FILED JUN 24 2026
NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. NC-25-1162-NBC AMIT KHANNA, Debtor. Bk. No. 23-41124
AMIT KHANNA, Appellant, v. MEMORANDUM* U.S. BANK NATIONAL ASSOCIATION, Appellee.
Appeal from the United States Bankruptcy Court for the Northern District of California Charles D. Novack, Bankruptcy Judge, Presiding
Before: NIEMANN, BRAND, and CORBIT, Bankruptcy Judges.
INTRODUCTION
Debtor Amit Khanna (“Debtor”) confirmed a chapter 131 plan that
incorporated the contractual payment terms for a HELOC loan from
* 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. 1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of secured creditor U.S. Bank National Association (“Lender”). Roughly ten
months after plan confirmation, Lender issued a notice of increase in the
monthly payment based on the contractual terms of the loan. Debtor,
acting in pro se, filed an objection to the notice and, shortly thereafter, a
motion for summary judgment on the objection.
After several hearings and briefs by the parties, the bankruptcy court
entered an order denying Debtor’s motion and further indicating its intent,
pursuant to Civil Rule 56(f) and Rule 7056, to enter summary judgment in
Lender’s favor. Nineteen days later, after responsive briefing and a
hearing, the bankruptcy court entered an order granting summary
judgment in favor of Lender. The second order is the subject of this appeal.
Debtor argues summary judgment in Lender’s favor was procedurally
improper and precluded by genuine issues of material fact. We disagree
and AFFIRM.
FACTS
A. The Loan and Debtor’s Confirmed Plan
In February 2015, Debtor opened a home equity line of credit in the
amount of $100,000 with Lender (the “HELOC”). The HELOC is secured by
a condominium, which is not Debtor’s residence but an investment
property (the “Property”). The HELOC has an adjustable interest rate and a
10-year draw period (the “Draw Period”), followed by a 20-year repayment
Civil Procedure.
2 period (the “Repayment Period”). During the Draw Period, the required
minimum monthly payment is only the accrued interest. During the
Repayment Period, the HELOC calls for monthly payments of “accrued
finance charges plus 0.41557% of the principal loan balance on the last day
of the Draw Period.” Debtor was current on his payments on the HELOC
until the postpetition increase at issue here.
Debtor filed his bankruptcy petition in September 2023. Debtor’s
chapter 13 plan was confirmed in April 2024 (the “Plan”). The Property is
one of three real properties identified in the Plan. The HELOC is listed in
Class 8 of the Plan, which is comprised of “secured claims on which Debtor
was not in default on the petition date [and as to which] Debtor does not
intend to modify the claimant’s rights.” The Plan lists the “contractual
payment” on the HELOC as $779.00 and provides as follows for the
treatment of the claim:
Claimant will retain its lien until the underlying debt is paid in full under nonbankruptcy law. The Debtor or a third party shall make all regularly scheduled contractual payments coming due postpetition.
B. Notices of Mortgage Payment Change and Objections
In February 2025, Lender filed and served a Notice of Mortgage
Payment Change using Official Form 410S1 (the “Notice”).2 The Notice
2 The notices and Debtor’s subsequent objections were added to the record in Lender’s supplemental excerpts of record that was filed with Lender’s responsive brief. Debtor filed a motion to strike Lender’s supplemental excerpts of record as untimely and not relevant to this appeal. The supplemental excerpts are neither. Many of the 3 provided the payment owing on the HELOC would change from $699.94 to
$1,049.54 effective March 2025.3 An addendum attached to the Notice noted
future postpetition payments will vary based on the account balance and
the finance charges accrued during each billing cycle.
Less than two weeks after the Notice was filed and served, Debtor
filed an objection to the Notice (“Objection #1”). In Objection #1, Debtor
argued the “sudden and unpredictable increase violates the feasibility
requirements” of the Plan. Objection #1 also asserted the payment terms of
the HELOC are “subject to modification under . . . § 1322(b)(2) and (c)(2).”
Invoking the bankruptcy court’s equitable powers under § 105, Objection
#1 requested a fixed principal-only payment of $450 to $500 per month for
the remainder of the Plan’s 60-month term. Alternatively, Objection #1
proposed a $70,000 reduction in the principal balance on the HELOC to
approximate the amount paid by Debtor through his interest-only
payments to date.
