                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                 FOR THE TENTH CIRCUIT                    May 19, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
In re: JONATHAN ISAAC
SCHUPBACH; AMY MARIE
SCHUPBACH,

               Debtors.

------------------------------                            No. 14-3166
                                                       (BAP No. 13-068-KS)
BANK OF COMMERCE & TRUST                                     (BAP)
COMPANY,

               Plaintiff - Appellant,

v.

JONATHAN ISAAC SCHUPBACH;
AMY MARIE SCHUPBACH,

               Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and PHILLIPS, Circuit Judges.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Bank of Commerce & Trust Company (Bank) appeals a decision by the

Bankruptcy Appellate Panel (BAP) dismissing the Bank’s appeal for lack of

jurisdiction because the Bank’s nondischargeability claim against Jonathan Isaac

Schupbach and Amy Marie Schupbach (Debtors) is moot. Exercising jurisdiction

under 28 U.S.C. § 158(d)(1), we affirm.

I.    Background

      Debtors were engaged in the business of buying, renovating, and renting or

reselling homes in Wichita, Kansas. Doing business through Schupbach Investments

LLC (LLC), they obtained financing from the Bank to renovate over 40 properties.

The loans were secured by mortgages on the individual properties, and Debtors also

personally guaranteed the loans.

      In May 2011, the LLC filed for relief under Chapter 11 of the Bankruptcy

Code (LLC Case). The Bank filed a proof of claim in the LLC Case in the amount of

$748,748.72, further stating that the value of the collateral securing the debt was in

excess of $1.3 million, based on appraisals. See Aplt. App., Vol. 2 at 111. In July

2011, Debtors filed for relief under Chapter 13 of the Bankruptcy Code (Individual

Case), listing the Bank as an unsecured creditor based on Debtors’ personal

guarantees of the Bank’s loans to the LLC. The Bank filed a proof of claim in the

Individual Case identical to its proof of claim in the LLC Case. See id. at 13. The

bankruptcy court subsequently granted Debtors’ motion to convert the Individual

Case to proceed under Chapter 11 rather than Chapter 13.


                                          -2-
       The Bank filed an adversary proceeding in the Individual Case on March 6,

2012, alleging that a portion of the debt owed to it by Debtors was nondischargeable

pursuant to 11 U.S.C. §§ 523(a)(2) and (a)(6) (Nondischargeability Case). The Bank

claimed that Debtors obtained some of the financing based on false pretenses and

also willfully and maliciously misappropriated or converted the loan proceeds for

their own use. The Bank’s claims in the Nondischargeability Case involved six of

the more-than-40 loans to the LLC, and it sought to exclude only $172,000 from

discharge. In June 2012, the bankruptcy court dismissed the Bank’s § 523(a)(2)

claim as untimely. Bank of Commerce & Trust Co. v. Schupbach (In re Schupbach),

473 B.R. 423, 428-29 (Bankr. D. Kan. 2012). In the same order, it denied Debtors’

motion to dismiss the § 526(a)(6) claim for failure to state a claim, and it construed a

third count in the Bank’s complaint “as seeking a determination of the amount which

is nondischargeable, not the entire claim.” Id. at 429.

       In July 2012, the Bank and other creditors filed a proposed plan of liquidation

in the LLC Case (LLC Plan). The bankruptcy court confirmed the LLC Plan in

November 2012. It provided for the Bank’s allowed secured claim, and it effected a

transfer to the Bank, free and clear of all rights of Debtors, of all real property in

which the Bank held a first mortgage. See Aplt. App., Vol. 3 at 6-7. The real

property transferred to the Bank under the LLC Plan included the properties serving

as collateral on the six loans at issue in the Bank’s adversary proceeding.




                                           -3-
      In September 2013, after a bench trial in the Nondischargeability Case, the

bankruptcy court denied on the merits the Bank’s claim for denial of discharge under

§ 523(a)(6) and entered judgment in favor of Debtors. Bank of Commerce & Trust

Co. v. Schupbach (In re Schupbach), 500 B.R. 22, 36-37 (Bankr. D. Kan. 2013). The

Bank appealed only the bankruptcy court’s earlier dismissal of its § 523(a)(2) claim

as untimely.

