                                                        FILED
                                                         DEC 12 2011
 1
                                                     SUSAN M SPRAUL, CLERK
                                                       U.S. BKCY. APP. PANEL
 2                                                     OF THE NINTH CIRCUIT

 3               UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                         OF THE NINTH CIRCUIT
 5   In re:                        )    BAP No. EC-11-1086-DJuKi
                                   )            EC-11-1167-DJuKi
 6   MICHAEL WOOD,                 )            (related appeals)
                                   )
 7                  Debtor.        )    Bk. No.   10-49032
     ______________________________)
 8                                 )    Adv. No. 10-02731
     MICHAEL WOOD,                 )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )    M E M O R A N D U M1
11                                 )
     EARNEST F. JOHNSON, dba       )
12   Protect Carpet Cleaning;      )
     UNITED STATES TRUSTEE; THE    )
13   BANK OF NEW YORK,             )
                                   )
14                  Appellees.     )
     ______________________________)
15                                 )
     MICHAEL WOOD,                 )
16                                 )
                    Appellant,     )
17                                 )
     v.                            )
18                                 )
     THE BANK OF NEW YORK,         )
19                                 )
                    Appellee.      )
20   ______________________________)
21               Argued and Submitted on November 16, 2011
                         at Sacramento, California
22
                         Filed - December 12, 2011
23
              Appeal from the United States Bankruptcy Court
24                for the Eastern District of California
25       Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding
26
27
          1
            This disposition is not appropriate for publication.
28   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8013-1.
 1   Appearances:     Appellant Michael Wood argued pro se. Dawn N.
                      Williams, Esq. of Dykema Gossett LLP appeared for
 2                    Appellee The Bank of New York.
 3
 4   Before:   DUNN, JURY and KIRSCHER, Bankruptcy Judges.
 5
 6         The debtor, Michael Wood, appeals the following orders of
 7   the bankruptcy court:2 (1) dismissing his chapter 11 bankruptcy
 8   case (“dismissal order”); (2) denying his motion for
 9   reconsideration of the dismissal order; (3) remanding to state
10   court (“remand order”) an unlawful detainer action against him;
11   and (4) denying his motion for reconsideration of the remand
12   order.    We AFFIRM.
13   ///
14   ///
15   ///
16   ///
17   ///
18   ///
19   ///
20   ///
21   ///
22   ///
23   ///
24
25
           2
            Unless otherwise indicated, all chapter, section and rule
26   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
     The Federal Rules of Civil Procedure are referred to as “Civil
28   Rules.”

                                       2
 1                                  FACTS3
 2   A.   Events before the debtor’s second chapter 11 case
 3        Joseph Manlapaz purchased a residence in Tracy, California
 4   (“Tracy residence”), through a loan from Ownit Mortgage
 5   Solutions, Inc. (“Ownit Mortgage”).     The debtor claimed an
 6   interest in the Tracy residence.4    When Manlapaz defaulted on his
 7   mortgage payments to Ownit Mortgage, the Tracy residence was
 8   placed into foreclosure.   Bank of New York (“BNY”) was the
 9   successful credit bidder at the foreclosure sale.
10        On May 26, 2009, BNY served the debtor with a written notice
11   to quit the Tracy residence.   The debtor did not leave the Tracy
12   residence in response to the notice to quit.    Consequently, on
13   July 31, 2009, BNY initiated the unlawful detainer action against
14   the debtor in state court to obtain possession of the Tracy
15   residence.   On February 18, 2010, the state court entered
16   judgment against the debtor (“state court judgment”) in the
17
18        3
            The debtor submitted four volumes of documents, requesting
19   that we take judicial notice of the documents. BNY objected to
     the debtor’s requests for judicial notice.
20        Nearly all of the documents in the debtor’s requests for
     judicial notice relate to the unlawful detainer action.
21
     Generally, we do not consider facts outside the record developed
22   before the bankruptcy court. See United States ex rel. Robinson
     Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248
23   (9th Cir. 1992). We may take judicial notice of proceedings in
24   other courts, however, if those proceedings have a direct
     relation to the matters at issue. Id. None of the documents in
25   the debtor’s requests for judicial notice are necessary to our
     determination here. We thus deny the debtor’s requests for
26   judicial notice.
27        4
            It is unclear from the record whether the debtor or a
28   member of the debtor’s family leased the Tracy residence.

