                                                         FILED
                                                          JUL 09 2013
 1
                                                     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 Nos.   AZ-11-1535-TaAhJu
                                   )                 AZ-12-1213-TaAhJu
 6   POWELL’S INTERNATIONAL, INC., )                 (Related Appeals)
                                   )
 7                  Debtor.        )      Bk. No. 10-02965-GBN
     ______________________________)
 8   LEWIS HUNT ALTON,             )
                    Appellant,     )
 9                                 )
     v.                            )      MEMORANDUM*
10                                 )
     KEYBANK, N.A.; LOTHAR         )
11   GOERNITZ, Chapter 7 Trustee, )
                                   )
12                  Appellees.     )
     ______________________________)
13
                     Argued and Submitted on June 21, 2013
14                            at Phoenix, Arizona
15                            Filed - July 9, 2013
16             Appeal from the United States Bankruptcy Court
                         for the District of Arizona
17
       Honorable George B. Nielsen, Jr., Bankruptcy Judge, Presiding
18                    ________________________________
19   Appearances:     Lewis Hunt Alton, Appellant, argued pro se.
                       __________________________________
20
     Before: TAYLOR, AHART,** and JURY, Bankruptcy Judges.
21
22
23
24
25        *
             This disposition is not appropriate for publication.
     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 8013-1.
27
          **
             Hon. Alan M. Ahart, United States Bankruptcy Judge for
28   the Central District of California, sitting by designation.
 1                              INTRODUCTION
 2        Appellant Lewis H. Alton appeals from adverse rulings on two
 3   motions for reconsideration.   First, the bankruptcy court denied
 4   reconsideration of an order (the “Sept. 12, 2011 Order”) denying
 5   Alton’s request for employment and compensation for services
 6   allegedly rendered in connection with a chapter 11 § 363 sale1
 7   (the “§ 363 Sale”).   Alton failed to timely appeal from this
 8   order, so he sought and obtained an extension of the time to file
 9   this appeal.   Appellees, however, successfully obtained an order
10   on a reconsideration motion reversing this determination (the
11   “2012 Order”).2   Alton timely appealed from this ruling.
12        Alton did not obtain a stay pending either appeal.     Thus,
13   the § 363 Sale proceeds were distributed; the chapter 11 case was
14   converted to a case under chapter 7; and on November 13, 2012,
15   the chapter 7 trustee, appellee Lothar Goernitz (“Trustee”),
16   filed his report certifying that the chapter 7 estate is fully
17   administered (“Final Report”).3   The Final Report evidences that
18
          1
19           Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
20   all “Rule” references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All “Civil Rule” references are to
21   the Federal Rules of Civil Procedure.
          2
22           On January 26, 2012, a motions panel issued an order
     suspending prosecution of the appeal from the Sept. 12, 2011
23   Order pending the bankruptcy court’s ruling on Appellee’s
     reconsideration motion. After the bankruptcy court issued the
24   2012 Order, from which Alton timely appealed, the motions panel
     issued an order that required briefing in the related appeals to
25   be filed concurrently. Alton filed the briefs in both appeals,
     as required, and we have considered all such briefing for
26   purposes of this disposition.
          3
27           We have exercised our discretion to independently review
     documents contained on the bankruptcy court’s electronic docket.
28                                                      (continued...)

                                    - 2 -
 1   the chapter 7 case is administratively insolvent.4   As a result
 2   of the current status of the bankruptcy, we DISMISS the appeal
 3   from the 2012 Order as moot.   And, as a result, we DISMISS the
 4   appeal from the Sept. 12, 2011 Order based on lack of
 5   jurisdiction.
 6                   FACTUAL AND PROCEDURAL BACKGROUND5
 7        The chapter 11 debtor in this case owned and operated a
 8   Volvo franchised automobile dealership in Scottsdale, Arizona.
 9   KeyBank held liens on substantially all of Debtor’s assets.    On
10   February 4, 2010 (“Petition Date”), Debtor filed its petition
11   under chapter 11.
