District Court for the

District of Nevada, again claiming diversity of citizenship, and alleging Debtor was a

citizen of Nevada. 23 Multiple courts concluded Debtor’s actions were “frivolous,” 24 a

“sham litigation tactic,” 25 and dubious. 26 The Bankruptcy Court expressly found that




Stay, in Appellant’s App. at 2966. Debtor appealed the decisions on stay relief, and sought stay
pending appeal, which was denied by the Bankruptcy Court and the appellate court. Opinion on
Stay at 1, in Appellant’s App. at 2972; see also Kearney v. Abruzzo, No. 18-888 JB/GJF, 
2018
WL 5112909 
(D.N.M. Oct. 19, 2018) (unpublished) (order denying emergency motion for stay
pending appeal).
        22
           Opinion on Conversion at 3, in Appellant’s App. at 156; Opinion on Stay at 4-5, in
Appellant’s App. at 2975-76 (detailing the plan’s proposed changes to the trusts).
        23
           Debtor sought approval for the employment of counsel in the Nevada suit, which was
denied. Debtor appealed the decision, and that appeal was dismissed for lack of prosecution. See
Kearney v. Official Comm. of Unsecured Creditors, No. 18-1223 MV/JFR, 
2019 WL 3975387
(D.N.M. Aug. 2, 2019) (unpublished) and Kearney v. Official Comm. of Unsecured Creditors,
No. 18-233 MV/JFR, 
2019 WL 3975369 
(D.N.M. Aug. 22, 2019) (unpublished).
        24
           Opinion on Nevada Counsel at 7, in Appellant’s App. at 3358.
        25

           Id. at 4, 
in Appellant’s App. at 3355. Debtor reported that he lived in a home in
Albuquerque, New Mexico at the filing of his bankruptcy petition, and used that address in his
monthly operating reports. Debtor did own real estate in Nevada and planned to sell the home
until the hearings on his alleged diversity of citizenship, at which time he reported he “might not
sell” the house and that he lived in the Nevada home.
 Id. at 2 
n.2, in Appellant’s App. at 3353.
        26

           Id. at 6-7, 
in Appellant’s App. at 3357-58 (detailing why the Bankruptcy Court found
“Debtor’s new claim to Nevada citizenship” was “dubious”).
                                                     7
Debtor engaged in “questionable and fruitless attempts to remove the case” 27 from the

state court’s jurisdiction. The state court action was remanded to the state court after

being transferred to the Bankruptcy Court, 28 and the status of the Nevada action is not

apparent from the record.

       Ultimately, the state court approved the trust modifications and the ARCO share

buyback on October 31, 2018. 29 After a two-day trial on the confirmability of the UCC

plan, the Bankruptcy Court confirmed the UCC plan on February 28, 2019. 30 The

Bankruptcy Court noted in its written opinion on confirmation of the UCC plan multiple

“questionable or improper” 31 actions by the Debtor, some of which have already been

mentioned herein, and additionally included:

       -    Debtor likely spearheading a plan to attempt to purchase the claims of
            members of the Unsecured Creditors Committee. 32

       -    Falsely claiming Mary was a Nevada resident when she died. 33




       27
            Opinion on Conversion at 3, in Appellant’s App. at 156.
       28
            Abruzzo v. Kearney, No. 18-cv-0922 JCH/SCY, 
2018 WL 4854638 
(D.N.M. Oct. 5,
2018) (unpublished).
         29
            Debtor appealed the state court ruling, and if a decision on the appeal has been issued,
it is not in the record.
         30
            Order Confirming Plan of Reorganization, in Appellant’s App. at 3865-67. The
Bankruptcy Court had planned to try both the UCC plan and Debtor’s proposed plan at the same
time, but Debtor amended his plan for the seventh time the day after exhibit and witness lists
were due for that trial date, forcing a continuance of the trial on Debtor’s plan. Order Resulting
from Hearing on Confirmability of the Debtor’s Plan at 1-6, in Appellant’s App. at 3543-48. The
Bankruptcy Court ruled that Debtor “chose to ignore” significant problems with his plan until the
last moment.
 Id. at 6, 
in Appellant’s App. at 3548.
         31
            Opinion on Confirmation at 12, in Appellant’s App. at 3852.
         32

            Id. at 11-12, 
in Appellant’s App. at 3851-52.
         33

            Id. at 12 
n.16, in Appellant’s App. at 3852.
                                                     8
       -    Failing and refusing to pay professional fees incurred in the Bankruptcy Court,
            and then responding to the Bankruptcy Court’s order to pay fees by emptying
            his bank account. 34

       -    Failing to alter his “expensive lifestyle or spending habits” while a chapter 11
            bankruptcy debtor. 35

       -    Paying his home mortgage in violation of the automatic stay. 36

       -    Changing his position about the value of his intellectual property. 37

The Bankruptcy Court also made specific findings about Debtor’s reorganization, and the

likely success thereof, finding that Debtor had a “mistaken belief that only he should be

allowed to control the reorganization process, whatever the cost, delay, or acceptability of

payment proposals.” 38 The Bankruptcy Court noted that Debtor’s most recently amended

plan received a majority of votes against it, while the UCC plan received a majority of

accepting votes. 39 The Bankruptcy Court viewed the UCC plan as the only way to

prevent continuous litigation, 40 and concluded that the UCC plan was the best deal

creditors could get to pay unsecured creditors as much as possible. 41 The Bankruptcy

Court also concluded that confirmation of the UCC plan would benefit Debtor’s domestic


       34

          Id., in Appellant’s App. 
at 3852.
       35

          Id., in Appellant’s App. 
at 3852.
       36

          Id., in Appellant’s App. 
at 3852.
       37

          Id., in Appellant’s App. 
at 3852.
       38

          Id. at 7, 
in Appellant’s App. at 3847.
       39

          Id. at 10, 
n.13, in Appellant’s App. at 3850.
       40
          Regarding the UCC plan’s settlement of Debtor and the estate’s claims against ARCO
and the Abruzzos, the Bankruptcy Court concluded Debtor had little chance of success, his
claims had been expensive to litigate, he was not a sympathetic plaintiff, and the evidence
supported the state court finding that neither ARCO nor the Abruzzos breached any duties to
him.
 Id. at 14, 
in Appellant’s App. at 3854.
       41

