                                                           FILED
                                                            NOV 09 2017
 1                         NOT FOR PUBLICATION
                                                        SUSAN M. SPRAUL, CLERK
 2                                                        U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )        BAP No. EC-17-1075-KuFS
                                   )                EC-17-1106-KuFS
 6   CHARITY MAE SEYMOUR,          )                (consolidated)
                                   )
 7                  Debtor.        )        Bk. No. 16-bk-27693-RSB
     ______________________________)
 8   CHARITY MAE SEYMOUR,          )
                                   )
 9                  Appellant,     )
                                   )
10   v.                            )        M E M O R A N D U M*
                                   )
11   RUSSEL D GREER, Chapter 13    )
     Trustee; U.S. BANK, NATIONAL )
12   ASSOCIATION; FORD MOTOR       )
     COMPANY LLC,                  )
13                                 )
                    Appellees.     )
14   ______________________________)
15                         Submitted Without Argument
                              on October 26, 2017**
16
                            Filed - November 9, 2017
17
              Appeal from the United States Bankruptcy Court
18                for the Eastern District of California
19       Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding
                    _____________________________________
20
     Appearances:     Charity M. Seymour, pro se on brief; Lee S.
21                    Raphael and Cassandra J. Richey of Prober &
                      Raphael on brief for appellee U.S. Bank, N.A.
22                    ______________________________________
23
24       *
          This disposition is not appropriate for publication.
   Although it may be cited for whatever persuasive value it may
25 have (see Fed. R. App. P. 32.1), it has no precedential value.
26 See 9th Cir. BAP Rule 8013-1.
         **
27        By order entered on September 25, 2017, a motions panel
   determined these appeals suitable for submission on the briefs
28 and record without oral argument.

                                      -1-
 1   Before:      KURTZ, FARIS, and SPRAKER, Bankruptcy Judges.
 2             Charity Mae Seymour (Debtor) appeals from the bankruptcy
 3   court’s orders:      (1) dismissing her chapter 131 case under
 4   § 1307(c)(4) because her plan payments were insufficient (BAP
 5   No. EC-17-1075); and (2) denying her motion for reconsideration
 6   of an order sustaining the objection of appellee, U.S. Bank
 7   National Association (Bank), to Debtor’s chapter 13 plan on the
 8   ground that the motion was moot because the order dismissing her
 9   case was entered and there was no stay pending appeal (BAP
10   No. EC-17-1106).      For the reasons explained below, we AFFIRM
11   both orders.
12                                   I. FACTS
13   A.       The Dispute Between Debtor And Bank2
14            In August 2006, Debtor borrowed $582,250 (Loan) from Remae
15   Mortgage Corporation.      In exchange for the Loan, Debtor executed
16   an Adjustable Rate Note (Note) and a Deed of Trust (Deed of
17   Trust) against real property located on Magnolia Street in
18   Stockton, California (Property).        In April 2008, Debtor
19   defaulted under the Loan documents.        Foreclosure proceedings
20
21        1
          Unless otherwise indicated, all chapter and section
22 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
   “Rule” references are to the Federal Rules of Bankruptcy
23 Procedure and “Civil Rule” references are to the Federal Rules of
   Civil Procedure.
24
        2
          Some of the background facts are taken from a previous
25 case involving Debtor and her dispute with Bank of America, N.A.
26 and others with respect to the foreclosure of her property.
   Seymour v. Bank of Am., N.A. (In re Seymour), BAP No. EC-11-1669-
27 MkDJu, 2013 WL 1736471 (9th Cir. BAP April 23, 2013). Bank, as
   trustee, is the successor in interest to the mortgagee’s
28 interest.

