In re: Conchita C. Ang

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: August 10, 2017
• Docket: CC-16-1377-LTaKu
• Status: Unpublished

Opinion

FILED AUG 10 2017 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT 4 5 In re: ) BAP No. CC-16-1377-LTaKu ) 6 CONCHITA C. ANG, ) Bk. No. 6:16-bk-16362-MH ) 7 Debtor. ) ______________________________) 8 ) CONCHITA C. ANG, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M* 11 ) PETER CHRISTOPHER ANDERSON, ) 12 U.S. Trustee; ROD DANIELSON, ) Esquire, Chapter 13 Trustee; ) 13 WELLS FARGO BANK, N.A., ) ) 14 Appellees. ) ______________________________) 15 Submitted Without Argument on July 27, 2017 16 Filed - August 10, 2017 17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Mark D. Houle, Bankruptcy Judge, Presiding _________________________ 20 Appearances: Conchita C. Ang, Appellant, pro se on brief; 21 Ramona D. Elliott, P. Matthew Sutko, John Postulka, Peter C. Anderson and Nancy S. 22 Goldenberg on brief for Appellee Peter C. Anderson, U.S. Trustee; Megan E. Lees of Aldridge 23 Pite, LLP on brief for Appellee Wells Fargo Bank, N.A.; no appearance by Appellee Rod Danielson, 24 Chapter 13 Trustee. _________________________ 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8024-1. 1 Before: LAFFERTY, TAYLOR, and KURTZ, Bankruptcy Judges. 2 3 INTRODUCTION 4 Debtor Conchita C. Ang appeals the bankruptcy court’s 5 dismissal of her chapter 131 case pursuant to § 1307(c) as a bad 6 faith filing. Because Debtor has not demonstrated that the 7 bankruptcy court abused its discretion in dismissing her case, 8 we AFFIRM. 9 FACTS 10 Debtor filed a skeletal chapter 13 petition and list of 11 creditors on July 18, 2016. Schedules, a plan, and other 12 initial filings were due August 1, 2016. Debtor requested an 13 extension of time to file those documents, which the bankruptcy 14 court denied. Debtor timely filed the required documents on 15 August 1, 2016. On her schedules, Debtor listed Wells Fargo 16 Home Mortgage and Bayview Loan Servicing as her only creditors, 17 and she identified them as nonpriority unsecured creditors with 18 disputed claims. Schedules I and J showed that Debtor had 19 negative disposable income, while the proposed plan called for 20 payments of $99 per month for 60 months. 21 This case was Debtor’s eighth bankruptcy filing since 22 2009.2 Five of the previous seven cases were dismissed for 23 failure to file initial documents, one was dismissed for failure 24 to appear at the 341(a) meeting, and one was dismissed under 25 1 26 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 27 2 Debtor also filed a chapter 7 case in 1992; documents for 28 that case are not available electronically.

-2- 1 § 109(g). The following chart details Debtor’s prior cases: 2 Filing Case No. Reason for Date of 3 date dismissal dismissal 10/7/2009 09-33860-SB (13) failure to file 10/23/2009 4 documents timely 5 11/4/2009 09-36630-SB (13) failure to file 11/30/2009 6 documents timely

7 1/5/2010 10-10206-PC (13) failure to file 1/27/2010 documents timely 8 3/5/2010 10-16188-EC (7) failure to appear 5/20/2010 at 341(a) meeting 9 12/14/2010 10-50038-CB (13) failure to file 1/6/2011 10 documents timely 11 12/14/2011 11-47560-MJ (13) failure to file 1/5/2012 documents timely 12 8/8/2012 12-28439-MH (13) multiple filings 10/16/2012 13 (§ 109(g) bar)

14 In view of this history, Appellee Peter C. Anderson, United 15 States Trustee (“UST”) filed a motion to dismiss Debtor’s case 16 as a bad faith filing and requested the bankruptcy court impose 17 a bar to refiling of up to two years. In support of his motion, 18 the UST cited Debtor’s numerous unprosecuted prior filings that 19 he asserted were designed to delay or frustrate creditors’ state 20 law remedies. 21 In response, Debtor asserted she did not intend to file her 22 latest case in bad faith and certainly “never intended to 23 deceive, mislead, or abuse the bankruptcy system.” Rather, she 24 maintained she lacked the requisite knowledge and fell victim to 25 unskilled lawyers and “so called experts.” She also stated that 26 no filing bar had ever been imposed, even though her 2012 27 bankruptcy case had been dismissed with a bar to refiling. 28 As to her current filing, Debtor stated that approximately