          Id. at 11, 
in Appellant’s App. at 3851. The Bankruptcy Court found that general
unsecured creditors and “several large creditors” supported the UCC plan.
 Id. at 14, 
in
Appellant’s App. at 3854.
                                                  9
support obligation creditor, “substantially increasing [Debtor’s] ability to pay alimony

and child support.” 42 And finally, the Bankruptcy Court concluded the UCC plan was in

Debtor’s best interest, because his debts of more than $8.6 million, including priority tax

claims, would be paid off. 43

       The effective date of the confirmed plan is not until ten days after the confirmation

order becomes final and additional substantive steps are taken. 44 Debtor appealed the

Bankruptcy Court’s plan confirmation order to this Court, 45 where it was upheld, 46 and to

the Tenth Circuit Court of Appeals, where the decision was again affirmed, 47 but the

appeal time from that most recent decision has not run. Until the UCC plan is effectuated,

the Bankruptcy Court entered an order permitting the trusts to make estimated tax

payments on Debtor’s behalf directly to taxing authorities, noting that in the past in his

chapter 11 case, Debtor had failed to make payments as directed by the Court. 48




       42

           Id. at 16, 
in Appellant’s App. at 3856.
       43

           Id. at 17, 
in Appellant’s App. at 3857.
        44
           Second Amended Chapter 11 Plan of Reorganization of the Official Committee of
Unsecured Creditors at 15, in Appellant’s App. at 3053 (defining “Effective Date” as “the date
ten (10) business days after all of the following conditions have been satisfied: (i) the
Confirmation Order shall have been entered an shall be a Final Order; (ii) all documents, actions,
and agreements necessary to implement the Plan have been executed; (iii) closing on the ARCO
Stock Redemption shall have occurred; and (iv) receipt by the Creditor Trustee of the Trust
Payment.”).
        45
           Notice of Appeal, in Appellant’s App. at 3869.
        46
           In re Kearney, No. NM-19-010, 
2019 WL 6523171 
(10th Cir. BAP Dec. 4, 2019)
(unpublished), aff’d sub nom. Kearney v. Unsecured Creditors Comm., ___ F.3d ___,
2021 WL
710850 
(10th Cir. Feb. 2021). A more detailed summary of the terms of the UCC plan are
included in this opinion.
 Id. at *2.
        47
           Notice of Appeal to United States Court of Appeals for the Tenth Circuit, in
Appellant’s App. at 4381; Kearney v. Unsecured Creditors Comm., ___ F.3d ___, 
2021 WL
710850 
(10th Cir. 2021).
        48
           Order Regarding Tax Payments at 1-2, in Appellant’s App. at 4153-54.
                                                   10
       On August 27, 2019, an indictment was filed against Debtor charging him with

conspiring to commit fraud on the Internal Revenue Service and making and subscribing

false income tax returns. 49 The state court referred Debtor to the IRS in 2017 based on

evidence from the trial there that showed Debtor had not “properly reported his income

for many years, had unilaterally altered tax forms issued to him by third parties, and had

not filed required tax returns in multiple years.” 50 The state court relied on an expert

witness in forensic accounting, who called Debtor’s tax situation a “tax abomination,” 51

and also concluded that Debtor lied under oath in testifying about his taxes. 52 The

Bankruptcy Court noted that it appeared Debtor fraudulently avoided tax liability on

about $7 million of income. 53 At his initial appearance on his criminal indictment on

September 12, 2019, Debtor entered a not guilty plea.

       On September 16, 2019, Debtor signed an engagement letter with Attorney Amy

Sirignano. Debtor then filed in his bankruptcy case an application to employ Attorney

Sirignano as his criminal defense counsel, which the Bankruptcy Court ultimately denied

in October 2019. The Bankruptcy Court instructed Debtor that if he wished to pay for his

own attorney, then he “must use non-estate assets at his disposal, if any he has.” 54

Attorney Sirignano entered her appearance in Debtor’s criminal case on January 7, 2020.




       49
          Indictment, in Appellee’s Supp. App. at 5-10.
       50
          Opinion on Conversion at 3, in Appellant’s App. at 156.
       51

          Id. at 4, 
in Appellant’s App. at 157.
       52

          Id. at 3-4, 
in Appellant’s App. at 156-57.
       53

          Id. at 4, 
in Appellant’s App. at 157.
       54
          Opinion on Employment at 10, in Appellant’s App. at 4322.
                                                 11
       Four months after the denial of his motion to employ Attorney Sirignano, in

February 2020, Debtor moved to convert his chapter 11 case to chapter 7. 55 In that

motion, despite having somehow already employed Attorney Sirignano, Debtor argued

that he had no non-estate assets to pay a criminal attorney, and therefore had “no option

but to convert this Chapter 11 case to Chapter 7.” 56 Debtor argued he had an absolute

right to convert under § 1112(a). 57 Oppositions to the motion to convert, as well as

motions seeking immediate reconversion if the motion to convert were granted, were

filed by the Abruzzos, the Unsecured Creditors Committee, and one large creditor. 58



       55
            Also, in early 2020, Debtor’s second wife, whom he married in 2013 and divorced in
2015, filed a motion seeking to dismiss Debtor’s case. Opinion on Dismissal at 1-2, in
Appellant’s App. at 4720-21. In the opinion denying the motion to dismiss, the Bankruptcy
Court concluded that Debtor made payments to the ex-wife that were contrary to his prior
agreement with her on payments and stated a version of the agreement with the ex-wife in his
proposed plans that was “significantly different” than what the ex-wife stated in her pleadings.