                                      3
 1   unlawful detainer action.   The debtor did not appeal the state
 2   court judgment.5
 3        After a writ of possession was issued, the eviction of the
 4   debtor was scheduled for March 3, 2010.    The day before the
 5   scheduled eviction, the debtor filed his first chapter 11
 6   petition in the Eastern District of California (bankruptcy case
 7   no. 10-25046-cmk).6   Two weeks later, the bankruptcy court
 8   dismissed the debtor’s first chapter 11 case because he had “no
 9   bankruptcy reason for maintaining” it, as he had filed it in
10   order to challenge title to the Tracy residence.
11
12   B.   The debtor’s second chapter 11 case
13        The debtor filed his second chapter 11 petition (bankruptcy
14   case no. 10-49032-rsb) on November 1, 2010.   He filed all of the
15
16        5
            At oral argument, counsel for BNY represented that the
17   unlawful detainer action was completed. She further represented
     that BNY had executed the writ of possession.
18
          6
19          BNY filed a motion for relief from stay (“stay relief
     motion”), seeking to proceed with the unlawful detainer action,
20   in the debtor’s first chapter 11 case (main case docket no. 20).
     BNY also filed the declaration of Ronald D. Roup, attorney for
21   BNY, in support of its stay relief motion (“declaration”)(main
22   case docket no. 22). BNY recited these facts in the stay relief
     motion and the declaration. (Notably, the debtor’s first
23   chapter 11 case was dismissed before the April 14, 2010 hearing
     on BNY’s stay relief motion.) Neither BNY nor the debtor
24
     included the stay relief motion and the declaration in the record
25   on appeal. We obtained copies of the stay relief motion and the
     declaration from the bankruptcy court’s electronic docket. See
26   O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.),
27   887 F.2d 955, 957-58 (9th Cir. 1988); Atwood v. Chase Manhattan
     Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP
28   2003).

                                      4
 1   schedules, the statement of financial affairs (“SOFA”) and other
 2   required bankruptcy documents (collectively, “original bankruptcy
 3   documents”) on the same day as his petition.
 4           The debtor scheduled only two assets: his “equity” from
 5   “possession of [the Tracy residence]” and $340 in cash on hand.
 6   The debtor did not schedule any secured or priority creditors.
 7   He scheduled only one unsecured creditor with a $590 claim.       The
 8   debtor reported that he had no monthly income and that he was
 9   unemployed.    He also reported only $200 per month in expenses.
10   He listed on the SOFA the unlawful detainer action and the
11   foreclosure of the Tracy residence.
12           On the petition date, the bankruptcy court issued an order
13   to file a status report and to attend the status conference set
14   for December 1, 2010 (“status conference order”).    The status
15   conference order required the debtor to serve the status
16   conference order on the parties listed therein by November 12,
17   2010.    It further required the debtor to serve the status report
18   on these same parties by November 19, 2010.
19           Specifically, the status conference order set forth the
20   following language:
21           Service of this Order. The debtor shall serve this
             order by the date stated above [i.e., November 12,
22           2010] upon the following persons: (1) the United States
             trustee; (2) the holders of the 20 largest unsecured
23           claims, excluding insiders; (3) all general partners,
             limited partners, or shareholders of the debtor;
24           (4) all holders of secured claims; (5) all parties to
             executory contracts and unexpired leases; and (6) all
25           parties that request special notice. If any of the
             foregoing persons is represented by an attorney known
26           to the debtor, the attorney shall also be served with
             this order. The debtor shall file a proof of service
27           no later than three court days after service of this
             order.
28

                                        5
 1        Service of the Status Report. The debtor shall, by the
          date set forth above [i.e., November 19, 2010], file a
 2        status report and serve it on the same persons served
          with this order.
 3
          Sanctions for Failure to Comply. Failure to comply
 4        with this order may result in sanctions, including
          dismissal, conversion, or the appointment of a trustee.
 5        Filing a status report with perfunctory conclusions and
          no meaningful factual detail does not comply with this
 6        order. The court expects to receive sufficient
          information to understand the current status of the
 7        case, the debtor’s anticipated plan of reorganization,
          and the types of contested matters and adversary
 8        proceedings that will likely be filed. With this
          information the court may set the deadlines described
 9        below [e.g., date for filing the plan and disclosure
          statement].
10
11        The debtor filed a status report on November 22, 2010
12   (“initial status report”),7 and an amended status report
13   (“amended status report”) on November 30, 2010.   The debtor
14   included certificates of service in both status reports,
15   indicating that he mailed copies of the initial status report and
16   the amended status report to the United States Trustee (“UST”).
17   He did not list any other parties on the certificates of service.
18   The debtor did not file with the bankruptcy court separate
19   certificates of service for either status report.
20        At the status conference, the bankruptcy court noted that
21   the debtor seemingly neither served the status conference order
22   nor the amended status report properly.   The debtor informed the
23   bankruptcy court that he had “personally mailed” a copy of the
24   status report to the UST and to the one unsecured creditor.
25
26        7
            Neither the debtor nor BNY included a copy of the debtor’s
27   initial status report in the record on appeal. We obtained a
     copy of the initial status report from the bankruptcy court’s
28   electronic docket (main case docket no. 12). See supra n.6.