Lender filed a response to Objection #1, noting the Plan provides the
HELOC will not be modified and all regularly scheduled contractual
payments will be made directly. Lender also argued that, contrary to
documents submitted by Debtor in his own excerpts of record reference the documents included in Lender’s supplemental excerpts of record. The motion to strike is, therefore, denied. 3 Lender was not required to provide such notices to Debtor. Notices are only required, as noted on the official form used by Lender, for loans secured by a debtor’s principal residence, which the HELOC is not. 4 Debtor’s assertions, the terms of the HELOC could not be modified because
(1) the HELOC had not matured, and (2) the scheduled value of the
Property far exceeded the scheduled loans secured by the Property.
Two weeks after filing his reply in support of Objection #1, Debtor
filed and noticed for hearing a motion for summary judgment on Objection
#1 (the “MSJ”). The bankruptcy court set Objection #1 for hearing (the
“Initial Hearing”).
Prior to the Initial Hearing, Lender issued a second Notice of
Mortgage Payment Change. That notice provided the payment owing on
the HELOC would change from $1,049.54 to $1,117.34 effective April 2025.
Debtor responded with another objection (“Objection #2”). Three more
notices followed from Lender for the HELOC payments owing for May
through July 2025. Debtor responded with an objection to each notice
(collectively with Objections #1-2, the “Objections”).
C. Initial Hearing on Objections and Change of Debtor’s Authorities
At the Initial Hearing on May 23, 2025, the bankruptcy court started
by noting that while the hearing was scheduled to address Objection #1,
additional Objections had been filed in the meantime, and any ruling
would “probably apply to the other [O]bjections” as well. The court asked
Debtor to look at the bigger picture and describe what he was hoping to
accomplish through the Objections. The court noted that if Debtor wanted
to modify Lender’s payment under the confirmed Plan, Debtor had to file a
5 motion to modify the Plan and the Objections were not the proper vehicle
to seek such relief.
The bankruptcy court then indicated the authorities upon which the
MSJ relied—§ 1322(c)(2), Rule 3002.1, and Mission Hen LLC v. Lee (In re Lee),
655 B.R. 340 (9th Cir. BAP 2023)—did not appear to apply or support the
relief requested. Debtor disagreed and insisted that the upcoming hearing
on his MSJ would address the “substance” of the dispute raised by the
Objections. The MSJ hearing was continued to July 16.
Four days after the Initial Hearing, Debtor filed a document
captioned “Debtor’s Notice of Procedural Clarification . . . and Preservation
of Legal Theories.” That notice asserted it applied to all Objections filed to
date and to the MSJ. The core legal theory was said to remain unchanged:
Lender’s payment change “conflicts with the terms of the confirmed [Plan]
and is procedurally ineffective.” However, the statutory and procedural
support of the legal theory was purportedly revised to be § 1327(a)
(holding a confirmed plan is binding on all parties); §1329(a) (providing
any material post-confirmation change in payment obligations requires a
plan modification4); § 1322(b)(2) and § 506(a) (which govern the treatment
of secured claims not secured by debtor’s principal residence); and Rule
4 Debtor appeared, however, to incorrectly interpret § 1329(a) to mean that Lender, not Debtor, had to seek a modification of the Plan. 6 9013 (which Debtor incorrectly described as “governing the procedural
vehicle for seeking relief”5).
D. Denial of Debtor’s MSJ
Lender timely filed its opposition to the MSJ, a declaration by
Lender’s custodian of records, and a statement of undisputed and disputed
material facts. The supporting declaration attached a copy of the HELOC
agreement executed by Debtor. The opposition asserted (1) the HELOC did
not mature during term of the Plan, (2) the bankruptcy court cannot use
§ 105 to change the contractual terms of the HELOC on Debtor’s demand,
and (3) the underlying Objections were not procedurally proper. Lender
noted that Debtor had not objected to Lender’s proof of claim and, if
Debtor tried to do so now, that would create a factual dispute precluding
summary judgment. The principal material dispute noted by Lender was
Debtor’s description of the transition of the HELOC from the Draw Period
to the Repayment Period as a “maturity” of the HELOC.