      In March 2014, while the Bank’s appeal in the Nondischargeability Case was

pending at the BAP, Debtors filed a proposed Chapter 11 plan (Individual Plan). The

Individual Plan treated the Bank’s claim as follows:

      4.   Class 4: All Other Allowed Unsecured Claims.
      ....

      Certain holders of unsecured claims also held secured claims against
      [the LLC] that were personally guaranteed or co-signed by the Debtors.
      The holders of such claims will be treated as unsecured herein.
      However, the full amount of their claims were secured by various real
      property more particularly described in the [LLC] Plan. The collateral
      for these Claims was previously owned by [the LLC] and was
      transferred to these particular creditors through the [LLC] Plan. Debtor
      incorporates the terms of such surrender and transfer into this Plan. As
      a result, the holders of these claims will have their qualifying Class 4
      claims limited herein in the following manner. First, the claims are
      determined by looking to the filed amount of the claim . . . . Second,
      the value of the collateral received by the holders of these claims
      through the [LLC] Plan will be deducted from the claim. The value of
      the collateral will be determined by the publicly accessible county
      appraisal values. The resulting amount will be the allowed amount of
      the claim for voting and distribution purposes. These amounts and
      calculations are reflected on Exhibit E and incorporated herein by
      reference. If the holder of any particular claim disagrees with the
      allowed amount of the claim as reflected on Exhibit E, such holder may
      choose a different value for the collateral by filing an amended proof of
      claim not later than seven days prior to the deadline for casting a vote

                                        -4-
      on this Plan. The proof of claim MUST a) specifically identify the
      value of each and every item of collateral received through the [LLC]
      Plan and b) provide adequate proof of such value attached to the
      amended proof of claim in one of three acceptable forms[.]
      ....

      Should an amended proof of claim not be filed, . . . the amount of the
      claim will be as reflected on Exhibit E. The holders of the affected
      claims are as follows:
      ....

      Bank of Commerce & Trust . . .
      ....

      . . . . [T]he value of the collateral for the Class 4 Claim of [the Bank] far
      exceeds the claim asserted by [the Bank]. As such, the treatment in the
      [LLC] Plan shall be provided to [the Bank] in full satisfaction of the
      Class 4 Claim. . . . . [The Bank] may nonetheless file [an] amended
      claim[] pursuant to the procedures described above if [it] believe[s it]
      hold[s] deficiencies, and thus participate in Class 4.

Aplt. App., Vol. 3 at 68-69.

      Exhibit E lists the amount of the Bank’s claim as $748,748.72 and the value of

the collateral as $956,940.00. Id. at 83. Exhibit B to the Individual Plan provides

that the treatment of the Bank’s claim is to “[a]llow and surrender collateral in full

satisfaction.” Id. at 79. The Individual Plan provided further that “[c]onfirmation of

this Plan shall act as final allowance of all claims listed on Exhibits B and E as

‘allowed.’ Allowed Claims shall be treated in accordance with this Plan.” Id. at 72.

The Individual Plan also expressly provided that “[t]he rights and obligations of any

entity named or referred to in this Plan will be binding upon . . . such entity.” Id. at

76. Regarding the Dischargeability Case, the plan stated that “[t]he pending appeal



                                          -5-
with [the Bank] and related adversary proceeding may remain open following entry

of the final decree.” Id. at 73.

       The Bank received notice of the Individual Plan. It did not file an objection or

an amended proof of claim. The bankruptcy court confirmed the Individual Plan on

April 20, 2014 (Confirmation Order). No party appealed the Confirmation Order.

       In May 2014, after the Individual Plan had been confirmed, Debtors moved the

BAP to dismiss the Bank’s appeal in the Nondischargeability Case. They contended

that the Bank’s nondischargeability claim was moot because the Bank’s claim in the

Individual Case had been satisfied in full pursuant to the Confirmation Order.

       The Bank opposed the motion, arguing that the Individual Plan only

established the allowed amount of its claim “for voting and distribution purposes”;

the discharge provision under the plan did not apply to debts falling under § 523; and

the plan stated that the Nondischargeability Case may remain open following entry of

a final decree. The Bank further contended that substantive disputes that must be

adjudicated in an adversary proceeding—specifically the extent of the Bank’s injuries

resulting from Debtors’ fraudulent representations regarding loans on six

properties—are not subject to the preclusive effect of a confirmed plan. The BAP

granted Debtors’ motion and dismissed the Bank’s appeal for lack of jurisdiction.




