In re: Marshall Samuel Sanders

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: July 15, 2016
• Docket: CC-15-1284-FKiKu
• Status: Unpublished

Opinion

FILED JUL 15 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-15-1284-FKiKu ) 6 MARSHALL SAMUEL SANDERS, ) Bk. No. 8:15-bk-13011-ES ) 7 Debtor. ) _____________________________ ) 8 ) MARSHALL SAMUEL SANDERS, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) AMRANE COHEN, Trustee; ) 12 UNITED STATES TRUSTEE; ) SELECT PORTFOLIO SERVICING, ) 13 INC.; WELLS FARGO BANK, N.A., ) as Trustee, on Behalf of the ) 14 Holders of Harborview Mortgage) Loan Trust Mortgage Loan Pass-) 15 Through Certificates, Series ) 2007-1,** ) 16 ) Appellees. ) 17 ______________________________) 18 Argued and Submitted on June 23, 2016 at Pasadena, California*** 19 Filed – July 15, 2016 20 21 22 * This disposition is not appropriate for publication. 23 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 24 9th Cir. BAP Rule 8024-1. 25 ** The Trustee and United States Trustee did not file 26 answering briefs or otherwise participate in this appeal. *** 27 Oral argument in this matter was consolidated with the appeal in Sanders v. UST - United States Trustee, Santa Ana 28 (In re Sanders), BAP No. CC-15-1344-FKiKu. 1 Appeal from the United States Bankruptcy Court for the Central District of California 2 Honorable Erithe A. Smith, Bankruptcy Judge, Presiding 3 4 Appearances: Richard Lawrence Antognini argued on behalf of Appellant Marshall Samuel Sanders; Conrad V. Sison 5 argued on behalf of Appellees Select Portfolio Servicing, Inc. and Wells Fargo Bank, N.A., as 6 Trustee, on Behalf of the Holders of Harborview Mortgage Loan Trust Mortgage Loan Pass-Through 7 Certificates, Series 2007-1. 8 Before: FARIS, KIRSCHER, and KURTZ, Bankruptcy Judges. 9 INTRODUCTION 10 Appellant/chapter 131 debtor Marshall Samuel Sanders claims 11 that the bankruptcy court’s dismissal of his bankruptcy case 12 violated his due process rights. We hold that the court afforded 13 Mr. Sanders adequate notice and an opportunity to be heard. 14 Accordingly, we AFFIRM. 15 FACTUAL BACKGROUND2 16 Mr. Sanders, proceeding pro se, filed his chapter 13 17 petition on June 15, 2015. The subject petition was his fifth 18 bankruptcy filing in approximately five years. Prior to his 19 current petition, he had filed a chapter 13 case in April 2010, 20 which was converted to chapter 7 and discharged in February 2011; 21 22 1 23 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all 24 “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, and “LBR” references refer to the 25 Local Bankruptcy Rules for the Central District of California. 26 2 Ms. Sanders 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 a chapter 11 case in October 2011, which was dismissed and 2 appealed unsuccessfully to the BAP; another chapter 11 case in 3 May 2013, which was dismissed; and a third chapter 11 case in 4 March 2014, which was also dismissed. 5 Mr. Sanders’ wife, Lydia Ong Sanders, has also filed 6 numerous bankruptcy petitions. Mrs. Sanders filed a chapter 7 7 case in June 2010 and received a discharge in September 2010; a 8 chapter 13 case in December 2013, which was dismissed; and a 9 chapter 11 case in October 2014, which was also dismissed. Most 10 recently, she filed an unsuccessful chapter 11 petition on 11 September 22, 2015, which is the subject of a separate appeal. 12 Mr. Sanders filed a motion to extend the automatic stay 13 (“Motion to Extend Stay”) because, under § 362(c)(3), the 14 automatic stay was going to expire thirty days after his filing. 15 Appellees Select Portfolio Servicing, Inc. and Wells Fargo Bank, 16 N.A. opposed the Motion to Extend Stay, arguing that the 17 bankruptcy petition was filed in bad faith. After a hearing, the 18 court denied the Motion to Extend Stay, holding that the case was 19 not filed in good faith and that an extension of the automatic 20 stay beyond thirty days was not warranted. Mr. Sanders appealed 21 that order to the BAP, which dismissed the appeal without 22 prejudice. 23 The court scheduled a plan confirmation hearing (“Hearing”) 24 on August 25, 2015. On June 22, chapter 13 trustee Amrane Cohen 25 (“Trustee”) filed a one-page Notice that Trustee May Make an Oral 26 Motion to Dismiss or Convert this Case for Cause (“Notice”), 27 wherein he stated: 28 NOTICE IS HEREBY GIVEN that on the date, time and

