                                                             FILED
                                                              JUL 28 2015
                                                        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 1                          NOT FOR PUBLICATION             U.S. BKCY.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 No. NC-14-1352-PaJuKl
                                        )
 6   STEVEN PAUL WILDHABER, SR.,        ) Bankr. No. 14-10875
     DBA Designs Luminaire,             )
 7                                      )
                    Debtor.             )
 8   ___________________________________)
                                        )
 9   STEVEN PAUL WILDHABER, SR.,        )
                                        )
10                  Appellant,          )
                                        )
11   v.                                 ) M E M O R A N D U M1
                                        )
12   DAVID BURCHARD, Chapter 13 Trustee,)
                                        )
13                  Appellee.           )
     ___________________________________)
14
                         Submitted Without Oral Argument2
15                               on July 23, 2015
16                             Filed - July 28, 2015
17                Appeal from the United States Bankruptcy Court
                      for the Northern District of California
18
              Honorable Alan Jaroslovsky, Bankruptcy Judge, Presiding
19
20   Appearances:      Steven Paul Wildhaber, Sr. on brief pro se; Lilian
                       G. Tsang on brief for appellee David Burchard,
21                     Chapter 13 Trustee.
22
23
24
          1
             This disposition is not appropriate for publication.
25   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
26   Cir. BAP Rule 8024-1.
27        2
             After reviewing the briefs and submissions of the parties,
     in an order of June 3, 2015, the Panel determined that oral
28   argument is not required in this appeal.

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 1   Before: PAPPAS, JURY, and KLEIN,3 Bankruptcy Judges.
 2        Steven Paul Wildhaber, Sr. (“Debtor”) appeals the order of
 3   the bankruptcy court dismissing his chapter 134 case for failure
 4   to file his chapter 13 plan timely.    We AFFIRM.
 5                               I.    FACTS
 6        Debtor filed a chapter 13 petition on June 11, 2014, to
 7   prevent a foreclosure on his residence by the Brookside of Napa
 8   Homeowners Association (the “HOA”).    That same day the bankruptcy
 9   court entered and sent Debtor a copy of an “Order to File Required
10   Documents and Notice Regarding Automatic Dismissal” (the “Order”).
11   The Order advised Debtor that he had failed to file certain
12   required documents with his petition, including a chapter 13 plan,
13   and advised him that the court might dismiss his case if he did
14   not file the documents within fourteen days of the petition.      On
15   June 26, 2014, the bankruptcy court entered an Order of Dismissal
16   because Debtor had not filed the missing documents, as the Order
17   had warned.
18        On July 9, 2014, Debtor filed a chapter 13 plan, twenty-eight
19   days after the petition date.    Also on July 9, Debtor filed a
20   timely notice of appeal of the Order of Dismissal.     In his
21   statement of issues on appeal, Debtor alleged that he sent all the
22   required documents, except the chapter 13 plan, via overnight mail
23
24        3
             The Honorable Christopher M. Klein, Chief Judge of the
     United States Bankruptcy Court for the Eastern District of
25   California, sitting by designation.
26        4
             Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, all
27   Rule references are to the Federal Rules of Bankruptcy Procedure,
     Rules 1001–9037, and all Civil Rule references are to the Federal
28   Rules of Civil Procedure 1–86.