                                         -6-
II.   Discussion

      A.     Standard of Review

      We review de novo the BAP’s determination that a pending appeal is

constitutionally moot. See Search Market Direct, Inc. v. Jubber (In re Paige),

584 F.3d 1327, 1334 (10th Cir. 2009) (applying de novo review to district court

ruling that appeal before it was moot). We also review de novo the terms of the

Individual Plan as a question of law. See id.

      B.     Constitutional Mootness

      “Constitutional mootness doctrine is grounded in the Article III requirement

that federal courts may only decide actual ongoing cases or controversies.” Prier v.

Steed, 456 F.3d 1209, 1212 (10th Cir. 2006) (internal quotation marks omitted).

“A case may . . . become moot if an event occurs while a case is pending on appeal

that makes it impossible for the court to grant any effectual relief whatever to a

prevailing party.” Id. at 1212-13 (internal quotation marks omitted). “The crucial

question is whether granting a present determination of the issues offered will have

some effect in the real world.” Id. (internal quotation marks and ellipsis omitted).

“The mootness question necessarily constitutes our threshold inquiry, because the

existence of a live case or controversy is a constitutional prerequisite to the

jurisdiction of the federal courts.” Dais-Naid, Inc. v. Phoenix Res. Cos. (In re Tex.

Int’l Corp.), 974 F.2d 1246, 1247 (10th Cir. 1992) (internal quotation marks




                                          -7-
omitted). We agree with the BAP that the Bank’s nondischargeability claim was

mooted by the confirmed Individual Plan.

       C.     The Bank’s Nondischargeability Claim was Mooted by the
              Confirmation Order, Which Provides that the Bank’s Claim in the
              Individual Case Has Been Fully Satisfied

       “[A] confirmed plan functions as a judgment with regard to those bound by the

plan . . . .” Paul v. Monts, 906 F.2d 1468, 1471 n.3 (10th Cir. 1990). Chapter 11

provides that “the provisions of a confirmed plan bind the debtor, . . . and any

creditor . . . whether or not the claim or interest of such creditor . . . is impaired under

the plan and whether or not such creditor . . . has accepted the plan.” 11 U.S.C.

§ 1141(a). “When the bankruptcy court confirms a plan, its terms become binding on

debtor and creditor alike. Confirmation has preclusive effect, foreclosing relitigation

of any issue actually litigated by the parties and any issue necessarily determined by

the confirmation order.” Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 2015 WL

1959040, at *5 (2015) (citation and internal quotation marks omitted) (construing

comparable statutory language regarding effect of confirmation under Chapter 13).

“[H]ow the confirmed plan treats a particular claim or interest is of vital importance.

An affected creditor . . . will have only such rights postconfirmation as the drafted

plan may give it.” Collier on Bankruptcy ¶ 1129.01[1] (Alan N. Resnick & Henry J.

Sommer, eds., 16th ed. 2015); see also United States v. Richman (In re Talbot),

124 F.3d 1201, 1209 (10th Cir. 1997) (noting “because creditors are limited to those

rights that they are afforded by the plan, they may not take actions to collect debts


                                           -8-
that are inconsistent with the method of payment provided for in the plan” (internal

quotation marks omitted)). Here, the terms of the Individual Plan itself also stated

that the rights and obligations of any entity named or referred to in the plan will be

binding on such entity.

      In the Nondischargeability Case, the Bank sought a ruling that a portion of its

claim filed in the Individual Case was nondischargeable. But according to the

confirmed Individual Plan, the Bank’s claim in the Individual Case was fully

satisfied by the previous transfer of real property to the Bank under the terms of the

confirmed LLC Plan. Thus, once the Individual Plan was confirmed and the

Confirmation Order was unchallenged on appeal, there was no remaining case or

controversy regarding the Bank’s nondischargeability claim.

      To be sure, the Individual Plan specifically provided that the

Nondischargeability Case “may remain open following entry of the final decree.”

Aplt. App., Vol. 3 at 73. But that provision did not prevent the Bank’s

nondischargeability claim from becoming moot under the other terms of the plan.

