FILED JUN 5 2025 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. NV-24-1111-CBG VICTORIA GIAMPA, Debtor. Bk. No. 23-13014-nmc
VICTORIA GIAMPA, Appellant, v. MEMORANDUM* SELENE FINANCE, LP, servicer for U.S. Bank Trust National Association, not in its individual capacity but solely as owner trustee for RCF2 Acquisition Trust; KATHLEEN A. LEAVITT, Chapter 13 Trustee; U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as owner trustee for RCF2 acquisition trust, Appellees.
Appeal from the United States Bankruptcy Court for the District of Nevada Natalie M. Cox, Chief Bankruptcy Judge, Presiding
Before: CORBIT, BRAND, and GAN Bankruptcy Judges.
* 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. INTRODUCTION
Chapter 131 debtor Victoria Giampa (“Giampa”) appeals the
bankruptcy court’s denial of confirmation of her proposed plan and
dismissal of her case. Because Giampa filed a new chapter 13 petition
during the pendency of this appeal, this appeal is moot, and the Panel lacks
jurisdiction. Accordingly, we DISMISS the appeal as MOOT.
FACTS 2
A. Giampa’s bankruptcy case
On July 24, 2023, Giampa, proceeding in pro per, filed a chapter 13
petition. In her schedules, Giampa stated she had $0 in gross monthly
income and a net monthly deficiency of $4,006.84. Giampa listed her
primary residence on Wellington Court in Henderson, Nevada
(“Property”), which she valued at $311,700.00, but Giampa did not identify
any secured claims or creditors.
On August 16, 2023, Giampa filed a chapter 13 plan. In her plan,
Giampa indicated she would make one $800 payment3 despite representing
1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure. 2 We exercise our discretion to take judicial notice of documents electronically
filed in the main bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 3 Giampa stated that her applicable commitment was one month. However, a
document attached to the proposed plan indicated that Giampa planned to make $800/month payments for 60 months. The chapter 13 trustee requested that Giampa amend the plan to provide for the applicable commitment period, but Giampa never filed an amended or corrected plan. Trustee testified at the dismissal hearing that 2 that the liquidation value of her estate was $582,092.38. Giampa’s proposed
plan did not identify any secured claims or propose to pay any secured
creditors.
Both the chapter 13 trustee (“Trustee”) and creditor U.S. Bank Trust
National Association, as owner trustee for RCF2 Acquisition Trust (“U.S.
Bank”), objected to confirmation of the plan. U.S. Bank argued that it had a
claim secured by the Property in the total amount of $617,812.26
($342,330.68 of that being prepetition arrearage). U.S. bank argued that
confirmation should be denied because Giampa’s proposed plan failed to
provide for monthly mortgage payments (either in the plan or directly to
U.S. Bank) and failed to provide for curing or paying the prepetition
arrears in contravention of § 1322(b)(5). Trustee argued that confirmation
should be denied for several reasons including Giampa’s failure to make
plan payments and provide the requested bank statements. Trustee also
argued that the proposed plan failed to meet the liquidation value test
under § 1325(a)(4) and unfairly discriminated against general unsecured
claims in violation of § 1322(b)(1).
Giampa’s response followed a familiar, although almost always
unsuccessful, refrain used by many debtors − that the creditor asserting a
security interest in the real property (U.S. Bank in this case) was not the
entity entitled to enforce payment on the claim because of alleged
although the case had been pending for over a year, Giampa had only made four $800 payments. 3 infirmities in the loan and assignment documents. Giampa further asserted
that U.S. Bank was not a legally recognized entity and, therefore, lacked
standing. As to Trustee’s objections, Giampa argued that she had provided
all the necessary documents and she had no disposable income so there
was no applicable commitment period to amend in her plan.
Trustee filed amended oppositions to confirmation and filed a
motion to dismiss (“Dismissal Motion”) pursuant to § 1307(c)(1) based on
Giampa’s unreasonable delay that prejudiced creditors. Trustee argued
that: (1) Giampa’s self-reported income was a negative $4,006.84 and a
debtor with a negative income does not generally qualify to be in chapter
13; (2) the plan failed to provide for all of Giampa’s disposable income
pursuant to § 1325(a)(3); (3) the plan failed to meet liquidation value under
§ 1325(a)(4) based on Giampa’s $581,867.38 of non-exempt property; (4) the
plan had not been amended to provide the correct commitment period;
(5) Giampa refused to comply with Trustee’s request for bank statements;
and (6) Giampa failed to amend her schedules to disclose all personal
property. Trustee noted that even though the case had been pending for
over a year, Giampa had not filed an amended plan to cure the previously
identified deficiencies. Trustee further argued that the case should be
dismissed because using the information provided by Giampa, there was
little likelihood that Giampa could ever propose a confirmable plan and,
therefore, there was clearly unreasonable delay prejudicing creditors.
