                                                           FILED
                                                            AUG 02 2017
 1                         NOT FOR PUBLICATION
                                                        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.     CC-16-1390-KuLTa
                                   )
 6   CAROLYN LUCILLE DAVIS,        )      Bk. No.     9:16-bk-11100-PC
                                   )
 7                  Debtor.        )
     ______________________________)
 8                                 )
     CAROLYN LUCILLE DAVIS,        )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     U.S. BANK NA; WESLEY H. AVERY,)
12   Chapter 12 Trustee,           )
                                   )
13                  Appellees.     )
     ______________________________)
14
                     Argued and Submitted on June 22, 2017
15                          at Pasadena, California
16                           Filed – August 2, 2017
17             Appeal from the United States Bankruptcy Court
                   for the Central District of California
18
          Honorable Peter H. Carroll, Bankruptcy Judge, Presiding
19
20   Appearances:     Appellant Carolyn Lucille Davis argued pro se.**
21
     Before: KURTZ, LAFFERTY and TAYLOR, Bankruptcy Judges.
22
23
24
          *
           This disposition is not appropriate for publication.
25   Although it may be cited for whatever persuasive value it may
26   have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8024-1.
27
          **
           None of the named appellees have actively participated in
28   this appeal.
 1                              INTRODUCTION
 2        Chapter 121 debtor Carolyn Lucille Davis appeals from an
 3   order denying her second motion for an extension of time to file
 4   her chapter 12 plan and from an order dismissing her chapter 12
 5   case for not timely filing her plan.
 6        Because it is impossible to tell what legal standard the
 7   bankruptcy court applied when it denied the second extension
 8   motion and because the bankruptcy court did not make any findings
 9   supporting its denial, the order denying the second extension
10   motion must be VACATED.   The dismissal of the bankruptcy case
11   hinged on the denial of the second extension motion, so we also
12   must VACATE the order dismissing the bankruptcy case.   Thus, both
13   rulings shall be VACATED, and this matter shall be REMANDED for
14   further proceedings.
15                                  FACTS
16        Davis identifies herself as the latest in a long line of
17   family farmers, who have been farming in the Paso Robles area
18   since the 1800's.   Of late, however, Davis’ farming activities
19   have been subject to considerable financial setbacks.   Indeed,
20   this is Davis’ third bankruptcy filing in the last seven years.
21   She filed a chapter 7 bankruptcy case in 2010, in which she was
22   granted a discharge, and a prior chapter 12 case in 2011, which
23   was dismissed based on eligibility issues.   See Davis v. U.S.
24   Bank, N.A. (In re Davis), 778 F.3d 809, 811 (9th Cir. 2015).
25
26        1
           Unless specified otherwise, all chapter and section
27   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
     all "Rule" references are to the Federal Rules of Bankruptcy
28   Procedure, Rules 1001-9037.

                                      2
 1        On June 13, 2016, Davis commenced, pro se, her latest
 2   chapter 12 bankruptcy case.    She filed her bankruptcy schedules
 3   and statement of financial affairs two weeks later, on June 27,
 4   2016.   Other than the § 341(a) meeting of creditors held on
 5   July 14, 2016, nothing much of note occurred in the case until
 6   Davis filed on September 9, 2016 a motion to extend the deadline
 7   for filing her chapter 12 plan, from September 12, 2016 to
 8   October 12, 2016.
 9        In the declaration attached to her extension motion, Davis
10   explained that, as a result of California’s severe multi-year
11   drought, two days prior, the wells she relied upon to irrigate
12   her crops had all run dry.    She further explained that a well
13   drilling company already had visited her farm that day, so that
14   she and that company could assess what options she might have in
15   terms of obtaining more well water from her property.    While she
16   did not specify how long that process would take, her comments
17   indicate that it would be a multi-week process.
18        Davis described her farming facility as a “pumpkin patch and
19   fresh produce seasonal event u pick facility” known as “Granny’s
20   Gardens.”   According to Davis, between her wells running dry and
21   the fact that every day in October is the harvest season for her
22   facility, she faced a very hectic time over the next thirty days.
23        In a one-sentence order entered the same day as the motion
24   was filed, the bankruptcy court granted the motion, stating as
25   follows:
26             Debtor having filed an ex parte motion requesting
          an extension of time to file a chapter 12 plan, and the
27        court having considered the motion and taken judicial
          notice of the proceedings since the commencement of the
28        case, and having found cause for an extension of time,