-3- 1 six weeks before she filed, she hired an attorney and, with the 2 attorney’s assistance, submitted a loan modification to Wells 3 Fargo, N.A. (“Wells Fargo”), which it denied shortly before its 4 non-judicial foreclosure scheduled for July 19, the day after 5 she filed her bankruptcy petition. Debtor stated that she was 6 forced to file the instant bankruptcy case to “preserve her 7 residence.” 8 Debtor also asserted that in 2009, she entered into a loan 9 modification agreement with Wachovia Mortgage that reduced the 10 principal amount of her mortgage debt. She further stated that 11 despite her repeated demands, Wells Fargo had refused to 12 “validate” the amount she claims as her debt. Debtor stated 13 that she intended to file an adversary proceeding in the 14 bankruptcy case to “challenge and discover the true identity of 15 alleged creditor [Wells Fargo] and to prove that they are 16 attempting to deceive [Debtor], defraud this Court, and 17 attempting to steal [Debtor’s] residence.” Debtor also pointed 18 out that she had timely filed all of the required documents in 19 the instant bankruptcy case. 20 Debtor attached to her opposition several unauthenticated 21 documents and a declaration stating that she had filed the 22 bankruptcy case “in good faith and with every sincere intention 23 to continue the Chapter 13 plan, conditional on alleged creditor 24 [Wells Fargo’s] ability to prove their standing as THE true 25 legal Creditor with standing to receive payments toward a valid 26 and verified Proof of Claim.” 27 In the meantime, Wells Fargo filed an objection to 28 confirmation of Debtor’s proposed chapter 13 plan. It alleged

-4- 1 that it was the holder of a $960,000 promissory note executed by 2 Debtor in October 2007 that was secured by a deed of trust on 3 Debtor’s residence in Redlands, California.3 Wells Fargo 4 objected to Debtor’s proposed plan on the grounds that (1) the 5 plan did not provide for the cure of a prepetition arrearage of 6 $331,716.40 (which included 82 pre-petition payments); and 7 (2) the plan was not feasible given that Debtor’s schedules 8 showed negative disposable income of $1,029.76. 9 Prior to the hearing on the UST’s motion to dismiss, the 10 bankruptcy court issued a tentative decision granting the motion 11 with a 180-day bar to refiling based on a determination that 12 Debtor had filed the case in bad faith. The court’s tentative 13 decision was based on Debtor’s multiple bankruptcy filings, the 14 fact that Debtor’s schedules indicated she had no disposable 15 income to fund a chapter 13 plan, Debtor’s failure to commence 16 an adversary proceeding against Wells Fargo, Debtor’s lack of 17 admissible evidence in support of her opposition, and “the lack 18 of any detail in Debtor’s declaration other than generic 19 averments of good faith.” 20 At the hearing on September 22, 2016, the bankruptcy court 21 noted that Debtor had not complied with the court’s direction to 22 file a written response to the chapter 13 trustee’s objections 23 to confirmation by September 15, 2016.4 The bankruptcy court 24 3 According to the objection to confirmation, the original 25 lender was World Savings Bank, FSB, which changed its name to 26 Wachovia Mortgage, FSB on December 31, 2007. Wachovia merged with Wells Fargo Bank in 2009. 27 4 No formal objection to confirmation by the chapter 13 28 (continued...)

-5- 1 also noted that Debtor had not paid Wells Fargo since 2009, 2 instead using the bankruptcy process to stop Wells Fargo’s 3 foreclosure efforts. After permitting Debtor to argue at 4 length, the court adopted its tentative ruling as final. An 5 order dismissing the case with a 180-day bar to refiling was 6 entered on October 12, 2016, and Debtor timely appealed. 7 JURISDICTION 8 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 9 §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. 10 § 158. 11 ISSUE 12 Did the bankruptcy court abuse its discretion in dismissing 13 Debtor’s chapter 13 case? 14 STANDARD OF REVIEW 15 We review the bankruptcy court’s dismissal of a chapter 13 16 bankruptcy case for abuse of discretion. Ellsworth v. Lifescape 17 Medical Assoc., P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th 18 Cir. BAP 2011) (citing Leavitt v. Soto (In re Leavitt), 171 F.3d 19 1219, 1224 (9th Cir. 1999)). To determine whether the 20 bankruptcy court has abused its discretion, we conduct a 21 two-step inquiry: (1) we review de novo whether the bankruptcy 22 court identified the correct legal rule to apply to the relief 23 requested and (2) if it did, whether the bankruptcy court's 24 4 (...continued) 25 trustee appears on the bankruptcy court docket. The docket 26 reflects that the initial confirmation hearing took place on September 1, 2016. Based on comments made at the September 22 27 hearing, it appears that the trustee raised its objections at the September 1 hearing, including an allegation that Debtor’s debts 28 exceeded the § 109(e) limits.

