In re Malek

591 B.R. 420
CourtUnited States Bankruptcy Court, N.D. California
DecidedSeptember 12, 2018
DocketCase No. 17-52856 SLJ
StatusPublished
Cited by6 cases

This text of 591 B.R. 420 (In re Malek) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Malek, 591 B.R. 420 (Cal. 2018).

Opinion

Stephen L. Johnson, U.S. Bankruptcy Judge

Debtor commenced this chapter 13 case by filing a voluntary petition on November 28, 2017.2 Debtor's chapter 13 plan remains unconfirmed despite the passage of nine months. Consequently, on June 27, 2018, Devin Derham-Burk, chapter 13 trustee (the "Trustee"), filed her Motion to Dismiss ("Motion") for unreasonable delay.

Debtor filed an opposition ("Opposition") to the Motion.3 Debtor's main argument is that the Trustee's method of noticing this case for dismissal is improper and deprived her of due process. In particular, Debtor argues that Bankruptcy Rule 1017(a) requires that an actual hearing be scheduled for each motion to dismiss. The Local Rules do not require an actual hearing be scheduled unless a party objects. Debtor in fact objected to the Motion, so she got both an opportunity to respond and a hearing. Aside from this due process argument, Debtor makes no serious effort in the extensive Opposition to explain why her plan remains unconfirmed.

Because I determine that Debtor received adequate notice and find cause to dismiss the case, I GRANT the motion to dismiss.

I. BACKGROUND

Debtor filed this case and a chapter 13 plan ("Plan") on November 28, 2017. The Plan specifies that Debtor has a delinquency on her home loan of more than *425$253,405, and provides for payments to the Trustee of $2,500 per month for 24 months. Of that sum, the Plan specifies that the home lender should be paid $1,500 per month. In addition, the Plan provides that the remaining balance on the arrears in the approximate amount of $221,600 would be paid by the end of the 26th month from the sale or refinance of Debtor's residence.4

To summarize, in her Plan, Debtor is not intending to pay the $253,405 arrearage in level monthly payments over five years. Instead, she proposes to pay a portion of that balance over the first part of her Plan, and the balance later upon a sale or refinance of the real property.

On January 10, 2018, the Trustee filed her Objection to Confirmation of Chapter 13 Plan ("Objection to Confirmation"). The Objection to Confirmation has five points. They are: (1) the Plan would require 112 months to complete, which is over the allowable 60-month term; (2) the Plan may not comply with § 1322(d); (3) the Plan may not be feasible; (4) the Plan contains provisions not found in the standard district chapter 13 plan which may require advance court approval; and (5) the Trustee requested tax returns which have not been provided.

The docket does not show any action by Debtor to resolve the Objection to Confirmation. On April 20, 2018, the Trustee filed a motion to dismiss this case alleging, among other things, that Debtor was delinquent in plan payments in the amount of $7,500. On May 9, 2018, the Trustee withdrew that motion, and the court infers from the withdrawal that the payment delinquency was cured.

The Trustee filed this Motion on June 27, 2018, using the Notice and Opportunity for Hearing procedure permitted by the local rules of this District. The Motion alleged cause to dismiss under § 1307(c) based on unreasonable delay that is prejudicial to creditors. On July 18, 2018, Debtor filed a lengthy Opposition consisting of a 14-page opposition brief, a 14-page supplemental memorandum of points and authorities, and 171 pages of exhibits. A substantial part of the opposition brief and the entirety of the supplemental memorandum of points and authorities consists of arguments that the court does not have jurisdiction to hear the Motion because the notice procedure used by the Trustee is in violation of Bankruptcy Rule 1017(a).

Just one day prior to the hearing on the Motion, Debtor filed an amended plan ("Amended Plan"). The Amended Plan provides for a monthly payment of $1,650 for 9 months and then an increase of the monthly payment to $2,500 for the next 9 months. It also shortens the time for sale or refinance of the residence to 18 months (from 26 months). The idea that the original Plan would be amended was not addressed in the Opposition.

Aside from the Amended Plan, the only substantive activity on the docket involves a request by Debtor to waive the business examination requirement under § 1302(c), which was granted by order entered on February 2, 2018.

Only one claim was filed in this case, by PROF-2013-S3 LEGAL TITLE TRUST IV, BY U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TRUSTEE ("Claim"), which states a claim in the amount of $851,409.80, secured by Debtor's residence. The Claim asserts a default of $233,261.59 as of the petition date.

*426II. DISCUSSION

A. The Bankruptcy Court has Jurisdiction over this Dispute

Debtor's Opposition states that she opposes the court's jurisdiction to hear the Motion because of the alleged lack of adequate notice. Debtor misunderstands the difference between subject matter jurisdiction and personal jurisdiction, and due process.5 See Insurance Corp. v. Compagnie des Bauxites , 456 U.S. 694, 701-703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (explaining the concepts of subject matter and personal jurisdiction).

I have subject matter jurisdiction. Jurisdiction in bankruptcy cases is established in two statutes, 28 U.S.C. §§ 157(a) and 1334. Section 1334 provides that district courts have "jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334(b). The district court is authorized to delegate that jurisdiction to the bankruptcy court. Section 157(b)(1) provides that "Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11" that are referred to them by the district court. Congress also provided a non-exhaustive list of core proceedings. See 28 U.S.C. § 157(b)(2). A motion to dismiss a bankruptcy case for cause arises under title 11 and is a core proceeding under § 157(b)(2)(A). In re Hickman , 384 B.R. 832, 836 (9th Cir. BAP 2008). I have subject matter jurisdiction to hear the Motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
591 B.R. 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-malek-canb-2018.