FILED MAR 25 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK 2 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. SC-15-1228-FJuKi ) 6 MARSHALL CASEY PFEIFFER, ) Bk. No. 13-09062-CL13 ) 7 Debtor. ) _____________________________ ) 8 ) MARSHALL CASEY PFEIFFER, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) DAVID SKELTON, Trustee,** ) 12 ) Appellee. ) 13 ______________________________) 14 Submitted Without Oral Argument on March 17, 2016 15 Filed – March 25, 2016 16 Appeal from the United States Bankruptcy Court 17 for the Southern District of California 18 Honorable Christopher B. Latham, Bankruptcy Judge, Presiding 19 Appearances: Appellant Marshall Casey Pfeiffer, pro se, on the 20 brief. 21 Before: FARIS, JURY, and KIRSCHER, Bankruptcy Judges. 22 23 24 * This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may 26 have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. 27 ** Mr. Skelton did not file an answering brief or otherwise 28 make an appearance in this appeal. 1 INTRODUCTION 2 Chapter 131 debtor Marshall Casey Pfeiffer appeals from the 3 bankruptcy court’s order granting chapter 13 trustee David 4 Skelton’s motion to dismiss. The bankruptcy court determined 5 that Mr. Pfeiffer had failed to make regular plan payments and 6 could not pay off the plan by presenting the Trustee with an 7 invalid promissory note. Mr. Pfeiffer fails to identify any 8 reversible error. Accordingly, we AFFIRM. 9 FACTUAL BACKGROUND2 10 Mr. Pfeiffer’s chapter 13 plan (the “Plan”) required him to 11 make monthly payments of $1,435. Mr. Pfeiffer made Plan payments 12 for approximately one year but then stopped. 13 The Trustee filed a motion to dismiss Mr. Pfeiffer’s case 14 for failure to make Plan payments (the “Motion to Dismiss”). He 15 alleged that Mr. Pfeiffer materially defaulted under the Plan 16 pursuant to § 1307(c)(6) or (8). 17 In response, Mr. Pfeiffer attached an alleged promissory 18 note stub to his opposition. He argued that the document 19 evidenced the delivery of a promissory note for $54,473.97 (the 20 “Promissory Note”) to the Trustee that satisfied his outstanding 21 debt. Mr. Pfeiffer also stated that he transmitted a copy of the 22 Promissory Note receipt to the United States Treasury. 23 The Promissory Note, supposedly issued the same day as 24 1 Unless specified otherwise, all chapter and section 25 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 26 2 Mr. Pfeiffer presents us with a limited record. We have 27 exercised our discretion to review the bankruptcy court’s docket, as appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, 28 Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008).
2 1 Mr. Pfeiffer’s opposition, identifies the issuer as “Marshall 2 Casey Pfeiffer” and the principal as “The United States of 3 America.” The Drawee is “United States in behalf of the United 4 States of America,” and the Promissory Note is “payable” at “The 5 United States Treasury or at a Bank in the United States.” The 6 Promissory Note is “redeemable” at the “Treasury Department of 7 the United States, City of Washington, District of Columbia or at 8 Any Federal Reserve Bank.”3 9 At the hearing on the Motion to Dismiss, Mr. Pfeiffer 10 argued that the Promissory Note is legal tender because it is 11 “legally the same as a check or a dollar bill.” He contended 12 that he “sent the promissory note to the principal [the United 13 States of America] asking them to pay the debt because the 14 principal is responsible for the debt as the principal of the 15 agency. The principal is the beneficiary and legally responsible 16 for all debts related to the agency that it created.” 17 On July 1, 2015, the court issued its order granting the 18 Motion to Dismiss (the “Order”). It determined that the 19 Promissory Note is not legal tender. It also held that the 20 Promissory Note is invalid, because “[t]here is no indication 21 that Debtor has any standing, capacity, or authority whatever to 22 draw upon the Federal Treasury or bind the United States in any 23 kind of contract.” The court concluded that Mr. Pfeiffer failed 24 to make Plan payments, which constituted a material default under 25 3 26 Mr. Pfeiffer also attached a document entitled “Purpose of Promissory Note.” He stated that the Promissory Note was meant 27 to pay off or discharge any debt as it relates to his bankruptcy case. He contended that the United States of America is the 28 principal liable for payment on the Promissory Note.