Debtor timely filed a reply in support of the MSJ. With the reply,
Debtor also filed a motion to strike the declaration by Lender’s custodian of
records. The reply clarified that “Debtor does not contend that the note
matured during the [P]lan.” Instead, Debtor’s argument for summary
judgment rested on the proposition that the “[P]lan’s fixed payment
schedule—not the contract’s internal transition to amortization—governs
The bankruptcy court indicated at the Initial Hearing that the Objections and 5
MSJ would be treated as contested matters under Rule 9014. 7 during the [P]lan term.” In other words, Debtor asked that the $779
monthly payment amount identified in the Plan be determined to be the
fixed payment amount for the entire Plan term. Debtor requested, in the
alternative, the modification of the “fixed payment schedule” pursuant to
the court’s general powers of equity under § 105. Debtor asked that the
monthly payment to Lender be set at $450 to $500 or all monthly payments
be directed to be applied to principal only. 6 Significantly, the reply states:
Every “dispute” raised by [Lender] is either a pure legal issue, a conclusory assertion unsupported by admissible evidence, or a minor procedural quibble. No triable issue of material fact exists.
(emphasis in original).
At the MSJ hearing, Debtor argued the HELOC agreement attached
to the declaration in support of Lender’s opposition was not admissible
evidence, Lender was bound by the $779 per month payment specified in
the Plan, and no disputed material facts existed to preclude summary
judgment. Lender rested on its papers. The bankruptcy court indicated it
did not need to reach the motion to strike to give its ruling. The bankruptcy
court found that the MSJ presented the sole legal question of whether the
transition from the interest-only Draw Period to the principal plus interest
Repayment Period during the Plan constituted a maturity event under
6 Debtor’s prior filings in the Objections and the MSJ asked for the application of payments to principal only in addition to the reduction of the monthly payments to $450 to $500. 8 § 1322(c)(2). The parties did not dispute that the Property securing the
HELOC at issue was not Debtor’s principal residence. Therefore, the court
held that § 1322(c)(2), which only applies to a debtor’s principal residence,
did not apply as a matter of law, and the MSJ was denied. The court
acknowledged Debtor improperly tried to change his argument in his reply
to rely on § 1322(b), but the court would not “giv[e] an advisory opinion
[on] what you can or can’t do under 1322(b).”
The bankruptcy court then advised Debtor of its intent, pursuant to
Civil Rule 56(f), to grant summary judgment for Lender as the nonmovant
because (1) § 1322(c) does not apply, and (2) Debtor’s confirmed Plan
provides Debtor will pay the underlying debt in full under the applicable
nonbankruptcy law. The court found that “what [Lender] has been doing
has been modifying the monthly payment pursuant to the terms of the
HELOC.” The court entered an order setting the matter for hearing on
August 1, with any responsive briefs from the parties due by July 25 (the
“Civil Rule 56(f) Order”).
E. Summary Judgment in Lender’s Favor
On July 18, Debtor filed a motion requesting an extension of time to
August 15 to respond to the Civil Rule 56(f) Order so Debtor could
“present legal and factual matters material to the proposed judgment.” The
bankruptcy court denied the extension on July 22, finding the “relevant
and undisputed facts were presented by Debtor in his [MSJ] and the
application of those facts to the legal issues is straightforward.”
9 The next day, Debtor filed a motion to compel discovery from Lender
(the “Discovery Motion”). The Discovery Motion requested amortization
schedules for February through July 2025, internal payment calculation
worksheets and servicing communications, and “authentication and
foundation records for all relied-upon documents.” Debtor also requested
the bankruptcy court grant the Discovery Motion on an expedited basis.
On July 24, the bankruptcy court entered an order denying the request for
informal or expedited consideration of the Discovery Motion.
On July 25, Debtor timely filed his response to the Civil Rule 56(f)
Order.7 Lender did not file a response. Debtor’s response identified three
alleged “pure legal questions” that “requir[ed] full adjudication rather than
summary disposition:
(1) whether [§] 1327(a) binds creditors to confirmed payment terms; (2) whether the § 1322(b)(2) anti-modification exception applies to investment-property HELOCs; and (3) whether the [c]ourt may lawfully decide on unbriefed ‘non- bankruptcy law’ theories without notice.”