12        On June 25, 2010, Debtor filed a motion under § 363 (“Sale
13   Motion”) seeking authorization for the sale of substantially all
14
15
          3
           (...continued)
16   See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),
     887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase Manhattan
17   Mortg Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP
     2003). We note that the chapter 7 was closed for a brief period
18   of time on November 21, 2012; however, the bankruptcy court
     entered an order reopening it the same day and re-appointing the
19   Trustee, as the case had been closed due to administrative error.
20        4
             Trustee also reduced his fee request from $52,750, the
     statutorily-based amount, to $12,776.06, paid from $30,000 carved
21   out from the Trustee’s sale of KeyBank’s real property collateral
     to pay some chapter 7 administrative expenses.
22
          5
             On December 12, 2012, Trustee filed a Notice of Election
23   Not to File Brief (“Trustee’s Notice of Election”). Trustee’s
     Notice of Election included an assertion in footnote 1 that
24   KeyBank, N.A. (“KeyBank”) “was improperly designated as an
     appellee by appellant and has also indicated to the Trustee that
25   it will not file a brief.” See BAP dkt. #42. The majority of
     the facts contained herein we obtained from Alton’s briefs and
26   his excerpts of the record. Some additional procedural and other
     background information we developed based on our independent
27   review of documents contained on the bankruptcy court’s
     electronic docket. See In re E.R. Fegert, Inc., 887 F.2d at
28   957-58.

                                    - 3 -
 1   of its assets free and clear of liens.   The assets included all
 2   business assets related to the dealership.6   Four days later, the
 3   Debtor filed an emergency application to employ Alton to assist
 4   in the sale, as a “finder,” retroactively to the Petition Date
 5   (“Debtor’s First Employment Application”).    The bankruptcy court
 6   approved the Debtor’s First Employment Application by order
 7   entered on July 28, 2010 (“Employment Order”), but made the
 8   employment effective only as of that date, not retroactively.7
 9        The bankruptcy court conducted a successful auction on the
10   Sale Motion on August 3, 2010.    In October 2010, the bankruptcy
11   court entered a stipulated order on the Sale Motion (“Stipulated
12   Sale Order”).8   Proceeds of the sale, less some previously-
13
          6
14           The Sale Motion did not include Debtor’s real property,
     which was eventually sold pursuant to an application filed by the
15   Trustee after the case was converted. KeyBank was not paid in
     full on its allowed secured claim against the Debtor, and no
16   funds were generated for the benefit of unsecured creditors
     through either the Sale Motion or the subsequent sale of the real
17   property collateral. KeyBank did, however, consent to payment of
     some priority and administrative claims from its cash collateral
18   and sale proceeds.
          7
19           KeyBank filed a reservation of rights in response to the
     Debtor’s Employment Application. KeyBank did not object to
20   Alton’s employment, but reserved the right to object to any
     compensation “until further application and review of evidence
21   concerning services rendered and benefit to the estate.” Notice
     of Reservation of Rights, Bk. Dkt. #63. The Employment Order
22   specifically provided that it was without prejudice to the right
     of Debtor or Alton to apply for retroactive employment and
23   compensation. Eventually, the bankruptcy court required Alton to
     apply for such retroactive approvals. We render no opinion
24   regarding whether Alton’s employment needed to be approved
     retroactively as our decision here deprives us of jurisdiction to
25   review the issues raised by Alton in connection with his
     late-filed appeal from the Sept. 12, 2011 Order.
26
          8
             Recitals contained in the Stipulated Sale Order reveal
27   that Volvo Cars of North America, LLC (“Volvo”), a party to the
     Stipulated Sale Order, exercised its statutory and contractual
28                                                      (continued...)

