Filed: Nov. 23, 2020
Latest Update: Dec. 05, 2020
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: DAVID ANDREW CROW; RENEE No. 20-60012
TOINETTE CROW,
BAP No. 18-1323
Debtors,
------------------------------ MEMORANDUM*
DAVID ANDREW CROW; RENEE
TOINETTE CROW,
Appellants,
v.
EDWARD JOHN MANEY, Chapter 13
Trustee,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Spraker, Faris, and Brand, Bankruptcy Judges, Presiding
Submitted November 16, 2020**
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
David Crow and Renee Crow (the “Crows”) appeal from the Bankruptcy
Appellate Panel for the Ninth Circuit’s (“BAP”) decision affirming the bankruptcy
court’s Chapter 13 confirmation order. We have jurisdiction pursuant to 28 U.S.C.
§ 158(d). We review the BAP’s decision de novo. In re Scovis, 249 F.3d 975, 980
(9th Cir. 2001). We affirm.
1. The Crows argue that the bankruptcy court erroneously struck a
footnote in their proposed order confirming their Chapter 13 plan, which asserted
that the Trustee unilaterally modifying their Chapter 13 plan’s monthly payments
would violate the Thirteenth Amendment of the United States Constitution and
amount to involuntary servitude. But the Crows did not need to preserve that
Thirteenth Amendment argument in a footnote because the Crows may still raise that
argument if the Trustee attempts to modify their Chapter 13 plan’s monthly
payments in the future. See 11 U.S.C. § 1329(b)(2) (providing a debtor with a
hearing if a trustee seeks to modify the debtor’s Chapter 13 plan). The bankruptcy
court had broad authority to strike the Crows’ unnecessary footnote. See 11 U.S.C.
§ 105(a) (stating that a bankruptcy court may issue any order necessary to carry out
the Bankruptcy Code and no provision “shall be construed to preclude the court
from, sua sponte, taking any action” necessary to implement court orders).
2. The Crows argue that the bankruptcy court denied them due process
because it struck their footnote without providing notice or a hearing. The Ninth
2
Circuit rejects due process claims when the alleged absence of due process was
harmless. See, e.g., In re Rosson, 545 F.3d 764, 776–77 (9th Cir. 2008); In re City
Equities Anaheim, Ltd.,
22 F.3d 954, 959–60 (9th Cir. 1994). Because the Crows
did not need to preserve their Thirteenth Amendment argument in a footnote, the
Crows did not suffer any harm when the bankruptcy court struck that footnote.
Because the Crows did not suffer any harm, their due process argument fails.
3. Finally, the Crows point out that the bankruptcy court’s confirmation
order required them to provide federal and state income tax returns to “assist the
Trustee in determining any change in [the Crows’] annual disposable income.” The
Crows contend that requirement cannot be squared with In re Anderson, 21 F.3d
355, 358 (9th Cir. 1994) (stating that a trustee may not demand authority to
unilaterally modify a debtor’s Chapter 13 plan as a condition for confirmation of the
plan). But the Crows failed to properly raise the Anderson argument in the
bankruptcy court. This Court “will not take up an issue not properly raised below
unless necessary to prevent manifest injustice.” L.A. News Serv. v. Reuters
Television Int’l, Ltd.,
149 F.3d 987, 996 (9th Cir. 1998) (citation omitted). The
Crows fail to show any manifest injustice if we decline to consider the Anderson
argument. Accordingly, we decline to consider that argument.
AFFIRMED
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