          United States Court of Appeals
                        For the First Circuit


Nos. 17-1971, 17-1972

                  IN RE: EDGAR A. REYES-COLON,

                         Involuntary Debtor.


                       POPULAR AUTO, INC.;
                  BANCO POPULAR DE PUERTO RICO,

                  Appellees, Cross-Appellants,

                                 v.

                        EDGAR A. REYES-COLON,

                   Appellant, Cross-Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                               Before

                       Howard, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     Michael J. Fencer, with whom Lynne F. Riley, David Koha, and
Casner & Edwards, LLP were on brief, for appellant and cross-
appellee.
     Roberto Abesada-Agüet, with whom Sergio E. Criado, Correa-
Acevedo & Abesada Law Offices, PSC, Eldia Díaz-Olmo, Díaz-Olmo Law
Offices, Gerardo Pavía Cabanillas, and Pavía & Lazaro, PSC were on
brief, for appellees and cross-appellants.
    April 24, 2019



	
             KAYATTA,      Circuit Judge.           Edgar Reyes-Colon ("Reyes-

Colon"),     a    licensed     plastic     surgeon        specializing       in    facial

cosmetic surgery, allegedly failed to repay certain debts.                             In

November 2006, one of his creditors, Banco Popular de Puerto Rico

("Banco Popular"), filed an involuntary bankruptcy petition that

a   second   creditor,       Popular   Auto       (collectively,      "the        Banks"),

joined.      Under 11 U.S.C. § 303(b), fewer than three petitioning

creditors cannot force a debtor into bankruptcy unless the debtor

has fewer than twelve creditors in total.                  So the parties embarked

on what has now turned into twelve years of litigation concerning

the number of Reyes-Colon's creditors and whether he might somehow

be placed in bankruptcy involuntarily for "equitable" reasons.

For the following reasons, we affirm the decision of the bankruptcy

court to dismiss the petition for want of a third petitioner.

                                           I.

             Reyes-Colon       obtained     a     loan    from     Popular    Auto     and

guaranteed an affiliate's loan from Banco Popular. On November 22,

2006, after Reyes-Colon allegedly failed to pay his debts, Banco

Popular filed an involuntary bankruptcy petition, forcing Reyes-

Colon   into      bankruptcy    proceedings.             Popular    Auto   joined     the

petition shortly thereafter.

             In    early     2007   the    bankruptcy        court    dismissed        the

involuntary petition, concluding that Reyes-Colon had more than

twelve eligible creditors at the time the involuntary petition was
                                          - 3 -
filed and that, after a reasonable opportunity, Banco Popular had

failed to join a third creditor to maintain the petition under

section 303(b)(1).     See In re Reyes-Colon, Nos. PR 07-053, 06-

04675-GAC, 2008 WL 8664760, at *1 (B.A.P. 1st Cir. Nov. 21, 2008).

A year and a half later, the bankruptcy appellate panel ("BAP")

set aside the dismissal and remanded the case.          Id.    The panel

determined that all creditors should have been given notice and

the opportunity for a hearing before the bankruptcy court dismissed

the case.   Id. at *8.

            Reyes-Colon did not appeal that panel ruling.        Instead,

the parties returned to the bankruptcy court for another three-

plus years of proceedings.      On March 2, 2011, Reyes-Colon moved

for summary judgment, again seeking dismissal of the petition.

The bankruptcy court partially granted the motion on May 23, 2012,

holding that Reyes-Colon had fifteen qualified creditors at the

time the involuntary petition was filed.        In re Reyes-Colon, 474

B.R. 330, 383, 391 (Bankr. D.P.R. 2012).        The court nevertheless

allowed the parties to conduct discovery and present evidence on

whether "special circumstances" existed to excuse compliance with

section 303(b)(1)'s three-creditor requirement and whether Reyes-

Colon had been paying his debts as they became due.          Id. at 391.

            The   bankruptcy   court     eventually   held    evidentiary

hearings in late 2015.    On September 2, 2016, the bankruptcy court

dismissed the involuntary petition, citing Law v. Siegel, 571 U.S.
                                 - 4 -
415 (2014).        In re Reyes-Colon, 558 B.R. 563, 568 (Bankr. D.P.R.