The response incorporated by reference all prior filings related to the
Objections and the MSJ. The response argued “heightened scrutiny” of the
loan records was required because (1) of alleged penalties levied against
7 Also on July 25, 2025, the bankruptcy court held a hearing on Objections #2-4. The court overruled each of these Objections and entered an order so providing. That order incorporated the reasoning stated on the record at the July 16 hearing on the MSJ and the Civil Rule 56(f) Order. 10 Lender in an unrelated matter for allegedly inaccurate proofs of claim, and
(2) Debtor’s renewed objection to the declaration in support of Lender’s
opposition to the MSJ.
At the hearing on the Civil Rule 56(f) Order, the bankruptcy court
noted that all parties were bound by the terms of the confirmed Plan and
Debtor had not filed a motion to modify the Plan. The court ruled that
summary judgment in Lender’s favor was warranted under the undisputed
facts. On August 5, 2025, the bankruptcy court entered its order granting
summary judgment in favor of Lender (the “SJ Order”). Debtor timely
appealed the SJ Order.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A) and (O). We have jurisdiction under 28 U.S.C. § 158.
ISSUE
Did the bankruptcy court err in granting summary judgment in favor
of Lender?
STANDARDS OF REVIEW
We review de novo the bankruptcy court’s summary judgment
ruling. Lovering Tubbs Trust v. Hoffman (In re O’Gorman), 115 F.4th 1047,
1054 (9th Cir. 2024). “De novo review requires that we consider a matter
anew, as if no decision had been made previously.” Francis v. Wallace (In re
Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).
11 “The denial of a request for a continuance of summary judgment
pending further discovery is reviewed for an abuse of discretion. A . . .
court abuses its discretion only if the party requesting a continuance can
show that allowing additional discovery would have precluded summary
judgment.” Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1076 (9th Cir.
2019); accord O’Gorman, 115 F.4th 1047 (reviewing for abuse of discretion
the denial of a Civil Rule 56(d) request to defer a summary judgment ruling
to complete discovery).
Summary judgment may be affirmed on any ground supported by
the record. Thrifty Oil Co. v. Bank of Am. Nat’l Trust, 322 F.3d 1039, 1046 (9th
Cir. 2003).
DISCUSSION
The SJ Order was issued pursuant to Civil Rule 56(f)(1), which
provides:
Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may . . . grant summary judgment for a nonmovant[.]
Debtor raises three challenges to the SJ Order—two procedural and one
substantive. First, Debtor asserts inadequate time was given for Debtor to
respond to the Civil Rule 56(f) Order. Second, Debtor alleges the
bankruptcy court erred in denying time for additional discovery under
Civil Rule 56(d). Finally, Debtor asserts a genuine issue of material fact—
namely the calculation of the increased payments owing during the
12 Repayment Period—precluded summary judgment. We address each
assertion separately.
A. Reasonable Time to Respond under Civil Rule 56(f)
Debtor asserts the nine days given to file his response to the Civil
Rule 56(f) Order was inadequate. Debtor was, in fact, given both the
opportunity to submit a further written response and the opportunity to
present oral argument to the bankruptcy court at a separate hearing. Many
courts have held that no additional time is required under the facts
presented here. “While notice of a court’s intent to grant summary
judgment pursuant to [Civil Rule 56(f)] is typically required, an exception
to this rule applies when there is a fully developed record, a lack of
prejudice to the parties, and a decision on a purely legal issue.” Geraczynski
v. Nat'l R.R. Passenger Corp., Civil Action No. 11-6385 (SRC), 2015 WL
4623466, at *7 (D.N.J. July 31, 2015) (citation omitted).8 Given that the legal
bases upon which the bankruptcy court granted the SJ Order were the
exact same legal bases upon which the court denied Debtor’s MSJ, the
8 See also, Nicholson v. Securitas Sec. Servs. USA, Inc., 830 F.3d 186, 188 (5th Cir. 2016) (holding the notice requirement of Civil Rule 56(f)(1) is satisfied where the issue upon which the court grants summary judgment was fully briefed by the parties); Obsession Sports Bar & Grill, Inc. v. City of Rochester, 235 F.Supp.3d 461, 466 (W.D.N.Y. 2017) (same), aff’d, 706 Fed.Appx. 52 (2nd Cir. 2017); Gottlieb v. Rose (In re Khalil), No. 1:13-ap-01234-MT, 2014 Bankr. LEXIS 1976, at *31-32 (Bankr. C.D. Cal. May 1, 2014) (granting partial summary judgment for nonmovant concurrent with denial for summary judgment for movant). 13 additional time allowed for Debtor’s response was more than
accommodating under the circumstances.
