David Crow v. Edward Maney

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 2020
• Docket: 20-60012
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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