                                       3
 1        it is
 2             ORDERED that Debtor’s motion is granted and that a
          chapter 12 plan must be filed with the court not later
 3        than 4:00 p.m. on October 12, 2016.
 4   Order Granting Motion for Extension of Time (Sept. 9, 2016).
 5        On October 12, 2016 – the same day her chapter 12 plan was
 6   due – Davis filed her second motion to extend the time to file
 7   her chapter 12 plan.   Davis asserted that her second extension
 8   motion was necessitated by a family medical emergency.    Davis’
 9   accompanying declaration stated that the day before her
10   chapter 12 plan was due her son was admitted to the hospital with
11   severe abdominal pain and internal bleeding and scheduled for a
12   surgical procedure.
13        That same day, and again in a one sentence order, the
14   bankruptcy court denied Davis’ second extension motion, stating
15   as follows:
16        Debtor having filed an ex parte motion requesting an
          extension of time to file a chapter 12 plan, and the
17        court having considered the motion and taken judicial
          notice of the proceedings since commencement of the
18        case, it is
19        ORDERED that the Debtor’s motion is denied.
20   Order Denying Motion for Extension of Time (Oct. 12, 2016).
21        Notwithstanding this denial, Davis filed her chapter 12 plan
22   on October 17, 2016, which proposed to pay her secured creditors
23   interest only payments on an annual basis in an aggregate amount
24   of roughly $50,000 per year for the next five years.   Davis
25   further disclosed in her plan that her payment proposals assumed
26   her receipt of disaster relief funds or agricultural loan
27   proceeds that would enable her to install new well pumping
28   equipment necessary in order to restore her ability to irrigate

                                      4
 1   her farm with well water.
 2        The bankruptcy court did not consider Davis’ plan other than
 3   to note that it was untimely filed.      On October 24, 2016, without
 4   advance notice or a hearing, the Clerk of Court entered a form
 5   order and notice of dismissal based on Davis’ failure to timely
 6   file a chapter 12 plan.    Davis timely filed her notice of appeal
 7   on November 3, 2016.
 8                                JURISDICTION
 9        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
10   §§ 1334 and 157(b)(2)(A), and we have jurisdiction under
11   28 U.S.C. § 158.
12                                   ISSUES
13   1.   Did the bankruptcy court commit reversible error when it
14        denied Davis’ second extension motion?
15   2.   Did the bankruptcy court commit reversible error when it
16        dismissed Davis’ bankruptcy case because her chapter 12 plan
17        was untimely filed?
18                             STANDARDS OF REVIEW
19        Generally speaking, a bankruptcy court’s denial of an
20   extension motion is reviewed for an abuse of discretion.     See
21   Mahakian v. William Maxwell Invs., LLC (In re Mahakian), 529 B.R.
22   268, 274 (9th Cir. BAP 2015).
23        The abuse of discretion standard also applies to a
24   bankruptcy court’s decision to dismiss a bankruptcy case under
25   § 1208(c).   Rice v. Dunbar (In re Rice), 357 B.R. 514, 517 (8th
26   Cir. BAP 2006), aff'd, 271 F. App'x 538 (8th Cir. 2008).
27        When we apply the abuse of discretion standard, we review
28   de novo whether the bankruptcy court identified and applied the