                                     6
 1           The bankruptcy court noted that, after “look[ing] at [the
 2   debtor’s schedules and [SOFA],” the debtor listed only one
 3   unsecured creditor with a claim “for a little over $500.”      Tr. of
 4   December 1, 2010 hr’g, 2:22-24.    The debtor’s schedules, the
 5   bankruptcy court continued, “show[ed] virtually no income, very
 6   little expenses.”    Tr. of December 1, 2010 hr’g, 3:2-3.
 7           The bankruptcy court informed the debtor that it was
 8   “convinced that [the chapter 11 case was] not a viable
 9   reorganization.”    Tr. of December 1, 2010 hr’g, 4:2-3.    The
10   bankruptcy court advised the debtor that it intended to dismiss
11   his second chapter 11 case sua sponte because it “did not know
12   what the intent [was] behind [the chapter 11 case].”    Tr. of
13   December 1, 2010 hr’g, 3:18-19.
14           The debtor explained that he filed for bankruptcy to
15   “discharge [his] creditors.”    Tr. of December 1, 2010 hr’g, 3:5.
16   He estimated that he had “about $30,000 worth of creditors.”      Tr.
17   of December 1, 2010 hr’g, 3:6.
18           When the bankruptcy court pointed out that the debtor did
19   not list those debts in his bankruptcy schedules, the debtor
20   explained that at the time he prepared his bankruptcy schedules,
21   he “did not have the information.”     Tr. of December 1, 2010 hr’g,
22   3:10.    The debtor found “secondary information,” however, upon
23   the advice of the “trustee’s office.”    Tr. of December 1, 2010
24   hr’g, 3:11-12.
25           The bankruptcy court decided to dismiss the debtor’s second
26   chapter 11 case because:
27           [i]n light of the fact that [the debtor] filed
             schedules under penalty of perjury listing only one
28           creditor, there is no mention about subsequent

                                        7
 1        additions or any other known creditors. The matrix
          that was filed lists only one creditor, [his Schedule
 2        I] shows virtually no income whatsoever and [his]
          expenses show that [he] go[es] into the red each month.
 3        All of those are factors that are taken into account
          when assessing the likelihood of a reorganization and
 4        [the bankruptcy court was] going to dismiss [the
          debtor’s] case.
 5
 6   Tr. of December 1, 2010 hr’g, 4:5-14.       The bankruptcy court
 7   entered a minute order dismissing the debtor’s second chapter 11
 8   case (“dismissal order”) on December 3, 2010.
 9        Shortly after the bankruptcy court entered the dismissal
10   order, the debtor amended the creditor matrix, list of 20 largest
11   unsecured creditors, summary of schedules and Schedule F
12   (collectively, “amended bankruptcy documents”).       He reported in
13   the amended summary of schedules $340,340 in assets and
14   $45,844,788.90 in liabilities, all of which were unsecured
15   claims.   The debtor continued to assert $0 monthly income and
16   $200 monthly expenses in the amended summary of schedules.
17        On December 13, 2010, the debtor filed a motion to
18   reconsider the dismissal order.8       The bankruptcy court held a
19
          8
20          The debtor moved for reconsideration of the dismissal
     order under Civil Rule 59(e). Civil Rule 59(e) simply sets forth
21   the time by which a party must file a motion to alter or amend a
22   judgment. The debtor presumably meant to move for
     reconsideration under Civil Rule 59(a)(2), which provides, in
23   relevant part: “After a nonjury trial, the court may, on motion
     for new trial, open the judgment if one has been entered, take
24
     additional testimony, amend findings of fact and conclusions of
25   law or make new ones, and direct the entry of a new judgment.”
          The bankruptcy court apparently did not construe the
26   debtor’s motion to reconsider the dismissal order as one under
27   Civil Rule 59(e). The bankruptcy court did not cite, however,
     the specific Civil Rule on which it based its ruling. After
28                                                      (continued...)

                                        8
 1   hearing on the motion to reconsider the dismissal order on
 2   February 2, 2011.
 3        At the hearing, the bankruptcy court informed the debtor
 4   that it had reviewed the amended bankruptcy documents.    The
 5   bankruptcy court pointed out the inconsistencies in the
 6   bankruptcy documents filed in the first chapter 11 case and the
 7   second chapter 11 case.   These inconsistences led the bankruptcy
 8   court to believe that the debtor was “not being candid with
 9   [it].”   Tr. of February 2, 2011 hr’g, 4:10-11.   The bankruptcy
10   court told the debtor that it “view[ed] this case and [his] prior
11   case as not being filed in good faith.”   Tr. of February 2, 2011
12   hr’g, 3:17-18.
13        The bankruptcy court noted that when the debtor filed his
14   second chapter 11 case, he had filed his bankruptcy documents
15   under penalty of perjury.   If he knew that the bankruptcy
16   documents were inaccurate, the debtor did not amend them, even
17   though he had a month to do so.   It was only after his second
18   chapter 11 case was dismissed that the debtor filed “new
19   schedules where [he] showed 35 or so creditors and over [$45]
20   million . . . in debt.”   Tr. of February 2, 2011 hr’g, 4:6-8.
21        Referring to the documents filed in the debtor’s first
22   chapter 11 case, the bankruptcy court pointed out that
23
          the schedules and [SOFA] were virtually identical to
24        the initial ones filed here: no assets other than $350
          in cash, no income, no creditors other than $590 to a
25
26              8
                (...continued)
27   reviewing the bankruptcy court’s findings, we surmise that the
     bankruptcy court construed the debtor’s motion to reconsider the
28   dismissal order as one under Civil Rule 60(b).