3 1 in the Courtroom above referenced, the Court will consider confirmation of the Debtor(s)’ Chapter 13 2 Plan. In the event the Debtor(s)’ Plan is not confirmed by the Court at that hearing, the Court will 3 also consider the Chapter 13 Trustee’s motion to dismiss the case, including dismissal with a 180-day 4 bar against refiling under 11 U.S.C. Section 109(g), or to convert the Chapter 13 Case to Chapter 7, should the 5 Debtor(s) fail to: (1) comply with 11 U.S.C. Section 1307; (2) comply with 11 U.S.C. Section 1322; 6 (3) comply with 11 U.S.C. Section 1325; (4) comply with Local Bankruptcy Rule 3015-1; and/or, (5) comply with 7 orders of the Court. 8 NOTICE IS FURTHER GIVEN that opposition, if any, to such oral motion by the Trustee may be presented at 9 that hearing. 10 Mr. Sanders thereafter filed his chapter 13 plan (“Plan”). 11 He identified only one secured creditor, Chrysler Capital, and 12 his Plan only contemplated trustee fees and payments to Chrysler 13 Capital. His schedules disclosed assets totaling $1,267,331.18 14 and liabilities totaling $187,608.05. He stated that his monthly 15 net income was negative $4,123.07. 16 Wells Fargo objected to Plan confirmation, arguing that 17 Mr. Sanders was ineligible for chapter 13 relief because of his 18 negative income, material misrepresentations in his petition, and 19 abuse of the bankruptcy process. 20 Creditor Bank of America3 also objected to the Plan. In 21 summary, Bank of America argued that Mr. Sanders’ Plan did not 22 address its claim; he had filed four previous bankruptcy 23 petitions with no positive change in his finances; he lacked 24 adequate income to fund the Plan; and the Plan failed to provide 25 3 26 Bank of America is the holder of a promissory note in the original principal amount of $365,5000 and secured by a deed of 27 trust on Mr. Sanders’ real property located in Tustin, California. It alleged that it held a secured claim in the 28 amount of $482,046.74.

4 1 for ongoing postpetition payments. It requested that the court 2 deny confirmation “and dismiss the Debtor’s case, or 3 alternatively, convert the Debtor’s case to one under Chapter 7 4 . . . .” 5 The United States also objected to Plan confirmation. Among 6 other things, it argued that the Internal Revenue Service had 7 asserted a claim in the amount of $245,913.36, to which 8 Mr. Sanders had not objected. It contended that the Plan did not 9 provide for payment of the IRS’s lien, was not filed in good 10 faith, and was not feasible due to Mr. Sanders’ negative income. 11 The day before the Hearing, Mr. Sanders filed a motion to 12 convert the case to chapter 7 or 11 (“Motion to Convert”). He 13 argued that, although his previous three chapter 11 cases were 14 unsuccessful, he should be allowed to convert his case, because 15 “this time is different.” He claimed that he had positive 16 income, because he would eliminate $3,000 in monthly attorneys’ 17 fees; he would increase the monthly rent on two rental properties 18 by $900 and $1,400 per month, respectively; and he would attempt 19 to reduce his utilities and insurance costs. 20 The court held the Hearing on August 25, 2015. At the start 21 of the Hearing, the Trustee said, “Your Honor, in this case, the 22 Debtor has not made any plan payments. The schedules that I have 23 show that the Debtor has negative disposable income of minus 24 $4,123 a month. I would request that the case be dismissed.” In 25 response, Mr. Sanders stated that he would not object to the 26 dismissal if the court were to convert the case to chapter 11. 27 However, the court stated that it would not convert the 28 case, but would instead dismiss the case. It discussed its