                                        5
 1   correct legal standard, and we review factual findings under the
 2   clearly erroneous standard.    United States v. Hinkson, 585 F.3d
 3   1247, 1261–62 (9th Cir. 2009) (en banc).
 4        Interpreting the statutory constraints on the court’s
 5   authority to grant an extension of time is a question of law we
 6   review de novo.   See generally In re Mahakian, 529 B.R. at 274;
 7   Mendez v. Salven (In re Mendez), 367 B.R. 109, 113 (9th Cir. BAP
 8   2007).
 9                                 DISCUSSION
10        Section 1221 provides that “the debtor shall file a plan not
11   later than 90 days after the order for relief under this chapter,
12   except that the court may extend such period if the need for an
13   extension is attributable to circumstances for which the debtor
14   should not justly be held accountable.”    The standard set forth
15   in § 1221 is more stringent than the ordinary “for cause shown”
16   standard set forth in Rule 9006(b).    It effectively requires the
17   bankruptcy court, before granting an extension request, to find
18   that the delay necessitating the extension was caused by
19   “circumstances beyond the debtor’s control.”   First Sec. Bank &
20   Trust Co. v. Vegt, 511 B.R. 567, 585 (N.D. Iowa 2014).
21        One leading treatise explains the rationale behind this
22   requirement:
23        [T]he 90-day limitation was probably included in
          chapter 12 for the benefit of creditors rather than for
24        the benefit of the debtor. Because chapter 12 lacks
          the safeguards for creditors that are provided in
25        chapter 11, the 90-day limitation . . . is [one of] the
          primary protection[s] for creditors against a debtor’s
26        languishing in chapter 12 without confirming a plan.
          Thus, it is appropriate that the debtor should be
27        required to meet a stringent burden if the debtor seeks
          an extension of the 90-day period.
28

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 1   8 Collier on Bankruptcy ¶ 1221.01[2] (Alan N. Resnick & Henry
 2   J. Sommer, eds., 16th ed. 2017).
 3        In the appeal before us, we do not know what legal standard
 4   the bankruptcy court applied when it denied Davis’ second
 5   extension motion.   When it granted her first extension motion,
 6   the court specifically based its grant on a finding of “cause”
 7   shown.   This was not the correct standard.
 8        Arguably, we could assume that the bankruptcy court, when it
 9   denied the second extension motion, applied the same “for cause”
10   standard it applied to the first extension motion but found
11   Davis’ reason for the delay not credible, insufficient grounds,
12   or both.   We arguably could speculate that, if the bankruptcy
13   court found Davis’ second extension motion lacking under the “for
14   cause” standard, it doubtlessly would have denied her second
15   motion under § 1221's more stringent “circumstances for which the
16   debtor should not justly be held accountable” standard.
17        But this line of reasoning does not persuade us that
18   affirmance is appropriate.   It is not just the relative
19   stringency of the two standards that is different; the focus of
20   the two standards is different.    The focus of § 1221
21   is the cause for the delay and whether the debtor reasonably and
22   justly could have been expected to have prevented it.
23        Davis’ two extension motions set forth grounds that, on
24   their face, seem fairly compelling: her wells ran dry during a
25   severe drought and her son needed emergency medical treatment in
26   the midst of her harvest season – perhaps the most critical time
27   of year for her “u pick” produce farming facility.    These
28   asserted grounds reasonably might lead a court to find that the