4 U.S. Bank joined Trustee’s Dismissal Motion. U.S. Bank explained
that it was “not receiving distributions on its claim,” and that Giampa’s
unreasonable delay in confirming a plan was prejudicial to U.S. Bank and
other creditors.
Giampa requested, and was given, an extension of time to respond to
the Dismissal Motion. On April 15, 2024, Giampa filed two oppositions.
Giampa continued to question U.S. Bank’s claim and its authority to
enforce the debt. Giampa argued that U.S. Bank did not file a timely proof
of claim, was using unauthorized attorneys, was a defunct and illegitimate
organization, and was falsely representing it had a secured claim against
the Property. Giampa also argued that Trustee’s objections were without
merit because Trustee was intentionally misquoting the Bankruptcy Code,
was refusing to carry out her statutory duties, and was attempting to
deceive Giampa.
The bankruptcy court held a hearing on both the objection to
confirmation and the Dismissal Motion and took the matters under
advisement. On May 14, 2024, the bankruptcy court issued an oral ruling
denying confirmation and dismissing the case pursuant to § 1307(c)(1) and
(5). On May 14, 2024, consistent with its oral ruling, the bankruptcy court
entered an order denying confirmation of the plan (“Order Denying
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FILED JUN 5 2025 NOT FOR PUBLICATION 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. NV-24-1111-CBG VICTORIA GIAMPA, Debtor. Bk. No. 23-13014-nmc
VICTORIA GIAMPA, Appellant, v. MEMORANDUM* SELENE FINANCE, LP, servicer for U.S. Bank Trust National Association, not in its individual capacity but solely as owner trustee for RCF2 Acquisition Trust; KATHLEEN A. LEAVITT, Chapter 13 Trustee; U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as owner trustee for RCF2 acquisition trust, Appellees.
Appeal from the United States Bankruptcy Court for the District of Nevada Natalie M. Cox, Chief Bankruptcy Judge, Presiding
Before: CORBIT, BRAND, and GAN Bankruptcy Judges.
* 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. INTRODUCTION
Chapter 131 debtor Victoria Giampa (“Giampa”) appeals the
bankruptcy court’s denial of confirmation of her proposed plan and
dismissal of her case. Because Giampa filed a new chapter 13 petition
during the pendency of this appeal, this appeal is moot, and the Panel lacks
jurisdiction. Accordingly, we DISMISS the appeal as MOOT.
FACTS 2
A. Giampa’s bankruptcy case
On July 24, 2023, Giampa, proceeding in pro per, filed a chapter 13
petition. In her schedules, Giampa stated she had $0 in gross monthly
income and a net monthly deficiency of $4,006.84. Giampa listed her
primary residence on Wellington Court in Henderson, Nevada
(“Property”), which she valued at $311,700.00, but Giampa did not identify
any secured claims or creditors.
On August 16, 2023, Giampa filed a chapter 13 plan. In her plan,
Giampa indicated she would make one $800 payment3 despite representing
1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure. 2 We exercise our discretion to take judicial notice of documents electronically
filed in the main bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 3 Giampa stated that her applicable commitment was one month. However, a
document attached to the proposed plan indicated that Giampa planned to make $800/month payments for 60 months. The chapter 13 trustee requested that Giampa amend the plan to provide for the applicable commitment period, but Giampa never filed an amended or corrected plan. Trustee testified at the dismissal hearing that 2 that the liquidation value of her estate was $582,092.38. Giampa’s proposed
plan did not identify any secured claims or propose to pay any secured
creditors.
Both the chapter 13 trustee (“Trustee”) and creditor U.S. Bank Trust
National Association, as owner trustee for RCF2 Acquisition Trust (“U.S.