                                       -2-
 1   were commenced and a trustee’s sale was scheduled.
 2        In response to the commencement of the foreclosure
 3   proceedings, Debtor filed a civil action in the United States
 4   District Court for the Eastern District of California against
 5   her mortgage lender (Bank’s predecessor) alleging, among other
 6   things, violations of the Truth in Lending Act, wrongful
 7   foreclosure, mortgage origination fraud, and fraudulent
 8   assignment.   The district court dismissed the action as against
 9   certain defendants in June 2010 with prejudice, and Debtor
10   stipulated to dismissal of the remaining defendants in December
11   2010.   Debtor’s motion for relief from the dismissal was denied
12   in June 2011.   The Ninth Circuit Court of Appeals affirmed the
13   district court’s order in November 2011.
14        In conjunction with her civil action, Debtor used the
15   bankruptcy process to avoid foreclosure.   She filed a chapter 13
16   case in the bankruptcy court for the Eastern District of
17   California, followed by a chapter 11 case.   Both cases were
18   dismissed.
19        Debtor also filed a chapter 7 case in June 2011 and
20   initiated an adversary proceeding against Bank and others,
21   seeking to enjoin them from foreclosing on her residence.    Bank
22   moved to dismiss her complaint, which the bankruptcy court
23   granted without leave to amend in November 2011.   The bankruptcy
24   court held, among other things, that Debtor lacked standing to
25   prosecute the adversary complaint, explaining that the complaint
26   raised claims that arose prior to the filing of her bankruptcy
27   case and thus those claims were property of her bankruptcy
28   estate which could be only pursued by her chapter 7 trustee.

                                    -3-
 1        Debtor appealed the dismissal ruling to this Panel.      The
 2   Panel modified the bankruptcy court’s dismissal order to clarify
 3   that the adversary proceeding was dismissed based on Debtor’s
 4   lack of standing, as the chapter 7 trustee had the exclusive
 5   right to sue on behalf of the estate.    The Panel affirmed the
 6   dismissal order, as modified.    See In re Seymour, 2013 WL
 7   1736471.    The Ninth Circuit Court of Appeals affirmed the
 8   Panel’s decision in May 2015.    601 F. App’x 572 (9th Cir. May 4,
 9   2015).    Debtor received her chapter 7 discharge on October 13,
10   2011.
11        To date, no foreclosure sale has occurred, and Debtor has
12   made no payments for almost nine years.
13   B.   Bankruptcy Events
14        Debtor filed this chapter 13 case on November 18, 2016.        In
15   her opening brief, Debtor states that she filed this case to
16   challenge the security interest and validity of Bank’s in rem
17   lien rights.
18        1.     Debtor’s Chapter 13 Plan And Amended Plan
19        Debtor filed her chapter 13 plan on December 2, 2016.      The
20   plan provided for monthly payments of $1,260.39 to the
21   chapter 13 trustee (Trustee) for 36 months.    Debtor’s plan did
22   not provide for mortgage payments, instead stating that Debtor
23   would avoid Bank’s lien on her Property via an adversary
24   proceeding.    Debtor listed Bank’s claim as unsecured in the
25   amount of $45,374.07 (this amount apparently was for property
26   taxes that Bank had advanced on her behalf).    Her plan also
27   provided for a 90% dividend to class 7 unsecured claims which
28   totaled approximately $45,374.07 - the same amount of Bank’s

                                     -4-
 1   claim.
 2        In an additional provision to the plan, Debtor contended
 3   that the plan was feasible dependent on filing an adversary
 4   proceeding to void Bank’s mortgage.    Debtor maintained that
 5   although she lacked standing to bring her adversary complaint
 6   against Bank in her chapter 7 case, she now intended to quiet
 7   title by asking Trustee or the bankruptcy court to disallow
 8   Bank’s claim in rem, as part of a plan to repay the property
 9   taxes improperly paid by Bank and quiet her title to the real
10   property.   Debtor cited numerous authorities, including Johnson
11   v. Home State Bank, 501 U.S. 78 (1991), which she argued stood
12   for the proposition that a chapter 13 debtor could use the lien
13   avoidance provisions in the Bankruptcy Code.    Debtor asserted
14   that her standing to pursue the avoidance of Bank’s lien had
15   been “restored.”
16        Bank objected to the plan, contending that Debtor failed to
17   provide for the maintenance of post-petition payments, used an
18   improper procedure for avoidance of Bank’s lien, and filed the
19   case in bad faith.   Bank also argued that the plan was not
20   feasible and that Debtor’s plan attempted to modify its original
21   Note and Trust Deed/Mortgage in direct violation of
22   § 1322(b)(2).   Finally, Bank asserted that it was owed the
23   amount of $580,000 and arrears in about the same amount.
24        Ford Motor Credit Company LLC (FMCC) also objected to the
25   plan since it did not provide for any payments to FMCC in
26   relation to Debtor’s car debt.
27        Finally, Trustee objected, contending that the plan:
28   (1) failed the liquidation test since Debtor’s schedules showed