Id. at 4, 
in Appellant’s App. at 4723. The Bankruptcy Court also pointed out that the timing of
the ex-wife’s motion was unusual, suggesting that she was attempting to aid Debtor in defeating
the UCC plan, not seeking to maximize her recovery.
 Id. at 9, 
in Appellant’s App. at 4728.
         56
            Motion to Convert at 5, in Appellant’s App. at 147.
         57

            Id. at 6, 
in Appellant’s App. at 148. Debtor moved to strike the opposition to his
motion filed by the Abruzzos, but the Bankruptcy Court denied that motion, Order Denying
Motion to Strike, in Appellant’s App. at 4611, and the decision was not appealed. The opinion
supporting the order denying the motion to strike was not included in the record on appeal, but is
available at In re Kearney, 
615 B.R. 488 
(Bankr. D.N.M. 2020). In that opinion, the Bankruptcy
Court called Debtor’s arguments “ludicrous” and said that they did “not pass the straight-face
test.”
 Id. at 493-94.
         58
            See Objection to Kearney’s Motion to Convert his Chapter 11 Case to Chapter 7 and
Motion to Reconvert to Chapter 11, in Appellant’s App. at 4523; Creditor Kevin Yearout’s
Joinder in Doc. No. 103[7], the Abruzzo Trustee[s] Objection to Kearney’s Motion to Convert
his Chapter 11 Case to Chapter 7, in Appellant’s App. at 4535; Unsecured Creditors
Committee’s Objection to “Motion of Debtor Victor P. Kearney to Convert this Chapter 11 Case
to Chapter 7”, in Appellant’s App. at 4536 (also stating within pleading that “[i]n the event that
the Court concludes that conversion is required, the UCC requests that the Court immediately re-
convert the case to Chapter 11”); Creditor Kevin Yearout’s Joinder in Doc. No. 1039, the
Unsecured Creditor Committee’s Objection to Kearney’s Motion to Convert his Chapter 11 Case
to Chapter 7, in Appellant’s App. at 4552.
                                                   12
       The Bankruptcy Court entered an order denying Debtor’s motion to convert on

June 18, 2020. In its Opinion, the Bankruptcy Court made factual findings that Attorney

Sirignano had been actively defending Debtor in his criminal case since her appearance

therein, and though the court had no evidence as to how she had been paid to date, there

was no evidence she was “concerned about or unhappy with her compensation

arrangements” with Debtor. 59 The Bankruptcy Court found that Debtor’s “professed

reason for conversion [was] a pretext,” and that the real desire to convert was an effort to

“cancel” the confirmed UCC plan. 60

       The Bankruptcy Court then made multiple, alternate, legal conclusions. First, the

Bankruptcy Court discussed the Supreme Court’s decision in Marrama . 61 The

Bankruptcy Court concluded Debtor was a bad faith debtor, and also would be subject to

immediate reconversion under § 706(b), and therefore was ineligible for chapter 7

relief. 62 The Bankruptcy Court also concluded that a confirmed chapter 11 creditor plan




        Because of the multiple motions to reconvert Debtor’s case if his motion to convert was
granted, Debtor had reasonable notice of the issue, and his argument to the contrary is rejected.
See, e.g., Matter of Texas Extrusion Corp., 
844 F.2d 1142
, 1161 (5th Cir. 1988) (concluding that
even one-day’s notice for hearing on reconversion was reasonable when same lawyers had been
involved throughout and were knowledgeable of all facts). The first pleading seeking
reconversion to chapter 11 if Debtor’s motion to convert to chapter 7 was granted was served on
Debtor and all creditors fourteen days before the hearing on the motion to convert. Victor P.
Kearney’s Omnibus Response to the Objections to Debtor’s Motion to Convert Case from
Chapter 11 to Chapter 7, in Appellant’s App. at 4593.
        59
           Opinion on Conversion at 4, in Appellant’s App. at 157.
        60

           Id. at 9, 
in Appellant’s App. at 162.
        61
           
549 U.S. 365 
(2007).
        62
           Opinion on Conversion at 6-7, in Appellant’s App. at 159-60.
                                                   13
should impact a debtor’s right to conversion. 63 Finally, the Bankruptcy Court rejected

Debtor’s argument that his Sixth Amendment rights were impacted. 64

II.    Jurisdiction and Standard of Review

       Debtor appeals the denial of his motion to convert. An order denying a motion to

convert is generally an interlocutory order, 65 but this Court has jurisdiction to hear

appeals from interlocutory orders “with leave of the court.” 66 Leave to appeal was

granted by a prior panel of this Court. 67 Debtor then sought leave to file a direct appeal to

the Tenth Circuit Court of Appeals, but that request was denied. 68 The Court therefore

has jurisdiction over this appeal.

       We will review the Bankruptcy Court’s interpretation of the Code de novo. 69

Under de novo review, we make an independent determination of each question of law. 70

We will review the Bankruptcy Court’s findings of fact for clear error, 71 and




       63

           Id. at 8, 
in Appellant’s App. at 161.
       64

           Id. at 8-9, 
in Appellant’s App. at 161-62.
        65
           In re Fox, 
241 B.R. 224
, 229 (10th Cir. BAP 1999) (“An order denying a motion to
convert or dismiss a bankruptcy proceeding is not a[] [final] order that impacts either the assets
of the bankruptcy estate or the priority of creditors.”).
        66
           28 U.S.C. § 158(a)(3).
        67
           BAP ECF No. 18.
        68
           BAP ECF No. 32. Debtor also filed a petition for a writ of mandamus in the Tenth
Circuit, requesting the Circuit Court vacate the BAP’s order denying the request for direct appeal
and consider the issue, and the Tenth Circuit denied Debtor’s petition. Order, No. 20-2127 (10th
Cir. Nov. 4, 2020).
        69
           In re Morreale, 
959 F.3d 1002
, 1005 (10th Cir. 2020) (quoting In re Woods, 
743 F.3d
689
, 693 (10th Cir. 2014)).
        70
           Nazar v. N. Am. Savings Bank FSB (In re Born), 
357 B.R. 630
, 632 (10th Cir. BAP
2006) (citing Salve Regina Coll. v. Russell, 
499 U.S. 225
, 268 (1991)).
        71
           See In re Young, 
237 F.3d 1168
, 1172 (10th Cir. 2001) (reviewing factual
determinations of bankruptcy court for clear error).
                                                   14
discretionary decisions concerning conversion will be reviewed for abuse of discretion. 72