                                       9
 1           carpet cleaning business.
 2   Tr. of February 2, 2011 hr’g, 4:15-18.
 3           The debtor explained that when he filed his first chapter 11
 4   case, he “had no files, no records.”     Tr. of February 2, 2011
 5   hr’g, 4:21-22.    He told the bankruptcy court that he had
 6   approximately $40,000 in credit card debt, but was unable to
 7   “track down any of the documentation because it’s all in the
 8   hands of [BNY’s] attorneys and agents.”    Tr. of February 2, 2011
 9   hr’g, 6:5-7.
10           The debtor further explained that he was a federal archivist
11   researcher with several clients whose files and records he held
12   at the Tracy residence.    The $45 million in debt that the debtor
13   scheduled related to certain clients who had claims against him
14   arising from his possession of their files and records.
15           The debtor told the bankruptcy court that he filed his
16   second chapter 11 case “to resolve claims that [he didn’t]
17   believe [he owed] everything [the creditors] claim [he] owe[d].”
18   Tr. of February 2, 2011 hr’g, 7:23-24.    He also sought to
19   “liquidate claims of people that owe[d] [him] money.”    Tr. of
20   February 2, 2011 hr’g, 7:24-25.
21           After listening to the debtor’s explanations, the bankruptcy
22   court denied the debtor’s motion to reconsider the dismissal
23   order on both procedural and substantive grounds.    With respect
24   to its procedural basis, the bankruptcy court found that the
25   debtor only served the UST; he did not serve any creditors or
26   other parties in interest as required under Rules 2002(a)(4) and
27   9014.    The debtor also failed to follow the local bankruptcy
28   rules by filing the motion to reconsider the dismissal order and

                                         10
 1   the proof of service as a single document.
 2           As to its substantive basis, the bankruptcy court found that
 3   the debtor did not give “weight to the requirement that schedules
 4   are filed under penalty of perjury,” amending the schedules
 5   “based on what [was] advantageous to him.”       Tr. of February 2,
 6   2011 hr’g, 10:18-22.    The bankruptcy court further found that the
 7   debtor did not file the second chapter 11 case in good faith,
 8   based on its review of the original and amended bankruptcy
 9   documents and the circumstances of the debtor’s first chapter 11
10   case.
11           On February 4, 2011, the bankruptcy court entered a minute
12   order denying the debtor’s motion to reconsider the dismissal
13   order (“main case reconsideration order”).       The debtor timely
14   appealed the dismissal order and the main case reconsideration
15   order.
16
17   C.      The debtor’s adversary proceeding
18           While the debtor’s second chapter 11 case was pending, on
19   November 22, 2010, the debtor filed a notice of removal of the
20   unlawful detainer action, initiating an adversary proceeding
21   (“removed action”)(adv. pro. case no. 10-02731).
22           BNY objected to the notice of removal.    BNY contended that
23   the bankruptcy court lacked subject matter jurisdiction because a
24   judgment already had been entered against the debtor in the
25   unlawful detainer action, which had not been appealed.      BNY asked
26   that the bankruptcy court either dismiss the removed action or
27   remand the unlawful detainer action to the state court.
28           At the hearing on February 10, 2011, the bankruptcy court

                                       11
 1   noted that the debtor’s second chapter 11 case had been
 2   dismissed.   Counsel for BNY again contended that the bankruptcy
 3   court lacked subject matter jurisdiction over the removed action
 4   because there was no case or controversy before it, as the state
 5   court already had issued a final judgment against the debtor in
 6   the unlawful detainer action.
 7        After hearing argument from the debtor and BNY, the
 8   bankruptcy court took the matter as submitted.   Later that same
 9   day, the bankruptcy court entered an order remanding the unlawful
10   detainer action to state court (“remand order”).   The bankruptcy
11   court reasoned that its jurisdiction over the removed action had
12   been based on the debtor’s underlying second chapter 11 case.
13   Because the debtor’s second chapter 11 case was dismissed, the
14   bankruptcy court concluded that it no longer had jurisdiction
15   over the removed action.
16        The debtor filed a motion to reconsider the remand order.9
17   The debtor argued that, because his appeal of the dismissal order
18   and the main case reconsideration order was pending, the remand
19   order was premature.
20        The bankruptcy court denied the debtor’s motion to
21   reconsider the remand order on the ground that there were no new
22   allegations or evidence supporting reconsideration.   It found
23   that the debtor’s pending appeal of the dismissal order and the
24   main case reconsideration order was not a basis for vacating the
25
26        9
            The debtor again moved for reconsideration under Civil
27   Rule 59(e). The bankruptcy court did not construe the debtor’s
     motion for reconsideration as one under Civil Rule 59(e), but as
28   one under Civil Rule 60(b).