                                      -5-
 1   $161,000 in nonexempt assets for distribution; (2) was not
 2   proposed in good faith since it failed to provide for payment to
 3   FMCC; and (3) was not feasible since Debtor failed to provide
 4   for amounts owing to Bank.
 5           After these objections, Debtor “re-noticed” the
 6   confirmation hearing to a later date and filed an amended plan
 7   on February 1, 2017.     Her amended plan provided for installments
 8   to FMCC directly by Debtor and increased plan payments to
 9   $1,396.96.     No significant changes were made to the treatment of
10   Bank.
11           2.   Trustee’s Motion To Dismiss
12           On February 14, 2017, Trustee filed a motion to dismiss
13   (MTD) Debtor’s case and filed notice of the hearing scheduled
14   for February 28, 2017.     Trustee’s dismissal request was based on
15   § 1307(c)(1) - unreasonable delay that was prejudicial to
16   creditors - and § 1307(c)(4) - payments were not current under
17   the plan.     Trustee submitted the declaration of his employee,
18   Leticia Macias, who declared that as of February 14, 2017,
19   Debtor was in default of her plan payments by $273.14.3
20           3.   The Bankruptcy Court’s Ruling On Bank’s Objection To
                  Debtor’s Original Plan
21
22           Two weeks prior to the scheduled February 28, 2017 hearing
23   on Trustee’s MTD, the bankruptcy court sustained Bank’s
24   objection to Debtor’s original plan.       In a detailed ruling, the
25   court reviewed the history of Debtor’s court filings and the
26
         3
27        The difference between Debtor’s original plan payments and
   her amended plan payments was $136.57. Therefore, Debtor was two
28 months in arrears based on the $273.14 used by Trustee.

                                      -6-
 1   lack of merit in her positions.   The bankruptcy court noted:
 2        With this latest bankruptcy case, the debtor seeks
          exactly what she sought in her district court action
 3        and her adversary proceeding in her chapter 7 case -
          she seeks to extinguish the Bank’s lien against her
 4        residence without paying anything to the Bank except,
          apparently, property taxes the Bank appears to have
 5        advanced on her behalf. . . . The Bank, on the other
          hand has submitted evidence that the Bank is owed
 6        pre-petition arrears of $560,484. The Bank contends,
          and the debtor does not deny, she has made no payments
 7        in almost nine years.
 8        The court further discussed Debtor’s additional provision
 9   to her plan by refuting her authorities that allegedly stood for
10   the proposition that she could avoid Bank’s lien in her
11   chapter 13 case.   The court noted that Debtor’s standing to
12   pursue her claims against Bank for violations of the Trust in
13   Lending Act, Wrongful Foreclosure, and so on was not magically
14   revived simply because she filed a chapter 13 case.   Rather,
15   Debtor failed to schedule her claims against Bank in her chapter
16   7 case and, therefore, the claims remained property of the
17   estate in that case, even though the case was closed.   § 554(d);
18   Cheng v. K&S Diversified Invs., Inc. (In re Cheng), 308 B.R.
19   448, 461 (9th Cir. BAP 2004) (“Property of the estate that is
20   not scheduled or otherwise administered by the time the case is
21   closed remains property of the estate forever.”).
22        The bankruptcy court concluded that Debtor had no standing
23   to challenge Bank’s in rem rights; that is, its right to
24   foreclose on its collateral if it is not paid.   Therefore,
25   Debtor’s chapter 13 plan could not be confirmed.    The bankruptcy
26   court held that:   “The proposed plan violates § 1325(a)(5) and
27   is not proposed in good faith, as required by § 1325(a)(3).”
28   In a footnote, the court noted that although Debtor had filed an

                                    -7-
 1   amended plan, Bank’s treatment was essentially the same in the
 2   two plans.   Therefore, the amended plan did not moot the present
 3   objection.
 4        On February 14, 2017, the bankruptcy court entered a minute
 5   order sustaining Bank’s objection.
 6        On February 28, 2017, Debtor filed a motion for
 7   reconsideration of the bankruptcy court’s order.   She argued,
 8   among other things, that the findings in the district court case
 9   and her chapter 7 case did not preclude her from pursuing her
10   claims against Bank.
11        4.   The Bankruptcy Court’s Ruling On Trustee’s MTD
12        Also on February 28, 2017, the bankruptcy court heard
13   Trustee’s MTD.   Debtor did not file an opposition to the MTD or
14   appear at the hearing.   The bankruptcy court ruled: “Plan
15   delinquency is cause for dismissal.   Accordingly, the motion
16   will be granted, the case is dismissed.”   The court entered an
17   order dismissing the case on March 1, 2017.   Debtor filed a
18   notice of appeal on March 14, 2017, thereby commencing BAP
19   No. 17-1075.
20        5.   The Bankruptcy Court’s Ruling On Debtor’s Motion for
               Reconsideration
21
22        On March 28, 2017, the bankruptcy court issued a final
23   ruling, denying Debtor’s motion for reconsideration of its order
24   sustaining Bank’s objections to confirmation of Debtor’s
25   original plan.   The court found the motion moot because Debtor’s
26   case was dismissed and she had not obtained a stay pending
27
28