Under clear error review, “[a]finding is not clearly erroneous unless ‘it is without factual

support in the record or if, after reviewing all of the evidence, we are left with the definite

and firm conviction that a mistake has been made.’” 73 “Under the abuse of discretion

standard[,] ‘a trial court’s decision will not be disturbed unless the appellate court has a

definite and firm conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.’” 74 As with the clearly

erroneous standard, when applying the abuse of discretion standard, deference is given to

the Bankruptcy Court “‘because of its first-hand ability to view the witness or evidence

and assess credibility and probative value.’” 75

III.   Analysis

       A.     The So-Called “Absolute Right” to Convert


       72
           Courts considering conversion between chapter 7 and chapter 11 review a bankruptcy
court’s decision for abuse of discretion. In re Daughtrey, 
896 F.3d 1255
, 1273 (11th Cir. 2018)
(explaining the weight of authority suggests denial of a motion to convert is reviewed for abuse
of discretion); see also In re Takano, 771 F. App’x 805, 806 (9th Cir. 2019) (unpublished)
(reviewing denial of creditor’s motion to convert chapter 7 case to chapter 11 and stating that
court had “broad discretion to convert to a Chapter 11 case based on what will most inure to the
benefit of all parties in interest” (internal quotation omitted)); In re Schlehuber, 558 F. App’x
715, 716 (8th Cir. 2014) (unpublished) (reviewing grant of creditor’s motion to convert from
chapter 7 to chapter 11 for abuse of discretion); Matter of Texas Extrusion Corp., 
844 F.2d 1142
,
1161 (5th Cir. 1988) (reviewing bankruptcy court decision to grant conversion of case to chapter
11 after prior conversion from chapter 11 to chapter 7 and holding the decision whether to
reconvert a case back to chapter 11 after a prior conversion from chapter 11 to chapter 7 was
“within the discretionary powers of the bankruptcy court based on the court’s determination of
what will most inure to the benefit of all parties in interest”).
        73
           In re Ford, 
492 F.3d 1148
, 1153 (10th Cir. 2007) (quoting Connolly v. Harris Tr. Co.
of Ca. (In re Miniscribe Corp.), 
309 F.3d 1234
, 1240 (10th Cir. 2002)).
        74
           Moothart v. Bell, 
21 F.3d 1499
, 1504 (10th Cir. 1994) (quoting McEwen v. City of
Norman, 
926 F.2d 1539
, 1553-54 (10th Cir. 1991)).
        75

           Id. (quoting McEwen, 926 
F.2d at 1553-54).
                                                   15
       Conversion or dismissal of a chapter 11 case is governed by § 1112. That section

states, in pertinent part:

       (a) The debtor may convert a case under this chapter to a case under chapter
       7 of this title unless--
               (1) the debtor is not a debtor in possession;
               (2) the case originally was commenced as an involuntary case under
               this chapter; or
               (3) the case was converted to a case under this chapter other than on
               the debtor’s request.
       ...
       (f) Notwithstanding any other provision of this section, a case may not be
       converted to a case under another chapter of this title unless the debtor may
       be a debtor under such chapter. 76

Despite arguing that he had an absolute right to convert his case, Debtor does

acknowledge that § 1112 places limits on that right. 77

       First, the initial three limits on conversion are found in § 1112(a). A chapter 11

debtor seeking to convert the case to chapter 7 under § 1112 must be a “debtor in

possession.” 78 Upon filing a chapter 11 petition, a debtor is generally a debtor in

possession unless or until a case trustee is appointed, the debtor’s plan of reorganization

is confirmed, the case is dismissed, or the case is converted. 79 The confirmed plan in


       76
           11 U.S.C. § 1112.
       77
           Appellant’s Br. 10-11 (“Thus, under section 1112, there are four—and only four—
limitations on a chapter 11 debtor’s right to convert to chapter 7.”). The “absolute” argument
comes from legislative history that states “subsection (a) gives the debtor an absolute right to
convert a voluntarily commenced chapter 11 case in which the debtor remains in possession to a
liquidation case.” S. REP. 95-989, 117, as reprinted in 1978 U.S.C.C.A.N. 5787, 5903; H.R.
REP. 95-595 405, as reprinted in 1978 U.S.C.C.A.N. 5963, 6361.
        78
           11 U.S.C. § 1112(a)(1).
        79
           11 U.S.C. § 1101(1) (defining “debtor in possession” as a “debtor,” unless a qualified
trustee is serving); § 1107 (giving the debtor in possession the rights and powers to perform the
functions and duties as if a trustee); In re Schupbach Invs., L.L.C., 
808 F.3d 1215
, 1223 (10th
Cir. 2015) (“For purposes of Chapter 11 bankruptcies, a ‘debtor-in-possession’ is a debtor who
remains in possession of the pre-petition assets and administers them for the benefit of the
                                                   16
Debtor’s case contains language delaying its effective date until ten days after the

confirmation order becomes final, documents, actions, and agreements necessary to

implement the UCC plan have been executed, closing on the redemption of the ARCO

stock has occurred, and the trust payment has been received. 80 As noted above, Debtor

appealed the Bankruptcy Court’s plan confirmation order. 81 That decision was upheld on

appeal to this court, 82 and to the Tenth Circuit Court of Appeals. 83 The appeal time has

not run on a potential further appeal to the United States Supreme Court, and regardless,

the additional actions concerning execution of necessary documents, redemption of the

ARCO stock, and payment have not occurred.

       As a result, Debtor remains the debtor in possession because the UCC plan’s

confirmation is not yet final. 84 Additionally under § 1112(a), a chapter 11 debtor seeking



