                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 02 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


In re: R & S ST. ROSE, LLC,                      No. 14-16605

              Debtor,                            D.C. Nos.    2:13-cv-02165-JCM
                                                              2:13-cv-02177-JCM

BRANCH BANKING AND TRUST
COMPANY, Successor In Interest to                MEMORANDUM*
FDIC as Receiver of Colonial Bank, N.A.,

              Plaintiff - Appellant,

  v.

R & S ST. ROSE, LLC,

              Defendant - Appellee.



In re: R & S ST. ROSE, LLC,                      No. 14-16702

              Debtor,                            D.C. Nos.    2:13-cv-02165-JCM
                                                              2:13-cv-02177-JCM

COMMONWEALTH LAND TITLE
INSURANCE COMPANY,

              Plaintiff - Appellant,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

R & S ST. ROSE, LLC,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted October 22, 2015
                            San Francisco, California

Before: CLIFTON and N.R. SMITH, Circuit Judges and LASNIK,** District
Judge.

       Branch Banking and Trust Co. and Commonwealth Land Title Insurance Co.

appeal the district court’s order affirming the bankruptcy court’s confirmation of a

plan pertaining to the bankruptcy of R & S St. Rose, LLC. The confirmation of a

plan is a final order pursuant to 28 U.S.C. § 158(d) and we therefore have

jurisdiction over this appeal. See Bullard v. Blue Hills, 135 S. Ct. 1686, 1692

(2015). We note, however, that since the filing of this appeal the property at issue

has been sold at auction. It is therefore unclear exactly what the parties hoped to

accomplish through this appeal, particularly since neither appellant has put forward



       **
             The Honorable Robert S. Lasnik, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.

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an alternative plan. Nevertheless, the parties did not address the legal relevance of

the auction proceedings and we decline to do so here.

      The district court correctly concluded that the Clark County Taxing

Authority was properly treated as a class under the Bankruptcy Code. 11 U.S.C.

§ 1123(a)(1) excludes claims specified in 11 U.S.C. § 507(a)(8), which include

unsecured tax claims, from being designated as a class for purposes of plan

approval. However, § 1123(a)(1) fails to address in any respect secured tax claims,

such as the claim held by Clark County. The mere fact that the Code mandates that

both secured and unsecured tax claims be treated equally with respect to the

distribution of cash payments, 11 U.S.C. § 1129(a)(9)(D), says nothing as to how

the two types of claims are to be classified. Accordingly, Clark County’s secured

tax claim was free to be classified by Debtor in the same way as any other claim

not excluded from classification by § 1123(a)(1).

      The district court also correctly concluded that Clark County’s claim was

impaired. This circuit has broadly defined “impairment” to include “any alteration

of [a creditor’s] rights . . . even if the value of the rights is enhanced.” L & J

Anaheim Assocs. v. Kawasaki Leasing Int’l, Inc. (In re L & J Anaheim Assocs.),

995 F.2d 940, 942 (quoting In re Acequia, 787 F.2d 1352, 1363 (9th Cir. 1986)).

Under the confirmed plan, Clark County is entitled to be paid in full within 90 days


                                            3
after the effective date of the plan. This treatment differs from the treatment that

would have been accorded to the County had it not been subject to the plan. Clark

County’s claim was consequently impaired by the plan.

      Finally, the district court did not err in affirming the bankruptcy court’s

finding that the plan was proposed in good faith. A bankruptcy court’s factual

determination of good faith is reviewed for clear error. Marshall v. Marshall (In re

Marshall), 721 F.3d 1032, 1046 (9th Cir. 2013). Good faith is determined “based

on the totality of the circumstances.” Platinum Capital, Inc. v. Sylmar Plaza L.P.

(In re Sylmar Plaza, L.P.), 314 F.3d 1070, 1074 (9th Cir. 2002). The bankruptcy

court did not clearly err in finding that there were valid economic or business

reasons for the proposed treatment of Clark County. Debtor had no operations, no

cash flow, and no funds to pay Clark County until the effective date. The 90 day

delay also allowed for additional time after the sale of property during which the

parties could file any remaining objections and address potential issues

surrounding easements attached to the property.

      AFFIRMED.




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