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 1   to the bankruptcy court on June 24, 2014.   With respect to the
 2   plan, Debtor candidly admitted that he had intentionally withheld
 3   filing it because, in his words:
 4              As I prepared the documents required by the
                Order to File, I could not see how the Plan
 5              could be reliable or predictive, without first
                knowing the Court’s determination of the
 6              Brookside HOA Claim. On June 24, 2014 I
                shipped all but the Ch[apter] 13 Plan to the
 7              Bankruptcy Court building . . . .
 8   Debtor explained that the documents he did send to the bankruptcy
 9   court had been delivered on June 25, 2014, but not to the correct
10   address.   Rather, Debtor noted, the documents had been sent to a
11   different location in the building housing the court and had not
12   been delivered appropriately to the clerk of the bankruptcy court
13   until June 30, 2014.
14        On August 8, 2014, Debtor filed an informal request that this
15   Panel remand the appeal to the bankruptcy court so it could
16   consider a motion for reconsideration of the Order of Dismissal.
17   On August 11, 2014, the Panel granted a limited remand to allow
18   the bankruptcy court to decide Debtor’s reconsideration motion.
19        Debtor then filed a “motion to reopen” his case on August 13,
20   2014, in the bankruptcy court.   Debtor stated in the motion that
21   he had sent “all required documents, except the Chapter 13 Plan”
22   within fourteen days of the filing of his petition but, as
23   described above, the documents were delivered to the wrong office
24   at the courthouse.   As to his chapter 13 plan, Debtor explained
25   “[a]s a first-time bankruptcy petitioner, lacking experience with
26   the filing process, I was challenged to assemble and structure a
27   reliable projection for a Ch[apter] 13 Plan at that preliminary
28   date.”

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 1        The ‘motion to reopen’ the case, which had not been closed,
 2   was treated as a motion seeking relief from the dismissal order.
 3        In response to Debtor’s motion to reopen, in a memorandum and
 4   order entered on August 24, 2014, the bankruptcy court wrote:
 5               The debtor appears to believe that his
                 Chapter 13 case was dismissed because his
 6               schedules were a day late due to being sent to
                 the wrong address. However, the case was
 7               dismissed only because he failed to file a
                 Chapter 13 plan. Rule 3015(b) of the Federal
 8               Rules of Bankruptcy Procedure requires that a
                 Chapter 13 plan be filed within 14 days of the
 9               petition and does not permit extensions except
                 after proper notice and a showing of good
10               cause. The debtor did not file his plan until
                 28 days after the petition, the same day he
11               filed his notice of appeal. The court will
                 hear the debtor’s motion to reopen his case on
12               September 10, 2014, at 1:30 P.M., provided
                 that he immediately serve his motion, all
13               related papers, and this order on all of his
                 creditors and file a certificate thereof.
14
15        Notice of the September 10, 2014 hearing was sent to all
16   parties in interest in the bankruptcy case by the clerk.     On
17   September 8, 2014, the HOA filed an opposition to Debtor’s motion,
18   arguing that dismissal of the case was appropriate due to Debtor’s
19   failure to file the chapter 13 plan timely, and that it would be
20   prejudiced by further delays in the foreclosure proceeding.
21        The bankruptcy court heard Debtor’s motion on September 10,
22   2014; Debtor appeared pro se and the HOA was represented by
23   counsel.5   On the same day, the court entered an Order Denying
24   Motion, which provided, in full,
25               To the extent that the Debtor’s bankruptcy
                 papers may have been slightly late due to his
26               delivery of them to the wrong part of the
27
          5
             The Panel was not provided a transcript of the
28   September 10, 2014 hearing.

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 1              building, the neglect was slight and
                excusable. However, the Debtor’s Chapter 13
 2              plan was not among those papers. The Debtor
                has not shown any excusable neglect for his
 3              violation of Rule 3015(b) of the Federal Rules
                of Bankruptcy Procedure. Accordingly, his
 4              motion for reinstatement of his case is
                denied.
 5
 6        Debtor did not file an amended notice of appeal seeking
 7   review of the bankruptcy court’s September 10, 2014 order.
 8   However, on September 12, 2014, Debtor filed with the Panel a
 9   “Status Report” addressing the outcome of the limited remand.       In
10   it, Debtor alleged he was treated inappropriately by the
11   bankruptcy court in resolving his motion, something he insisted
12   would be apparent if the Panel would review a transcript of the
13   hearing.   However, Debtor did not provide a transcript.      Finally,
14   Debtor stated “I hope [the Panel] will act on this.”
15                                II.   JURISDICTION
16        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
17   and 157(b)(A).   We have jurisdiction under 28 U.S.C. § 158.
18                                  III.    ISSUES
19        Whether the bankruptcy court erred in dismissing Debtor’s
20   case for failure to file a chapter 13 plan timely.
21        Whether the bankruptcy court erred in denying Debtor’s motion
22   for relief from the dismissal order.
23                          IV.    STANDARDS OF REVIEW
24        The bankruptcy court's dismissal of a chapter 13 case is
25   reviewed for an abuse of discretion.        Leavitt v. Soto
26   (In re Leavitt), 171 F.3d 1219, 1223 (9th Cir. 1999); Ellsworth v.
27   Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914
28   (9th Cir. BAP 2011).   Under this standard, we first “determine de

