Anibal Silva v. Rod Danielson

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2022
• Docket: 21-55873
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUN 29 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: ANIBAL SILVA, No. 21-55873

Debtor, D.C. No. 5:21-cv-00265-JWH ______________________________

ANIBAL SILVA, MEMORANDUM*

Appellant,

v.

ROD DANIELSON; MIDLAND MORTGAGE; MIDFIRST BANK,

Appellees.

Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding

Submitted June 15, 2022**

Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.

Chapter 13 debtor Anibal Silva appeals pro se from the district court’s

judgment affirming the bankruptcy court’s order dismissing Silva’s bankruptcy

* 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). action. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a

district court’s decision on appeal from a bankruptcy court and apply the same

standard of review the district court applied to the bankruptcy court’s decision.

Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162,

1166 (9th Cir. 1990). We affirm.

The bankruptcy court properly dismissed Silva’s bankruptcy action because

Silva committed a material default with respect to a term of the confirmed Chapter

13 plan by failing to make contractual post-petition payments to creditors. See 11

U.S.C. § 1307(c) (“[T]he court may . . . dismiss a case under this chapter,

whichever is in the best interests of creditors and the estate, for cause, including—

. . . (6) material default by the debtor with respect to a term of a confirmed

plan[.]”); Derham-Burk v. Mrdutt (In re Mrdutt), 600 B.R. 72, 81 (9th Cir. BAP

2019) (holding that failing to perform a promise to maintain post-petition payments

to a mortgage creditor is a material default of the bankruptcy plan, subjecting the

case to dismissal under § 1307(c)(6)).

The district court did not abuse its discretion by denying Silva’s motion for a

stay because Silva failed to move first in the bankruptcy court or show that doing

so was impracticable and because he failed to include an affidavit or serve the

motion on all parties. See Fed. R. Bankr. P. 8007(a) & (b) (establishing

requirements to move for a stay of a bankruptcy court order pending appeal);

2 21-55873 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949-50 (9th Cir.

2006) (setting forth standard of review).

The district court did not abuse its discretion by denying Silva’s motion for

mandatory withdrawal of the reference of the pending bankruptcy proceedings

because doing so after an appeal has been taken would jeopardize the uniformity of

the bankruptcy’s administration and encourage forum shopping. See Security

Farms v. Sec. Farms v. Intl. Broth. of Teamsters, Chauffers, Warehousemen &

Helpers, 124 F.3d 999, 1008 (9th Cir. 1997) (setting forth standard of review and

grounds for mandatory withdrawal of the reference).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Silva’s motion requesting this court to take judicial notice of the documents

he attaches (Docket Entry No. 23) and appellees’ motions to strike portions of the

documents Silva attaches (Docket Entry Nos. 28 & 29) are denied as unnecessary.

Silva’s motion requesting a stay of the appellate proceedings (Docket Entry No.

34) is denied as moot.

AFFIRMED.

3 21-55873