In Re: Marcus Silver

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2024
• Docket: 23-60004
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: MARCUS DANIEL SILVER, No. 23-60004

Debtor. BAP No. 22-1101 ______________________________

MARCUS DANIEL SILVER, MEMORANDUM*

Appellant, ______________________________

U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR GREENPOINT MORTGAGE FUNDING TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR7,

Intervenor.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Lafferty III, Faris, and Taylor, Bankruptcy Judges, Presiding

Submitted February 21, 2024**

Before: FERNANDEZ, NGUYEN, and OWENS, 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). Chapter 7 debtor Marcus Daniel Silver appeals pro se from the Bankruptcy

Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s orders

denying his motion to convert and his motion for reconsideration. We have

jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions and

apply the same standard of review that the BAP applied to the bankruptcy court’s

ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th

Cir. 2009). We affirm.

The bankruptcy court did not abuse its discretion by denying Silver’s motion

to convert his case from chapter 7 to chapter 13 because the record supports the

bankruptcy court’s finding of bad faith. See Marrama v. Citizens Bank of Mass.,

549 U.S. 365, 371, 374-76 (2007) (a bankruptcy court may deny a motion to

convert bankruptcy proceedings based on a showing of bad faith by the debtor);

Khan v. Barton (In re Khan), 846 F.3d 1058, 1063-66 (9th Cir. 2017) (setting forth

standard of review and explaining that courts must consider the totality of the

circumstances in determining bad faith); Leavitt v. Soto (In re Leavitt), 171 F.3d

1219, 1224-25 (9th Cir. 1999) (neither malice nor actual fraud is required to find

bad faith).

The bankruptcy court did not abuse its discretion by denying Silver’s motion

for reconsideration because Silver failed to demonstrate any basis for relief. See

Fed. R. Bankr. P. 9023 (making Fed. R. Civ. P. 59 applicable to bankruptcy cases);

2 23-60004 Sch. Distr. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63

(9th Cir. 1993) (setting forth standard of review and grounds for relief under Rule

59).

The BAP did not abuse its discretion by denying Silver’s motion for

rehearing because Silver failed to establish any basis for relief. See Fed. R. Bankr.

P. 8022(a)(2); United States v. Fowler (In re Fowler), 394 F.3d 1208, 1214 (9th

Cir. 2005) (setting forth standard of review).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not

consider documents and facts not presented to the BAP. See United States v.

Elias, 921 F.2d 870, 874 (9th Cir. 1990).

The motion of U.S. Bank, National Association, as Trustee for Greenpoint

Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2006-AR7’s

(“U.S. Bank”) to intervene for the purpose of opposing Silver’s motion for

injunction pending appeal (Docket Entry No. 12) is granted. The Clerk will file

U.S. Bank’s opposition submitted at Docket Entry No. 14.

All other pending motions are denied.

AFFIRMED.

3 23-60004