5 1 reasons for doing so: (1) the many unsuccessful bankruptcy 2 filings by Mr. Sanders and his wife in the past five years; 3 (2) his failure to list many of his creditors and debts in his 4 current filings, including $800,000 in student loan debt; (3) his 5 failure to make Plan payments; (4) his negative income and 6 inability to fund his Plan; (5) the infeasibility of increasing 7 his monthly rental income; (6) the futility of decreasing his 8 monthly legal expenses (which he admitted he was not then 9 paying); (7) his failure to include in his calculations his 10 mortgage payments, property taxes, and insurance; and (8) the 11 Plan’s failure to address the IRS’s $50,000 secured claim and 12 $194,000 unsecured claim. Mr. Sanders responded to each of the 13 court’s reasons. 14 Ultimately, the court denied Mr. Sanders’ Motion to Convert 15 and dismissed the case with a 180-day bar against refiling. 16 Mr. Sanders timely appealed. 17 JURISDICTION 18 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 19 §§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C. 20 § 158. 21 ISSUE 22 Whether the bankruptcy court violated due process by 23 dismissing Mr. Sanders’ bankruptcy case without adequate notice 24 and hearing. 25 STANDARD OF REVIEW 26 The parties disagree about the appropriate standard of 27 review that we should apply to this case. Mr. Sanders urges us 28 to employ de novo review, while Appellees argue for an abuse of

6 1 discretion standard. Insofar as Mr. Sanders only raises an 2 alleged due process violation - as opposed to an error in the 3 court’s finding of cause to dismiss the petition - we review the 4 issues de novo. 5 “Whether an appellant’s due process rights were violated is 6 a question of law we review de novo.” DeLuca v. Seare 7 (In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014) (citing 8 Miller v. Cardinale (In re DeVille), 280 B.R. 483, 492 (9th Cir. 9 BAP 2002), aff’d, 361 F.3d 539 (9th Cir. 2004)); see also HSBC 10 Bank USA, Nat’l Ass’n v. Blendheim (In re Blendheim), 803 F.3d 11 477, 497 (9th Cir. 2015) (“Whether adequate notice has been given 12 for the purposes of due process is a mixed question of law and 13 fact that we review de novo.”). “De novo review requires that we 14 consider a matter anew, as if no decision had been made 15 previously.” Francis v. Wallace (In re Francis), 505 B.R. 914, 16 917 (9th Cir. BAP 2014) (citations omitted). 17 We may affirm on any ground supported by the record. Diener 18 v. McBeth (In re Diener), 483 B.R. 196, 202 (9th Cir. BAP 2012). 19 DISCUSSION 20 A. The Panel will not sanction Mr. Sanders for his untimely opening brief. 21 22 Appellees request that we sanction Mr. Sanders under BAP 23 Rule 8018(a)-1(c), because he filed his opening brief 24 approximately three weeks late. 25 The Panel declines to strike Mr. Sanders’ opening brief or 26 otherwise sanction him for the untimely brief. On December 18, 27 2015, the day the opening brief was due, Mr. Sanders requested 28 leave to consolidate the present appeal with his wife’s appeal

7 1 and file a joint opening brief by January 8, when his wife’s 2 opening brief was due. The motions panel did not immediately 3 issue an order on Mr. Sanders’ motion, and Mr. Sanders chose not 4 to file his opening brief that day. Instead, he filed his 5 untimely joint opening brief without leave of court on January 8. 6 Appellees have failed to articulate any prejudice that they 7 have suffered as a result of the late brief. See Recinos De Leon 8 v. Gonzales, 400 F.3d 821, 822 (9th Cir. 2005) (“we may consider 9 the prejudice to this court as well as that to petitioner” when 10 determining whether to accept a late brief). Moreover, we are 11 reluctant to punish Mr. Sanders for his counsel’s actions. See 12 Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1190 13 (9th Cir. 2003) (“While recognizing that dismissal may be 14 appropriate in some cases, the court shows particular concern for 15 inappropriately punish[ing] the appellant for the neglect of his 16 counsel.”). 17 Accordingly, Appellees’ request for sanctions is DENIED. 18 B. The court did not violate Mr. Sanders’ due process rights when it dismissed his petition for cause. 19 20 Mr. Sanders does not challenge the substantive bases for the 21 court’s dismissal of his case, i.e., dismissal for cause due to 22 his negative income, misrepresentations and discrepancies in his 23 schedules, his erroneous calculations, and exclusion of many 24 creditors and debts, all of which indicate an inability to 25 succeed in chapter 13 or chapter 11. Rather, he only contends 26 that the court denied him due process by failing to afford 27 reasonable notice and an opportunity to be heard. As such, we 28 only consider the due process arguments.