-6- 1 application of the legal standard was illogical, implausible or 2 without support in inferences that may be drawn from the facts 3 in the record. United States v. Hinkson, 585 F.3d 1247, 1261-62 4 & n.21 (9th Cir. 2009) (en banc). If the bankruptcy court did 5 not identify the correct legal rule, or its application of the 6 correct legal standard to the facts was illogical, implausible, 7 or without support in inferences that may be drawn from the 8 facts in the record, then the bankruptcy court has abused its 9 discretion. TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 10 820, 832 (9th Cir. 2011). 11 DISCUSSION 12 A. Preliminary Matter - Appellee’s Motion to Strike Extra- 13 Record Materials 14 Debtor attached several exhibits to her reply brief, 15 including amended Schedules I and J. Those amended schedules 16 were never filed in the bankruptcy court and thus were not 17 before the bankruptcy court when it considered the motion to 18 dismiss. The UST filed with the BAP clerk a motion to strike 19 those documents on grounds that they were not part of the record 20 in the bankruptcy court. The UST also moved to strike any 21 argument in the reply brief that relied upon the improperly 22 submitted documents. 23 As a reviewing court, we do not consider papers not filed 24 with or admitted into evidence by the bankruptcy court. See 25 Graves v. Myrvang (In re Myrvang), 232 F.3d 1116, 1119 n.1 (9th 26 Cir. 2000); Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 27 (9th Cir. 1988). Accordingly, the UST’s motion to strike is 28 GRANTED.

-7- 1 B. The bankruptcy court did not abuse its discretion in 2 dismissing Debtor’s chapter 13 case. 3 Under § 1307(c), a bankruptcy court, upon request of a 4 party in interest and after notice and a hearing, may dismiss a 5 chapter 13 case for “cause.” The statute lists 11 enumerated 6 grounds for dismissal. Although not specifically listed, bad 7 faith is “cause” for dismissal under § 1307(c). Leavitt v. Soto 8 (In re Leavitt), 171 F.3d 1219, 1224 (9th Cir. 1999) (citing 9 Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir. 1994)). 10 In determining whether dismissal is warranted for bad faith, the 11 bankruptcy court is to consider the totality of the 12 circumstances. Id. Specifically, the court is to consider: 13 (1) whether the debtor misrepresented facts in his petition 14 or plan, unfairly manipulated the Bankruptcy Code, or otherwise 15 filed his chapter 13 petition or plan in an inequitable manner; 16 (2) the debtor’s history of filings and dismissals; 17 (3) whether the debtor only intended to defeat state court 18 litigation; and 19 (4) whether egregious behavior is present. Id. 20 The bankruptcy court need not find fraudulent intent to 21 conclude that a case was filed in bad faith. Id. 22 Here, the bankruptcy court considered (1) Debtor’s history 23 of numerous skeletal filings, noting that the Debtor had not 24 adequately explained why she failed to prosecute those filings; 25 (2) Debtor’s schedules, which showed she had no disposable 26 income to fund a chapter 13 plan; (3) Debtor’s failure to 27 commence an adversary proceeding against Wells Fargo, despite 28 alleging that Wells Fargo lacked standing to enforce the

-8- 1 promissory note secured by a deed of trust on Debtor’s real 2 property; (4) Debtor’s failure to present admissible 3 documentation in support of her opposition to the UST’s motion; 4 and (5) the lack of any detail in Debtor’s declaration other 5 than generic averments of good faith.5 6 Debtor argues that the bankruptcy court should not have 7 dismissed her case because (1) she filed all the required 8 documents in the instant case; (2) the UST filed a false 9 declaration claiming that Debtor had failed to file schedules; 10 (3) her multiple prior filings did not prove she acted in bad 11 faith; (4) the bankruptcy court combined the hearings on 12 confirmation and the UST’s motion to dismiss without notice, 13 posted a tentative “prejudicial” decision before reviewing all 14 evidence and hearing all testimony, and failed to give Debtor 15 advance notice of the tentative; and (5) the bankruptcy court 16 refused to admit and review supporting documents Debtor had 17 filed in response to the UST’s motion to dismiss and Wells 18 Fargo’s objection to confirmation.6 19 Debtor’s arguments do not support the conclusion that the 20 bankruptcy court abused its discretion in dismissing her case. 21 First, the bankruptcy court did not dismiss the case for 22 Debtor’s failure to file documents. Twice during the hearing on 23 24 5 Although the bankruptcy court did not make an explicit finding that the case had been filed to thwart foreclosure (“only 25 to defeat state court litigation”), the record – including 26 Debtor’s own declaration – supports such a finding. 6 27 Debtor included declarations with her opening and reply briefs. However, as noted, we do not consider evidence that was 28 not before the bankruptcy court when it ruled.