Bank”), objected to confirmation of the plan. U.S. Bank argued that it had a
claim secured by the Property in the total amount of $617,812.26
($342,330.68 of that being prepetition arrearage). U.S. bank argued that
confirmation should be denied because Giampa’s proposed plan failed to
provide for monthly mortgage payments (either in the plan or directly to
U.S. Bank) and failed to provide for curing or paying the prepetition
arrears in contravention of § 1322(b)(5). Trustee argued that confirmation
should be denied for several reasons including Giampa’s failure to make
plan payments and provide the requested bank statements. Trustee also
argued that the proposed plan failed to meet the liquidation value test
under § 1325(a)(4) and unfairly discriminated against general unsecured
claims in violation of § 1322(b)(1).
Giampa’s response followed a familiar, although almost always
unsuccessful, refrain used by many debtors − that the creditor asserting a
security interest in the real property (U.S. Bank in this case) was not the
entity entitled to enforce payment on the claim because of alleged
although the case had been pending for over a year, Giampa had only made four $800 payments. 3 infirmities in the loan and assignment documents. Giampa further asserted
that U.S. Bank was not a legally recognized entity and, therefore, lacked
standing. As to Trustee’s objections, Giampa argued that she had provided
all the necessary documents and she had no disposable income so there
was no applicable commitment period to amend in her plan.
Trustee filed amended oppositions to confirmation and filed a
motion to dismiss (“Dismissal Motion”) pursuant to § 1307(c)(1) based on
Giampa’s unreasonable delay that prejudiced creditors. Trustee argued
that: (1) Giampa’s self-reported income was a negative $4,006.84 and a
debtor with a negative income does not generally qualify to be in chapter
13; (2) the plan failed to provide for all of Giampa’s disposable income
pursuant to § 1325(a)(3); (3) the plan failed to meet liquidation value under
§ 1325(a)(4) based on Giampa’s $581,867.38 of non-exempt property; (4) the
plan had not been amended to provide the correct commitment period;
(5) Giampa refused to comply with Trustee’s request for bank statements;
and (6) Giampa failed to amend her schedules to disclose all personal
property. Trustee noted that even though the case had been pending for
over a year, Giampa had not filed an amended plan to cure the previously
identified deficiencies. Trustee further argued that the case should be
dismissed because using the information provided by Giampa, there was
little likelihood that Giampa could ever propose a confirmable plan and,
therefore, there was clearly unreasonable delay prejudicing creditors.
4 U.S. Bank joined Trustee’s Dismissal Motion. U.S. Bank explained
that it was “not receiving distributions on its claim,” and that Giampa’s
unreasonable delay in confirming a plan was prejudicial to U.S. Bank and
other creditors.
Giampa requested, and was given, an extension of time to respond to
the Dismissal Motion. On April 15, 2024, Giampa filed two oppositions.
Giampa continued to question U.S. Bank’s claim and its authority to
enforce the debt. Giampa argued that U.S. Bank did not file a timely proof
of claim, was using unauthorized attorneys, was a defunct and illegitimate
organization, and was falsely representing it had a secured claim against
the Property. Giampa also argued that Trustee’s objections were without
merit because Trustee was intentionally misquoting the Bankruptcy Code,
was refusing to carry out her statutory duties, and was attempting to
deceive Giampa.
The bankruptcy court held a hearing on both the objection to
confirmation and the Dismissal Motion and took the matters under
advisement. On May 14, 2024, the bankruptcy court issued an oral ruling
denying confirmation and dismissing the case pursuant to § 1307(c)(1) and
(5). On May 14, 2024, consistent with its oral ruling, the bankruptcy court
entered an order denying confirmation of the plan (“Order Denying
Confirmation”) and an order dismissing Giampa’s bankruptcy case
(“Dismissal Order”).
5 Giampa timely appealed both the Order Denying Confirmation and
the Dismissal Order.
B. Post appeal events
On January 22, 2025, the BAP denied Giampa’s January 13, 2025
emergency motion for stay. On February 12, 2025, the BAP received
notification that on January 27, 2025, during the pendency of this appeal,
Giampa filed a new chapter 13 petition in the same bankruptcy court.
Consequently, the BAP issued an order suspending the current appeal. On
May 12, 2025, Giampa requested that the appeal be reinstated because the
automatic stay in her new case was not extended by order of the
bankruptcy court. On May 16, 2025, the BAP reinstated the present appeal.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A). We discuss our jurisdiction under 28 U.S.C. § 158 below.