Even if the Bank were to prevail in its appeal by obtaining a reversal of the

bankruptcy court’s dismissal of its § 523(a)(2) claim as untimely, and even if the

bankruptcy court held on remand that a portion of the Bank’s claim is

nondischargeable, it remains impossible for that court to grant the Bank any effectual

relief because the Bank’s claim against Debtors—including the portion it sought to

exclude from discharge—has been satisfied in full. See Navani v. Shahani, 496 F.3d


                                          -9-
1121, 1131 (10th Cir. 2007) (holding that, although an issue raised on appeal was

still before the court, an interim trial court order precluded this court from granting

the appellant any effectual relief even if the issue were decided in her favor). After

entry of the Confirmation Order, a court’s decision that a portion of the Bank’s claim

is nondischargeable would have no “legal effect in determining the present and future

rights and obligations of the parties.” Prier, 456 F.3d at 1213. Therefore, the Bank’s

nondischargeability claim is moot.

      D.     The Bank’s Contentions Regarding Mootness Were Not Preserved for
             Appellate Review or Lack Merit

      The Bank advances several arguments why its nondischargeability claim was

not mooted by the Confirmation Order: (1) the bankruptcy court lacked jurisdiction

to make a finding in the Individual Case that could moot the Bank’s

nondischargeability claim; (2) the bankruptcy court’s finding regarding the value of

the Bank’s collateral is not binding on the Bank in the Nondischargeability Case

because that issue was not actually litigated in the Individual Case, as required for

issue preclusion; (3) the BAP exceeded its authority by making factual findings in

support of its mootness determination; and (4) the scope of the Individual Plan was

limited to “voting and distribution purposes” and does not apply to the Bank’s

nondischargeability claim. Underlying the Bank’s contentions is its claim that it




                                          - 10 -
chose to forgo litigating the value of its collateral in the confirmation proceedings for

the Individual Plan in favor of litigating that issue in the Nondischargeability Case.1

              1.     The Bankruptcy Court’s Jurisdiction to Enter the Confirmation
                     Order

       The Bank argues the BAP erred in dismissing its appeal as moot based on the

Confirmation Order because the bankruptcy court lacked jurisdiction to enter the

Confirmation Order while the Bank’s appeal in the Dischargeability Case was

pending. The Bank asserts that its appeal divested the bankruptcy court of

jurisdiction over aspects of the bankruptcy case that were involved in the appeal. It

contends that, because an underlying unsecured claim is a necessary element of a

nondischargeability claim, the bankruptcy court had no jurisdiction to enter an order

treating the Bank’s claim as fully satisfied.

       Debtors argue this court should decline to reach this issue because the Bank

raised it for the first time in this appeal, thereby forfeiting appellate review. In

response, the Bank asserts that a jurisdictional defect may be challenged at any time.

Thus, the Bank invokes “the familiar principle that so long as a case is pending, the

issue of federal court jurisdiction may be raised at any stage of the proceedings either

by the parties or by the court on its own motion.” Lang v. Lang (In re Lang),

414 F.3d 1191, 1194 (10th Cir. 2005) (brackets and internal quotation marks


1
        In its reply brief, the Bank asserts it has evidence that, after liquidation of all
of its collateral, it has a deficiency claim exceeding $350,000. See Aplt. Reply Br.
at 7 n.2.


                                           - 11 -
omitted). The Bank is correct on that issue, as far as it goes. If this were a direct

review of the bankruptcy court’s Confirmation Order, we would be duty bound to

consider whether that court acted beyond its jurisdiction. See Travelers Indem. Co. v.

Bailey, 557 U.S. 137, 148 (2009). But the Confirmation Order was entered on April

14, 2014, and was immediately appealable. See Bullard, 135 S. Ct. 1686, 2015 WL

1959040, at *4-*5. The time to appeal, however, has expired. See Fed. R. Bankr. P.

8002(a).

      [O]nce the [Confirmation Order] became final on direct review (whether
      or not [a] proper exercise[] of bankruptcy court jurisdiction and power),
      [it] became res judicata to the parties and those in privity with them, not
      only as to every matter which was offered and received to sustain or
      defeat the claim or demand, but as to any other admissible matter which
      might have been offered for that purpose.

Travelers Indemnity, 557 U.S. at 152 (internal quotation marks omitted).2 The Bank

could have challenged the bankruptcy court’s jurisdiction to enter the Confirmation

Order on direct review of that order; it did not do so, and it may not now “reopen that

question in a collateral attack upon an adverse judgment.” Id. at 153 (internal

quotation mark omitted).

             2.     Application of Issue Preclusion

      The Bank argues that the bankruptcy court’s finding regarding the value of its

collateral is not binding on the Bank in the Nondischargeability Case because that


2
      This is not one of the rare situations identified in Travelers Indemnity in which
subject-matter jurisdiction may be subject to collateral attack. See 557 U.S. at
153 n.6.