                                      - 4 -
 1   authorized disbursements to KeyBank and disbursement to the
 2   Arizona Department of Revenue for its administrative claim, were
 3   to be deposited in Debtor’s counsel’s trust account, with liens,
 4   claims, encumbrances, and interests attached, and subject to
 5   further order of the bankruptcy court.9
 6        After the auction, but before entry of the Stipulated Sale
 7   Order, Debtor filed a fee application seeking payment to Alton
 8   (“Alton’s First Fee Application”).     Although Alton’s employment
 9   was made effective only as of July 28, 2010, Alton’s First Fee
10   Application sought compensation for services during the period
11   commencing on the Petition Date and ending August 20, 2010.10
12   KeyBank filed an objection to Alton’s First Fee Application on
13   multiple grounds.11   The bankruptcy court never entered an order
14   on Alton’s First Fee Application, but instead ordered Alton to
15   file a supplemented application.   In response, Alton timely filed
16
17
          8
           (...continued)
18   right of first refusal and notified Debtor of its intention to
     purchase the assets at the price offered by the successful bidder
19   and under the same terms. Volvo also exercised its right to
     assign the assets it acquired.
20
          9
             The sale did not close, however, until sometime after
21   December 10, 2010, when the bankruptcy court entered a second
     stipulated order that resolved the Arizona Department of
22   Revenue’s motion for reconsideration of the Stipulated Sale
     Order.
23
          10
             The time records attached to Alton’s First Fee
24   Application reflect that all but three-quarters of an hour of his
     services were performed prior to the July 28, 2010 effective date
25   of his employment.
26        11
             The grounds included failure to obtain approval of
     employment for the period of time for which compensation was
27   sought, failure to justify retroactive approval, failure to
     satisfy U.S. Trustee’s Guidelines, failure to satisfy § 330(a)
28   requirements, and prematurity, as the § 363 Sale was not closed.

                                    - 5 -
 1   an Amended Application for Employment and Compensation (“Alton’s
 2   Amended Application”) seeking “nunc pro tunc appointment to serve
 3   the bankruptcy estate as a professional back to the petition
 4   filing date in February 4, 2010 as well as compensation for the
 5   period between then and now.”    Bk. Dkt. #186 at 1:12-15.   The
 6   bankruptcy court scheduled the hearing on Alton’s Amended
 7   Application for May 2, 2011.12
 8        Meanwhile, in February of 2011, the United States Trustee
 9   filed its motion to convert or dismiss the case (“Conversion
10   Motion”), and KeyBank filed its motion seeking bankruptcy court
11   authority to distribute funds from the closed § 363 Sale (“Motion
12   to Distribute”).   The bankruptcy court granted the Motion to
13   Distribute in April of 2011; however, the order required $120,000
14   to be held in escrow “for the claim of Alton subject to further
15   hearing and order.”13   Bk. Dkt. #188.   On May 24, 2011, the
16   bankruptcy court entered an order denying Alton’s Amended
17   Application (“Order Denying Amended Application”), pursuant to
18   the bankruptcy court’s extensive oral ruling rendered at the
19   May 2, 2011 hearing, and also ordered that the $120,000 held in
20   escrow be turned over to KeyBank.    Shortly thereafter, the
21   bankruptcy court entered the order converting the case to a case
22   under chapter 7.
23        Alton timely filed a motion to reconsider the Order Denying
24   Amended Application, which drew an objection from KeyBank.      The
25
26        12
             Neither Alton nor the record on appeal clearly explains
     why the matter was continued multiple times.
27
          13
             The order on the Motion to Distribute does not recite
28   the grounds on which the bankruptcy court based the hold-back.