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 1   novo whether the court identified the correct legal rule to apply
 2   to the relief requested.”   United States v. Hinkson, 585 F.3d
 3   1247, 1261-62 (9th Cir. 2009) (en banc).      If the bankruptcy court
 4   applied the correct legal rule, we then determine whether the
 5   court’s “application of the correct legal standard was:
 6   ‘(1) illogical, (2) implausible, or (3) without support in
 7   inferences that may be drawn from the facts in the record.’”
 8   United States v. Aguilar, 782 F.3d 1101, 1105 (9th Cir. 2015)
 9   (quoting Hinkson, 585 F.3d at 1261-62) (internal quotation marks
10   omitted).
11        The bankruptcy court’s denial of a motion for relief from an
12   order is reviewed for an abuse of discretion.      Bateman v. United
13   States Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000).
14                               V.   DISCUSSION
15   A.   The bankruptcy court did not err in dismissing Debtor’s case
          for failure to file a chapter 13 plan timely.
16
17        Debtor argues that the bankruptcy court erred by its
18   “premature dismissal” of the chapter 13 case based upon his
19   failure to file a plan timely because such omission is not “good
20   cause” for a dismissal.   Appellant’s Op. Br. at 12.     We disagree.
21        Section 1307(c) provides a non-exhaustive list of what
22   constitutes “cause” to convert or dismiss a chapter 13 case.
23   In re Ellsworth, 455 B.R. at 914.       As relevant here, § 1307(c)(3)
24   specifies that cause to convert or dismiss a case exists if there
25   is a “failure to file a plan timely under section 1321 of this
26   title[.]”   Section 1321, in turn, provides that “[t]he debtor
27   shall file a plan,” and Rule 3015(b) establishes the deadline for
28   timely doing so:

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 1                Chapter 13 Plan. The debtor may file a
                  chapter 13 plan with the petition. If a plan
 2                is not filed with the petition, it shall be
                  filed within 14 days thereafter, and such time
 3                may not be further extended except for cause
                  shown and on notice as the court may direct
 4                . . . .
 5        Here, there is no dispute that Debtor did not file a plan
 6   with his chapter 13 petition on June 11, 2014, or within fourteen
 7   days thereafter.     Debtor also did not seek nor obtain bankruptcy
 8   court approval for an extension of time to file his plan.6
 9   Debtor’s failure to comply with the deadline also contravened the
10   bankruptcy court’s Order which expressly advised Debtor that his
11   case could be dismissed if he failed to file required documents,
12   including the chapter 13 plan, within fourteen days of the
13   petition.
14        Debtor concedes he made a deliberate, albeit perhaps
15   misinformed decision, to delay filing his chapter 13 plan, despite
16   the warning in the Order.     A debtor’s failure to file the plan
17   within fourteen days of the petition, or to obtain an extension of
18   time from the bankruptcy court to do so, violated Rule 3015(b) and
19   the Order.     This constituted adequate cause for the bankruptcy
20   court to dismiss Debtor’s case under § 1307(c)(3).     See Tennant v.
21   Rojas (In re Tennant), 318 B.R. 860, 870-71 (9th Cir. BAP 2004)
22   (explaining that “if a case involves only very narrow procedural
23   aspects, a court can dismiss a Chapter 13 case without further
24   notice and a hearing if the debtor was provided with notice of the
25   requirements to be met . . . .     [A] procedure is perfectly
26   appropriate that notifies the debtor of the deficiencies of his
27
          6
             A motion for an extension of time to file a chapter 13
28   plan is governed by Rule 9006(b).

