                                                           FILED
                                                            NOV 09 2016
                                                        SUSAN M. SPRAUL, CLERK
 1                          NOT FOR PUBLICATION           U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 2
 3                   UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                             OF THE NINTH CIRCUIT
 5   In re:                        )       BAP Nos.   NV-15-1349-KiLDo
                                   )                  NV-15-1360-KiLDo
 6   GLOYD GREEN and GAIL HOLLAND, )                  (Related appeals)
                                   )
 7                  Debtors.       )       Bk. No.    14-15981-abl
                                   )
 8                                 )
     GLOYD GREEN; GAIL HOLLAND,    )
 9                                 )
                    Appellants,    )
10                                 )
     v.                            )       M E M O R A N D U M1
11                                 )
     HOWARD FAMILY TRUST DATED     )
12   AUGUST 21, 1998,              )
                                   )
13                  Appellee.      )
     ______________________________)
14
                    Argued and Submitted on October 21, 2016,
15                             at Las Vegas, Nevada
16                           Filed - November 9, 2016
17                Appeal from the United States Bankruptcy Court
                            for the District of Nevada
18
              Honorable August B. Landis, Bankruptcy Judge, Presiding
19
20   Appearances:      Christopher Burke argued for appellants; Jerimy L.
                       Kirschner argued for appellee.
21
22   Before:      KIRSCHER, LAFFERTY and DORE,2 Bankruptcy Judges.
23
24
25
          1
             This disposition is not appropriate for publication.
26   Although it may be cited for whatever persuasive value it may
     have, it has no precedential value. See 9th Cir. BAP Rule 8024-1.
27
          2
             Hon. Timothy W. Dore, Bankruptcy Judge for the Western
28   District of Washington, sitting by designation.
 1        Debtors Gloyd Green (“Green”) and his wife Gail Holland
 2   appeal an order converting their chapter 113 case to chapter 7 for
 3   bad faith under § 1112(b).     Debtors also appeal an order
 4   estimating and temporarily allowing for voting purposes the claim
 5   of creditor Howard Family Trust dated August 21, 1998 ("Trust").
 6   We AFFIRM the conversion order.     Consequently, we DISMISS the
 7   appeal of the claim estimation order as MOOT.
 8             I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
 9   A.   Prepetition events
10        The Trust was created in 1998 by Oscar Brannon Howard, Jr.
11   and his wife, who had both passed away by late 2005.     They were
12   survived by their only son and beneficiary, Oscar Brannon
13   Howard, III.   Green, a family friend, was named successor trustee.
14   He became trustee of the Trust on November 5, 2005, upon the
15   passing of Howard, Jr.    Green was also a beneficiary under the
16   Trust.
17        1.   The probate action
18        Suspecting possible misappropriation of Trust assets, in
19   September 2008, Truman Holt, Mrs. Howard's brother and also a
20   Trust beneficiary, brought a probate action against trustee Green,
21   seeking to compel Green to account for and report information
22   about Trust assets ("Probate Action" 08P063929).
23        In October 2008, Green was ordered to provide an inventory
24   and accounting of income and expenses from November 5, 2005
25   through October 2008, and copies of tax returns for the same
26
27        3
             Unless specified otherwise, all chapter, code and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28   the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

                                       -2-
 1   period.   Green was also ordered to pay Holt's attorney’s fees and
 2   costs or to show cause why he should not (“2008 Order”).
 3        In response, Green produced a two-page handwritten document
 4   purporting to list the assets, income and expenses of the Trust
 5   for the required time period ("2008 List").   The 2008 List did not
 6   provide all information required under the 2008 Order, lacked any
 7   substantive detail or supporting documentation or other
 8   corroborative information, omitted Trust assets and provided no
 9   information about which Trust assets Green claimed to have
10   administered.
11        In March 2009, Holt moved to have Green removed as trustee
12   for cause, citing Green's continuing failure to account for Trust
13   assets.   At the hearing, the probate court removed Green and
14   appointed Holt as trustee.   Green failed to respond to the removal
15   petition or appear at the hearing.
16        In an order filed in April 2009, the probate court found that
17   Green, while acting as Trustee, failed to:    (1) provide an
18   adequate inventory and accounting of Trust assets and their
19   values; (2) provide details for distributions purportedly made to
20   Trust beneficiaries or details of any income received by the
21   Trust; (3) pay Holt's attorney's fees and costs as ordered; and
22   (4) provide any Trust tax returns.    Green was ordered to turn over
23   to newly appointed trustee Holt:   (1) complete copies of the Trust
24   agreement and all amendments thereto;4 (2) copies of all Trust
25
          4
26           Prior to his removal as trustee, Green had produced an
     undated, but signed and notarized, two-page document entitled
27   Amendment of Trust (“Amendment”). Green claimed Howard, Jr. made
     the Amendment just prior to his death. The Amendment purports to
28                                                        (continued...)

                                     -3-
 1   records during the term of his administration, including tax
 2   returns, check registers, canceled checks and information
 3   regarding Trust investments; and (3) copies of all deeds,
 4   mortgages, deeds of trust, promissory notes and the like related
 5   to Trust activities.
 6        In response to the April 2009 order, Green sent a list of
 7   Trust assets and liabilities as of November 5, 2005, by email to
 8   Holt's attorney, Harriet Roland, in June 2009 ("2009 List").      The
 9   2009 List differed materially from the 2008 List, stating that the
10   Trust held $612,000 in assets, almost a two-fold increase from
11   Green's previous accounting.5
12        In November 2009, Holt, individually and on behalf of the
13   Trust, moved to enforce the Trust's forfeiture clause and compel
14   Green to forfeit any right to property or benefits received from
15   the Trust based on his malfeasance.    Green did not oppose the
16   motion.   After a hearing and finding that notice was proper, the
17   probate court entered an order directing that Green forfeit his
18   beneficial interest in the Trust or any rights to use or keep
19   Trust property ("Forfeiture Order").   The Forfeiture Order
20
          4
21         (...continued)
     modify the distribution of the Trust's residuary estate. The
22   names of Trust beneficiaries had been redacted from the document.
     Holt alleged that Trust beneficiaries were previously unaware of
23   the Amendment's existence and claimed that Green never mentioned
     it before the Probate Action. The purported Amendment apparently
24   caused further litigation between Trust beneficiaries, who
     ultimately settled their dispute and decided that Holt and the
25   Howards' son would investigate any malfeasance by Green.
26        5
             Holt and the Trust contended that a later investigation
     revealed the 2009 List still under-reported Trust assets and
27   income by at least $1 million. The bankruptcy court found,
     however, that the record did not substantiate a loss of Trust
28   assets of that magnitude.