2016), rev'd, No. 16-2638 (GAG), 2017 WL 6365433 (D.P.R. Aug. 9,

2017).      The court found that although Reyes-Colon schemed to

defraud his creditors by misrepresenting his finances, id. at 565,

the   court    did    not    have    the     equitable      power     to    override     the

provisions of section 303(b)(1), id. at 568.                      The Banks appealed

to the district court.

              The district court reversed the dismissal order and

remanded to the bankruptcy court.                    In re Reyes-Colon, 2017 WL

6365433, at *1.           It found that the involuntary petition did not

need three or more petitioning creditors because Reyes-Colon had

fewer than twelve eligible creditors when the petition was filed.

Id. The court also found that Reyes-Colon was generally not paying

his debts as they became due, and required entry of an order of

relief        against        Reyes-Colon            on      remand         pursuant       to

section 303(h)(1).          Id.     This appeal and cross-appeal followed.

                                             II.

              Section 303(b) of the Bankruptcy Code requires that an

involuntary        petition       against    a     debtor      have   at    least     three

petitioning creditors if, at the time the petition was filed, the

debtor   had       twelve     or    more    eligible        creditors.           11   U.S.C.

§ 303(b)(1)-(2).          Reyes-Colon argues that he had twelve or more

creditors     at    the     time   the     petition      was   filed,      and    that   the


                                            - 5 -
involuntary petition is therefore insufficient because there are

only two petitioning creditors -- Banco Popular and Popular Auto.

            In response, the Banks raise two types of arguments.

First, they claim that Reyes-Colon has procedurally waived his

right to put forward the arguments that might arguably support his

position.    Second, they argue on the merits that the bankruptcy

court did indeed err in dismissing their petition.

                                 A.

            We begin with the several asserted threshold issues of

waiver raised by the Banks. When the Banks appealed the bankruptcy

court summary judgment rulings at issue to the district court,

they argued, among other things, that the bankruptcy court erred

in determining that Reyes-Colon had fifteen eligible creditors as

of the date the involuntary bankruptcy petition was filed.      In

response, as appellee, Reyes-Colon argued only that the Banks had

failed to preserve the creditor numerosity issue.     The district

court then ruled that Reyes-Colon had fewer than twelve eligible

creditors as of the date of filing and that he was generally not

paying his debts as they came due.     In re Reyes-Colon, 2017 WL

6365433, at *1.   In Reyes-Colon's opening brief in this court, he

asserts that the bankruptcy court correctly determined that he had

more than twelve eligible creditors when Banco Popular filed its

petition and that the district court erred in ruling otherwise.

He devotes very little argument to this effect.   Rather, he quotes
                               - 6 -
the statute's text, argues briefly that the burden of proof rests

on the petitioning creditors, purports to incorporate and refer us

to the bankruptcy court's summary judgment order for further

explanation, and then briefly argues that there was at least one

other creditor overlooked by the bankruptcy court.

            The    Banks   claim    waiver      by   Reyes-Colon,   twice    over.

First, they say that by failing to present an argument on the

number of creditors to the district court, Reyes-Colon waived the

ability to later defend the bankruptcy court ruling on that issue.

Second, the Banks argue that by failing to develop more fully his

argument in favor of the bankruptcy court ruling in his opening

brief in this court, Reyes-Colon again waived his ability to

contend on appeal that he had twelve or more creditors when the

petition was filed.

            These two contentions of waiver pose relatively tricky

issues of appellate procedure on which there is no controlling

precedent   that    has    come    to   our     attention.    Title   28    U.S.C.