Debtor’s response to the Civil Rule 56(f) Order argued there were
three “pure legal issues” requiring further consideration. Two of those
issues were legal rulings the bankruptcy court made as to the MSJ—
(1) that the parties were bound by the Plan, and (2) that the
“nonbankruptcy” contract terms specified in the Plan determined Lender’s
treatment. The third issue was an attempt by Debtor to reframe the MSJ
that had already been rebuffed by the bankruptcy court in the course of its
consideration of the MSJ—alleging that Lender’s treatment under the Plan
could, through the Objections, be modified under § 1322(b). 9 Section
1322(b) was neither a basis for the relief sought in the MSJ nor a basis for
the bankruptcy court’s noticed intended ruling as set forth in the Civil Rule
56(f) Order. Therefore, any research or briefing as to § 1322(b) would have
been irrelevant.
The issues, even as identified by Debtor’s response, had been fully
briefed by the parties. Debtor did not, at any point, contest the facts upon
which the SJ Order rests: (1) the Property was not Debtor’s primary
residence; (2) the HELOC had not matured; and, most importantly
(3) Debtor had not sought to amend the Plan. The bankruptcy court
9 The bankruptcy court held that the MSJ was limited to the legal theories argued therein, which were § 1322(c) and § 105(a). “The [bankruptcy] court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 14 correctly applied the notice and response opportunity provisions for Civil
Rule 56(f), and Debtor’s challenge asserting otherwise is without merit.
B. Discovery Allegedly Requested under Civil Rule 56(d)
Next, Debtor alleges his Discovery Motion was a wrongfully denied
request under Civil Rule 56(d). The Discovery Motion did not cite Civil
Rule 56(d). Instead, the Discovery Motion relied solely on Rule 7037.
Debtor’s declaration filed in support of the Discovery Motion, however,
did reference Civil Rule 56(d). Civil Rule 56(d) provides:
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.
On its face, this provision does not apply to the Discovery Motion. Debtor
was not the nonmovant under the Civil Rule 56(f) Order. Further, the
“facts” Debtor sought through the Discovery Motion were simply the
calculations of the monthly payments due under the terms of the HELOC
agreement. Calculations pursuant to the terms of a contract are not
“unavailable” facts.
Beyond these fundamental issues, however, the bankruptcy court
found that Debtor did not meet his burden of proof to warrant a delay of
the court’s consideration of summary judgment under Civil Rule § 56(f) to
15 allow discovery. To prevail on a request for additional discovery under
Civil Rule 56(d), a party must show that: “(1) it has set forth in affidavit
form the specific facts it hopes to elicit from further discovery; (2) the facts
sought exist; and (3) the sought-after facts are essential to oppose summary
judgment.” Midbrook Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms,
Inc., 874 F.3d 604, 619-20 (9th Cir. 2017) (citation omitted). The bankruptcy
court found that the Discovery Motion was “fatally defective” because it
relied upon Rule 7037, which, by its terms, did not apply. Beyond this
noted deficiency, however, the bankruptcy court went to great lengths in
the order denying the request for informal or expedited consideration of
the Discovery Motion to explain why “the information sought is not
necessary to respond to the court’s intent to enter summary judgment on
behalf of [Lender].” That order notes:
As noted at the July 16 hearing, and again in the Order denying Debtor’s motion to extend [the deadline for Debtor’s responsive brief], all the facts the court relied on when it indicated its intent to grant summary judgment in [Lender’s] favor are undisputed facts, either conceded by Debtor in the record or in his [MSJ]. Debtor’s disagreement with the court’s application of those facts to the law does not make them disputed, and the inclusion of new “facts” about how [Lender] determines the monthly payment amount will not change the analysis.