                                     -4-
 1   contains findings establishing that Green had violated the terms
 2   of the Trust and had failed to carry out properly his duties as
 3   trustee.   Green was also ordered "to return any and all prior or
 4   current property of [the Trust] previously taken by [Green] from
 5   the Trust" to Holt.   Green did not appeal the Forfeiture Order.
 6        In March 2012, Holt, on behalf of the Trust, filed a notice
 7   of taking Green's deposition for May 3, 2012.   Green was also
 8   summoned by the probate court to appear at a hearing on May 11,
 9   2012, and show cause why he should not be held in contempt for
10   failure to comply with the October 2008 and April 2009 orders.
11   Green failed to appear for the deposition or appear at the May 11
12   hearing.
13        On September 6, 2012, the probate court issued a second
14   citation for Green to appear at a hearing on September 21, 2012.
15   Green failed to appear for the September 21 hearing.
16        2.    The civil action
17        In August 2012, Holt/Trust filed a complaint against Debtors
18   and their revocable trust alleging ten causes of action, including
19   conversion, embezzlement, breach of fiduciary duty, civil theft
20   and fraud, both actual and constructive ("Civil Action,"
21   A-12-667650-C).   The complaint further alleged that Holland
22   "knowingly accepted the benefits of, and participated in, Green's
23   unlawful conversion of Trust assets."
24        Debtors never answered the complaint.   Holt/Trust then sought
25   default entries against Debtors; the state court entered defaults
26   against Debtors and their revocable trust on January 31, 2013.
27        The state court held a prove-up hearing to establish damages
28   about 18 months later on May 22 and August 28, 2014.   Green

                                     -5-
 1   appeared pro se at both sessions of the prove-up hearing, but
 2   because the May 22 session started earlier than scheduled, Green
 3   missed most of it.     Prior to his arrival, a forensic investigator
 4   for the Trust, Jayne Klein, was admitted as an expert witness and
 5   testified about her findings regarding the alleged
 6   misappropriation of Trust assets by Debtors.
 7           At the later prove-up session on August 28, Green cross-
 8   examined Klein, presented documentary evidence and testified under
 9   oath.     In summary, Klein testified that she had analyzed hundreds
10   of transactions and transfers between multiple accounts held in
11   the names of Debtors and the Trust.      Her analysis also extended to
12   several home purchase and sale transactions involving the Debtors,
13   as well as transactions involving several individual deeds of
14   trust.     Klein concluded that at least $638,427.07 "was either
15   stolen or taken or lost by the [Debtors]."      Klein opined that more
16   Trust assets could have existed, but Green's refusal to assist in
17   her investigation made finding any additional assets problematic.
18           During the August 28 session of the prove-up hearing, the
19   state court commended Holt/Trust's tracing of Trust assets,
20   stating that "[t]hey did the best job of tracing in a fraudulent
21   case that I have seen in almost 40 years of doing this[.]"      The
22   court further noted:
23           Mr. Green, I have gone through this amended application
             and looked at the various transactions that they have
24           done, that they have examined, to show me you’re a thief.
             You have stolen substantial amounts of money from this
25           trust over a period of years. The total amount that they
             have compiled, and I believe it to be accurate, is
26           $638,427.07[.]
27   In conclusion, the court stated that a money judgment would be
28   entered for $638,427.07, with a like amount for punitive damages,

                                        -6-
 1   and equitable relief in the form of a constructive trust and
 2   equitable liens on Debtors' property.      Green asked the court about
 3   filing an appeal; the court told him to seek counsel.
 4           Holt/Trust counsel submitted on August 28, 2014, a Proposed
 5   Judgment consistent with the relief announced by the state court
 6   at the conclusion of the hearing.       It provided for a constructive
 7   trust over Debtors’ home; an equitable lien on Debtors’ rental
 8   property and vacant land they owned; an equitable lien on Debtors’
 9   personal property; actual damages of $638,427.07; punitive damages
10   of $638,427.07; and costs.     The Proposed Judgment, however, was
11   not entered because of Debtors' bankruptcy filing six days later.6
12   B.      Postpetition events
13           Debtors filed a skeletal chapter 11 case on September 3,
14   2014.    They had not previously filed for bankruptcy.    They had
15   also historically paid their debts as they became due, including
16   paying off credit card balances every month.      The initial
17   schedules filed two weeks later showed that Debtors owned free and
18   clear all three of their real properties valued at $455,000.        They
19   also had nearly $1 million in their retirement accounts.        They had
20   no secured creditors or unsecured priority creditors.
21           Absent Holt/Trust's scheduled "unsecured" claim of
22   $1.3 million, Debtors had only four other unsecured creditors:
23   three credit card companies collectively owed $5,100; and
24
          6
             The Proposed Judgment was subsequently signed by the state
25   court on September 10, 2014, after Debtors’ bankruptcy petition
     had been filed, but it was never docketed. Nonetheless, the
26   Proposed Judgment was the subject of a separate motion by Debtors
     for contempt sanctions against Holt/Trust for violation of the
27   automatic stay. In the bankruptcy court's order granting the
     contempt motion, it determined that the judgment was void.
28   Holt/Trust appealed the contempt order to the district court.