creditor body pursuant to 11 U.S.C. § 1107. Once the Creditors’ Plan was confirmed, the Debtor
(which had been dissolved) no longer satisfied this description of a debtor-in-possession.”
(internal quotation and citation omitted)).
        80
           Second Amended Chapter 11 Plan of Reorganization of the Official Committee of
Unsecured Creditors at 15, in Appellant’s App. at 3053 (defining “Effective Date” as “the date
ten (10) business days after all of the following conditions have been satisfied: (i) the
Confirmation Order shall have been entered an shall be a Final Order; (ii) all documents, actions,
and agreements necessary to implement the Plan have been executed; (iii) closing on the ARCO
Stock Redemption shall have occurred; and (iv) receipt by the Creditor Trustee of the Trust
Payment.”).
        81
           Notice of Appeal, in Appellant’s App. at 3869.
        82
           In re Kearney, No. NM-19-010, 
2019 WL 6523171 
(10th Cir. BAP Dec. 4, 2019)
(unpublished), aff’d sub nom. Kearney v. Unsecured Creditors Comm., ___ F.3d ___, 
2021 WL
710850 
(10th Cir. 2021).
        83
           Kearney v. Unsecured Creditors Comm., ___ F.3d ___, 
2021 WL 710850 
(10th Cir.
2021).
        84
           The Bankruptcy Court also entered the parties’ stipulated order clarifying that Debtor
is a debtor in possession. Stipulated and Default Order Resolving Motion for Clarification at 3,
in Appellant’s App. at 4455 (“The Debtor is a Debtor-in-Possession until the Effective Date.”).
Obviously, at some point, Debtor’s appeal of the conversion order may become constitutionally
moot. See Church of Scientology of Ca. v. United States, 
506 U.S. 9
, 12 (1992) (stating that an
                                                   17
to convert to chapter 7 under § 1112 cannot be in chapter 11 because of an involuntary

petition and cannot have been converted to that chapter by other than the debtor’s

request. Debtor filed a voluntary petition to initiate his case, 85 satisfying both these limits

on conversion. 86

       Second, and the matter at issue in this appeal, under the express dictate of

§ 1112(f), there is a final limit on conversion. Under § 1112(f), “a case may not be

converted to a case under another chapter of this title unless the debtor may be a debtor

under such chapter.” 87

       Subsection (f) of § 1112 cannot be considered without a thorough understanding

of two Supreme Court decisions: Marrama v. Citizens Bank of Massachusetts 88 and Law

v. Siegel. 89 In Marrama, the debtor filed a voluntary chapter 7 petition, and thereafter

sough to convert to chapter 13 under § 706, arguing he had an absolute right to convert

over the objection of his creditors and the chapter 7 trustee, who argued the debtor had

engaged in bad faith. 90

       Like § 1112, § 706 contains both an initial subsection granting a debtor the right to

convert, but also a subsection limiting that conversion. The two statutory sections are

compared here:


appeal is constitutionally moot if events have taken place during the pendency of the appeal that
make it impossible for the court to grant any effectual relief).
        85
           Petition, in Appellant’s App. at 169.
        86
           Appellees acknowledge that Debtor meets these first three limits on conversion from
§ 1112(a). Appellee’s Br. 25 (“Kearney meets the threshold requirements in Section 1112(a)[.]”).
        87
           11 U.S.C. § 1112(f).
        88
           
549 U.S. 365 
(2007).
        89
           
571 U.S. 415 
(2014).
        90
           
Marrama, 549 U.S. at 369-70
.
                                                  18
 Section 706: 91                                Section 1112: 92
 (a) The debtor may convert a case under        (a) The debtor may convert a case under
 this chapter to a case under chapter 11, 12,   this chapter to a case under chapter 7 of
 or 13 of this title at any time, if the case   this title unless--
 has not been converted under section           (1) the debtor is not a debtor in
 1112, 1208, or 1307 of this title. Any         possession;
 waiver of the right to convert a case under    (2) the case originally was commenced as
 this subsection is unenforceable.              an involuntary case under this chapter; or
                                                (3) the case was converted to a case under
                                                this chapter other than on the debtor’s
                                                request.
 (d) Notwithstanding any other provision        (f) Notwithstanding any other provision of
 of this section, a case may not be             this section, a case may not be converted
 converted to a case under another chapter      to a case under another chapter of this title
 of this title unless the debtor may be a       unless the debtor may be a debtor under
 debtor under such chapter.                     such chapter.


       The Supreme Court rejected the debtor’s argument that he had an absolute right to

convert, noting that the right to convert under subsection (a) of § 706 was expressly

limited by subsection (d). 93 The Supreme Court concluded there were “at least two” 94

possible limitations on a debtor’s ability to qualify as a debtor under another chapter as

required by subsection (d): § 109(e) (defining debt limits for individuals with regular

income who may be a debtor under chapter 13) and § 1307(c) (governing standards for

dismissal or conversion of a chapter 13 petition for cause). 95 Although none of the

specific examples given in § 1307(c) address dismissal of a chapter 13 case based on




       91
          11 U.S.C. § 706.
       92
          11 U.S.C. § 1112.
       93
          
Marrama, 549 U.S. at 372 
(“The words ‘unless the debtor may be a debtor under such
chapter’ expressly conditioned [the debtor’s] right to convert on his ability to qualify as a
‘debtor’ under Chapter 13.”).
       94

          Id. at 374.
       95
          Id.
                                                 19
prepetition bad-faith conduct, the Supreme Court concluded that was “implicitly

authorized” by the use of a “for cause” standard in § 1307(c). 96 Requiring a bankruptcy

court to convert a chapter 7 case to chapter 13, only to thereafter dismiss the case or

immediately return it to chapter 7 would be “a procedural anomaly.” 97

       Again, the statutory framework analyzed in Marrama is very similar to the

governing statutory sections herein. The debtor in Marrama sought to convert his case to

chapter 13, and the Supreme Court concluded he would be limited by the chapter 13

standards for dismissing or converting for cause. Debtor herein seeks to convert to

chapter 7, and like in chapter 13, there are statutory standards for conversion or dismissal

of chapter 7 cases (in § 706(b) and § 707, respectively).

       We conclude that Marrama controls: there is no “absolute right to convert” 98 a

chapter 11 case to chapter 7, subsection (f) of § 1112 limits the right to convert found in

subsection (a) of § 1112, and if a bankruptcy court finds that it would immediately dsmiss

a chapter 7 case or reconvert it to chapter 11, it need not go through the “procedural




       96

            Id. at 373-74 
(“[Section] 1307(c)[] provides that a Chapter 13 proceeding may be either
dismissed or converted to a Chapter 7 proceeding ‘for cause’ and includes a nonexclusive list of
10 causes justifying that relief. None of the specified causes mentions prepetition bad-faith
conduct . . . Bankruptcy courts nevertheless routinely treat dismissal for prepetition bad-faith
conduct as implicitly authorized by the words ‘for cause.’ In practical effect, a ruling that an
individual’s Chapter 13 case should be dismissed or converted to Chapter 7 because of
prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7
proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under
Chapter 13.”) (internal citations omitted).
        97

           Id. at 368.
        98
            Id. at 370.
                                                   20
anomaly” 99 of conversion before taking that step, but can instead deny conversion on that

basis.