§ 158(a)-(b)      provides   for    intermediate       appeals   either    to   the

district court or to the BAP.             See also Fed. R. Bankr. P. 8003-

05.   A party who loses that intermediate review may either accept

the loss and return to the bankruptcy court, with the BAP or

district court ruling controlling, see, e.g., In re Hermosilla,

450 B.R. 276, 287-88 (Bankr. D. Mass. 2011), or may appeal to this

court, see 28 U.S.C. § 158(d)(1).               In the event of an appeal to
                                        - 7 -
this court, however, we do not review per se the BAP or district

court ruling. Rather, we "assess[] the bankruptcy court's decision

directly," In re DeMore, 844 F.3d 292, 296 (1st Cir. 2016) (quoting

In re Sheedy, 801 F.3d 12, 18 (1st Cir. 2015)), giving no deference

to the intermediate appellate ruling, see In re IDC Clambakes,

Inc., 852 F.3d 50, 59 (1st Cir. 2017).         In short, once a notice of

appeal to this court has been filed, the operative ruling under

review is the bankruptcy court ruling, with the BAP or district

court ruling serving more or less like an amicus brief (albeit one

that can be extremely helpful).         In re Old Cold LLC, 879 F.3d 376,

383 n.2 (1st Cir. 2018).

             One resulting oddity is that when the BAP or district

court disagrees with the bankruptcy court, the appellant in this

court   is   the   party   supporting    the   ruling   under   review   (the

bankruptcy court ruling).       Generally, such a party nevertheless

explains in its initial brief why the BAP or district court erred,

treating the intermediate appellate opinion in effect as if it

were the opening brief.      Here, though, the district court opinion

said almost nothing on point (for a reason we will explain next).

And Reyes-Colon claims to be happy with the bankruptcy court's

opinion, with one small exception.        So, Reyes-Colon in his opening

brief simply refers us to the bankruptcy court's summary judgment

order to demonstrate, in his words, "that [the Banks] failed to


                                  - 8 -
carry their burden of proof that, as of the petition date, Reyes-

Colon had fewer than 12 eligible creditors."

           This court has held that "[a]rguments incorporated into

a brief solely by reference to district court filings are deemed

waived."   United States v. Burgos-Montes, 786 F.3d 92, 111 (1st

Cir. 2015).   But that rule comes from cases where the appellant

has lost in the district court and is seeking to alter a judgment

or order through appellate review.       There is no controlling

precedent that deems it a defalcation of any type for an appellant

who defends a lower court ruling to rest on that ruling.      If a

party truly feels content to rely on the opinion of the bankruptcy

court as if it were the party's brief, and given that the appellant

in a case like this files his brief before the appellee files a

brief criticizing the bankruptcy court decision, we see no reason

to deem the defense of that decision to be waived because it is

not restated at length in the opening brief.

           This is not to say that waiver poses no risk to those

who adopt such an approach.    Any argument not in the bankruptcy

court's opinion will, by definition, be absent from the opening

brief and might be treated as waived.   But see Buntin v. City of

Bos., 813 F.3d 401, 404 (1st Cir. 2015) (observing that this court

is not "wedded to the district court's reasoning," but may affirm

"on any basis made evident by the record").    Nor is anything we

say here intended to preclude a party in a case such as this from
                               - 9 -
seeking a procedural order changing the order of briefing. Indeed,

perhaps a rule deeming the "appellant" to be the party asking us

to reverse or vacate the bankruptcy court ruling might make sense.

As matters now stand, though, we reject the Banks' arguments that

Reyes-Colon has waived his defense of the bankruptcy court's ruling

by failing to do more than incorporate it by reference in his brief

to this court.

            The   second   potential   waiver   poses   a   more   difficult

question:   To what extent should we require the party who prevails

in the bankruptcy court to shepherd on intermediate review by the

district court (or the BAP) any arguments that the party will later

want to raise before this court?          Because we look through the

ruling of the intermediate court and review the bankruptcy court

ruling directly, see In re DeMore, 844 F.3d at 296, one might

logically reason that either party need simply go through the

motions of an intermediate appeal if that party believes that the

case will end up in this court anyway. Permitting parties to treat

the intermediate appeal in that manner, however, would be the

equivalent of allowing the parties to forgo a stage of review

generally mandated by 28 U.S.C. § 158.1           Furthermore, it would

deprive this court of the benefit of the intermediate court's

considered assessment of the arguments raised on appeal.              Here,


     1 In limited circumstances, bankruptcy decisions may be
directly appealed to this court. See 28 U.S.C. § 158(d)(2)(A).
                              - 10 -
for example, Reyes-Colon's parsimonious brief focused on issue

preservation may well have accounted for the district court's

truncated discussion of the number of creditors.                  We therefore

lack   the    benefit   of    any   extended   analysis   of   the    creditor

numerosity issue by the district court.              That benefit can be

substantial in bankruptcy cases, with the BAP in particular being

well suited to notice collateral effects of potential rulings that

might not be obvious to this court or to the parties.                See In re

Old Cold LLC, 879 F.3d at 383 n.2.