                                       -7-
 1   Ms. Holland’s mother, who loaned Debtors $7,500 to cover a portion
 2   of Debtors’ bankruptcy related fees of $32,000.    Debtors listed
 3   the Holt/Trust debt from the Civil Action as "contingent,
 4   unliquidated and disputed."
 5        1.   The motion to dismiss
 6        In November 2014, Holt/Trust filed an Omnibus Motion:     (1) To
 7   Dismiss for Bad Faith; (2) To Remove Debtors as Trustee; and
 8   (3) For Relief from Stay ("Motion to Dismiss").7   For dismissal
 9   under § 1112(b), Holt/Trust argued that Debtors' chapter 11 case
10   had been filed in bad faith solely as a litigation tactic to
11   defeat or delay the Civil Action judgment.   In short, Holt/Trust
12   contended that Debtors' bankruptcy filing was merely a substitute
13   for posting an appeal bond.    Holt/Trust contended that the timing
14   of Debtors' case — filed just days after an announced adverse
15   judgment for $1.3 million and a constructive trust against their
16   real property (purchased with allegedly stolen Trust money) — was
17   a glaring example of a bad faith filing intended to prevent a
18   written order being entered and to circumvent the appeals process.
19        Holt/Trust contended that Debtors had provided direct
20   evidence of their bad faith by admitting at their § 341(a)
21   meetings that the sole reason for filing the bankruptcy case was
22   to impede entry of the Civil Action judgment.   Debtors also
23   admitted they were aware of their right to appeal, but chose to
24   file for bankruptcy instead.   Finally, Holt/Trust argued that
25
          7
             Because the bankruptcy court decided to convert the case
26   to chapter 7, no relief to appoint a chapter 11 trustee or
     examiner was necessary. No party disputes that ruling.
27   Holt/Trust also withdrew the request for relief from stay before
     the evidentiary hearing on the Motion to Dismiss. Therefore, we
28   focus only on the court's decision to convert.

                                       -8-
 1   Debtors were solvent.    At the time of filing, Debtors' liabilities
 2   were $12,600; their assets were $1,435,849.04.
 3        Debtors opposed the Motion to Dismiss, maintaining that their
 4   case was not filed in bad faith.    First, they asserted that they
 5   arguably were not solvent, considering the large Holt/Trust debt.
 6   Second, the bankruptcy case was filed 18 months after the defaults
 7   had been entered.    Third, litigation in the Civil Action was
 8   essentially over except for some accounting.    Finally, since their
 9   case had been filed only three months ago, they had not been given
10   a reasonable opportunity to file a plan of reorganization.
11   Alternatively, Debtors argued that "unusual circumstances" existed
12   to not dismiss their case, which included the fact they were
13   defaulted in the Civil Action.
14             a.     Initial hearing on the Motion to Dismiss
15        Both parties appeared with counsel at the initial hearing on
16   the Motion to Dismiss on December 10, 2014.    Holt/Trust requested
17   a continuance for an opportunity to remedy notice deficiencies.
18   Because of the seriousness of the issue, the bankruptcy court
19   decided that an evidentiary hearing was appropriate.    In its
20   scheduling order entered December 15, 2014, the court ordered the
21   parties to submit briefs to "elaborate on and address the evidence
22   elicited during the trial in connection with the parties' state
23   court litigation and the issues identified in the Motion and
24   Debtors' response to it."    An evidentiary hearing was set for
25   March 2, 2015.
26        Debtors' pre-hearing brief in opposition to the Motion to
27   Dismiss was essentially a copy and paste of their prior brief and
28   did not address the issues noted by the bankruptcy court in the

                                      -9-
 1   scheduling order.     Holt/Trust's brief, however, did provide more
 2   details about the Civil Action.     Holt/Trust noted that when Green
 3   received notice of the pleading to remove him as trustee, he
 4   withdrew $125,000 in cash and securities from Trust accounts and
 5   provided the Amendment with the redacted beneficiary designation,
 6   which caused havoc between the beneficiaries.     The distribution
 7   pattern to beneficiaries during Green's tenure matched neither the
 8   original Trust nor the Amendment.     Holt/Trust also emphasized that
 9   the prove-up hearing was originally scheduled for November 7,
10   2013.    However, on Green's request, the state court reset the
11   hearing for November 26, 2013; then to December 11, 2013; then to
12   January 23, 2014; then to March 13, 2014; then to May 8, 2014;
13   then to May 22, 2014.     At the end of the May 22 session, the court
14   continued the prove-up hearing for Green to review a copy of the
15   transcript and to file any written objections and/or obtain
16   counsel; Green did neither by the deadline of June 11, 2014.
17   Green then asked for another continuance for extra time to
18   respond.    The state court again continued the prove-up hearing to
19   August 28, 2014.
20                b.   The evidentiary hearing on the Motion to Dismiss
21           Roland, Klein and Debtors testified at the evidentiary
22   hearing on March 2, 2015.     Klein stated that she had been employed
23   at the law firm representing Holt/Trust for the past 15 years.
24   Klein explained that a forensic investigator is someone who looks
25   into, particularly at her firm, probate trust malfeasance.       She
26   admitted that she had no college level degree in forensic
27   accounting, accounting or any other subject.     She testified that,
28   besides work done for her firm, she had done forensic

                                       -10-
 1   investigation of this type for several other parties for a fee.
 2   Klein admitted that Green did not appear at the May 22 session of
 3   the prove-up hearing in the Civil Action until after she had been
 4   admitted as an expert, so he was not there to object.
 5        Green's testimony as to the state court proceedings was vague
 6   and sometimes contradictory; he recalled little.   As for the
 7   petition seeking his removal as trustee and subsequent order,
 8   Green claimed that he understood nothing about Holt/Trust's
 9   allegations of malfeasance and that he had no knowledge of the
10   state court finding that the accounting he submitted in 2008 was
11   inaccurate.   Green could not recall being served with the orders
12   to appear and to provide an accounting of Trust assets or to
13   appear for deposition.   Green did not recall that he had been
14   removed as trustee of the Trust for malfeasance, claiming that the
15   April 2009 order never stated a reason for his removal.   Green was
16   also unsure as to whether he even received notice of the hearing
17   seeking his removal as trustee.    However, Green admitted that when
18   he removed thousands of dollars out of Trust accounts as repayment
19   for approximately $163,311 in loans he made to the Trust years
20   prior, it could have been in response to the removal notice.
21   Green also testified that although he deposited check payments for
22   Trust assets into his personal bank accounts, he did not believe
23   that he commingled his personal assets with those of the Trust.
24   Green testified that once he provided the 2009 List to Roland in
25   June 2009, he was under the impression that everything was settled
26   and his involvement was over.
27        Green also stated that he did not recall getting notice of
28   the Forfeiture Order in 2012, which contradicted his § 341(a)