                                     12
 1   remand order.    The bankruptcy court noted that even if it had not
 2   dismissed the debtor’s underlying chapter 11 case, it would have
 3   remanded the removed action to state court.
 4        On April 4, 2011, the bankruptcy court entered a minute
 5   order denying the debtor’s motion to reconsider the remand order
 6   (“adversary proceeding reconsideration order”).      The debtor
 7   timely appealed the remand order and the adversary proceeding
 8   reconsideration order.
 9
10                                JURISDICTION
11        At the outset, BNY challenges our authority to review the
12   bankruptcy court’s remand order.       BNY contends that, under
13   28 U.S.C. § 1447(d), an appellate court cannot review a
14   bankruptcy court’s remand order if the remand order was based on
15   lack of subject matter jurisdiction.
16        BNY seems to conflate the court of appeals and the
17   bankruptcy appellate panel into one appellate court.      28 U.S.C.
18   § 1452(b) provides:
19        The court to which such claim or cause of action is
          removed may remand such claim or cause of action on any
20        equitable ground. An order entered under this
          subsection remanding a claim or cause of action, or a
21        decision not to remand, is not reviewable by appeal or
          otherwise by the court of appeals under section 158(d),
22        1291, or 1292 of this title or by the Supreme Court of
          the United States under section 1254 of this title.10
23
24        10
               28 U.S.C. § 1334(d) similarly provides, in relevant part:
25
                 (d) Any decision to abstain or not to abstain made
26               under subsection (c)(other than a decision not to
27               abstain in a proceeding described in subsection (c)(2))
                 is not reviewable by appeal or otherwise by the court
28                                                   (continued...)

                                       13
 1   Contrary to BNY’s contention, we have jurisdiction to review the
 2   bankruptcy court’s remand order under 28 U.S.C. § 158(a) and (b).
 3   Only a district court or bankruptcy appellate panel may review a
 4   bankruptcy court’s remand order under 28 U.S.C. §§ 1334(d),
 5   1447(d) and 1452(b).     It is further appellate review that is
 6   precluded.     See Things Remembered, Inc. v. Petrarca, 516 U.S.
 7   124, 129 (1995); McCarthy v. Prince (In re McCarthy), 230 B.R.
 8   414, 417 (9th Cir. BAP 1999).
 9        The bankruptcy court had jurisdiction under 28 U.S.C.
10   §§ 1334 and 157(b)(1).     We have jurisdiction under 28 U.S.C.
11   § 158.
12
13                                    ISSUES
14        (1) Did the bankruptcy court abuse its discretion in
15   dismissing the debtor’s second chapter 11 case?
16        (2) Did the bankruptcy court abuse its discretion in
17   remanding the unlawful detainer action to the state court?
18        (3) Did the bankruptcy court abuse its discretion in denying
19   the debtor’s motion to reconsider the dismissal order and motion
20   to reconsider the remand order?
21
22                             STANDARDS OF REVIEW
23        “We review de novo whether the cause for dismissal of a
24   chapter 11 case under 11 U.S.C. § 1112(b) is within the
25
26        10
               (...continued)
27                 of appeals under section 158(d), 1291, or 1292 of this
                   title or by the Supreme Court of the United States
28                 under section 1254 of this title . . . .

                                        14
 1   contemplation of that section of the Code.”      Marsch v. Marsch
 2   (In re Marsch), 36 F.3d 825, 828 (9th Cir. 1994).      We review for
 3   abuse of discretion the bankruptcy court’s decision to dismiss a
 4   case as a bad faith filing.    Id.     We review a finding of bad
 5   faith for clear error.   Id.
 6        We review the bankruptcy court’s remand order for abuse of
 7   discretion.   United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d
 8   1102, 1111-12 (9th Cir. 2001).    See also McCarthy, 230 B.R. at
 9   416 (“Decisions to remand under 28 U.S.C. § 1452(b) are committed
10   to the sound discretion of the bankruptcy judge and are reviewed
11   for abuse of discretion.”).    We also review the bankruptcy
12   court’s denial of a motion for reconsideration for abuse of
13   discretion.   Weiner v. Perry, Settles & Lawson, Inc. (In re
14   Weiner), 161 F.3d 1216, 1217 (9th Cir. 1998).
15        We follow a two-part test to determine objectively whether
16   the bankruptcy court abused its discretion.      United States v.
17   Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc).        First,
18   we “determine de novo whether the bankruptcy court identified the
19   correct legal rule to apply to the relief requested.”      Id.
20   Second, we examine the bankruptcy court’s factual findings under
21   the clearly erroneous standard.      Id. at 1262 & n.20.   We must
22   affirm the bankruptcy court’s factual findings unless those
23   findings are “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without
24   ‘support in inferences that may be drawn from the facts in the
25   record.’”   Id.
26        We may affirm on any ground supported by the record.        Shanks
27   v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
28