                                      - 6 -
 1   bankruptcy court held the hearing on Alton’s motion for
 2   reconsideration on July 26, 2011.   At the hearing, the bankruptcy
 3   court denied the motion for reconsideration and again placed
 4   extensive findings on the record.   The bankruptcy court did not
 5   enter the order, however, until September 12, 2011.    Alton filed
 6   an untimely notice of appeal on September 27, 2011 along with a
 7   single-page request for extension based on his receipt of the
 8   Sept. 12, 2011 Order on September 13, 2011.    The bankruptcy court
 9   “summarily granted” the requested extension and deemed the notice
10   of appeal timely filed, subject to reconsideration (“Order
11   Granting Extension”).   The Sept. 12, 2011 Order is the subject of
12   BAP No. AZ-11-1535 (the “First Appeal”).
13        Trustee and KeyBank jointly filed a timely motion on
14   October 7, 2011 for reconsideration of the Order Granting
15   Extension (“Joint Reconsideration Motion”).    The Joint
16   Reconsideration Motion was based on the bankruptcy court’s
17   failure to require Alton to establish excusable neglect, as
18   required under Rule 8002(c) and the standards articulated in
19   Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
20   380, 395 (1993).
21        A week later, Alton filed a combined amended motion for
22   extension and response to the Joint Reconsideration Motion.    And
23   a week thereafter, he filed a further supplemental brief.    The
24   bankruptcy court held the final hearing on the Joint
25   Reconsideration Motion on April 3, 2012.14    At the hearing, the
26
27        14
             The final hearing was continued multiple times on the
     agreement of the parties due to Alton’s scheduling and personal
28   financial issues.
                                    - 7 -
 1   bankruptcy court granted the Joint Reconsideration Motion and
 2   read its findings and conclusions into the record.         The order
 3   granting the Joint Reconsideration Motion was entered on April 4,
 4   2012.        Alton timely filed a notice of appeal, which is the
 5   subject of BAP No. AZ-12-1213 (the “Second Appeal”).
 6                                   JURISDICTION
 7           The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
 8   §§ 1334 and 157(b)(2)(B).       Subject to the mootness discussion set
 9   forth below, we have jurisdiction under 28 U.S.C. § 158 as to the
10   Second Appeal.       As a necessary result of our conclusion that the
11   Second Appeal is moot, we lack jurisdiction to review issues
12   raised by Alton in the First Appeal.          See Anderson v. Mouradick
13   (In re Mouradick), 13 F.3d 326, 327 (9th Cir. 1994).
14                                      ISSUES
15           Is the Second Appeal moot?
16                                STANDARD OF REVIEW
17           We have an independent duty to determine whether an appeal
18   is moot within the meaning of Article III’s case or controversy
19   requirement,15 and we consider the mootness issue de novo.         See
20   United States v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1112
21   (9th Cir. 2012); Hunt v. Imperial Merchant Servs., Inc., 560 F.3d
22   1137, 1141 (9th Cir. 2009).
23                                    DISCUSSION
24           Ultimately, Alton seeks an order from either this Panel or
25
             15
             In September 2012, Trustee and KeyBank filed a Joint
26   Motion to Dismiss both these appeals for mootness. Alton filed
     opposition and a motions panel for the BAP denied the motion at
27   that time, concluding that appellees had “not met their heavy
     burden to demonstrate that these appeals are moot.” BAP Dkt. #39
28   (citation omitted).

                                         - 8 -
 1   the bankruptcy court requiring KeyBank to pay him for the benefit
 2   he argues he provided to KeyBank “as a result of his efforts to
 3   bring buyers” to the Debtor’s § 363 Sale.     First Appeal Suppl.
 4   Apl’t Brief at 8.    Alton argues that KeyBank, as a party to the
 5   appeals, has the financial ability and should be ordered to
 6   disgorge $126,000.    Unfortunately for Alton, such a result is not
 7   a simple matter under the governing statutory law and procedural
 8   rules, which we acknowledge are complicated and technical by
 9   nature.   Alton did not have his own legal counsel during the
10   bankruptcy proceedings.   And, as he argues on appeal, Debtor’s
11   counsel may have let him down and KeyBank’s counsel may have
12   encouraged Alton’s participation while simultaneously protecting
13   KeyBank’s rights in its collateral.      Nonetheless, and despite the
14   extensive time and effort Alton put into promoting the § 363 Sale
15   and the success he believes he achieved, our ability, as well as
16   the bankruptcy court’s ability, to consider “equity,” does not
17   afford either of us free rein.    Alton has not pointed us to any
18   authority that would permit us, by virtue of either of these
19   appeals, to grant the relief he requests.     Nor are we aware of
20   any such authority.