                                       -11-
 1   meeting testimony, but he later testified that he did not dispute
 2   receiving it.     He testified that he knew nothing about the default
 3   entries in the Civil Action in January 2013.     Green also said he
 4   did not recall the state court's oral ruling at the August 28,
 5   2014 session of the prove-up hearing, just six months prior, that
 6   he was a thief and had stolen hundreds of thousands of dollars
 7   from the Trust.
 8           Holland testified that her understanding when filing their
 9   bankruptcy case was that Green would be able to produce documents
10   showing that no Trust funds were misappropriated, that all of
11   their assets would not be dissolved, and that if they did owe
12   anything to Holt/Trust it could be paid in an orderly fashion.
13   Holland testified that she knew "very little" about Green's
14   activities while he was acting as trustee for the Trust.     Holland
15   stated that she had no involvement with the Trust or had any
16   control over Trust assets.     She also knew nothing about the
17   Probate Action when it was pending.
18           After closing arguments from the parties, the bankruptcy
19   court took the matter under submission, noting that it would issue
20   a written decision promptly.     The written decision was not issued
21   for several months.
22           2.   Debtors' disclosure statement and plan
23           Meanwhile, the exclusivity period for Debtors to file their
24   chapter 11 plan and disclosure statement was set to expire on
25   January 1, 2015, with a plan confirmation deadline of March 3,
26   2015.    On December 30, 2014, Debtors moved to extend the
27   exclusivity period.     The bankruptcy granted the extension, giving
28   Debtors until April 1, 2015, to file their plan and disclosure

                                       -12-
 1   statement and until June 1, 2015, to get their plan confirmed.
 2           Debtors filed their disclosure statement and plan on April 1,
 3   2015.
 4           Before any decision was entered, Debtors again moved for an
 5   extension of another 180 days to get their plan confirmed.
 6   Although discussed more fully below, Debtors contended another
 7   extension was warranted due to:     (1) Holt/Trust's objection to
 8   Debtors' claimed exemptions set for hearing on July 2, 2015; and
 9   (2) two pending adversary proceedings between Holt/Trust and
10   Debtors that had been consolidated and not resolved, as well as
11   two appeals, one of which was the contempt order.     In addition,
12   Holt/Trust had sought to withdraw the reference, which had not yet
13   been decided.
14           On June 10, 2015, the bankruptcy court entered an order
15   giving Debtors until November 28, 2015, to get their plan
16   confirmed.
17           Meanwhile, on June 2, 2015, the bankruptcy court disapproved
18   Debtors' disclosure statement on the basis that it failed to
19   provide adequate information under § 1125(a).     Debtors never filed
20   an amended disclosure statement or another plan.
21           3.   Holt/Trust's motion to estimate and temporarily allow
                  claim for voting purposes
22
23           Holt/Trust filed an amended proof of claim on December 31,
24   2014 ("Claim").     The Claim was based on a "compensatory and
25   punitive judgment" of $1,276,854.14, alleged to be secured in part
26   pursuant to a constructive trust and equitable lien on Debtors'
27   (stolen) real estate and other property in the amount of
28   $638,427.07; the remaining $638,427.07 was unsecured.

                                       -13-
 1        Some additional background here is warranted for context.
 2   Shortly after Debtors filed their bankruptcy case, they removed
 3   the Civil Action to the bankruptcy court ("Removal Action," Adv.
 4   No. 14-01177).   Thereafter, Holt/Trust moved for remand and asked
 5   the bankruptcy court to abstain from hearing the matter.    The
 6   bankruptcy court denied remand.    Holt/Trust appealed the remand
 7   denial to the district court.   Holt/Trust also moved for
 8   withdrawal of the reference in the Removal Action.
 9        The same day Debtors filed the Removal Action, Holt/Trust
10   filed a dischargeability action against Debtors, seeking to except
11   the debt from discharge under § 523(a)(2), (4) and (6) (the "523
12   Action," Adv. No. 14-01178).    In their answer, Debtors asserted a
13   counterclaim objecting to Holt/Trust's Claim and sought a
14   determination of the validity, extent and priority of any lien
15   held by Holt/Trust.
16        On Debtors' motion, the Removal Action and the 523 Action
17   were consolidated on February 18, 2015.   Thus, matters pending in
18   both the Removal Action and the 523 Action are subject to the
19   withdrawal of the reference, which is still undecided.
20        On August 5, 2015, Holt/Trust moved to estimate and
21   temporarily allow the Claim for voting purposes ("Claim Estimation
22   Motion").   At that point, Debtors' disclosure statement had been
23   disapproved and not amended.
24        Debtors opposed the Claim Estimation Motion for three
25   reasons.    First, Debtors questioned the bankruptcy court's
26   jurisdiction to estimate the Claim because allowance of the Claim
27   was subject to the 523 Action, which had now been consolidated
28   with the Removal Action, which was subject to Holt/Trust's