8 1 1. Due process generally requires notice and an opportunity to be heard. 2 3 Generally speaking, a court must give sufficient notice of 4 its intention to dismiss a case and the opportunity for 5 interested parties to be heard. See Tennant v. Rojas 6 (In re Tennant), 318 B.R. 860, 870 (9th Cir. BAP 2004) (“the 7 concept of procedural due process requires a notice and an 8 opportunity to be heard” (citing Muessel v. Pappalardo 9 (In re Muessel), 292 B.R. 712, 717 (1st Cir. BAP 2003))). 10 According to the United States Supreme Court: 11 An elementary and fundamental requirement of due process in any proceeding which is to be accorded 12 finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the 13 pendency of the action and to afford them an opportunity to present their objections. The notice 14 must be of such nature as reasonably to convey the required information . . . and it must afford a 15 reasonable time for those interested to make their appearance. 16 17 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) 18 (citations omitted). 19 Section 1307(c) provides that, “[o]n request of a party in 20 interest or the United States trustee and after notice and a 21 hearing, the court . . . may dismiss a case under this chapter 22 . . . .” Section 102(1) defines the phrase “after notice and a 23 hearing”: 24 (1) “after notice and a hearing”, or a similar phrase - 25 (A) means after such notice as is appropriate in the particular circumstances, and such opportunity 26 for a hearing as is appropriate in the particular circumstances; but 27 (B) authorizes an act without an actual hearing if 28 such notice is given properly and if -

9 1 (i) such a hearing is not requested timely by 2 a party in interest; or 3 (ii) there is insufficient time for a hearing to be commenced before such act must be done, 4 and the court authorizes such act[.] 5 “[T]he concept of notice and a hearing is flexible and 6 depends on what is appropriate in the particular circumstance.” 7 In re Tennant, 318 B.R. at 870 (citing Great Pac. Money Markets, 8 Inc. v. Krueger (In re Krueger), 88 B.R. 238, 241 (9th Cir. BAP 9 1988)). A procedure may be “perfectly appropriate” if it 10 “notifies the debtor of the deficiencies of his petition and 11 dismisses the case sua sponte without further notice and a 12 hearing when the debtor fails to file the required forms within a 13 deadline.” Id. at 870-71 (citing Minkes v. LaBarge 14 (In re Minkes), 237 B.R. 476, 478–79 (8th Cir. BAP 1999)). 15 2. The court did not violate due process when it dismissed Mr. Sanders’ petition, because it gave him adequate 16 notice and an opportunity to be heard. 17 Mr. Sanders argues that the bankruptcy court deprived him of 18 due process, because it did not comply with the applicable 19 federal and local rules and failed to provide him with adequate 20 notice of the alleged deficiencies in his Plan or allow him a 21 chance to contest those allegations. 22 First, Mr. Sanders contends that he did not receive adequate 23 notice of the issues raised by the Trustee’s Notice. He argues 24 that the Notice did not comply with the local rules, because it 25 was not a formal, written motion and was served less than twenty- 26 one days before the Hearing. Mr. Sanders states that the Notice 27 did not inform him of the particular subsections that he 28 allegedly violated and did not provide supporting facts.

10 1 Additionally, he says that Bank of America’s request for 2 dismissal in its opposition to Plan confirmation was untimely and 3 not a “formal, written motion to dismiss.” 4 Second, Mr. Sanders argues that he did not have a reasonable 5 opportunity to be heard. He says that he was caught “flat- 6 footed” and that “he did not have the opportunity to present 7 complete arguments and fully-developed facts.” 8 a. Mr. Sanders failed to raise any due process violation before the bankruptcy court. 9 10 Mr. Sanders did not raise the due process issue before the 11 bankruptcy court or otherwise object to the notice or hearing 12 afforded by the court. As such, he has waived this issue. See 13 Yamada v. Nobel Biocare Holding AG, --- F.3d ----, 2016 WL 14 3207650, at *5 (9th Cir. Apr. 20, 2016) (“[g]enerally, an 15 appellate court will not hear an issue raised for the first time 16 on appeal”); Ezra v. Seror (In re Ezra), 537 B.R. 924, 932 (9th 17 Cir. BAP 2015) (“Ordinarily, federal appellate courts will not 18 consider issues not properly raised in the trial courts.”). A 19 debtor’s failure to raise due process challenges before the 20 bankruptcy court waives such claims on appeal. See Zamos v. 21 Zamos (In re Zamos), 300 F. App’x 451, 452 (9th Cir. 2008) 22 (“Jerome has waived his contention that his due process rights 23 were violated by Patricia’s delay in bringing suit to collect 24 delinquent support payments, as he did not raise it below.”). 25 b. The court afforded Mr. Sanders ample notice and opportunity to be heard before dismissing his 26 bankruptcy case. 27 Even assuming that Mr. Sanders properly raised a due process 28 violation before the bankruptcy court, the record shows that the