-9- 1 the motion to dismiss, the bankruptcy court explicitly 2 acknowledged that Debtor had timely filed the required documents 3 and stated that it was not basing its decision on a failure to 4 do so. Hr’g Tr. (Sept. 22, 2016) at 20:21-21:5; 30:1-14. 5 Second, a debtor’s history of filings and dismissals is a 6 salient factor in determining bad faith. In re Leavitt, 7 171 F.3d at 1224. Debtor did not sufficiently explain her prior 8 numerous unprosecuted filings. She provided no admissible 9 documentary evidence in opposition to the motion to dismiss, and 10 her declaration testimony was conclusory and implausible. 11 Although Debtor alleged that her numerous bankruptcy filings 12 were due to bad advice, the bankruptcy court found that after 13 having several cases dismissed for failure to file documents, 14 this explanation was implausible. Additionally, in making its 15 bad faith finding, the bankruptcy court considered Debtor’s lack 16 of disposable income to fund a plan and her failure to take any 17 steps to determine whether Wells Fargo was the creditor to whom 18 she should be making her mortgage payments despite having 19 disputed Wells Fargo’s standing for seven years. 20 Third, Debtor’s arguments that the bankruptcy court 21 combined the hearings on confirmation and the motion to dismiss 22 without notice and failed to give her advance notice of the 23 tentative were not raised in the bankruptcy court and are 24 therefore waived. See Concrete Equip. Co. v. Virgil Bros. 25 Constr., Inc. (In re Virgil Bros. Constr., Inc.), 193 B.R. 513, 26 520 (9th Cir. BAP 1996). In any event, these arguments are not 27 supported by the record. Debtor was served with notice of the 28 September 22 hearing on the motion to dismiss, and she appeared

-10- 1 at that hearing. She was also served with notice of the 2 original confirmation hearing on September 1, and it is apparent 3 from the transcript of the September 22 hearing that she 4 appeared at the September 1 hearing at which the bankruptcy 5 court continued the matter to September 22. Hr’g Tr. (Sept. 22, 6 2016) at 5:11-6:20. Moreover, the bankruptcy court gave Debtor 7 an opportunity to read the tentative decision and permitted her 8 to argue extensively thereafter. 9 Finally, Debtor has not demonstrated that the bankruptcy 10 court erred in not considering the documentary evidence she 11 submitted in support of her opposition to the motion to dismiss 12 and Wells Fargo’s objection to confirmation. None of the 13 documents attached to Debtor’s oppositions were properly 14 authenticated. And Wells Fargo’s objection to confirmation was 15 not adjudicated at the September 22 hearing because it was 16 mooted by the court’s ruling on dismissal. 17 In Debtor’s reply brief, she argues that she does not have 18 negative income and attaches amended schedules to prove it. 19 However, as discussed above, those schedules were never filed in 20 the bankruptcy court and were not before the bankruptcy court 21 when it ruled. As noted, we do not consider papers not 22 presented to the bankruptcy court in the first instance, and we 23 are granting the UST’s motion to strike those exhibits. Debtor 24 also argues that Wells Fargo’s proof of claim, which was filed 25 after the bankruptcy court ruled, does not support its claim. 26 Again, this proof of claim was not before the bankruptcy court 27 when it ruled, and in any event, any determination regarding 28 Wells Fargo’s claim would not have occurred in the context of

-11- 1 the motion to dismiss. Debtor also complains that Wells Fargo 2 filed a joinder in this appeal without notice; Debtor, however, 3 listed Wells Fargo’s counsel as a party in interest in her 4 notice of appeal. More importantly, she has not explained how 5 Wells Fargo’s joinder is prejudicial to her. The joinder states 6 only: “PLEASE TAKE NOTICE that Appellee, Wells Fargo Bank, N.A., 7 hereby joins in Co-Appellee, Peter C. Anderson, United States 8 Trustee’s Opening Brief.” Thus, the joinder does not raise any 9 issues beyond those addressed in the UST’s brief. 10 We need not address the bankruptcy court’s imposition of a 11 six-month bar to refiling. That period expired April 12, 2017. 12 Accordingly, the issue is moot. Fernandez v. GE Capital 13 Mortgage Servs. (In re Fernandez), 227 B.R. 174, 178 (9th Cir. 14 BAP 1998). 15 CONCLUSION 16 Debtor has not shown that the bankruptcy court abused its 17 discretion in dismissing her chapter 13 case as a bad faith 18 filing. Accordingly, we AFFIRM. 19 20 21 22 23 24 25 26 27 28

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