In re: Thomas Monroe Matthews

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: February 4, 2022
• Docket: SC-21-1106-SFL
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 4 2022 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. SC-21-1106-SFL THOMAS MONROE MATTHEWS, Debtor. Bk. No. 19-02355-CL13 THOMAS MONROE MATTHEWS, Appellant, v. MEMORANDUM1 COUNTY OF SAN DIEGO TREASURER- TAX COLLECTOR; THOMAS H. BILLINGSLEA, JR., Trustee, Appellees.

Appeal from the United States Bankruptcy Court for the Southern District of California Christopher B. Latham, Chief Bankruptcy Judge, Presiding

Before: SPRAKER, FARIS, and LAFFERTY, Bankruptcy Judges.

1 This disposition is not appropriate for publication. 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 9th Cir. BAP Rule 8024-1.

2 Thomas Monroe Matthews appeals from the bankruptcy court’s

denial of plan confirmation and dismissal of his chapter 131 bankruptcy

case. The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(2)(A) and (L). We have jurisdiction over this appeal under 28 U.S.C.

§ 158.

We review de novo plan confirmation rulings that hinge on

construction of the Code and not on disputed factual issues. Meyer v. Lepe

(In re Lepe), 470 B.R. 851, 855 (9th Cir. BAP 2012). De novo review means we

give no deference to the bankruptcy court’s decision. Francis v. Wallace (In

re Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014). We review the bankruptcy

court’s dismissal of the debtor’s chapter 13 case for an abuse of discretion.

Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914

(9th Cir. BAP 2011). The bankruptcy court abuses its discretion if it applies

an incorrect rule of law or its factual findings are illogical, implausible, or

without support in the record. TrafficSchool.com, Inc. v. Edriver, Inc., 653 F.3d

820, 832 (9th Cir. 2011).

Matthews’ chapter 13 case centered on the claim of $243,840.47 held

by the San Diego County Treasurer-Tax Collector (“County”) secured by

tax liens against his real property, including residential real property he

owned in El Cajon, California (“Residence”). After years of litigating

against the County in administrative proceedings as well as state and

Unless specified otherwise, all chapter and section references are to the 1

Bankruptcy Code, 11 U.S.C. §§ 101–1532. 3 federal courts, Matthews filed an adversary proceeding against the County

and objected to its claim. The bankruptcy court dismissed the adversary

proceeding and overruled the claim objection. Matthews failed to timely

appeal either matter. As such, Matthews’ challenges to the County’s

secured claim — and the damages claims he asserted — are beyond the

scope of this appeal. We are without jurisdiction to consider in this appeal

arguments related to those matters. Jue v. Liu (In re Liu), 611 B.R. 864, 872

(9th Cir. BAP 2020); Wilkins v. Menchaca (In re Wilkins), 587 B.R. 97, 107 (9th

Cir. BAP 2018).

Matthews proposed to pay monthly plan payments of $200 for 36

months. As noted by the County and the chapter 13 trustee in their

objections to confirmation, the proposed plan payments were woefully

short of the amount needed to pay the County’s secured claim. While

Matthews advised that he was willing to sell the Residence and hired a

listing agent, the listing expired without a sale.

The bankruptcy court conducted ten confirmation hearings over two

years. Prior to the final confirmation hearing, the court advised Matthews

of his last chance to sell the Residence. Matthews failed to notice any sale

before the final confirmation hearing, and the court found that he had

abandoned his efforts to sell the Residence.

At the tenth and final confirmation hearing, the court denied

confirmation because the plan was not feasible and dismissed the case,

4 finding that there was unreasonable delay that was prejudicial to the

creditors.

On appeal, Matthews continues his efforts to relitigate his claims

against the County and to disallow its secured claim. However, as noted

above, this appeal is limited to the denial of plan confirmation and

dismissal of his bankruptcy case. Matthews has not pointed us to any error

in these rulings.

Nor has our review of the record revealed any such errors. It was

Matthews’ obligation to propose and confirm a feasible plan to pay the

County’s allowed secured claim in full over the term of the plan. Despite

having two years to do so, the payments provided for in his amended plan

were patently insufficient, and he failed to sell the Residence. Accordingly,

the bankruptcy court’s ruling that Matthews had unreasonably delayed

plan confirmation to the prejudice of his creditors was amply supported.

The record is devoid of any evidence reflecting his ability to make

sufficient plan payments, and Matthews does not deny that he abandoned

his effort to sell the real property. At bottom, Matthews’ failure adequately

to provide for the County’s allowed secured claim rendered his plan

unconfirmable. See § 1325(a)(5)(B)(ii); Barnes v. Barnes (In re Barnes), 32 F.3d

405, 407 (9th Cir. 1994); Mead v. Loheit (In re Mead), BAP No. EC-09-1241-

MkHDu, 2010 WL 6259982, at *8 (9th Cir. BAP June 15, 2010), aff'd, 529 F.

App’x 835 (9th Cir. 2013).

5 In sum, two years had elapsed since Matthews had commenced his

bankruptcy, and there was no hope of a confirmable plan on the horizon.

Such delay constitutes “cause” for dismissal or conversion. See Jimenez v.

ARCPE 1, LLP (In re Jimenez), 613 B.R. 537, 543 (9th Cir. BAP 2020) (citing

§ 1307(c)(1)). 2

All of the arguments Matthews has raised on appeal either are

irrelevant to the rulings timely appealed, lack merit, or both.

For the reasons set forth above, we AFFIRM.

2 When the debtor does not seek conversion as an alternative to dismissal and the record does not reflect that conversion was a better option in light of the creditors’ interests, the bankruptcy court does not commit reversible error by not considering conversion as an alternative to dismissal. In re Jimenez, 613 B.R at 544. 6