             At least two circuits have held that the losing party in

the bankruptcy court cannot raise on appeal to the circuit court

arguments not presented to the district court on intermediate

review.      See In re Bradley, 501 F.3d 421, 433 (5th Cir. 2007);

United States v. Olson, 4 F.3d 562, 567 (8th Cir. 1993).                We are

aware of no authority, however, addressing the failure of a party

who prevails in the bankruptcy court to restate on intermediate

review arguments adopted by the bankruptcy court in an opinion

explaining its ruling.          In that situation, waiver would serve

little purpose because the district court (or the BAP) would

obviously     know   what    arguments   the   district   court    adopted   as

persuasive.

             The closer question is what to do with an argument not

contained in the bankruptcy court opinion and also not raised on

intermediate appeal.         One might say that because we can rely on
                                     - 11 -
arguments not presented in the first instance below to sustain a

judgment,    see    Buntin,    813     F.3d   at     404,   the   presence   of    an

intermediate level of review should not alter our ability to rely

on such arguments here.        Alternatively, it would seem to serve all

interests to encourage parties to present all arguments to the

district court or the BAP to enhance the utility of the mandated

intermediate level of review.             Ultimately, we need not resolve

this unusual question of potential waiver because Reyes-Colon

raises no such arguments.            Rather, as we will explain, we can

affirm the judgment here by relying only on the arguments apparent

from the opinion of the bankruptcy court.

                                         B.

             Having determined that Reyes-Colon has not waived his

ability to maintain that the bankruptcy court correctly dismissed

the petition for the reasons stated by that court, we turn now to

the merits of the Banks' critique of the bankruptcy court's

reasoning.       That critique consists of three arguments:                       the

bankruptcy court erred by not placing on Reyes-Colon the burden of

proving   that     he   had   twelve    or    more    eligible    creditors;      the

bankruptcy court erred by not finding that the Banks presented

evidence sufficient to show that Reyes-Colon did not have twelve

or more eligible creditors; and that, in any event, the bankruptcy

court erred by not employing equitable discretion to allow the

petition.    We consider each argument in turn.
                                       - 12 -
                                         1.

             The bankruptcy court found that fifteen of Reyes-Colon's

creditors were eligible to be counted towards section 303(b)(1)'s

creditor numerosity requirement.              In re Reyes-Colon, 474 B.R. at

383.2       The   Banks   claim   that    the    bankruptcy   court   erred   by

effectively placing on the Banks the burden of proving that there

were fewer than twelve creditors.

             The Banks misapprehend how proof of creditor numerosity

works in this instance.           As the BAP correctly stated in a prior

intermediary appeal in this case:

             The   burden   of  proof   with   respect   to
             establishing that the Appellee had less than
             12 creditors rested with the petitioning
             creditor. Once the debtor answers that there
             are more than 12 creditors and files a list in
             compliance with Bankruptcy Rule 1003(b), the
             petitioning creditors bear the burden to put
             the debtor to the test.

In re Reyes-Colon, 2008 WL 8664760, at *4; see also Atlas Mach. &

Iron Works, Inc. v. Bethlehem Steel Corp., 986 F.2d 709, 715 (4th

Cir. 1993); In re Zapas, 530 B.R. 560, 567 (Bankr. E.D.N.Y. 2015).

In re Fox, No. 93 C 5773, 1994 WL 484596, at *1 (N.D. Ill. Sept. 2,

1994), is not to the contrary.                In Fox, the debtor's list of


        2
       The fifteen eligible creditors were:    (1) Banco Popular;
(2) Popular Auto; (3) R&G Financial Corporation; (4) MediCoop;
(5) Eurobank; (6) Westernbank; (7) Bank of America; (8) Miami Dade
County Tax Collector; (9) COS Insurance; (10) Puerto Rico
Telephone; (11) Banco Santander; (12) Citibank; (13) Dorado Beach
HOA; (14) Liberty Cable; and (15) Sun Com. See In re Reyes-Colon,
474 B.R. at 390.
                              - 13 -
creditors was both unverified and not submitted as part of the

debtor's motion for summary judgment.                 Id. at *3.

