Filed: Feb. 03, 2021
Latest Update: Feb. 04, 2021
NOT FOR PUBLICATION FILED
FEB 3 2021
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. NV-19-1322-LBF
PETER CONTINI,
Debtor. Bk. No. 3:19-bk-50986-BTB
PETER CONTINI,
Appellant,
v. MEMORANDUM *
UNITED STATES TRUSTEE, RENO;
WILLIAM ALBERT VAN METER,
CHAPTER 13 TRUSTEE; RUSHMORE LOAN
MANAGEMENT SERVICES, LLC; CLEAR
RECON CORPORATION; U.S. BANK
N.A., TRUSTEE FOR THE RMAC TRUST SERIES
2016-CTT; U.S. BANK NATIONAL
ASSOCIATION; MERRICK BANK;
PREMIER BANKCARD, LLC;
QUANTUM3 GROUP LLC, AS AGENT FOR
GPCC I LLC; MIDLAND FUNDING LLC;
CAVALRY INVESTMENTS, LLC,
Appellees.
Appeal from the United States Bankruptcy Court
* This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
for the District of Nevada
Bruce T. Beesley, Bankruptcy Judge, Presiding
Before: LAFFERTY, BRAND, and FARIS, Bankruptcy Judges.
INTRODUCTION
Peter Contini (“Debtor”) appeals the bankruptcy court’s order
granting the chapter 13 1 trustee’s (“Trustee”) motion to dismiss his case for
failures to file schedules and a plan, turn over tax returns and financial
documentation, and appear at his § 341 meeting of creditors.
We AFFIRM.
FACTS 2
Debtor filed a chapter 13 petition on August 21, 2019. Schedules,
statements, and a plan were due by September 4, 2019. On that date,
Debtor filed a motion for a 14-day extension of time to file the required
documents. Although he served the motion on Trustee and the United
States Trustee as required by Rule 1007(c), he did not set the matter for
hearing, and the bankruptcy court never ruled on it. Debtor did not file the
1 Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal
Rules of Bankruptcy Procedure.
2 The Panel waived the requirement of Rule 8018(b) that Appellant file and serve
an appendix to the brief containing excerpts of the record. We therefore exercise our
discretion to take judicial notice of documents electronically filed in the bankruptcy
case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th
Cir. BAP 2003).
required documents by the proposed extended deadline, or at any time
thereafter.
On October 15, 2019, Trustee filed a motion under § 1307 to dismiss
Debtor’s case, citing Debtor’s failures to: (1) file a plan, schedules, and
statements; (2) provide tax returns required under § 1308; (3) provide
Trustee with requested financial documentation; and (4) appear at the first
meeting of creditors. Trustee served the motion on Debtor, along with a
notice setting the matter for hearing on November 14, 2019. Debtor did not
file an opposition, nor did he appear at the scheduled hearing. The
bankruptcy court thereafter entered an order dismissing the case
(“Dismissal Order”), and Debtor timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A). Subject to the discussion below, we have jurisdiction under
28 U.S.C. § 158.
ISSUES
Is this appeal moot?
Did the bankruptcy court abuse its discretion in dismissing Debtor’s
chapter 13 case?
STANDARD OF REVIEW
We review the bankruptcy court’s order dismissing a chapter 13
bankruptcy case for abuse of discretion. Ellsworth v. Lifescape Med. Assocs.,
3
P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP 2011). A bankruptcy
court abuses its discretion if it applies an incorrect legal standard,
misapplies the correct legal standard, or makes factual findings that are
illogical, implausible, or not supported by the record. United States v.
Hinkson,
585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
DISCUSSION
A. This appeal is not moot.
“An appeal is moot if it is impossible to fashion effective relief.”
Ederel Sport, Inc. v. Gotcha Int’l L.P. (In re Gotcha Int’l L.P.), 311 B.R. 250, 253-
54 (9th Cir. BAP 2004) (citing Church of Scientology of Cal. v. United States,
506 U.S. 9, 12 (1992); and Platinum Capital, Inc. v. Sylmar Plaza, L.P. (In re
Sylmar Plaza, L.P.),
314 F.3d 1070, 1074 (9th Cir. 2002)). The burden is on the
party asserting mootness to establish that there is no effective relief that the
court can grant.