                                          - 12 -
issue was not actually litigated in the Individual Case. Therefore, the Bank contends,

the BAP erred in dismissing the appeal as moot based on the Confirmation Order

because the doctrine of issue preclusion applies only when an issue underlying a

judgment was actually litigated. See Melnor, Inc. v. Corey (In re Corey), 583 F.3d

1249, 1251 (10th Cir. 2009) (“Under federal law, issue preclusion attaches only when

an issue of fact or law is actually litigated and determined by a valid and final

judgment, and the determination is essential to the judgment.” (internal quotation

marks omitted)).

      The Bank does not indicate in its opening brief where it raised this issue in the

BAP, as required by 10th Cir. R. 28.2(C)(2). “An issue is preserved for appeal if a

party alerts the [lower] court to the issue and seeks a ruling.” Somerlott v. Cherokee

Nation Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012) (internal quotation

marks omitted). The Bank does acknowledge that the BAP made no ruling on the

application of issue preclusion. Our review of the record indicates that the Bank did

not raise this contention in response to Debtors’ motion to dismiss the appeal as

moot. We generally do not review issues that a party raises for the first time on

appeal, even new issues that are related to those raised in the lower court. See

Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005). This rule applies as

well in bankruptcy proceedings. See Foster v. Hill (In re Foster), 188 F.3d 1259,

1264 n.5 (10th Cir. 1999) (holding issue not raised in appeal to district court from

bankruptcy court was forfeited in appeal to this court). Because the Bank does not


                                         - 13 -
attempt to show plain error, we hold that it has waived our review of this issue.

See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (holding

argument forfeited in lower court is entitled to appellate review as a basis for reversal

only if appellant satisfies plain error standard of review; failure to argue plain error

waives the argument in this court).

             3.     Impermissible Findings of Fact By the BAP

      The Bank contends that the BAP, as an appellate tribunal, impermissibly made

factual findings in support of its dismissal of the appeal, specifically with respect to

the value of the Bank’s collateral. We disagree. First, the Bank cites no authority for

its proposition that an appellate court may not make factual determinations in

deciding that an appeal is moot. Under the circumstances in this case, the BAP was

tasked with deciding whether a subsequent event—the entry of the Confirmation

Order—made it impossible to grant effectual relief even if it should decide the appeal

in the Bank’s favor. It has long been the rule that facts relevant to a mootness

determination, “when not appearing on the record, may be proved by extrinsic

evidence.” Heitmuller v. Stokes, 256 U.S. 359, 362 (1921) (making factual findings

in support of determination that appeal was mooted by subsequent events, id. at

361-62). “Neither is it open to question that [an appellate court] may take judicial

notice of materials on appeal, or that doing so can wind up rendering a case moot . . .

during its pendency on appeal.” Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d

1208, 1213 (10th Cir. 2012). Here, the BAP could take judicial notice of the


                                          - 14 -
Confirmation Order on the bankruptcy court’s docket. See United States v. Ahidley,

486 F.3d 1184, 1192 n.5 (10th Cir. 2007). Ultimately, upon notice of the

Confirmation Order, the BAP’s analysis involved a legal assessment of the terms of

that order and the mootness implications arising from it. See Jordan v. Sosa,

654 F.3d 1012, 1033 n.19 (10th Cir. 2011). The BAP did not make impermissible

factual findings in support of that determination.

             4.     The Scope of the Individual Plan

      The Bank’s final contention is that the scope of the confirmed Individual Plan

is limited to the purposes of “voting and distribution.” The Bank points to the

following language in the Individual Plan, addressing allowance of the Bank’s claim:

      First, the claims are determined by looking to the filed amount of the
      claim . . . . Second, the value of the collateral received by the holders of
      these claims through the [LLC] Plan will be deducted from the claim.
      The value of the collateral will be determined by the publicly accessible
      county appraisal values. The resulting amount will be the allowed
      amount of the claim for voting and distribution purposes.

Aplt. App., Vol. 3 at 68 (emphasis added). Based on the plan’s reference to “the

allowed amount of the claim for voting and distribution purposes,” the Bank asserts

that it did not object to the Individual Plan or file an amended proof of claim because

it had chosen to “forgo[] highly improbable future unsecured creditor distributions in

the case,” Aplt. Opening Br. at 11. The Bank maintains that it elected instead to

pursue only its Nondischargeability Case. It contends that, while the Confirmation

Order precludes it from participating in potential future distributions to unsecured



                                         - 15 -
creditors under the Individual Plan, the order by its terms has no effect on its

nondischargeability claim.