                                       15
 1                                DISCUSSION
 2   A.     Dismissal of the second chapter 11 case
 3          The debtor argues on appeal that the bankruptcy court should
 4   not have dismissed his second chapter 11 case simply because he
 5   is not “engaged in business.”   The debtor contends that any
 6   individual residing in the United States may file a chapter 11
 7   petition, regardless of whether he or she operates a business.
 8          The debtor seems to misapprehend the basis of the bankruptcy
 9   court’s dismissal.   The bankruptcy court did not dismiss the
10   debtor’s second chapter 11 case because the debtor was not
11   engaged in business or a business entity.      Based on the
12   circumstances of the debtor’s second chapter 11 case, the
13   bankruptcy court found sufficient cause to dismiss it: an
14   apparent inability to reorganize and ultimately, the debtor’s
15   lack of good faith in filing the second chapter 11 case.
16          The bankruptcy court may dismiss a chapter 11 case for cause
17   under § 1112(b).   Marsch v. Marsch (In re Marsch), 36 F.3d at
18   829.   Lack of good faith in filing a chapter 11 petition
19   constitutes cause for dismissal.      Id.   “The existence of good
20   faith depends on an amalgam of factors and not upon a specific
21   fact.”   Id. (quoting In re Arnold, 806 F.2d 937, 939 (9th Cir.
22   1986))(quotation marks omitted).      The bankruptcy court considers
23   the following circumstantial factors in determining whether the
24   chapter 11 case was not filed in good faith:
25   (1)    the debtor has only one asset
     (2)    the secured creditors’ lien encumbers that asset
26   (3)    there are generally no employees except for the principals
     (4)    there is little or no cash flow, and no available sources of
27          income to sustain a plan of reorganization or to make
            adequate protection payments
28   (5)    there are few, if any, unsecured creditors whose claims are

                                      16
 1         relatively small
     (6)   there are allegations of wrongdoing by the debtor or its
 2         principals
     (7)   the debtor is afflicted with the “new debtor syndrome” in
 3         which a one-asset equity has been created or revitalized on
           the eve of foreclosure to isolate the insolvent property and
 4         its creditors
     (8)   bankruptcy offers the only possibility of forestalling loss
 5         of the property
 6   Stolrow v. Stolrow’s, Inc. (In re Stolrow’s Inc.), 84 B.R. 167,
 7   171 (9th Cir. BAP 1988)(citing In re Hulse, 66 B.R. 681, 682-83
 8   (Bankr. M.D. Fla. 1986)).
 9         Thoroughly reviewing the debtor’s original bankruptcy
10   documents, the bankruptcy court found that the debtor could not
11   possibly propose a viable chapter 11 plan as he had essentially
12   no income and was unemployed.    It also found that the debtor
13   listed only one small unsecured claim in the amount of $590.
14         After the debtor filed the amended bankruptcy documents, the
15   bankruptcy court further found that the debtor did not file the
16   chapter 11 case in good faith.   The bankruptcy court found that
17   the debtor had few assets: “$340 in cash and old clothing of no
18   value” and “‘possession of property,’ an interest” in the Tracy
19   residence.   The bankruptcy court determined that the debtor had
20   no income and was unemployed.    The bankruptcy court further found
21   that, despite filing his amended bankruptcy documents under
22   penalty of perjury, the debtor was not candid in disclosing
23   information in his amended bankruptcy documents.
24         Given the information the debtor provided in his original
25   and amended bankruptcy documents, the bankruptcy court’s factual
26   findings of apparent inability to reorganize his affairs and bad
27   faith were not clearly erroneous.     Contrary to the debtor’s
28   assertion, the bankruptcy court did not dismiss his second

                                      17
 1   chapter 11 case because he was not engaged in business.    The
 2   bankruptcy court’s findings establish sufficient cause for
 3   dismissal under § 1112(b).    The bankruptcy court thus did not
 4   abuse its discretion in dismissing the debtor’s second chapter 11
 5   case.
 6           Alternatively, the bankruptcy court had authority to dismiss
 7   the debtor’s second chapter 11 case for failure to comply with
 8   the status conference order.    The debtor contends that he did not
 9   receive notice of the bankruptcy court’s intent to dismiss his
10   second chapter 11 case.    However, the status conference order
11   clearly warned the debtor that dismissal was a possible sanction
12   if he did not comply with the status conference order.    Among its
13   requirements, the status conference order expressly charged the
14   debtor to serve the status conference order and the status report
15   on certain creditors.    Otherwise, he was subject to sanctions,
16   including dismissal of his second chapter 11 case.
17           The bankruptcy court found that the debtor had not served
18   either the status conference order or the status report on all of
19   the parties required in the status conference order.    The debtor
20   moreover received notice of the possible sanction of dismissal
21   for failure to comply with the status conference order.    The
22   debtor even claims in his brief that the bankruptcy court “gave
23   no notice or show cause as to [its] intent of the court reasoning
24   to dismiss the case prior to the hearing or by Minute Order other
25   than the notice of the Status Conference.”    Appellant’s Opening
26   Brief at 5 (emphasis added).
27           The bankruptcy court was authorized under the status
28   conference order to dismiss the debtor’s second chapter 11 case