11 1 court afforded him adequate notice and an ample opportunity to be 2 heard prior to dismissing his case. 3 As for adequate notice, Mr. Sanders contends that the Notice 4 and Bank of America’s opposition were insufficient to constitute 5 “formal written motions.” This argument assumes that due process 6 requires a “formal, written motion.” The assumption is false. 7 Due process does not require a motion. Even in the absence of a 8 motion to dismiss by a party, the court may sua sponte raise the 9 issue of dismissal. See In re Tennant, 318 B.R. at 869 (in 10 construing § 1307(c)(9), “[t]he court can dismiss a case sua 11 sponte under Section 105(a),” because that section “‘makes 12 crystal clear’ the court’s power to act sua sponte where no party 13 in interest or the United States trustee has filed a motion to 14 dismiss a bankruptcy case” (citations omitted)). 15 Even more importantly, due process does not require that 16 notice be given in any particular form. Notice is sufficient for 17 due process purposes if it is “reasonably calculated, under all 18 the circumstances,” to inform the recipient of the nature of the 19 case and the recipient’s opportunity to respond. See Mullane, 20 339 U.S. at 314. 21 Mr. Sanders had more than adequate notice of the arguments 22 against him.4 On the whole, the combination of the Notice5 filed 23 4 24 Mr. Sanders seems to believe that violation of the rules, in and of itself, amounts to a violation of due process. He is 25 mistaken. See Wade v. State Bar of Ariz. (In re Wade), 948 F.2d 26 1122, 1125 (9th Cir. 1991) (although “[t]here was a violation of the local Bankruptcy Rules[,]” insofar as the debtors had a 27 “meaningful opportunity” to be heard and the bankruptcy court “thoroughly considered” the debtors’ arguments, there was no 28 (continued...)

12 1 by the Trustee and the objections to Plan confirmation filed by 2 Wells Fargo, Bank of America, and the United States sufficiently 3 detailed the grounds for denying confirmation of the Plan or 4 dismissing Mr. Sanders’ case. These included Mr. Sanders’ 5 previous failed attempts in chapter 11; the inconsistencies 6 between the present petition and Plan and his prior bankruptcy 7 filings; the omission of many creditors and debts in his petition 8 and Plan; Mr. Sanders’ negative income; and the falsity of his 9 Plan calculations. Mr. Sanders received adequate notice that his 10 Plan was deficient and that the Trustee would seek to dismiss the 11 petition. 12 Moreover, just over a month before the Hearing, the court 13 outlined the many problems with Mr. Sanders’ bankruptcy filings 14 when it denied the Motion to Extend Stay. When the court denied 15 the motion for lack of good faith, it recounted his past failed 16 attempts in bankruptcy and his many state court filings; the 17 $800,000 in student debt omitted from his current schedules; his 18 negative monthly income; the fact that his monthly income had 19 worsened from his previous case, indicating no regular income to 20 fund a chapter 13 plan; the fact that the Plan proposed to pay 21 22 4 (...continued) 23 violation of due process). 5 24 We express no opinion on the question whether the Notice, standing alone, would have satisfied the requirements of due 25 process. The Notice appears to be a standard form document that 26 contains no facts specific to Mr. Sanders’ case and cites Code sections without any indication of how they support the dismissal 27 of Mr. Sanders’ case. The Notice did not stand alone, however; considering all of the information provided to Mr. Sanders, he 28 had adequate notice.

13 1 only the claim of one automobile loan creditor, which “renders 2 the plan unconfirmable”; and his failure to list all of his 3 debts. Mr. Sanders cannot claim that he was “caught flat-footed” 4 and unaware of these deficiencies only a month later. 5 Tellingly, only a day before the Hearing, Mr. Sanders saw 6 the writing on the wall and filed his Motion to Convert. 7 Therein, he argued that, unlike his previous unsuccessful 8 bankruptcy petitions, “this time is different,” because he would 9 cut expenses and increase income. 10 We hold that Mr. Sanders had adequate notice required by due 11 process. 12 As for an opportunity to be heard, Mr. Sanders claims that 13 he was deprived of the opportunity to present his position. 14 However, the Hearing transcript makes clear that the court not 15 only allowed him to present his arguments, but went through each 16 of the bases for dismissal and afforded him an opportunity to 17 address each issue. The majority of the Hearing was occupied by 18 dialogue between Mr. Sanders and the court, and he had more than 19 ample opportunity to present his arguments and provide any 20 evidence. The court even allowed him to continue arguing while 21 the court was making its ruling. Accordingly, prior to the 22 dismissal of his case, Mr. Sanders had an ample opportunity to be 23 heard. 24 c. Mr. Sanders did not suffer any prejudice. 25 Even if Mr. Sanders’ due process rights were violated, he 26 has not suffered any prejudice. 27 Even in cases where a bankruptcy court errs by failing to 28 provide adequate notice and hearing, the debtor must show