3 1 the Plan, and dismissed the case under § 1307(c)(6). 2 Mr. Pfeiffer timely appealed the Order. 3 JURISDICTION 4 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 5 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C. 6 § 158. 7 ISSUE 8 Whether the bankruptcy court erred in dismissing 9 Mr. Pfeiffer’s chapter 13 case for failure to make plan payments. 10 STANDARD OF REVIEW 11 “We review the bankruptcy court’s dismissal of a chapter 13 12 bankruptcy case under any of the enumerated paragraphs of 13 § 1307(c) for abuse of discretion.” Schlegel v. Billingslea 14 (In re Schlegel), 526 B.R. 333, 338 (9th Cir. BAP 2015) (citing 15 Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 16 455 B.R. 904, 914 (9th Cir. BAP 2011)). 17 To determine whether the bankruptcy court has abused its 18 discretion, we conduct a two-step inquiry: (1) we review de novo 19 whether the bankruptcy court “identified the correct legal rule 20 to apply to the relief requested” and (2) if it did, whether the 21 bankruptcy court’s application of the legal standard was 22 illogical, implausible, or “without support in inferences that 23 may be drawn from the facts in the record.” United States v. 24 Hinkson, 585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009) (en banc). 25 “If the bankruptcy court did not identify the correct legal rule, 26 or its application of the correct legal standard to the facts was 27 illogical, implausible, or without support in inferences that may 28 be drawn from the facts in the record, then the bankruptcy court
4 1 has abused its discretion.” USAA Fed. Sav. Bank v. Thacker 2 (In re Taylor), 599 F.3d 880, 887–88 (9th Cir. 2010) (citing 3 Hinkson, 585 F.3d at 1261–62). 4 DISCUSSION 5 A. Section 1307 allows dismissal for cause. 6 The bankruptcy court correctly identified the applicable 7 legal rule. Section 1307(c) allows the bankruptcy court to 8 dismiss a case “for cause.” In re Schlegel, 526 B.R. at 339. 9 That section provides: 10 (c) Except as provided in subsection (f) of this section, . . . the court may convert a case under this 11 chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the 12 best interests of creditors and the estate, for cause, including - 13 . . . 14 (6) material default by the debtor with respect to 15 a term of a confirmed plan[.] 16 § 1307(c)(6). “The decision to dismiss a chapter 13 case under 17 § 1307(c) is a discretionary decision of the trial court.” 18 In re Schlegel, 526 B.R. at 339 (citation omitted)). 19 “Dismissal under § 1307(c) is a two-step process.
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FILED MAR 25 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK 2 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. SC-15-1228-FJuKi ) 6 MARSHALL CASEY PFEIFFER, ) Bk. No. 13-09062-CL13 ) 7 Debtor. ) _____________________________ ) 8 ) MARSHALL CASEY PFEIFFER, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) DAVID SKELTON, Trustee,** ) 12 ) Appellee. ) 13 ______________________________) 14 Submitted Without Oral Argument on March 17, 2016 15 Filed – March 25, 2016 16 Appeal from the United States Bankruptcy Court 17 for the Southern District of California 18 Honorable Christopher B. Latham, Bankruptcy Judge, Presiding 19 Appearances: Appellant Marshall Casey Pfeiffer, pro se, on the 20 brief. 21 Before: FARIS, JURY, and KIRSCHER, Bankruptcy Judges. 22 23 24 * This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may 26 have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. 27 ** Mr. Skelton did not file an answering brief or otherwise 28 make an appearance in this appeal. 1 INTRODUCTION 2 Chapter 131 debtor Marshall Casey Pfeiffer appeals from the 3 bankruptcy court’s order granting chapter 13 trustee David 4 Skelton’s motion to dismiss. The bankruptcy court determined 5 that Mr. Pfeiffer had failed to make regular plan payments and 6 could not pay off the plan by presenting the Trustee with an 7 invalid promissory note. Mr. Pfeiffer fails to identify any 8 reversible error. Accordingly, we AFFIRM. 9 FACTUAL BACKGROUND2 10 Mr. Pfeiffer’s chapter 13 plan (the “Plan”) required him to 11 make monthly payments of $1,435. Mr. Pfeiffer made Plan payments 12 for approximately one year but then stopped. 13 The Trustee filed a motion to dismiss Mr. Pfeiffer’s case 14 for failure to make Plan payments (the “Motion to Dismiss”). He 15 alleged that Mr. Pfeiffer materially defaulted under the Plan 16 pursuant to § 1307(c)(6) or (8). 17 In response, Mr. Pfeiffer attached an alleged promissory 18 note stub to his opposition. He argued that the document 19 evidenced the delivery of a promissory note for $54,473.97 (the 20 “Promissory Note”) to the Trustee that satisfied his outstanding 21 debt. Mr. Pfeiffer also stated that he transmitted a copy of the 22 Promissory Note receipt to the United States Treasury. 23 The Promissory Note, supposedly issued the same day as 24 1 Unless specified otherwise, all chapter and section 25 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 26 2 Mr. Pfeiffer presents us with a limited record. We have 27 exercised our discretion to review the bankruptcy court’s docket, as appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, 28 Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008).