Id. at 254 (citing Pintlar Corp. v. Fid. & Cas. Co. of N.Y. (In re
Pintlar Corp.),
124 F.3d 1310, 1312 (9th Cir. 1997)).
Trustee contends that this appeal is moot because § 521(i)(1) provides
that if the information required under subsection (a)(1) of that statute is not
filed within 45 days after the petition date, the case shall be automatically
dismissed effective on the 46th day. As such, he contends that even if this
Panel were to reverse the Dismissal Order, it would provide no relief to
Debtor because he failed to meet the 45-day deadline, and thus his case is
subject to automatic dismissal.
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Trustee acknowledges that in the Ninth Circuit, bankruptcy courts
retain discretion to waive the § 521(a)(1) filing requirements even after the
45-day filing deadline set forth in § 521(i)(1) has passed. Wirum v. Warren
(In re Warren), 568 F.3d 1113, 1117 (9th Cir. 2009). But Trustee argues that
the record in this case reflects no basis for the bankruptcy court to waive
the filing requirements. While true, it is at least possible (even if unlikely)
that if we found a basis to reverse the Dismissal Order, the bankruptcy
court could exercise its discretion to waive those requirements.
Accordingly, Trustee has not met his burden to show that we could not
grant effective relief.
B. The bankruptcy court did not abuse its discretion in granting
Trustee’s motion to dismiss.
Section 1307(c) authorizes the bankruptcy court to dismiss a chapter
13 case for cause, including: (1) unreasonable delay by the debtor that is
prejudicial to creditors; (2) failure timely to file a plan; and (3) failure to
commence timely plan payments. Additionally, § 521(e)(2) permits
dismissal of a case if a debtor fails to provide the trustee with certain tax
returns within seven days of the § 341 hearing. Failure to attend the
§ 341(a) meeting of creditors may also be cause for dismissal. Sill v. Glaze
(In re Sill), BAP Nos. CC–17–1300–SKuL and CC–17–1312–SKuL, 2018 WL
2728836, at *4 (9th Cir. BAP June 8, 2018); Oliver v. United States Tr. (In re
Oliver), BAP No. CC–11–1482–PaKiRn,
2012 WL 5232201, at *4 (9th Cir.
BAP Oct. 23, 2012). Given Debtor’s multiple failures to comply with the
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requirements of the Bankruptcy Code and his failure to respond to
Trustee’s motion to dismiss or to appear at the hearing thereon, the
bankruptcy court did not abuse its discretion in dismissing his case.
Debtor argues that the bankruptcy court erred in dismissing his case
because it did not rule on his extension motion before doing so. He also
argues that dismissal was improper because the motion to dismiss was
“vague” as to what documents were requested and when. He states that he
was unable to present his arguments to the bankruptcy court because his
extension motion was never heard, so he was deprived of due process. And
in his reply brief, he contends that no hearing was held on the motion to
dismiss. 3
In Debtor’s reply brief, he completely misconstrues the filing
requirements. He notes that § 1321 contains no time limit for filing a plan.
But Rule 3015 (which was referenced in the Notice of Incomplete And/Or
Deficient Filing served on Debtor on August 23, 2019) requires the plan to
be filed within 14 days of the petition. He also misconstrues § 1326, which
requires plan payments to commence not later than 30 days after the date
of filing the plan or the order for relief, whichever is earlier. Debtor
contends that neither the filing of a plan nor the order for relief occurred in
his case. But the filing of his voluntary chapter 13 petition constituted an
order for relief under that chapter. § 301.
3The record is unclear on this point. No hearing minutes or transcript appear on
the bankruptcy court docket, but the Dismissal Order references the hearing date and
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Next, Debtor states that his case should not have been dismissed for
failure to provide Trustee with his federal income tax returns because he
did not file any.
Debtor’s arguments are unavailing. He made none of these
arguments to the bankruptcy court, and we are not required to consider
them. See O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955,
957 (9th Cir. 1989) (Panel generally declines to consider arguments not
raised before the bankruptcy court). But even if we consider those
arguments, they do not support reversal of the Dismissal Order.
First, on this record, the fact that the bankruptcy court did not rule on
Debtor’s extension motion does not constitute grounds for reversal of the
Dismissal Order. Second, Debtor does not contend that he failed to receive
notice of the Trustee’s motion to dismiss; accordingly, he was not denied
due process. He could have filed an opposition to Trustee’s motion or, at a
minimum, appeared at the scheduled hearing to explain to the court why
he could not timely comply with the filing and other requirements. He did
not do so. Accordingly, Debtor has established no basis for reversing the
Dismissal Order.
CONCLUSION
For these reasons, we AFFIRM.
states that the court heard arguments and comments.
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