21        Our role in these appeals necessarily is limited to, first,
22   review of the order granting the Joint Reconsideration Motion.
23   Only if we were to conclude that the bankruptcy court abused its
24   discretion by denying extension of the time for Alton to file the
25   notice of appeal from the Sept. 12, 2011 Order would our role
26   then expand to review of the bankruptcy court’s denial of Alton’s
27   motion for reconsideration of the order denying Alton’s Amended
28

                                      - 9 -
 1   Application.16    But we may not fulfill even that limited role
 2   unless a live case or controversy exists.    Therefore, as a
 3   threshold matter, we first must determine whether the Second
 4   Appeal is moot.
 5        As an appellate court, our jurisdiction is limited to actual
 6   cases and controversies.    Motor Vehicle Cas. Co. v. Thorpe
 7   Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 980, 990
 8   (9th Cir. 2012) (citing U.S. Const. art. III, § 2, cl. 2.).       “The
 9   test for mootness of an appeal is whether the appellate court can
10   give the appellant any effective relief in the event that it
11   decides the matter on the merits in his favor.    If it can grant
12   such relief, the matter is not moot.”    Id. (internal quotation
13   and citations omitted).    As discussed below, even if Alton were
14   to prevail on both appeals, there is no effective relief
15   available to Alton in the bankruptcy case.17
16
17        16
             The First Appeal was taken solely from the order denying
     the reconsideration of the order denying Alton’s Amended
18   Application. The issues addressed by Alton, however, relate to
     the appropriateness of the underlying order, which denied
19   retroactive employment and compensation in the chapter 11 case.
     In the bankruptcy court’s oral ruling denying Alton’s motion for
20   reconsideration, the bankruptcy court addressed the merits of
     Alton’s Amended Application. Thus, the bankruptcy court’s
21   decision to deny the motion for reconsideration was inextricably
     intertwined with the correctness of the original order.
22   Accordingly, we could conclude that Alton’s limited notice of
     appeal, if deemed to be timely, would not present a
23   jurisdictional bar to our review of the order denying him
     retroactive employment and compensation. See McCarthy v. Mayo,
24   827 F.2d 1310, 1314 (9th Cir. 1987).
25        17
             As previously discussed the only bankruptcy matter
     potentially at issue here is the employment and compensation
26   application. Alton’s briefs in these appeals primarily argue
     that KeyBank is directly responsible to pay him. We, as well as
27   the bankruptcy court, lack jurisdiction over any claims by Alton
     directly against KeyBank. See 28 U.S.C. § 1334. Thus, we take
28   no position with respect thereto.
                                     - 10 -
 1        Under the Bankruptcy Code, conversion of the bankruptcy case
 2   from chapter 11 to chapter 7 resulted in chapter 7 administrative
 3   expenses taking priority over unpaid chapter 11 administrative
 4   claims.   § 726(b); and see Temecula v. LPM Corp. (In re LPM
 5   Corp.), 269 B.R. 217, 223 (9th Cir. BAP 2001).   Put another way,
 6   until all chapter 7 administrative expenses are paid, a chapter 7
 7   trustee in a converted case is not authorized to pay
 8   administrative expenses incurred during the chapter 11 case.
 9   Here, the Trustee administered the chapter 7 case for 18 months
10   and was not able to pay all chapter 7 administrative expenses.18
11   In fact, the Trustee voluntarily reduced his own priority
12   statutory fees by nearly $40,000 to enable him to pay the United
13   States Trustee’s unpaid fees and fees and costs of Trustee’s
14   counsel from the carve-out from KeyBank’s real property
15   collateral sold by the Trustee during the chapter 7.   The Trustee
16   certified that the estate is fully administered and all estate
17   assets and funds that came under his control have been properly
18   accounted for.   If approved, Alton’s Amended Application would
19   entitle Alton, at most, to a chapter 11 administrative claim — a
20   claim for which he would receive no payment under the Bankruptcy
21   Code and the realities of this case.   Thus, even if Alton were to
22   prevail on both appeals, the relief would be ineffective.