ISSUE
Whether the appeal is moot.
STANDARD OF REVIEW
“This Panel can only address actual cases and controversies and,
therefore, has a duty to raise the issue of mootness sua sponte when the
parties fail to do so.” Omoto v. Ruggera (In re Omoto), 85 B.R. 98, 99-100 (9th
Cir. BAP 1988) (citation omitted). We assess de novo our own jurisdiction,
including questions of mootness. Ellis v. Yu (In re Ellis), 523 B.R. 673, 677
(9th Cir. BAP 2014). Under de novo review, “we consider a matter anew, as
6 if no decision had been made previously.” Francis v. Wallace (In re Francis),
505 B.R. 914, 917 (9th Cir. BAP 2014).
DISCUSSION
Neither party argues that the appeal is moot. However, before
considering the merits, the Panel has an independent obligation to consider
mootness sua sponte. Pilate v. Burrell (In re Burrell), 415 F.3d 994, 997 (9th
Cir. 2005). Mootness is a jurisdictional limitation on this Panel’s ability to
dispose of an appeal because the Panel “cannot exercise jurisdiction over a
moot appeal.” In re Ellis, 523 B.R. at 677. Constitutional mootness derives
from the case-or-controversy requirement of Article III of the Constitution,
which limits the jurisdiction of all federal courts to actual cases and
controversies. Id. The Ninth Circuit has stated:
A case is moot if the issues presented are no longer live and there fails to be a “case or controversy” under Article III of the Constitution. The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If it can grant such relief, the matter is not moot.
In re Burrell, 415 F.3d at 998 (internal citations and quotation marks
omitted); see also Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir. 1989) (“A
case is moot if it has lost its character as a present live controversy. If events
7 subsequent to the filing of an appeal moot the issues presented in a case, no
justiciable controversy is presented.”) (internal citation omitted).
Here, during the pendency of this appeal, Giampa filed another
chapter 13 petition (“New Case”). The commencement of a bankruptcy
case “creates an estate” that includes “virtually all [Giampa’s] assets.”
Harrington v. Purdue Pharma L.P., 603 U.S. 204, 214 (2024) (citing § 541(a)).
Specifically, under § 541(a)(1), the bankruptcy estate comprises “all legal or
equitable interests of [Giampa] in property as of the commencement of the
case.” In a chapter 13 case, § 1306(a) provides that “[p]roperty of the estate
includes, in addition to the property specified in section 541 . . . (1) all
property of the kind specified in [§ 541] that the debtor acquires after the
commencement of the case but before the case is closed, dismissed, or
converted . . . whichever occurs first[.]” § 1306(a)(1). This provision thus
expands the bankruptcy estate’s scope in chapter 13 cases beyond what
§ 541(a) specifies, such that “the Chapter 13 estate from which creditors
may be paid includes both the debtor’s property at the time of his
bankruptcy petition, and any . . . property acquired after filing.” Harris v.
Viegelahn, 575 U.S. 510, 514 (2015).
Consequently, pursuant to the Bankruptcy Code, the property of the
dismissed estate is now being administered solely in the New Case. Thus,
if we reverse the Dismissal Order, then we would create the untenable
situation of having two different bankruptcy estates exercising control over
the same property at the same time, thus violating the “single estate rule.”
8 See e.g. Freshman v. Atkins, 269 U.S. 121, 122-23 (1925); Grimes v. United
States (In re Grimes), 117 B.R. 531, 535-36 (9th Cir. BAP 1990). Under the
single estate rule, it is well established that property cannot be an asset of
two bankruptcy estates simultaneously. Id. at 536; Bateman v. Grover (In re
Berg), 45 B.R. 899, 903 (9th Cir. BAP 1984).
Additionally, regardless of creating a violation of the single estate
rule, if the Panel were to decide the issue in her favor, it is questionable
whether reinstating the dismissed case would provide any effective relief.
This is because in the New Case, Giampa has the same opportunity to
reorganize her affairs including disputing U.S. Bank’s authority to enforce
its claim and proposing a feasible chapter 13 plan.
Accordingly, Giampa’s choice to file another chapter 13 case divested
this Panel of jurisdiction because, even if the Panel decided the matter on
the merits in her favor, it is not possible for us to provide her any effective
relief.
CONCLUSION
Based on the foregoing, we DISMISS the appeal as MOOT.