14 1 prejudice from the procedural deficiencies. See Rosson v. 2 Fitzgerald (In re Rosson), 545 F.3d 764, 776-77 (9th Cir. 2008) 3 (“Because there is no reason to think that, given appropriate 4 notice and a hearing, Rosson would have said anything that could 5 have made a difference, Rosson was not prejudiced by any 6 procedural deficiency.”). In Rosson, the Ninth Circuit held that 7 the debtor was deprived of a meaningful opportunity to be heard; 8 nevertheless, because he could “show no prejudice arising from 9 the defective process afforded him[,]” the bankruptcy court 10 properly converted the case to chapter 7. Id. (citations 11 omitted); City Equities Anaheim, Ltd. v. Lincoln Plaza Dev. Co. 12 (In re City Equities Anaheim, Ltd.), 22 F.3d 954, 959 (9th Cir. 13 1994) (rejecting due process claim for lack of prejudice where 14 debtor could not show that any different or additional arguments 15 would have been presented if bankruptcy court had timely approved 16 petition for new counsel).6 17 6 Mr. Sanders cites In re Blendheim, 803 F.3d at 497, 18 supposedly for the proposition that “a denial of due process 19 should carry with it a presumption of prejudicial error.” Blendheim does not stand for that proposition and makes no 20 mention of a presumption of prejudice. If anything, Blendheim actually supports our conclusion. In Blendheim, a creditor 21 appealed from an order voiding the creditor’s lien. The creditor argued (among other things) that it did not receive adequate 22 notice. The Ninth Circuit rejected this argument, holding that 23 the creditor received notice that its lien might be affected when the debtors filed the objection to proof of claim. The court 24 cited United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) (“[b]ecause United received actual notice of the filing 25 and contents of Espinosa’s plan, which United acknowledged by 26 filing a proof of claim, . . . ‘[t]his more than satisfied United’s due process rights’”). In re Blendheim, 803 F.3d at 27 498. Although Espinosa and Blendheim were decided in different contexts from the present case, they demonstrate that due process 28 (continued...)

15 1 Here, Mr. Sanders has not articulated any prejudice that he 2 suffered as a result of the court’s procedure concerning the 3 Hearing. At oral argument before the Panel, Mr. Sanders’ counsel 4 argued that we cannot know what arguments Mr. Sanders would have 5 made if he had gotten more notice, and therefore we cannot rule 6 out the possibility that the alleged lack of notice prejudiced 7 him. But Mr. Sanders did not argue before this Panel that the 8 bankruptcy court erred on the merits; in other words, apart from 9 his procedural argument, he did not give the Panel any reason to 10 think that his case should not have been dismissed. His 11 inability to give us any persuasive substantive arguments against 12 dismissal proves that he could not have made any such arguments 13 before the bankruptcy court even if he had been given more 14 notice. We fail to see how Mr. Sanders “would have said anything 15 that could have made a difference.” See In re Rosson, 545 F.3d 16 at 777. 17 Accordingly, even if the court had violated Mr. Sanders’ due 18 process rights (and it did not), Mr. Sanders was not prejudiced 19 in any way.7 20 21 6 (...continued) 22 notice is “flexible” and does not require any specific or formal procedure. 23 7 Our decision to affirm the dismissal in Mr. Sanders’ case 24 is distinguishable from our decision to vacate the dismissal of Mrs. Sanders’ chapter 11 petition in a separate appeal also 25 before us (BAP No. CC-15-1344-FKiKu). Mr. Sanders had notice of 26 the possible dismissal of his case and the grounds therefor, and the court heard him at length. In Mrs. Sanders’ case, the court 27 summarily dismissed the petition at the filing desk by way of a short, handwritten note with no notice or opportunity to be 28 (continued...)

16 1 CONCLUSION 2 For the reasons set forth above, we AFFIRM the bankruptcy 3 court’s dismissal of Mr. Sanders’ bankruptcy petition. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 (...continued) 28 heard.