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 1   petition and dismisses the case sua sponte without further notice
 2   and a hearing when the debtor fails to file the required forms
 3   within a deadline.”) (internal quotation marks and citations
 4   omitted).   Because the bankruptcy court identified the correct
 5   legal rule in deciding whether to dismiss Debtor’s case, it did
 6   not abuse its discretion in concluding that, based upon these
 7   undisputed facts, the case should be dismissed.
 8   B.   We summarily affirm the bankruptcy court’s order denying
          Debtor’s motion for relief from the order on limited remand.
 9
10        The Panel granted Debtor’s request for a limited remand to
11   the bankruptcy court so it could consider Debtor’s motion for
12   relief from the dismissal order.   While Debtor’s motion in the
13   bankruptcy court did not cite any particular authority for the
14   relief he requested, it was clear that he was asking the court to
15   reconsider its decision to dismiss the case.   Debtor generally
16   argued, as he does in this appeal, that he did not file his
17   chapter 13 plan timely because he believed, at such an early point
18   in the case, a plan would not represent what he called a “reliable
19   projection” of his situation due to the unsettled issues existing
20   with the HOA’s claim.
21        On September 10, 2014, the bankruptcy court conducted a
22   hearing on Debtor’s motion and, apparently, announced its
23   decision.   The bankruptcy court then entered an order stating, in
24   relevant part, that “Debtor has not shown any excusable neglect
25   for his violation of Rule 3015(b) of the Federal Rules of
26   Bankruptcy Procedure.   Accordingly, his motion for reinstatement
27   of his case is denied.”   After the bankruptcy court denied
28   Debtor’s motion, Debtor sent the “Status Report” to the Panel

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 1   advising of the bankruptcy court’s ruling, suggesting that we
 2   review a transcript of the hearing and requesting that the Panel
 3   “act on” the bankruptcy court’s order.    However, Debtor failed to
 4   provide a transcript of the hearing.7
 5        Although Debtor did not file an amended notice of appeal to
 6   include the bankruptcy court’s order on limited remand, we review
 7   that order by construing Debtor’s “Status Report” as an amended
 8   notice of appeal.   See Smith v. Barry, 502 U.S. 244, 248-50 (1992)
 9   (construing pro se’s appellate brief as a potential notice of
10   appeal); Brannan v. United States, 993 F.2d 709, 710 (9th Cir.
11   1993) (construing a letter from a pro se appellant as a notice of
12   appeal).   However, based upon Debtor’s failure to provide a
13   transcript, we must summarily affirm the order on limited remand.
14        While the relief requested in his motion in the bankruptcy
15   court was imprecise and lacked citation to any authorities, we
16   construe it to be a motion for relief from the dismissal order
17   under Civil Rule 60(b)(1),8 as incorporated by Rule 9024.   This
18
19        7
             Our review of the bankruptcy court’s docket shows a
     transcript of the hearing was neither requested by Debtor nor
20   prepared.
21        8
              The Civil Rule provides:
22              Grounds for Relief from a Final Judgment,
                Order, or Proceeding. On motion and just
23              terms, the court may relieve a party or its
                legal representative from a final judgment,
24              order, or proceeding for the following
                reasons:
25
                (1) mistake, inadvertence, surprise, or
26              excusable neglect . . . .
27   Civil Rule 60(b)(1). When a party files a motion for
     reconsideration within fourteen days after the entry of a
28                                                       (continued...)