23        Alton argues, however, that KeyBank should be required to
24
          18
             The Trustee sought and obtained bankruptcy court
25   authority to make interim distributions on some chapter 7
     administrative claims by order entered on October 25, 2011. From
26   a $30,000 carve-out from the sale of KeyBank’s real property
     collateral, the bankruptcy court authorized Trustee to pay United
27   States Trustee’s fees of $1,625; Trustee’s attorneys’ fees and
     costs of $15,598.945; and Trustee’s voluntarily reduced statutory
28   fees.

                                   - 11 -
 1   disgorge funds to pay him, on the theory that KeyBank benefitted
 2   from Alton’s services.   And Alton argues that he has the right to
 3   pursue surcharge against KeyBank under § 506(c).    Section 506(c)
 4   of the Bankruptcy Code allows a trustee to “recover from property
 5   securing an allowed secured claim the reasonable, necessary costs
 6   and expenses of preserving, or disposing of, such property to the
 7   extent of any benefit to the holder of such claim.”    Standing to
 8   seek surcharge, however, is limited to the trustee in a chapter 7
 9   case or the debtor-in-possession in a chapter 11 case.    See
10   Debbie Reynolds Hotel & Casino, Inc. v. Calstar Corp. (In re
11   Debbie Reynolds Hotel & Casino, Inc.), 255 F.3d 1061, 1066 (9th
12   Cir. 2001) (citing Hartford Underwriters Ins. Co. v. Union
13   Planters Bank, N.A., 530 U.S. 1, 6 (2000)).19
14        Here, Alton’s alleged services related to the § 363 Sale of
15   business assets in the chapter 11.     The Debtor conceivably could
16   have sought approval to surcharge KeyBank’s collateral to pay an
17   allowed claim for Alton’s services if sought and obtained under
18   § 506(c) prior to conversion of the case.    The Debtor, however,
19   lost control of the case when the case was converted to
20   chapter 7.   The Debtor is no longer a debtor-in-possession with
21   standing to bring a § 506(c) motion.    Therefore, only the Trustee
22   would have § 506(c) standing here, if a § 506(c) motion were
23   available under the circumstances.
24        But, here, such a motion is not available.     Because the case
25   is administratively insolvent at the chapter 7 level and has been
26
          19
             Arguing against this point, Alton relies on case
27   authority in his appellate briefs that is no longer good law
     after the U.S. Supreme Court’s decision in Hartford Underwriters
28   Ins. Co. v. Union Planters Bank, N.A.

                                   - 12 -
 1   fully administered, the Trustee lacks any basis under the
 2   rationale of § 506(c) to seek to surcharge KeyBank’s now-
 3   liquidated collateral to pay Alton.    See In re Smith Int’l
 4   Enters., Inc., 325 B.R. 450, 456 (Bankr. M.D. Fla. 2005) (trustee
 5   could not be compelled to pursue surcharge recovery that would
 6   not benefit the estate); and In re Suntastic USA, Inc., 269 B.R.
 7   846, 850 (Bankr. D. Ariz. 2001) (trustee need not take action
 8   that would benefit only an individual creditor or claimant).      A
 9   surcharge motion here, if successful, would benefit no estate
10   creditors other than Alton.
11        Thus, the only appropriate provision under the Bankruptcy
12   Code that might provide effective relief to Alton is not
13   available to Alton as a matter of law.20   Alton has mentioned no
14   other, and we know of no other.21   Therefore, we are unable to
15
16        20
             Although we found no Ninth Circuit decisions on point,
     we are aware that at least one circuit court has held that once
17   the secured creditor’s assets have been sold unencumbered from
     the estate, the assets are no longer subject to surcharge under
18   § 506(c) because they are no longer property of the estate over
     which the bankruptcy court may exercise jurisdiction. See
19   Borrego Springs Bank, N.A. v. Skuna River Lumber, LLC
     (In re Skuna River Lumber, LLC), 564 F.3d 353, 355 (7th Cir.