                                       -14-
 1   withdrawal of the reference.    Second, even if the bankruptcy court
 2   had jurisdiction, Debtors contended the Claim Estimation Motion
 3   was premature as there was no plan pending.    Finally, Debtors
 4   contended the court had discretion to deny the Claim Estimation
 5   Motion because the Claim was subject to dispute and the delay in
 6   its resolution was the fault of Holt/Trust.
 7           In reply, Holt/Trust contended the bankruptcy court had
 8   jurisdiction to estimate the Claim even though the removed
 9   523 Action contained the counterclaim seeking to disallow it.
10   Plan confirmation was still within the bankruptcy court's
11   jurisdiction, which was a separate question from claim allowance.
12   Further, argued Holt/Trust, the Claim Estimation Motion was not
13   premature.    Debtors had cited no case law that requires a plan to
14   be pending before a request to vote a disputed claim is sought.
15   Finally, while Holt/Trust conceded they had caused some delay in
16   resolving the Claim issue, nothing about it was improper.    In
17   fact, Debtors consolidating the two adversaries ensured that
18   appeal of any one substantive issue within them would delay all
19   issues, including resolution of Debtors' Claim objection.
20           After a hearing on September 9, 2015, the bankruptcy court
21   issued its oral ruling on the Claim Estimation Motion on
22   September 18, 2015.    Concluding that it had jurisdiction to
23   estimate and temporarily allow the Claim for voting purposes, the
24   court granted the motion on the basis that the Claim was both
25   contingent and unliquidated, and waiting until the Claim was
26   liquidated would cause undue delay in the administration of the
27   case.    The court estimated the unsecured Claim at $638,427.07
28   (“Estimated Claim”).

                                       -15-
 1        The bankruptcy court entered an order allowing the Estimated
 2   Claim for voting purposes only under § 502(c)(1) and Rule 3018(a)
 3   on September 23, 2015 ("Claim Estimation Order").    Debtors timely
 4   appealed the Claim Estimation Order.
 5        4.   The bankruptcy court's decision on the Motion to Dismiss
 6        The bankruptcy court entered its 43-page Memorandum Decision
 7   on the Motion to Dismiss on September 30, 2015, one week after the
 8   Claim Estimation Order had been entered.     The court found that
 9   Debtors' bankruptcy case had been filed in bad faith, thereby
10   providing "cause" under § 1112(b)(1).     Debtors had failed to
11   establish that any "unusual circumstances" existed under
12   § 1112(b)(2) to not dismiss or convert the case.    However, the
13   court declined to dismiss the case, finding that conversion to
14   chapter 7 was in the best interest of creditors and the estate.
15        The bankruptcy court entered an order converting Debtors'
16   case to chapter 7 on October 1, 2015 ("Conversion Order").
17   Debtors timely appealed the Conversion Order.
18                             II. JURISDICTION
19        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
20   and 157(b)(2)(A).   Subject to our discussion below, we have
21   jurisdiction under 28 U.S.C. § 158.
22                               III. ISSUES
23   1.   Did the bankruptcy court abuse its discretion when it
24   converted Debtors' chapter 11 bankruptcy case to chapter 7?
25   2.   Did the bankruptcy court abuse its discretion by estimating
26   and temporarily allowing the Claim for voting purposes?
27                         IV. STANDARDS OF REVIEW
28        The bankruptcy court's interpretation of the Code is reviewed

                                     -16-
 1   de novo.   Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186,
 2   1188 (9th Cir. 2011).   We review our own jurisdiction, including
 3   questions of mootness, de novo.    Ellis v. Yu (In re Ellis),
 4   523 B.R. 673, 677 (9th Cir. BAP 2014) (citing Silver Sage
 5   Partners, Ltd. v. City of Desert Hot Springs (In re City of Desert
 6   Hot Springs), 339 F.3d 782, 787 (9th Cir. 2003)).
 7         We review the bankruptcy court's order converting Debtors'
 8   chapter 11 case to chapter 7 for an abuse of discretion.    Pioneer
 9   Liquidating Corp. v. U.S. Trustee (In re Consol. Pioneer Mortg.
10   Entities), 264 F.3d 803, 806 (9th Cir. 2001).   We review the
11   bankruptcy court's finding of "bad faith" for clear error.      Marsch
12   v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir. 1994).
13         We also review for an abuse of discretion the bankruptcy
14   court's decision to allow temporarily the Estimated Claim for
15   voting purposes.    See Beal Bank USA v. Windmill Durango Office,
16   LLC (In re Windmill Durango Office, LLC), 481 B.R. 51, 63 (9th
17   Cir. BAP 2012) (Rule 3018(a) decisions are reviewed for abuse of
18   discretion).   However, we review de novo whether the bankruptcy
19   court had subject matter jurisdiction to enter the Claim
20   Estimation Order.   See McCowan v. Fraley (In re McCowan), 296 B.R.
21   1, 2 (9th Cir. BAP 2003) ("Whether a court has subject matter
22   jurisdiction is a question of law that we review de novo.").
23         A bankruptcy court abuses its discretion if it applied the
24   wrong legal standard or its factual findings were illogical,
25   implausible or without support in the record.   TrafficSchool.com
26   v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
27   ///
28   ///

                                       -17-
 1                                V. DISCUSSION
 2   A.   The bankruptcy court did not abuse its discretion when it
          converted Debtors' chapter 11 case to chapter 7.
 3
 4        1.      Dismissal or conversion under § 1112(b)
 5        Section 1112(b)(1) provides, in relevant part, that "the
 6   court shall convert a case under this chapter to a case under
 7   chapter 7 or dismiss a case under this chapter, whichever is in
 8   the best interests of creditors and the estate, for cause . . . ."
 9   If cause is established, the decision whether to convert or
10   dismiss the case falls within the sound discretion of the court.
11   Sullivan v. Harnisch (In re Sullivan), 522 B.R. 604, 612 (9th Cir.
12   BAP 2014).     And, if the bankruptcy court determines that cause
13   exists to convert or dismiss, it must also:      (1) decide whether
14   dismissal, conversion, or the appointment of a trustee or examiner
15   is in the best interests of creditors and the estate; and
16   (2) identify whether there are unusual circumstances that
17   establish that dismissal or conversion is not in the best
18   interests of creditors and the estate.       Id. (citing § 1112(b)(1),
19   (b)(2)).
20        The movant seeking relief under § 1112(b) bears the initial
21   burden of proving by a preponderance of the evidence that "cause"
22   exists.    Id. at 614.
23        2.      Bad faith as cause to convert or dismiss
24        The bankruptcy court found that "cause" existed to convert on
25   the basis that Debtors' petition was filed in bad faith.      Although
26   § 1112(b) does not explicitly require that cases be filed in "good
27   faith," a lack of good faith in filing a chapter 11 case
28   establishes cause for dismissal.     Marshall v. Marshall