                                       18
 1   when he failed to comply with the status conference order.    See
 2   Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)(per curiam)
 3   (“Failure to follow a district court’s local rules is a proper
 4   ground for dismissal.”).   See also In re Tennant, 318 B.R. 860,
 5   869 (9th Cir. BAP 2004)(“The court can dismiss a case sua sponte
 6   under Section 105(a).”).   The bankruptcy court thus did not abuse
 7   its discretion in dismissing the debtor’s second chapter 11 case.
 8
 9   B.   Remand of the unlawful detainer action
10        The debtor argues that the bankruptcy court, not the state
11   court, had subject matter jurisdiction over the unlawful detainer
12   action.   Appellant’s Opening Brief at 10.   He further seems to
13   contend that federal law trumps state law in matters involving
14   foreclosures of residences leased to tenants.   Id.    We disagree.
15        Under 28 U.S.C. § 1334(b), the bankruptcy court has
16   jurisdiction over any state action that is “related to” a
17   bankruptcy case.    A state court action is related to a bankruptcy
18   case if the outcome of the state court action could conceivably
19   have any effect on the estate being administered in bankruptcy.
20   Great Western Sav. v. Gordon (In re Fietz), 852 F.2d 455, 457
21   (9th Cir. 1988).
22        The dismissal of an underlying bankruptcy case does not
23   automatically terminate the bankruptcy court’s jurisdiction over
24   a related state court action.   Carraher v. Morgan Elec., Inc.
25   (In re Carraher), 971 F.2d 327, 328 (9th Cir. 1992).    In deciding
26   whether to retain jurisdiction over related state law actions,
27   the bankruptcy court must consider economy, convenience, fairness
28   and comity.   Id.

                                      19
 1          A bankruptcy court may remand a claim or cause of action
 2   related to a bankruptcy case on any equitable ground under
 3   28 U.S.C. § 1452(b).   “This ‘any equitable ground’ remand
 4   standard is an unusually broad grant of authority.     It subsumes
 5   and reaches beyond all of the reasons for remand under
 6   nonbankruptcy removal statutes.”      McCarthy, 230 B.R. at 417.   The
 7   bankruptcy court may consider any of the following factors in
 8   determining whether to remand to the state court the claim or
 9   cause of action concerned:
10          (1) the effect or lack thereof on the efficient
            administration of the estate if the Court recommends
11          [remand or] abstention;
            (2) extent to which state law issues predominate over
12          bankruptcy issues;
            (3) difficult or unsettled nature of applicable law;
13          (4) presence of related proceeding commenced in state
            court or other nonbankruptcy proceeding;
14          (5) jurisdictional basis, if any, other than § 1334;
            (6) degree of relatedness or remoteness of proceeding
15          to main bankruptcy case;
            (7) the substance rather than the form of an asserted
16          core proceeding;
            (8) the feasibility of severing state law claims from
17          core bankruptcy matters to allow judgments to be
            entered in state court with enforcement left to the
18          bankruptcy court;
            (9) the burden on the bankruptcy court’s docket;
19          (10) the likelihood that the commencement of the
            proceeding in bankruptcy court involves forum shopping
20          by one of the parties;
            (11) the existence of a right to a jury trial;
21          (12) the presence in the proceeding of nondebtor
            parties;
22          (13) comity; and
            (14) the possibility of prejudice to other parties in
23          the action.
24   Nilsen v. Neilson (In re Cedar Funding, Inc.), 419 B.R. 807, 821
25   n.18 (9th Cir. BAP 2009).    The decision to remand is within the
26   sound discretion of the bankruptcy court.     McCarthy, 230 B.R. at
27   417.
28          As we noted earlier, dismissal of an underlying bankruptcy

                                      20
 1   case does not automatically terminate a bankruptcy court’s
 2   jurisdiction over a removed state court action.   The bankruptcy
 3   court here nonetheless remanded the unlawful detainer action due
 4   to the dismissal of the debtor’s second chapter 11 case.    The
 5   bankruptcy court neither specified an “equitable ground” for
 6   remanding nor specifically considered any of the factors
 7   enumerated in Cedar Funding, Inc.
 8        But because the “question [to remand] is committed to the
 9   sound discretion of the bankruptcy judge,” McCarthy, 230 B.R. at
10   417, we only need to look for abuse of discretion in our review
11   of the record.   We must affirm if we can find any appropriate
12   basis supporting the bankruptcy court’s decision to remand.     See
13   id. at 417-18.
14        Based on our review of the record, there are ample grounds
15   justifying the bankruptcy court’s decision to remand the unlawful
16   detainer action to state court.    The unlawful detainer action
17   involved state law issues only, which the state court was fully
18   competent to resolve.   Moreover, the state court already had
19   entered a final judgment against the debtor (a fact never
20   contradicted by the debtor) – there apparently were no issues for
21   the bankruptcy court left to adjudicate.   The bankruptcy court
22   thus did not abuse its discretion in remanding the unlawful
23   detainer action to the state court.
24
25   C.   Motions to reconsider
26        1.   Motion to reconsider the dismissal order
27        The debtor moved for reconsideration of the dismissal order
28   and the remand order under Civil Rule 59(e).   The bankruptcy