                                    -8-
 1   appeal.4     Despite stating that no appearance was necessary,
 2   Debtor appeared at the hearing.     The bankruptcy court advised
 3   her that it had made a final ruling on her motion for
 4   reconsideration and no further argument was necessary.     Debtor
 5   attempted to inform the court that she had filed a motion to
 6   vacate/reconsider the dismissal order (as described below).
 7   Debtor stated that she intended to appeal the court’s ruling,
 8   and the proceedings concluded.
 9           The bankruptcy court entered the order denying her motion
10   for reconsideration on March 28, 2017.     Debtor filed a notice of
11   appeal from this ruling on April 10, 2017, thereby commencing
12   BAP No. 17-1106.
13           6.   Debtor’s Ex Parte Motion To Vacate The Dismissal
14           Also on March 28, 2017, Debtor filed an ex parte motion to
15   vacate the dismissal or for a stay of the dismissal order
16   pending appeal.     Debtor argued that her amended plan included a
17   “detailed computation that spread the $273 over the remaining
18   34 payments at the time.”     She stated that she assumed that it
19   was clear the $273 was provided for in the amended plan.     Debtor
20   also challenged the court’s mootness finding regarding her
21   motion for reconsideration.     According to Debtor, the dismissal
22   order was dated March 1, 2017, and her motion for
23   reconsideration was filed February 28, 2017.     Debtor asserted
24   that the bankruptcy court had “some days to weigh the erroneous
25
26       4
          In separate orders, the bankruptcy court overruled FMCC’s
27 and Trustee’s objections to Debtor’s original plan on the basis
   of mootness due to the dismissal. The court also denied Debtor’s
28 motion to confirm her plan on mootness grounds.

                                       -9-
 1   $273 issue in relation to the magnitude and impact of her motion
 2   for reconsideration” where she alleged Bank had committed fraud.
 3   The bankruptcy court did not rule on this motion.
 4         7.   Procedural Matters After Appeal
 5         These appeals were subsequently consolidated by a one-judge
 6   order on May 23, 2017.     Debtor filed a motion to stay the
 7   dismissal order in this court because Bank argued in its brief
 8   that these appeals would become moot upon the close of the
 9   bankruptcy case which was anticipated in the next ten days or
10   so.   The Panel denied her motion.
11                              II.   JURISDICTION
12         The bankruptcy court had jurisdiction over this proceeding
13   under 28 U.S.C. §§ 1334 and 157(b)(2)(A).        We have jurisdiction
14   under 28 U.S.C. § 158.
15                                III.    ISSUES
16         Did the bankruptcy court abuse its discretion in dismissing
17   Debtor’s case?
18         Did the bankruptcy court abuse its discretion in denying
19   Debtor’s motion for reconsideration on the order sustaining
20   Bank’s objection to her original plan?
21                        IV.    STANDARDS OF REVIEW
22         We review the bankruptcy court’s dismissal of a chapter 13
23   bankruptcy case under any of the enumerated paragraphs of
24   § 1307(c) for abuse of discretion.         Ellsworth v. Lifescape Med.
25   Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP
26   2011).
27         Denial of a motion to amend or alter a judgment under Civil
28   Rule 59(e) is reviewed for an abuse of discretion.        Dixon v.