                                       -18-
 1   (In re Marshall), 721 F.3d 1032, 1047 (9th Cir. 2013);
 2   In re Marsch, 36 F.3d at 828; In re Sullivan, 522 B.R. at 614.      In
 3   determining whether the petition was filed in good faith, "the
 4   debtor’s subjective intent is not determinative."   In re Marsch,
 5   36 F.3d at 828.   Rather, the good faith inquiry focuses on the
 6   manifest purpose of the filing and whether the debtor is seeking
 7   to achieve thereby "objectives outside the legitimate scope of the
 8   bankruptcy laws."   Id.; In re Sullivan, 522 B.R. at 614.
 9          Simply put, in determining whether the chapter 11 petition
10   was filed in good faith, the bankruptcy court must ascertain
11   “whether [the] debtor is attempting to unreasonably deter and
12   harass creditors or attempting to effect a speedy, efficient
13   reorganization on a feasible basis."    In re Marsch, 36 F.3d at 828
14   (citing Idaho Dep't of Lands v. Arnold (In re Arnold), 806 F.2d
15   937, 939 (9th Cir. 1986)); Grego v. U.S. Tr. (In re Grego), 2015
16   WL 3451559, at *5 (9th Cir. BAP May 29, 2015).
17          When bad faith is relied upon and established as cause for
18   relief under § 1112(b), "[d]ebtor bears the burden of proving that
19   the petition was filed in good faith."   In re Marshall, 721 F.3d
20   at 1048 (quoting Leavitt v. Soto (In re Leavitt), 209 B.R. 935,
21   940 (9th Cir. BAP 1997)), aff'd, 171 F.3d 1219 (9th Cir. 1999).
22          In making the good faith determination, the bankruptcy court
23   typically must consider "an amalgam of factors," instead of
24   relying on a single dispositive fact.    In re Marsch, 36 F.3d at
25   828.   Such determinations are to be made "on a case by case basis,
26   and there is no talismanic list of factors that must be present in
27   each case in order to find bad faith; the weight given to any
28   particular factor depends on all of the circumstances of the

                                      -19-
 1   individual case."    In re Grego, 2015 WL 3451559, at *6 (citing
 2   Laguna Assocs. Ltd. P'ship v. Aetna Cas. & Sur. Co. (In re Laguna
 3   Assocs. Ltd. P'ship), 30 F.3d 734, 738 (6th Cir. 1994); de la
 4   Salle v. U.S. Bank, N.A. (In re de la Salle), 461 B.R. 593, 605
 5   (9th Cir. BAP 2011) (holding that, in chapter 13 cases, bankruptcy
 6   courts must consider the “totality of the circumstances” before
 7   making a bad faith determination)).
 8        3.   Analysis
 9        After carefully reviewing an amalgam of factors, the
10   bankruptcy court determined that Debtors were and are attempting
11   to unreasonably deter and harass Holt/Trust by filing their
12   chapter 11 petition.    In addition, the court found that Debtors
13   were not attempting to effect a speedy, efficient reorganization
14   on a feasible basis, but were instead attempting to achieve delay
15   and other objectives outside the legitimate scope of the Code.
16   Thus, Debtors' bankruptcy petition was not filed in good faith and
17   established "cause."    Debtors do not challenge the bankruptcy
18   court's finding of bad faith directly, but rather raise procedural
19   arguments and challenge the court's finding that unusual
20   circumstances were not present under § 1112(b)(2).   We now turn to
21   these arguments.
22        Debtors contend that because the bankruptcy court held the
23   evidentiary hearing four months after the Motion to Dismiss was
24   filed and did not decide the matter until seven months later, it
25   erred as a matter of law.   Under § 1112(b)(3), the bankruptcy
26   court is required to hear a motion under § 1112(b) within 30 days
27   after the filing of the motion and decide the motion not later
28   than 15 days after the initial hearing, "unless the movant

                                      -20-
 1   expressly consents to a continuance for a specific period of time
 2   or compelling circumstances prevent the court from meeting the
 3   time limits established by this paragraph."
 4        Debtors never before objected to the timing of the
 5   evidentiary hearing or of the bankruptcy court's decision.
 6   Generally we will not consider an issue raised for the first time
 7   on appeal; the failure to raise an issue before the bankruptcy
 8   court may constitute a waiver.   See Price v. Lehtinen
 9   (In re Lehtinen), 332 B.R. 404, 411 (9th Cir. BAP 2005).   We may
10   consider such an issue later on appeal.   See Mano–Y & M, Ltd. v.
11   Field (In re Mortg. Store, Inc.), 773 F.3d 990, 998 (9th Cir.
12   2014).   Given the pure legal issue here and the developed record,
13   we exercise our discretion to consider Debtors' argument and
14   conclude to the contrary.   See Id. (we have discretion to consider
15   arguments raised for the first time on appeal if the issue
16   presented is purely a legal one and either does not depend on the
17   factual record developed below or the pertinent record has been
18   fully developed).   As prescribed by the statute, which is clearly
19   designed for the party seeking dismissal or conversion, movant
20   Holt/Trust expressly consented to the evidentiary hearing set four
21   months out.   See Smith v. Colo. Dep't of Rev. (In re Hook), 2008
22   WL 3906794, at *5 (10th Cir. BAP Aug. 26, 2008) (statutory right
23   under § 1112(b)(3) to have hearing conducted within 30 days
24   "plainly belongs to the moving party" rather than to the debtor).
25   Secondly, while the seven month wait for a decision was arguably
26   lengthy, particularly when considering the court's statement at
27   the evidentiary hearing that it would render a decision promptly,
28   Debtors fail to acknowledge the second part of § 1112(b)(3), which