         Debtor argues that the subsequent Supreme Court case Law v. Siegel provides that

because § 1112 does not itself have language permitting denial of conversion for bad

faith, courts may not consider a debtor’s bad faith and limit the debtor’s conversion on

that basis. 100 In Law v. Seigel, the Supreme Court considered whether bankruptcy courts

could surcharge a debtor’s statutorily exempt assets, despite provisions of the Code

forbidding exemptions from being used as payment for administrative expenses. 101 The

Supreme Court answered this question emphatically in the negative: bankruptcy courts

should not violate the express terms of the Code by using their § 105(a) powers to

address bad faith. 102

         Importantly, however, the Supreme Court in Law addressed its decision in

Marrama, and concluded it had no relevance to the situation in Law. 103 In Marrama, after

reaching its conclusion that § 706(d) provided “adequate authority” 104 for the denial of

the debtor’s motion to convert, the Supreme Court noted that both the broad authority

given bankruptcy judges in § 105(a) and the “inherent power of every federal court to



         99

          Id. at 368.
         100
           Appellant’s Br. at 28 (“As the plain language of section 1112(a) does not provide an
exception to conversion for bad faith, and Law provides that a bankruptcy court does not
otherwise have the authority to contravene unambiguous provisions of the Code on equitable
grounds—including bad faith—the bankruptcy court’s decision in the present case was
improper.”).
       101
           Law v. Siegel, 
571 U.S. 415
, 420 (2014).
       102

           Id. at 421-22.
       103
           Id. at 426.
       104
           
Marrama, 549 U.S. at 374
.
                                                   21
sanction ‘abusive litigation practices’” 105 might also provide an adequate justification for

denying a motion to convert a bad faith debtor from chapter 7 to chapter 13. But the

Supreme Court explained in Law that Marrama was really just saying that if an express

action is authorized by the Code (i.e., the dismissal or conversion of a debtor’s case), then

a bankruptcy court may be able to use its § 105(a) or inherent powers to reach that result

more expeditiously. 106 The express provisions of the Code must still be followed.

       We know that § 1112(f) expressly requires courts to prohibit conversion to another

chapter when the debtor cannot be a debtor under that chapter. The question we should be

asking is whether there is an express provision of the Code that would permit the

bankruptcy court to dismiss or reconvert Debtor’s case immediately after granting a

conversion from chapter 11 to chapter 7, i.e., prohibiting Debtor from being a debtor

under chapter 7? If yes, then we need only ask whether that Code provision was applied

correctly.

       We acknowledge that, presumably knowing an appeal would follow, the

Bankruptcy Court rested its denial of Debtor’s motion to convert on multiple independent

bases, namely, that (1) Debtor engaged in bad faith and was not entitled to be a debtor

under chapter 7, (2) Debtor’s case would immediately be reconverted under § 706(b) and

so Debtor could not be a debtor under chapter 7, and (3) because Debtor’s chapter 11

case already had a confirmed creditor plan, he was not entitled to convert under §


       105

           Id. at 375.
       106
           
Law, 571 U.S. at 426 
(“At most, Marrama’s dictum suggests that in some
circumstances a bankruptcy court may be authorized to dispense with futile procedural niceties
in order to reach more expeditiously an end result required by the Code.”).
                                                  22
1112(a). Has Debtor acted in bad faith? We would have no trouble affirming such a

factual finding on the record before this Court. 107

       But that is not the question the Bankruptcy Court or this court should be asking.

We affirm the Bankruptcy Court’s denial of Debtor’s motion to convert because it also

followed the exact analysis required by Marrama and Law. It said that under § 1112(f), it

would not permit conversion to chapter 7 when Debtor could not remain a debtor under

that chapter. It then relied on § 706(b) to conclude that Debtor could not be a debtor

under chapter 7. This was a correct application of the law. The Bankruptcy Court

followed the directives of both Marrama and Law and hurried along what the Code

expressly permitted.

       We also acknowledge that there are cases holding that a bankruptcy court may not

deny conversion under § 1112 because of pre-conversion misconduct, generally refusing

to extend Marrama because of differences between the bankruptcy chapters therein and

other bankruptcy chapters. 108 But we are not saying conversion to chapter 7 from an


       107
            Note, for example, the Tenth Circuit’s characterization of Debtor’s conduct
surrounding plan confirmation: “[T]he record is replete with evidence of Mr. Kearney’s
obnoxious conduct supporting that finding [that he is not a sympathetic plaintiff], including his
misconduct with respect to the Trusts, his credibility issues, his contempt for the courts and the
judicial process, and his appalling litigation habits.”). Kearney v. Unsecured Creditors Comm.,
___ F.3d ___, 
2021 WL 710850
, at *11 (10th Cir. 2021); see also
 id. (referring to Debtor’s
“wrongdoings”);
 Id. at *12 
(referring to Debtor’s “unsavory conduct” and “his refusal to act
responsibly”);
 Id. (noting Debtor “has 
significant credibility issues and seems comfortable lying
under oath and otherwise”);
 Id. (noting that Debtor 
“has a well-established disdain for courts and
the judicial processes”);
 Id. at *13 
(referring to Debtor’s “established contempt for the judicial
system and courts”);
 Id. at *15 
(referring to Debtor’s “incessant lies, his mockery of the judicial
system, or his litigious approach”).
        108
            See, e.g., In re Kimrow, Inc., 
534 B.R. 219
, 225-26 (Bankr. M.D. Ga. 2015)
(questioning whether Marrama should be applied to conversions from corporate chapter 11
debtors to chapter 7, but concluding that even if there were “an extreme circumstances
                                                    23
individual chapter 11 is the same as conversion to chapter 13 from chapter 7. What we

are saying is that bankruptcy courts are directed by § 1112(f) to look at the standards for

debtors under the chapter to which the debtor is hoping to convert, and if that debtor

could not be a debtor under that chapter because the bankruptcy court would exercise its

discretion to immediately reconvert the case, then there is no reason to convert the

chapter 11 just to dismiss or re-convert thereafter. We do not think that is an extension of

Marrama.