20   2009).
21        21
             Administrative expenses are generally satisfied out of
     unencumbered assets. Id. Nothing in the record on appeal, nor
22   in the documents on the bankruptcy court’s electronic docket that
     we have reviewed independently, reveal the existence of any
23   payments made from unencumbered estate assets to chapter 11
     administrative claimants that could be subject to a motion to
24   disgorge for the purpose of achieving parity for Alton (if he
     were to prevail on both appeals) with and among other claimants
25   with allowed administrative claims at the chapter 11 level. The
     administrative claims paid during the case all appear to have
26   been paid from KeyBank’s cash collateral, with KeyBank’s consent,
     or from KeyBank’s § 363 Sale proceeds, again, with KeyBank’s
27   consent. KeyBank did not consent to pay Alton’s claim, was not
     itself paid in full, and the estate lacks any remaining assets to
28   be administered.
                                   - 13 -
 1   provide effective relief to Alton.
 2        Even if we were to reach the merits of the Second Appeal, we
 3   would be inclined to affirm.   A request for extension of the
 4   deadline to file a notice of appeal under Rule 8002(c) is
 5   reviewed for abuse of discretion.    Warrick v. Birdsell
 6   (In re Warrick), 278 B.R. 182, 184 (9th Cir. BAP 2002).
 7   Likewise, a motion for reconsideration is also reviewed for abuse
 8   of discretion.   Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255,
 9   1262 (9th Cir. 1993).   The bankruptcy court entered its Order
10   Granting Extension summarily, without articulation or any
11   analysis of the applicable legal standard under Rule 8002(c).
12   The bankruptcy court, thus, abused its discretion when it granted
13   the extension.   See United States v. Hinkson, 585 F.3d 1247, 1262
14   (9th Cir. 2009) (a trial court’s failure to identify the correct
15   legal rule to apply to the relief requested is an abuse of
16   discretion).   Nor was this error harmless.
17        On reconsideration, the bankruptcy court identified and
18   applied the correct standard articulated by the Supreme Court in
19   Pioneer, which has been used and applied in construing “excusable
20   neglect” under Rule 8002(c).   See In re Warrick, 278 B.R. at 185.
21   The bankruptcy court found that the delay of one day was minimal;
22   the prejudice to Trustee and KeyBank was slight; and there was no
23   indication that Alton acted in bad faith.     But, as to the fourth
24   Pioneer factor, the reason for the delay, the bankruptcy court
25   could not excuse Alton’s lack of knowledge of the rules, or the
26   “fact that he had the order within enough time to file a simple
27   notice to appeal, but he didn’t get that done.”    Hr’g Tr.
28   (April 3, 2012) at 3:8-11.   In essence, the bankruptcy court

                                    - 14 -
 1   found that Alton made choices that resulted in the late-filed
 2   notice of appeal.   See id. at 15-16.    The bankruptcy court, thus,
 3   did not abuse its discretion when it granted the Joint
 4   Reconsideration Motion, as its findings and application of those
 5   findings were not “illogical, implausible, or without support in
 6   inferences that may be drawn from facts in the record.” See
 7   United States v. Hinkson, 585 F.3d at 1251.    Thus, if the
 8   bankruptcy court’s denial of Alton’s request for extension of the
 9   deadline to file the notice of appeal from the Sept. 12, 2011
10   Order were before us, we would affirm.
11                               CONCLUSION
12        For the reasons set forth above, we DISMISS the Second
13   Appeal as moot, and, as a result, we DISMISS the First Appeal for
14   lack of jurisdiction.
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28

                                   - 15 -