2 1 Mr. Pfeiffer’s opposition, identifies the issuer as “Marshall 2 Casey Pfeiffer” and the principal as “The United States of 3 America.” The Drawee is “United States in behalf of the United 4 States of America,” and the Promissory Note is “payable” at “The 5 United States Treasury or at a Bank in the United States.” The 6 Promissory Note is “redeemable” at the “Treasury Department of 7 the United States, City of Washington, District of Columbia or at 8 Any Federal Reserve Bank.”3 9 At the hearing on the Motion to Dismiss, Mr. Pfeiffer 10 argued that the Promissory Note is legal tender because it is 11 “legally the same as a check or a dollar bill.” He contended 12 that he “sent the promissory note to the principal [the United 13 States of America] asking them to pay the debt because the 14 principal is responsible for the debt as the principal of the 15 agency. The principal is the beneficiary and legally responsible 16 for all debts related to the agency that it created.” 17 On July 1, 2015, the court issued its order granting the 18 Motion to Dismiss (the “Order”). It determined that the 19 Promissory Note is not legal tender. It also held that the 20 Promissory Note is invalid, because “[t]here is no indication 21 that Debtor has any standing, capacity, or authority whatever to 22 draw upon the Federal Treasury or bind the United States in any 23 kind of contract.” The court concluded that Mr. Pfeiffer failed 24 to make Plan payments, which constituted a material default under 25 3 26 Mr. Pfeiffer also attached a document entitled “Purpose of Promissory Note.” He stated that the Promissory Note was meant 27 to pay off or discharge any debt as it relates to his bankruptcy case. He contended that the United States of America is the 28 principal liable for payment on the Promissory Note.
3 1 the Plan, and dismissed the case under § 1307(c)(6). 2 Mr. Pfeiffer timely appealed the Order. 3 JURISDICTION 4 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 5 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C. 6 § 158. 7 ISSUE 8 Whether the bankruptcy court erred in dismissing 9 Mr. Pfeiffer’s chapter 13 case for failure to make plan payments. 10 STANDARD OF REVIEW 11 “We review the bankruptcy court’s dismissal of a chapter 13 12 bankruptcy case under any of the enumerated paragraphs of 13 § 1307(c) for abuse of discretion.” Schlegel v. Billingslea 14 (In re Schlegel), 526 B.R. 333, 338 (9th Cir. BAP 2015) (citing 15 Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 16 455 B.R. 904, 914 (9th Cir. BAP 2011)). 17 To determine whether the bankruptcy court has abused its 18 discretion, we conduct a two-step inquiry: (1) we review de novo 19 whether the bankruptcy court “identified the correct legal rule 20 to apply to the relief requested” and (2) if it did, whether the 21 bankruptcy court’s application of the legal standard was 22 illogical, implausible, or “without support in inferences that 23 may be drawn from the facts in the record.” United States v. 24 Hinkson, 585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009) (en banc). 25 “If the bankruptcy court did not identify the correct legal rule, 26 or its application of the correct legal standard to the facts was 27 illogical, implausible, or without support in inferences that may 28 be drawn from the facts in the record, then the bankruptcy court
4 1 has abused its discretion.” USAA Fed. Sav. Bank v. Thacker 2 (In re Taylor), 599 F.3d 880, 887–88 (9th Cir. 2010) (citing 3 Hinkson, 585 F.3d at 1261–62). 4 DISCUSSION 5 A. Section 1307 allows dismissal for cause. 6 The bankruptcy court correctly identified the applicable 7 legal rule. Section 1307(c) allows the bankruptcy court to 8 dismiss a case “for cause.” In re Schlegel, 526 B.R. at 339. 9 That section provides: 10 (c) Except as provided in subsection (f) of this section, . . . the court may convert a case under this 11 chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the 12 best interests of creditors and the estate, for cause, including - 13 . . . 