          We conclude that the Bankruptcy Court correctly applied the provisions of the

Code. Yes, the Bankruptcy Court found Debtor had engaged in significant bad faith, and

we are not saying that finding should not be considered at all. We conclude that as long

as a bankruptcy court correctly applies a Code provision limiting a debtor’s ability to

proceed under the chapter they seek to convert, then that Debtor is ineligible to be a

debtor under that chapter, and both Marrama and Law v. Siegel bless this course of

action.




exception” to a debtor’s right to convert under § 1112, it would not find it present upon the facts
of that case); but see In re Johnson, 
546 B.R. 83
, 169-70 (Bankr. S.D. Ohio 2016) (refusing to
conclude that a chapter 11 debtor had an absolute right to convert to chapter 7 when the debtor
had exhibited bad faith, because that debtor’s bad faith would subject his chapter 7 case to
immediate dismissal under § 707(a), meaning he could not be a debtor under that chapter); In re
Modern Metal Prods. Co., 
422 B.R. 118
, 122 (Bankr. N.D. Ill. 2009) (noting that if granting a
motion to convert from chapter 11 to chapter 7 “would serve no other purpose than to waste time
and resources, or that the Debtor’s only purpose in filing the motion was to delay, then under the
reasoning of Marrama, the Court could certainly deny the Debtor’s motion”); see also 7 Collier
on Bankruptcy ¶ 1112.02 (Lawrence P. King ed., 15th ed. rev. 2000) (“Although not contained in
the language of the statute, by extension of the conclusion in the United States Supreme Court’s
decision providing a bad faith conduct exception to a debtor’s right to convert a case from
chapter 7 to chapter 13, the right of a debtor under section 1112(a) to convert the case from
chapter 11 to chapter 7 similarly may be qualified.”).
                                                    24
B.     Application of the Statutory Directive in this Case

       As stated throughout, the Bankruptcy Court ruled that Debtor’s case would be

immediately reconverted under § 706(b). Under § 706(b), “[o]n request of a party in

interest and after notice and a hearing, the court may convert a case under this chapter to

a case under chapter 11 at any time.” 109 The Tenth Circuit has not addressed the question

of what standard should be applied when a bankruptcy court considers conversion, or

reconversion, under § 706(b). Other circuits have relied on the legislative history of §

706(b) that says:

       Subsection (b) permits the court, on request of a party in interest and after
       notice and a hearing, to convert the case to chapter 11 at any time. The
       decision whether to convert is left in the sound discretion of the court, based
       on what will most inure to the benefit of all parties in interest. 110

A bankruptcy court has broad discretion to make conversion decisions under § 706(b). 111

       Taking this guidance, a bankruptcy court must ask what will most benefit “all

parties in interest.” 112 Not just a debtor, not just creditors, not just non-creditor parties.


       109
            11 U.S.C. § 706(b).
       110
            H.R. Rep. No. 95-595, at 380 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963; S.
Rep. No. 95-989, at 94 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787 (emphasis added).
        111
            See, e.g., In re Takano, 771 F. App’x 805, 806 (9th Cir. 2019) (unpublished)
(reviewing denial of creditor’s motion to convert chapter 7 case to chapter 11 and stating that
court had “broad discretion to convert to a Chapter 11 case based on what will most inure to the
benefit of all parties in interest” (internal quotation omitted)); In re Schlehuber, 558 F. App’x
715, 716 (8th Cir. 2014) (unpublished) (reviewing grant of creditor’s motion to convert from
chapter 7 to chapter 11 for abuse of discretion); Matter of Texas Extrusion Corp., 
844 F.2d 1142
,
1161 (5th Cir. 1988) (reviewing bankruptcy court decision to grant conversion of case to chapter
11 after prior conversion from chapter 11 to chapter 7 and holding the decision whether to
reconvert a case back to chapter 11 after a prior conversion from chapter 11 to chapter 7 was
“within the discretionary powers of the bankruptcy court based on the court’s determination of
what will most inure to the benefit of all parties in interest”).
        112
            H.R. Rep. No. 95-595, at 380 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963; S.
Rep. No. 95-989, at 94 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787
                                                   25
Appeals courts have blessed various considerations for this analysis, including the

viability of a chapter 11 plan, 113 ‘“anything relevant that would further the goals of the

Bankruptcy Code,’” 114 but especially a debtor’s ability to pay, 115 weighing of the benefit

to each of the parties, 116 and a movant’s “questionable” motives to “interfere with or

impede” a chapter 11 reorganization. 117

       In this case, the Bankruptcy Court did not abuse its discretion in concluding it

would immediately reconvert Debtor’s case under § 706(b). The Bankruptcy Court

expressly found that “Debtor’s professed reason for conversion is a pretext,” 118 and that

Debtor’s true aim was to defeat the UCC plan. Note the timing: Debtor claimed he had

“no option but” 119 to convert to employ counsel in his criminal case, but the motion to

convert was not filed until four months after the Bankruptcy Court denied his motion to

employ counsel from estate funds and five months after Debtor actually engaged his




       113
           In re Bartmann, 
310 B.R. 663
, 
2004 WL 1057662
, at *6 (10th Cir. BAP May 10,
2004) (unpublished) (noting that debtors could seek conversion under § 706(b) if they could
propose a viable plan).
       114
           In re Schlehuber, 
489 B.R. 570
, 573 (8th Cir. BAP 2013) (quoting In re Gordon, 
465
B.R. 683
, 692 (Bankr. N.D. Ga. 2012)), aff’d 558 F. App’x 715 (8th Cir. 2014);
       115