                                        7
 1   filing delay resulting therefrom was caused by “circumstances for
 2   which the debtor should not justly be held accountable.”       But
 3   they also reasonably could lead to a contrary finding – that the
 4   delay was within Davis’ control.       After all, neither of Davis’
 5   extension motions offered any explanation why she needed to set
 6   aside for the last possible moment (day 90 and day 120) the
 7   filing of her chapter 12 plan.2
 8        At bottom, the problem confronting us here is that the
 9   bankruptcy court made no findings at all – either way.       Our role
10   as an appellate court is inherently limited.       Mirner v. First
11   Republic Bank (In re Mirner), 2011 WL 3300102, at *2 (Mem. Dec.)
12   (9th Cir. BAP May 24, 2011).   We review bankruptcy court
13   decisions – their findings of fact and conclusions of law.       See
14   28 U.S.C. § 158; see, e.g., Bronitsky v. Bea (In re Bea),
15   533 B.R. 283, 285 (9th Cir. BAP 2015); Pemstein v. Pemstein
16   (In re Pemstein), 492 B.R. 274, 280 (9th Cir. BAP 2013).       We do
17   not ordinarily render factual findings in the first instance.
18   Calderon v. Lang (In re Calderon), 507 B.R. 724, 733 (9th Cir.
19   BAP 2014); In re Mirner, 2011 WL 3300102, at *2.       Simply put, the
20   bankruptcy court has not provided us with what we need to conduct
21   our appellate review.
22
          2
23         Most of the exigencies and crises Davis has faced are not
     that markedly different from those faced by other farmers.
24   Droughts, floods, frosts, crop failures, and pest problems are
     all too common events. Nonetheless, Congress imposed exacting
25   time limits on family farmers to avail themselves of chapter 12
26   relief. We must abide by the plain language of the statute, and
     the legal standards it imposes. Lamie v. U.S. Tr., 540 U.S. 526,
27   534 (2004). We cannot create equitable exceptions to the
     statutory standards. Law v. Siegel, 134 S. Ct. 1188, 1194–95
28   (2014).

                                        8
 1        Accordingly, we conclude that we must VACATE the bankruptcy
 2   court’s denial of the second extension motion, and we must REMAND
 3   so that the bankruptcy court can apply the correct legal standard
 4   and make all necessary factual findings.3
 5        Failure to timely file a plan under § 1221 is grounds for
 6   dismissal.   See § 1208(c)(3).   Here, the bankruptcy court
 7   dismissed Davis’ chapter 12 case on this basis.       In light of our
 8   vacating the order denying Davis’ second extension motion, it no
 9   longer is clear that Davis’ chapter 12 plan – filed on
10   October 17, 2016 – was untimely.       Consequently, the bankruptcy
11   court’s case dismissal order also must be VACATED, pending the
12   bankruptcy court’s consideration on remand of Davis’ second
13   extension motion.
14        It also is worth noting that, under the plain language of
15   § 1208(c)(3), dismissal based on the debtor’s failure to file a
16   timely chapter 12 plan is discretionary rather than mandatory.
17   Furthermore, § 1208(c) requires, before dismissal, “notice and a
18   hearing” (as that phrase is defined in § 102(1)).       Yet the
19   dismissal here appeared to reflexively follow the denial of
20   Davis’ second extension motion.    This procedural history troubles
21   us because it is not entirely clear whether Davis was afforded
22   due process before her case was dismissed.       See Mullane v. Cent.
23
          3
24         We note that neither of Davis’ extension motions were
     served on any other parties to the bankruptcy case. Because this
25   notice issue was not addressed in the first instance by the
26   bankruptcy court, and is beyond the scope of this appeal, we
     decline to address it. But the bankruptcy court, on remand,
27   should decide wether any parties in interest are entitled to
     notice of the second extension motion and whether Davis should
28   now be given an opportunity to serve them.

                                        9
 1   Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (generally
 2   explaining procedural due process requirements); but see also
 3   Tennant v. Rojas (In re Tennant), 318 B.R. 860, 870-71 (9th Cir.
 4   BAP 2004) (“a procedure is ‘perfectly appropriate’ that notifies
 5   the debtor of the deficiencies of his petition and dismisses the
 6   case sua sponte without further notice and a hearing when the
 7   debtor fails to file the required forms within a deadline.”).
 8   Even so, in light of our analysis and resolution of this appeal,
 9   it is unnecessary for us to further address this issue.4
10                              CONCLUSION
11        For the reasons set forth above, both the bankruptcy court’s
12   denial of the second extension motion and its dismissal of the
13   bankruptcy case are VACATED, and this matter is REMANDED for
14   further proceedings consistent with this decision.
15
16
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19
20
21
22
23
24
25        4
           We also are troubled that, according to Davis, the
26   bankruptcy court routinely imposes an "unwritten rule"
     prohibiting more than one extension of time to file chapter 12
27   and/or chapter 13 plans. However, like the § 1208(c) issue, we
     need not further address the bankruptcy court’s unwritten rule
28   prohibiting more than one time extension.

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