                                       21
 1   court apparently treated both motions to reconsider as being
 2   brought under Civil Rule 60(b).    The bankruptcy court did not
 3   specify which subsection of Civil Rule 60(b) it applied in
 4   denying the motion to reconsider the dismissal order.    However,
 5   we presume that the bankruptcy court considered it under Civil
 6   Rule 60(b)(6), as none of the other subsections of Civil Rule
 7   60(b) appear to apply.11
 8        A party may bring a motion for reconsideration under Civil
 9   Rule 60(b)(6) if he or she can show any reason not otherwise
10   specified in Civil Rule 60(b) justifying relief from operation of
11   the order or judgment.     However, judgments seldom are set aside
12   under Rule 60(b)(6).   Zurich Am. Ins. Co. v. Int’l Fibercom, Inc.
13   (In re Int’l Fibercom, Inc.), 503 F.3d 933, 941 (9th Cir. 2007).
14   “Rather, Rule 60(b)(6) should be used sparingly as an equitable
15   remedy to prevent manifest injustice and is to be utilized only
16
17
          11
            Civil Rule 60(b) provides: On motion and just terms, the
18   court may relieve a party or its legal representative from a
19   final judgment, order, or proceeding for the following reasons:

20        (1) mistake, inadvertence, surprise, or excusable
          neglect;
21        (2) newly discovered evidence that, with reasonable
22        diligence, could not have been discovered in time to
          move for a new trial under [Civil] Rule 59(b);
23        (3) fraud (whether previously called intrinsic or
          extrinsic), misrepresentation, or misconduct by an
24
          opposing party;
25        (4) the judgment is void;
          (5) the judgment has been satisfied, released or
26        discharged; it is based on an earlier judgment that has
27        been reversed or vacated; or applying it prospectively
          is no longer equitable; or
28        (6) any other reason that justifies relief.

                                       22
 1   where extraordinary circumstances prevented a party from taking
 2   timely action to prevent or correct an erroneous judgment.”    Id.
 3   (quoting United States v. Washington, 394 F.3d 1152, 1157 (9th
 4   Cir. 2005))(internal quotation marks omitted).    The moving party
 5   therefore must show injury and uncontrollable circumstances that
 6   prevented him or her from proceeding with the action in a proper
 7   fashion.   Id.
 8        The debtor did not give in his motion for reconsideration
 9   any reason justifying relief from the bankruptcy court’s
10   dismissal order.   With respect to the dismissal order, the
11   bankruptcy court determined that the debtor had no apparent
12   ability to reorganize and further found that the debtor did not
13   file his second chapter 11 case in good faith in light of his
14   inaccurate bankruptcy documents.     The debtor did not show how he
15   was prevented from preparing his bankruptcy documents to reflect
16   accurate information.
17        The debtor informed the bankruptcy court that he was unable
18   to track down any documentation concerning his liabilities.
19   Still, the debtor apparently was aware of his liabilities, which
20   he could have disclosed in his bankruptcy documents.    Moreover,
21   as the bankruptcy court pointed out, the debtor had a month in
22   which to amend the bankruptcy documents.
23        None of these circumstances were so extraordinary as to
24   prevent the debtor from taking steps to prevent dismissal of his
25   second chapter 11 case (i.e., amending his bankruptcy documents
26   to include accurate information).    As noted by the bankruptcy
27   court, he should have prepared his schedules accurately the first
28   time if he took seriously the requirement to verify their

                                     23
 1   accuracy under penalty of perjury.   The bankruptcy court did not
 2   abuse its discretion in denying the debtor’s motion to reconsider
 3   the dismissal order.
 4
 5        2.   Motion to reconsider the remand order
 6        The bankruptcy court found that the debtor failed to present
 7   any new evidence supporting reconsideration of the remand order.
 8   Under Civil Rule 60(b)(2), a bankruptcy court may relieve a party
 9   from a final judgment or order on the ground of “newly discovered
10   evidence that, with reasonable diligence, could not have been
11   discovered in time to move for a new trial under [Civil] Rule
12   59(b).”
13        Evidence is newly discovered within the meaning of Civil
14   Rule 60(b)(2) if: (1) the moving party can show the evidence
15   relied on indeed constitutes newly discovered evidence; (2) the
16   moving party used due diligence to discover this evidence; and
17   (3) the newly discovered evidence must be of “such magnitude that
18   production of it earlier would have been likely to change the
19   disposition of the case.”   Feature Realty, Inc. v. City of
20   Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003).
21        The debtor here did not establish any of these factors.
22   Instead, he merely argued that the remand order was premature
23   because his appeal of the dismissal order and the main case
24   reconsideration order was pending.   This reason does not justify
25   relief from the remand order.   The bankruptcy court did not abuse
26   its discretion in denying the debtor’s motion to reconsider the
27   remand order.
28

                                     24
 1                               CONCLUSION
 2        Based on our review of the record, we conclude that the
 3   bankruptcy court did not abuse its discretion in dismissing the
 4   debtor’s second chapter 11 case and in remanding the unlawful
 5   detainer action to state court.     We also determine that the
 6   bankruptcy court did not abuse its discretion in denying the
 7   debtor’s motions to reconsider the dismissal order and remand
 8   order.   Accordingly, we AFFIRM.
 9
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17
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