           Id. (quoting In re 
Gordon, 
465 B.R. 683
, 692 (Bankr. N.D. Ga. 2012)), aff’d 558 F.
App’x 715 (8th Cir. 2014); see also In re LaFountaine, No. CC-15-1426-LKITa, 
2016 WL
3344003
, at *3 (9th Cir. BAP June 7, 2016) (unpublished) (“While Section 706(b) does not
mandate a balancing of parties’ interests as a predicate to conversion of a chapter 7 case to
chapter 11, courts consistently consider several factors, including a debtor's ability to fund a
chapter 11 plan, in exercising their discretion under Section 706(b).”).
       116
           In re Takano, 771 F. App’x at 806 (weighing of benefits to all parties includes
debtors’ interest in the “quick discharge of their debts and a fresh start”).
       117
           Matter of Texas Extrusion 
Corp., 844 F.2d at 1161
; see also In re Willis, 
345 B.R.
647
, 655 (8th Cir. BAP 2006) (considering the debtor’s “fraudulent, evasive, and uncooperative
behavior” when affirming the denial of that debtor’s motion under § 706(b)).
       118
           Opinion on Conversion at 9, in Appellant’s App. at 162.
       119
           Motion to Convert at 5, in Appellant’s App. at 147.
                                                   26
chosen counsel, 120 the motion to convert was filed shortly after a panel of this Court

affirmed the Bankruptcy Court’s order confirming the UCC plan, 121 and the motion to

convert was filed nearly simultaneously with a motion to dismiss filed by Debtor’s ex-

wife, which the Bankruptcy Court found was itself likely an attempt to aid Debtor in

defeating the UCC plan. 122 The Bankruptcy Court also concluded that the UCC plan was

the best chance for creditors ever to be paid, noting that a chapter 7 trustee could not

obtain the infusion of cash from the Abruzzos that the confirmed chapter 11 plan would

provide. 123 The Bankruptcy Court concluded that conversion to chapter 7 would be “a

terrible and unjust result for creditors,” 124 that Debtor was acting in bad faith, solely in

his own interest, and ignoring the interest of creditors. The Bankruptcy Court found that

the UCC plan was a great deal for Debtor and creditors, that administrative expenses and

trustee fees in a chapter 7 would dilute any dividend to creditors, and that it was in the

best interest of Debtor, and all interested parties for Debtor to remain in a chapter 11. 125

The Bankruptcy Court concluded: “Debtor’s conduct in this case makes him ineligible to

be a chapter 7 debtor, so the motion to convert should be denied.” 126




       120
            Debtor’s engagement letter with counsel was signed September 16, 2019, the
Bankruptcy Court’s order denying Debtor’s application to employ counsel with estate funds was
entered October 24, 2019, and Debtor’s motion to convert was filed February 28, 2020.
        121
            The opinion of this Court affirming the Bankruptcy Court’s confirmation of the UCC
plan was entered December 4, 2019.
        122
            The motion to dismiss by Debtor’s ex-wife was filed March 3, 2020, two business
days after Debtor filed his motion to convert.
        123
            Opinion on Conversion at 10, in Appellant’s App. at 163.
        124

            Id., in Appellant’s App. 
at 163.
        125

            Id. at 12
, in Appellant’s App. at 165.
        126

            Id. at 13, 
in Appellant’s App. at 166.
                                                  27
       Debtor argues that the findings from the Bankruptcy Court rested on pure

litigation tactics, and should not have been considered. Again, we find no error in the

Bankruptcy Court’s judgment. We give deference to the Bankruptcy Court here, as we

should. It is the Bankruptcy Court that has had the first-hand experience with Debtor, the

creditors, and all parties in interest. The Bankruptcy Court did not consider each of

Debtor’s litigation tactics in a vacuum. Rather, it issued an inordinate number of opinions

in Debtor’s bankruptcy case, assessed Debtor and his motives, creditors and their

motives, the documentary evidence, the credibility of every witness, and so much more.

The Bankruptcy Court relied on the totality of the circumstances—the knowledge it

gained from the over thirty-three months this case had been on file when it issued its

opinion on Debtor’s motion to convert, not to mention the two-day trial on confirmation

of the UCC plan, and the countless other hearings in this case.

       As noted above, the Bankruptcy Court alternately held that a chapter 11 debtor

with a confirmed creditor plan loses the right to convert, even if he remained a debtor in

possession, because allowing a debtor to convert after confirmation of a plan would

“severely undermine the potent creditor threat of a competing plan and tilt the playing

field unfairly in the debtor’s favor,” 127 citing In re Pero Brothers Farms, Inc., 128 and In




       127
            Opinion on Conversion at 8, in Appellant’s App. at 161.
       128
            
91 B.R. 1000
, 1001 (Bankr. S.D. Fla. 1988) (confirming a creditor’s liquidating plan
and denying a debtor’s motion to convert the case to chapter 7 even though a motion to
reconsider the confirmation order was still pending; recognizing that allowing a debtor in
possession to convert a case would “deprive creditors of their statutory right under § 1121(c) to
file a plan”).
                                                    28
re West Pointe Ltd. Partnership, 129 in support of this so-called “confirmed creditor plan

exception” to conversion. 130 We agree that a chapter 11 debtor with a confirmed creditor

plan is less likely able to convince a court that conversion will “most inure to the benefit

of all parties,” 131 but believe that a confirmed creditor plan should be just one factor

bankruptcy courts look at to determine what will benefit all parties in interest.

       Finally, we reject Debtor’s argument that the Bankruptcy Court abused its

discretion on his motion to convert, by not reassessing the arguments Debtor previously

made as to his Sixth Amendment right to counsel for his criminal indictment. Debtor’s

arguments on the Sixth Amendment issue were decided by the Bankruptcy Court in a

thorough opinion rejecting his application to employ counsel with estate funds. 132 That

decision was not appealed and is final. Regardless, it was not an abuse of discretion to

reject these arguments in light of the other factors considered by the Bankruptcy Court in

this matter.

IV.    Conclusion

       For the foregoing reasons, we affirm the decision of the Bankruptcy Court.




       129
           
270 B.R. 481
, 484-85 (Bankr. E.D. Mo. 2001) (concluding that a court should
consider the interests of creditors when ruling on a postconfirmation motion to convert).
       130
           Opinion on Conversion at 7-8, in Appellant’s App. at 160-61.
       131

           Id. at 11, 
in Appellant’s App. at 164 (citing In re Schlehuber, 
489 B.R. 570
, 573 (8th
Cir. BAP 2013), aff’d 558 F. App’x 715 (8th Cir. 2014)).
       132
           Opinion on Employment at 7-10, in Appellant’s App. at 4319-22.
                                                   29