The bankruptcy court correctly considered and applied the required
elements for relief under Civil Rule 56(d). The court did not cite Civil Rule
56(d) in the order denying expedited consideration of the Discovery
16 Motion as Civil Rule 56(d) was not raised as a basis for the Discovery
Motion. However, even if Civil Rule 56(d) had been cited in the Discovery
Motion, the record is clear that the bankruptcy court found Debtor had not
met the standard required to warrant relief under Civil Rule 56(d). No
procedural error has been shown in the bankruptcy court’s denial of
Debtor’s Discovery Motion.
C. Issues of Material Fact
Finally, Debtor alleges genuine issues of material fact exist that
preclude entry of the SJ Order. 10 Summary judgment, whether granted
under Civil Rule 56(f) or otherwise, requires two things: (1) the absence of
any genuine issue of material fact; and (2) that a party is entitled to
judgment as a matter of law. Wank v. Gordon (In re Wank), 505 B.R. 878, 886
(9th Cir. BAP 2014) (citing Civil Rule 56(a)). A dispute is genuine if there is
sufficient evidence for a reasonable fact finder to hold in favor of the party
against whom summary judgment is sought, and a fact is “material” if it
might affect the outcome of the case. Far Out Prods., Inc. v. Oskar, 247 F.3d
986, 992 (9th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986)). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported [basis]
10 In his MSJ, Debtor repeatedly insisted that no genuine issue of material fact existed, under the same issues presented, until the bankruptcy court ruled against him on the MSJ.
17 for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original).
The “material facts” asserted by Debtor are the calculations of the
payments due under the terms of the HELOC. However, as noted above in
the excerpt from the bankruptcy court’s order denying the request for
informal or expedited consideration of the Discovery Motion, the
calculation of the monthly payment would not have changed the
bankruptcy court’s analysis. Therefore, any such calculation—even if
disputed by Debtor—would not have been “material” to the bankruptcy
court’s consideration of summary judgment in favor of Lender. See Kurtin
v. Ehrenberg (In re Elieff), 637 B.R. 612 (9th Cir. BAP 2022) (holding valuation
evidence was not “material” because it was irrelevant to the bankruptcy
court’s summary judgment ruling). Further, “[a] party opposing summary
judgment may not simply question the credibility of the [other party] to
foreclose summary judgment.” Far Out Prods., 247 F.3d at 997.
The bankruptcy court found, in denying the MSJ, that (1) the terms of
the Plan bound the parties, (2) Debtor had not sought to amend the Plan,
and (3) by the express terms of the Plan, Lender was to be “paid in full
under nonbankruptcy law.” Thus, the Plan did not, contrary to Debtor’s
assertions, set a fixed payment scheduled of $779 per month to Lender.
Instead, the Plan left the calculation of the monthly payment due under the
Plan to the terms of the HELOC agreement, which, at the time the Plan was
18 filed, was $779.11 Any dispute as to how any particular monthly payment is
calculated under the terms of the HELOC agreement is irrelevant to the
bankruptcy court’s finding that the HELOC agreement controlled such
calculations. The bankruptcy court did not need to reach such calculations
to find summary judgment in Lender’s favor was appropriate.
The bankruptcy court also found, in denying the MSJ, that the
Property was not Debtor’s primary residence and the HELOC had not
matured. Those findings precluded the application of § 1322(c), which was
the asserted basis for the MSJ. However, this finding by the bankruptcy
court was really secondary to its finding that the terms of the Plan, which
called for payments to Lender under the terms of the HELOC agreement,
controlled. The missing erroneous premise in the MSJ is that the Objections
could modify the Plan. Such relief, if available under applicable
bankruptcy law, requires a separate motion by Debtor under § 1329. The
bankruptcy court’s ruling that § 1322(c) did not apply simply confirmed
such relief was not available.
Debtor has failed to identify any genuine issue of material fact that
would have precluded the SJ Order.
CONCLUSION
Based on the foregoing, we AFFIRM.
11 While these findings are not controversial, as a matter of fact or law, Debtor is also bound by them as he did not appeal the order denying the MSJ. 19