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 1   rule allows the bankruptcy court to grant a party relief from a
 2   final order or judgment for reasons including, “mistake,
 3   inadvertence, surprise, or excusable neglect.”   Civil
 4   Rule 60(b)(1).   The movant bears the burden of demonstrating one
 5   of the grounds provided in the Civil Rule.   Engleson v. Burlington
 6   N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992).
 7   “[D]etermination of whether neglect is excusable [under Civil
 8   Rule 60(b)(1)] is an equitable one that depends on at least four
 9   factors: (1) the danger of prejudice to the opposing party;
10   (2) the length of the delay and its potential impact on the
11   proceedings; (3) the reason for delay; and (4) whether the movant
12   acted in good faith.”   Bateman, 231 F.3d at 1223-24 (citing
13   Pioneer Inv. Servs. Co. v. Brunswich Assocs. Ltd. P’ship, 507 U.S.
14   380, 395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379,
15   381 (9th Cir. 1997)); see also Pincay v. Andrews, 389 F.3d 853,
16   855-56 (9th Cir. 2004) (en banc).
17        The Ninth Circuit has instructed that “courts should
18   explicitly use the Pioneer-Briones framework for analysis of
19   excusable neglect under [Civil] Rule 60(b)(1)[.]”   Lemoge v.
20   United States, 587 F.3d 1188, 1192 (9th Cir. 2009).   However, even
21   if the trial court fails to explicitly apply the Pioneer-Briones
22   test, reversal may not be required if the court engaged in the
23
24        8
           (...continued)
25   judgment, the motion is treated as one under Civil Rule 59(e),
     incorporated to bankruptcy proceedings by Rule 9023. Am.
26   Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 249 F.3d 892,
     898-99 (9th Cir. 2001). If it is beyond that period of time, the
27   motion is treated as a motion for relief from a judgment or order
     under Civil Rule 60(b). Id. In this case, Debtor’s motion was
28   filed well beyond the fourteen day period after the dismissal
     order, and it should be reviewed under Civil Rule 60(b).

                                     -10-
 1   equitable analysis described in those cases.    Id. at 1193;
 2   Bateman, 231 F.3d 1224.
 3          In this case, as reflected in its order denying Debtor’s
 4   motion, the bankruptcy court decided Debtor had not demonstrated
 5   that his failure to file a plan timely resulted from excusable
 6   neglect.   However, lacking a transcript of the motion hearing with
 7   the bankruptcy court’s findings, conclusions, or comments, we are
 8   unable to determine whether the court engaged in a Pioneer-Briones
 9   excusable neglect analysis.
10          Debtor was obliged to provide the Panel with a record of the
11   proceedings in the bankruptcy court adequate to allow us to review
12   the court’s order.   Here, Debtor’s failure to provide a transcript
13   of the motion hearing is grounds to summarily affirm the
14   bankruptcy court’s decision.    See Morrissey v. Stuteville
15   (In re Morrissey), 349 F.3d 1187, 1190-91 (9th Cir. 2003); Kyle v.
16   Dye (In re Kyle), 317 B.R. 390, 393 (9th Cir. BAP 2004).      “When
17   findings of fact and conclusions of law are made orally on the
18   record, a transcript of those findings is mandatory for appellate
19   review.”   Clinton v. Deutsche Bank Nat’l Trust Co.
20   (In re Clinton), 449 B.R. 79, 83 (9th Cir. BAP 2011) (citing
21   McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 417 (9th Cir.
22   BAP 1999)); Rule 8009; 9th Cir. BAP R. 8009-1.    “Without a
23   transcript, it is impossible to determine why the bankruptcy court
24   ruled as it did.”    In re Clinton, 449 B.R. at 83.   That Debtor is
25   not represented by counsel in this appeal does not excuse him from
26   complying with these rules.    Id.   Because Debtor did not provide
27   the transcript the record provided is incomplete as a matter of
28   law.   Id. (citing In re McCarthy), 230 B.R. at 417).   We therefore

                                      -11-
 1   summarily affirm the order of the bankruptcy court on limited
 2   remand.
 3                            VI.   CONCLUSION
 4        We AFFIRM the order of the bankruptcy court dismissing
 5   Debtor’s chapter 13 case and we AFFIRM the court’s denial of
 6   Debtor’s motion for relief from the order.
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