                                      -21-
 1   permits the court to decide the motion beyond the 15-day time
 2   limit if "compelling circumstances" so require.   Clearly, the
 3   15-day decision rule in § 1112(b)(3) is flexible; the court is
 4   allowed to extend that time limit if necessary.
 5        We further observe that § 1112(b)(3) is not self-executing
 6   and does not provide for a specific consequence for either party
 7   should a motion to dismiss or convert not be heard within 30 days
 8   or decided within 15 days thereafter.   See In re Pinnacle Labs.,
 9   Inc., 2008 WL 5157981, at *4 n.1 (Bankr. D.N.M. June 19, 2008)
10   (noting the difference between § 1112(b)(3) and § 362(e)(1) & (2),
11   which allow relief or modification from stay if hearings are not
12   conducted or decisions rendered within certain periods of time).
13   Therefore, the bankruptcy court did not commit reversible error by
14   conducting an evidentiary hearing four months after the Motion to
15   Dismiss had been filed or by not adhering to the 15-day decision
16   rule after that hearing's conclusion.
17        Debtors next contend the bankruptcy court erred by
18   considering in its decision to convert events that occurred months
19   after the evidentiary hearing, when it should have based its
20   decision only on facts from the Motion to Dismiss and the related
21   evidentiary hearing in March 2015.    In particular, Debtors assign
22   error to the court's consideration of evidence regarding alleged
23   commingled Trust funds used to purchase their residence that was
24   presented at a hearing on Holt/Trust's objection to Debtors'
25   claimed exemptions in July 2015.   In making a credibility
26   determination about Debtors, the bankruptcy court indicated that
27   the testimony regarding whether alleged commingled Trust funds
28   were used to purchase their residence was in fact presented at the

                                    -22-
 1   evidentiary hearing on the Motion to Dismiss.    Review of that
 2   transcript reflects that no such testimony was offered there.     So,
 3   with respect to that factual statement, the court did err.
 4        However, careful review of the transcript from the
 5   evidentiary hearing on the Motion to Dismiss also shows that
 6   Green's testimony was not particularly creditworthy and was
 7   impeached on a variety of issues.    In addition, Green admitted to
 8   depositing Trust funds into Debtors' personal accounts, but then
 9   claimed he did not commingle any Trust funds with Debtors'.    More
10   importantly, the fact of the alleged commingled Trust funds
11   evidence at the hearing on Debtors' exemptions was only one part
12   of one factor the court relied upon as indicia of bad faith for
13   the Motion to Dismiss (i.e., whether egregious behavior by debtor
14   is present).   Thus, even if the court erred in considering that
15   evidence and in making any factual finding respecting it, it does
16   not negate the court's other factual findings supporting its bad
17   faith ruling which Debtors do not contest.
18        Next, Debtors argue that the bankruptcy court should not have
19   converted the case at the time it did, because of the pending
20   Claim objection, pending appeals, and an undecided withdrawal of
21   the reference filed by Holt/Trust.     This argument appears to go to
22   Debtors' argument that "unusual circumstances" existed to not
23   convert their case, and the bankruptcy court erred by not
24   concluding otherwise.   As noted above, once the bankruptcy court
25   determines that cause exists to convert or dismiss, it must also:
26   (1) decide whether dismissal, conversion, or the appointment of a
27   trustee or examiner is in the best interests of creditors and the
28

                                     -23-
 1   estate;8 and (2) identify whether there are unusual circumstances
 2   that establish that dismissal or conversion is not in the best
 3   interests of creditors and the estate.   In re Sullivan, 522 B.R.
 4   at 612; § 1112(b)(1), (b)(2).   The word "unusual" is not defined
 5   in the Code, but contemplates facts that are not common to
 6   chapter 11 cases, generally.    7 COLLIER ON BANKRUPTCY ¶ 1112.05[2]
 7   (Alan N. Resnick & Henry J. Sommers, eds., 16th ed.).
 8        If the bankruptcy court does specifically find and identify
 9   such "unusual circumstances," the debtor must also prove (1) there
10   is a reasonable likelihood of plan confirmation within a
11   reasonable time, (2) that the "cause" shown for conversion or
12   dismissal was reasonably justified, and (3) that the cause for
13   conversion or dismissal can be "cured" within a reasonable time.
14   Warren v. Young (In re Warren), 2015 WL 3407244, at *4 (9th Cir.
15   BAP May 14, 2015) (citing § 1112(b)(2)(A) & (B)).
16        Debtors concede it was their burden to demonstrate unusual
17   circumstances existed so that dismissal or conversion was not in
18   the best interests of creditors and the estate.   See id. at *4
19   ("Once the movant has established cause, the burden shifts to the
20   respondent to demonstrate by evidence the unusual circumstances
21   that establish that dismissal or conversion is not in the best
22
          8
             Debtors do not dispute the bankruptcy court's decision to
23   convert as opposed to dismiss. We see no error in that ruling.
     The court independently analyzed the issue and determined that
24   conversion was in the best interest of creditors and the estate,
     particularly because conversion ensured that all estate assets
25   could be properly collected, secured and distributed promptly in
     an equitable manner. See In re Sullivan, 522 B.R. at 613
26   (bankruptcy court has an independent duty under § 1112 to consider
     whether dismissal or conversion would be in the best interest of
27   all creditors and the estate, regardless of what form of relief
     the moving party has requested); In re Sann, 2015 WL 1943911 at
28   *10-11 (Bankr. D. Mont. Apr. 29, 2015) (same).

                                      -24-
 1   interests of creditors and the estate.”) (quoting 7 COLLIER ON
 2   BANKRUPTCY at ¶ 1112.05[2]).    The only "unusual circumstances"
 3   Debtors raised before the bankruptcy court was the fact of the
 4   default entry.   The bankruptcy court disagreed this constituted
 5   anything unusual in a chapter 11 case.    We agree; this hardly
 6   seems unusual, as many debtors prior to filing for bankruptcy have
 7   had defaults entered against them in another court.
 8        However, Debtors now argue that the proposed plan and
 9   disclosure statement, pending Claim objection, pending appeals,
10   and the undecided withdrawal of the reference constitute unusual
11   circumstances.   Leaving aside momentarily the proposed plan,
12   Debtors do not explain how any of these issues establish that
13   chapter 11, as opposed to conversion or dismissal, is in the best
14   interest of creditors or the estate.    Also, nothing is unusual
15   about pending dischargeability actions or claim objections in an
16   individual chapter 11 case.    As for the proposed plan, a
17   compelling ground for denying a motion to dismiss grounded on bad
18   faith is a debtor showing that a plan of reorganization qualifies
19   and is ready for confirmation.    In re Marshall, 721 F.3d at 1049.
20   Although Debtors had filed a proposed plan, their disclosure
21   statement was rejected and they never filed an amended version
22   curing the defect(s).   Thus, this does not help them either.
23        Along this same vein, and assuming unusual circumstances
24   exist, Debtors argue that the bankruptcy court erred in converting
25   their case to chapter 7 on October 1, 2015, after giving them
26   until November 30, 2015, to confirm a plan, and in finding that a
27   plan could not be confirmed in a reasonable time.    Debtors argue
28   that with the Claim Estimation Order being entered just one week