14 (6) material default by the debtor with respect to 15 a term of a confirmed plan[.] 16 § 1307(c)(6). “The decision to dismiss a chapter 13 case under 17 § 1307(c) is a discretionary decision of the trial court.” 18 In re Schlegel, 526 B.R. at 339 (citation omitted)). 19 “Dismissal under § 1307(c) is a two-step process. Once the 20 court has determined that cause to dismiss exists, it still must 21 decide what remedial action — what form of dismissal — should be 22 taken. . . .” In re Ellsworth, 455 B.R. at 922 (internal 23 citations omitted); see Nelson v. Meyer (In re Nelson), 343 B.R. 24 671, 675 (9th Cir. BAP 2006). 25 B. The bankruptcy court did not abuse its discretion in dismissing Mr. Pfeiffer’s case for failure to make Plan 26 payments. 27 We hold that the court did not err in determining that 28 Mr. Pfeiffer failed to make his Plan payments and that his
5 1 default constituted cause for dismissal. 2 Mr. Pfeiffer contends that the Promissory Note constituted 3 legal tender that satisfied the Plan in full. Mr. Pfeiffer is 4 wrong on two counts. 5 First, the Promissory Note is not legal tender. As the 6 bankruptcy court pointed out, legal tender for debts include 7 “United States coins and currency (including Federal reserve 8 notes and circulating notes of Federal reserve banks and national 9 banks).” 31 U.S.C. § 5103. Black’s Law Dictionary defines 10 “currency” as “[a]n item (such as a coin, government note, or 11 banknote) that circulates as a medium of exchange.” Black’s Law 12 Dictionary (10th ed. 2014). Mr. Pfeiffer’s Promissory Note fits 13 none of these definitions. It is not coin or paper currency, nor 14 is it issued by a bank or the federal government. Rather, it was 15 unilaterally created and executed by Mr. Pfeiffer. 16 Second, Mr. Pfeiffer presents no evidence that he is 17 entitled to draw upon the United States Treasury. He identifies 18 himself as an “Agent” of Marshall Casey Pfeiffer, “in behalf of 19 for the Principal United States of America.” He claims that “the 20 principal is responsible for the debt as the principal of the 21 agency. The principal is the beneficiary and legally responsible 22 for all debts related to the agency it created.” He fails to 23 offer any argument or authority explaining how he has become an 24 agent of the United States with the power to require the United 25 States to pay his debt.4 26 4 27 Mr. Pfeiffer argues that the United States government and the California state government did not object to any of his acts 28 (continued...)
6 1 Accordingly, the court did not abuse its discretion in 2 holding that the Promissory Note cannot cure Mr. Pfeiffer’s Plan 3 payment arrears.5 Due to Mr. Pfeiffer’s failure to make Plan 4 payments, the court properly found cause to dismiss 5 Mr. Pfeiffer’s case under § 1307(c)(6).6 6 CONCLUSION 7 For the reasons set forth above, we conclude that the 8 bankruptcy court did not abuse its discretion in dismissing 9 Mr. Pfeiffer’s case. Accordingly, we AFFIRM. 10 11 12 13 14 15 16 17 18 4 19 (...continued) or otherwise challenge his argument. However, neither the 20 federal government nor state government is a party to this case. 21 5 We further reject Mr. Pfeiffer’s argument that Judge 22 Christopher B. Latham either represented the Trustee or gave testimony at the hearing on the Motion to Dismiss. Nothing in 23 the record indicates that the judge either acted as counsel for the Trustee or testified at the hearing. 24 6 Neither the parties nor the bankruptcy court discussed the 25 second prong of the Ellsworth analysis, and Mr. Pfeiffer does not 26 raise any error concerning the second prong in his opening brief. As such, we do not address it on appeal. Cf. In re Ellsworth, 27 455 B.R. at 923 (“even though the bankruptcy court ordinarily would be expected to consider alternatives to dismissal with 28 prejudice, the [debtor’s] silence thwarted that task”).