                                         -10-
 1   Wallowa Cty., 336 F.3d 1013, 1022 (9th Cir. 2003).
 2        To determine whether the bankruptcy court abused its
 3   discretion, we conduct a two-step inquiry: (1) we review de novo
 4   whether the bankruptcy court “identified the correct legal rule
 5   to apply to the relief requested” and (2) if it did, whether the
 6   bankruptcy court’s application of the legal standard was
 7   illogical, implausible or “without support in inferences that
 8   may be drawn from the facts in the record.”   United States v.
 9   Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
10        We may affirm on any basis sustained by the record.    Heers
11   v. Parsons (In re Heers), 529 B.R. 734, 740 (9th Cir. BAP 2015).
12                             V.   DISCUSSION
13        Section 1307(c) provides that on request of a party in
14   interest and after notice and a hearing, the bankruptcy court
15   may convert a chapter 13 case to chapter 7 or dismiss the case,
16   whichever is in the best interests of creditors and the estate,
17   for cause.   The use of the word “may” in § 1307(c) indicates
18   that dismissal of a case is a discretionary decision of the
19   trial court.   Sievers v. Green (In re Green), 64 B.R. 530 (9th
20   Cir. BAP 1986).
21        The record shows that Debtor’s plan payments were short in
22   the amount of $273.14.   The requirement to make plan payments
23   under § 1307(c)(4) applies when a debtor commences making
24   payments but then pays less than the plan requires.   See
25   In re Mallory, 444 B.R. 553, 558 (S.D. Tex. 2011) (citing
26   In re Jenkins, No. 09-36433-H3-13, 2010 WL 56003, at *2 (Bankr.
27   S.D. Tex. Jan. 5, 2010) (finding cause for dismissal of a case
28   in which the debtor commenced making the payments required in

                                     -11-
 1   the proposed plan but paid an amount less than required)).
 2   There was thus “cause” for dismissal.     See § 1307(c)(4).    We
 3   find no abuse of discretion with the bankruptcy court’s decision
 4   to dismiss Debtor’s case.5
 5           On appeal, Debtor does not contend that she made the
 6   payments.     Instead, she maintains that she missed the hearing on
 7   Trustee’s MTD because she was busy drafting her motion for
 8   reconsideration of the court’s order sustaining Bank’s objection
 9   to her plan.     Therefore, she “forgot” about the hearing and her
10   forgetfulness should be considered “a mistake or excusable
11   neglect.”     In addition, Debtor maintains that the $273 shortfall
12   was immaterial and, in any event, she corrected the deficiency
13   in her first amended plan to make up the missed payments over
14   the next 34 months.
15           Debtor did not properly raise these arguments in the
16   bankruptcy court.     Debtor failed to contest Trustee’s MTD and
17   did not appear at the hearing.     After the bankruptcy court
18   ruled, she raised the very same arguments she raises now for the
19   first time in her ex parte motion to vacate/reconsider the
20   dismissal order.     Arguments raised for the first time in a
21   motion for reconsideration are generally deemed waived.       See
22   United States v. Foreman, 369 F.3d 776, 797 n.12 (4th Cir. 2004)
23   (It is a “well-established principle that arguments raised for
24
25       5
          Trustee did not request conversion as an alternative under
26 § 1307(c).  Therefore, the bankruptcy court did not err in
   dismissing the case without discussing whether conversion was
27 appropriate. See Velasquez v. Burchard (In re Velasquez), BAP
   No. NC-15-1175-TaJuKi, 2016 WL 4259952, at *2 n.5 (9th Cir. BAP
28 Aug. 9, 2016).

                                      -12-
 1   the first time in a motion for reconsideration are generally
 2   deemed waived.”).     Furthermore, the bankruptcy court never
 3   issued a ruling in connection with her motion.     We do not
 4   consider Debtor’s arguments for the first time on appeal.       See
 5   O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),
 6   887 F.2d 955, 957 (9th Cir. 1989) (“The rule in this circuit is
 7   that appellate courts will not consider arguments that are not
 8   ‘properly raise[d]’ in the trial courts.”).
 9           In light of our decision, Debtor’s appeal of the bankruptcy
10   court’s order denying her motion for reconsideration of the
11   order sustaining Bank’s objection to Debtor’s original plan is
12   moot.     Since Debtor’s bankruptcy case was dismissed, the goal of
13   rehabilitation through confirmation of Debtor’s plan is no
14   longer at issue.     See GTE Cal., Inc. v. FCC, 39 F.3d 940, 945
15   (9th Cir. 1994) (case is moot if the issues presented are no
16   longer live and there fails to be a “case or controversy” under
17   Article III of the Constitution).6
18           Debtor also requested sanctions against Bank in her reply
19   brief, contending that Bank filed its responsive brief one day
20   late.     A request for sanctions must be filed as a separate
21   motion.     See Rule 8020.
22                                VI.   CONCLUSION
23           For the reasons stated, we AFFIRM.
24
25
26
27
         6
          Debtor filed another chapter 13 case on September 14, 2017
28 (Case No. 17-26123).

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