                                      -25-
 1   earlier estimating the Claim at $638,427.07, they were not given
 2   time to file a new plan and disclosure statement based on that
 3   decision.   The bankruptcy court noted that while Debtors had filed
 4   a plan, no disclosure statement had been approved and the plan was
 5   never set for a confirmation hearing.   Even if Debtors were
 6   correct that they should have been given more time, they failed to
 7   address the court's other concern that Debtors identified only one
 8   class of creditors — general unsecured.   As such, the court found
 9   that no separate impaired class of creditors existed that could
10   vote in support of the plan, and the likelihood that Holt/Trust
11   would vote in favor of it was remote.   Any new plan would appear
12   to have the same challenges.
13        More importantly, even if Debtors could confirm a plan within
14   a reasonable time, they have not shown how the "cause" established
15   to convert their case — bad faith — was either reasonably
16   justified or is curable.   See § 1112(b)(2)(B).   As the bankruptcy
17   court found, filing a petition in bad faith could never be
18   reasonably justified or curable, no matter what plan Debtors could
19   now propose.   For this same reason, we reject Debtors' argument
20   that because they had the assets to fund a 100% plan if needed,
21   the bankruptcy court erred in holding that they could not propose
22   a confirmable plan.
23        Debtors' last contention seems to go more to their appeal of
24   the Claim Estimation Order, arguing that the bankruptcy court
25   erroneously based its decision to convert, in part, on its
26   estimation of the Claim.   Debtors’ argument here is unclear.
27   Although the bankruptcy court had entered the Claim Estimation
28   Order one week before the Conversion Order, the court said nothing

                                     -26-
 1   in its Memorandum Decision about the Estimated Claim or that it
 2   was a basis for converting.   In any event, Debtors’ argument is
 3   without merit as the bankruptcy court temporarily estimated the
 4   Claim solely and exclusively for purposes of voting to accept or
 5   reject any proposed plan under § 502(c)(1) and Rule 3018(a); such
 6   estimation did not serve as a basis for converting the case under
 7   § 1112 or applicable case law.   Moreover, the resolution of the
 8   appeal of the Claim Estimation Order will not change the
 9   bankruptcy court's ruling that Debtors filed their petition in bad
10   faith, which was not substantially justified and cannot be cured.9
11        Accordingly, because the bankruptcy court's finding of bad
12   faith is supported by the record and not clearly erroneous, and it
13   properly applied the governing law, we AFFIRM the Conversion
14   Order.
15   B.   Because we are affirming the Conversion Order, the appeal of
          the Claim Estimation Order is DISMISSED as MOOT.
16
17        Debtors also appeal the Claim Estimation Order.   After
18   determining it had jurisdiction over the matter, the bankruptcy
19   court proceeded to estimate and temporarily allow Holt/Trust's
20   unsecured Claim for voting purposes only in the amount of
21
22        9
             Debtors make a great deal of Klein's testimony, arguing
     that she lacked the credentials necessary to be admitted as an
23   expert witness. First, Klein was admitted as an expert witness at
     the state court prove-up hearing, not at the evidentiary hearing
24   on the Motion to Dismiss, which the bankruptcy court merely
     acknowledged in its recitation of the facts. Second, Debtors had
25   months between the two sessions of the prove-up hearing to object
     to Klein's testimony or to hire counsel but did not do so.
26   Finally, while Klein may not have a degree in forensic accounting,
     she has been doing probate trust malfeasance investigation for at
27   least 15 years, and the state court judge commented favorably on
     her abilities, noting that her work was the best he had seen in
28   his 40 years on the bench.

                                      -27-
 1   $638,427.07.   Notably, the court's ruling here was very narrow.
 2   It explicitly stated at the hearing and in the order that the
 3   temporary estimate and allowance of the Claim was solely and
 4   exclusively for purposes of voting to accept or reject a
 5   chapter 11 plan of reorganization; the court was not determining
 6   the allowance or disallowance of the Claim, the allowable amount
 7   or the extent of any lien securing the Claim if allowed, nor the
 8   nondischargeability of the Claim under § 523(a).    In other words,
 9   the Claim Estimation Order would have no preclusive effect in any
10   other matter or before any other court.
11        In light of the bankruptcy court's narrow ruling and our
12   decision affirming the Conversion Order, we must dismiss the
13   appeal of the Claim Estimation Order.   See United States v.
14   Pattullo (In re Pattullo), 271 F.3d 898, 900 (9th Cir. 2001) (we
15   cannot exercise jurisdiction over a moot appeal).   No chapter 11
16   case exists and no plan will be presented requiring voting from
17   creditors.    Therefore, even if we were to reverse the Claim
18   Estimation Order, we can provide no effective relief to Debtors.
19   See Castaic Partners II, LLC v. Daca-Castaic, LLC (In re Castaic
20   Partners II, LLC), 823 F.3d 966, 968-69 (9th Cir. 2016) (test for
21   mootness is whether an appellate court can still grant effective
22   relief to the prevailing party if it decides the merits in his or
23   her favor).
24                               VI. CONCLUSION
25        For the foregoing reasons, we AFFIRM the Conversion Order.
26   Because we are affirming the Conversion Order, the appeal of the
27   Claim Estimation Order is therefore DISMISSED as MOOT.
28

                                      -28-