      We are not persuaded. The Bank filed a proof of claim in the Individual Case

that included the amount the Bank alleged was nondischargeable in the

Nondischargeability Case. Debtors’ proposed Individual Plan calculated the amount

of the Bank’s allowed claim based on a stated value of the collateral subtracted from

the amount of the filed claim. See Aplt. App., Vol. 3 at 68. Because the value of the

collateral far exceeded the amount of the Bank’s claim, the plan treated it as fully

satisfied by the previous transfer of property from Debtors to the Bank pursuant to

the confirmed LLC Plan.

      The stated collateral value in the Individual Plan was subject to the Bank’s

election to file an amended proof of claim substantiating a different (presumably

lower) value, thereby demonstrating that the Bank’s claim was not fully satisfied.

But the Bank did not file an amended proof of claim. As a result, the Bank’s claim—

in its entirety, including the portion alleged to be nondischargeable—was treated as

fully satisfied under the confirmed Individual Plan.

      The Bank nonetheless contends that the Confirmation Order does not establish

its claim was fully satisfied for purposes of the Nondischargeability Case because the

Individual Plan determined the allowed amount of its claim only “for voting and

distribution purposes.” Debtors dispute this reading of the Individual Plan, which

they proposed. As they point out, the Bank’s argument inserts the word “only”


                                         - 16 -
before “for voting and distribution purposes” where that limiter does not appear in

the Individual Plan. And the Bank does not call attention to any provision of the

Individual Plan that limits its treatment of the Bank’s claim as being fully satisfied.

      But even if we were to narrowly construe the effect of the Individual Plan as

limited in the manner the Bank argues, its contention begs the question in what forum

the value of its collateral would be redetermined? The Bank responds that this issue

was raised in and would be litigated in the Nondischargeability Case on remand from

the BAP. But the Bank fails to support this assertion with any citation to the record.

See Aplt. Opening Br. at 11 (stating without citation to the appendix that “[t]he

Debtors have raised the issue [whether the Bank has a deficiency claim] in the

[Nondischargeability] Case” and “that issue will be adjudicated as a part of the trial

by the Bankruptcy Court”); see also Fed. R. App. P. 28(a)(8)(A) (requiring appellant

to support its contentions with citations to the record).

      Our review of the record indicates that the third count of the Bank’s complaint

in the Nondischargeability Case asked the bankruptcy court to determine the amount

of the nondischargeable debt. See Aplt. App., Vol. 1 at 128. The bankruptcy court

construed that count “as seeking a determination of the amount which is

nondischargeable, not the entire claim,” stating that “[t]his matter is properly

determined in the adversary proceeding challenging dischargeability.” In re

Schupbach, 473 B.R. at 429. The final pretrial order on the Bank’s § 523(a)(6)

nondischargeability claim did not include the value of the Bank’s collateral as an


                                          - 17 -
issue of fact to be tried. And consistent with its previous construction of the

complaint, in denying that claim the bankruptcy court concluded after “[f]inding no

basis for denial of discharge,” that “the count of the Complaint for determining the

amount excepted from discharge is moot.” In re Schupbach, 500 B.R. at 36

(emphasis added). The Bank did not argue in its appeal to the BAP that the

bankruptcy court misconstrued its complaint as seeking only a determination of the

amount of the debt that was nondischargeable.

       We reiterate that the Bank filed a claim in the Individual Case and then

declined to establish a collateral valuation different from the value proposed by

Debtors in the Individual Plan. That plan treated the Bank’s claim—including the

portion it alleged as nondischargeable—as fully satisfied. The Individual Plan was

confirmed without objection or appeal by the Bank. We reject the Bank’s contention

that we should narrowly construe the effect of the Confirmation Order as limited to

the issue whether the Bank could vote on or receive any distribution in the Individual

Case, such that the value of its collateral would be a live case or controversy on

remand in the Nondischargeability Case.

III.   Conclusion

       The judgment of the Bankruptcy Appellate Panel, dismissing the Bank’s

appeal for lack of jurisdiction as moot, is affirmed.

                                                  Entered for the Court

                                                  Monroe G. McKay
                                                  Circuit Judge

                                         - 18 -