            The    Banks   next    contend       that       Reyes-Colon    failed    to

produce a list of creditors sufficient to place any burden of proof

on the Banks.      Reyes-Colon in fact filed a list in compliance with

Bankruptcy Rule 1003(b), listing fifty-eight creditors.                      See Fed.

R. Bankr. P. 1003(b) ("If the answer to an involuntary petition

filed by fewer than three creditors avers the existence of 12 or

more creditors, the debtor shall file with the answer a list of

all creditors with their addresses, a brief statement of the nature

of their claims, and the amounts thereof.").                    Later, Reyes-Colon

conceded that he had only twenty-two creditors in addition to Banco

Popular, as listed in his expert witness report attached to his

summary judgment motion.           This action, the Banks argue, was a

rejection of the original Rule 1003(b) list.                       Therefore, they

reason,    the    bankruptcy      court       could    no    longer   rely    on    the

Rule 1003(b) list to shift the burden of proving the number of

eligible creditors onto the Banks.

            The    Banks   mischaracterize            Reyes-Colon's       actions    in

submitting and relying on his expert report as "rejecting" his

Rule 1003(b) list.       When asked which list of creditors Reyes-Colon

intended   to     be   operative    at    a    status       conference    hearing    in

April 2011, Reyes-Colon stated that it was the list "in the expert

witness report."       In this manner, the debtor simply pared down his
                                     - 14 -
original list, hardly a cause for complaint by the petitioning

creditors.    That the expert report was not in the typical form one

would expect a Rule 1003(b) list to take is no matter in this

instance.    First, Banco Popular itself stressed to the bankruptcy

court that the relevant creditors list had become the smaller list

found in the expert report, stating that it was willing to "waive

the request of the sworn statement" by Reyes-Colon, as long as

Reyes-Colon "accept[ed] that the list of creditors that is going

to be used is the list submitted by the expert witness on his

report."     Second, the bankruptcy court noted that it would treat

the list attached to Reyes-Colon's expert report as an amended

list.   Amended Rule 1003(b) lists are not prohibited and are not

uncommon.    See, e.g., In re Acis Capital Mgmt., 584 B.R. 115, 132

(Bankr. N.D. Tex. 2018); In re Bos, 561 B.R. 868, 873 (Bankr. N.D.

Fla. 2016); In re DemirCo Grp. (N. Am.), L.L.C., 343 B.R. 898,

901-02 (Bankr. C.D. Ill. 2006).           In short, Reyes-Colon complied

with Rule 1003(b) by providing the initial and then amended list

of creditors.      So, the burden did indeed shift to the Banks to

dispute the existence or eligibility of the creditors.

             The   Banks   next   argue   that,   by   moving   for   summary

judgment, Reyes-Colon assumed the burden of proof on the creditor

numerosity issue.      But Rule 56 does not alter which party bears

the burden of proof on any issue. Rather, it controls what happens

to a party that has the burden and fails to meet it sufficiently.
                                   - 15 -
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("Rule 56(c)

mandates the entry of summary judgment . . . against a party who

fails to make a showing sufficient to establish the existence of

an element essential to that party's case, and on which that party

will bear the burden of proof at trial." (emphasis added)); see

also Delgado v. Aero Inv. Corp., 601 F. App'x 12, 15 (1st Cir.

2015); In re Rothery, 143 F.3d 546, 549 (9th Cir. 1998) (explaining

that after a creditor has carried its burden of coming forward

with evidence that the debtor had fewer than twelve creditors at

the time the involuntary petition was filed, the debtor's "bare

allegation" of more than twelve creditors is insufficient to defeat

summary judgment).

           For all of these reasons, the bankruptcy court properly

placed the burden of proving creditor ineligibility onto the Banks.

See In re Reyes-Colon, 474 B.R. at 363-64.          Because the Banks

failed to present evidence as to seven of the listed creditors,

the   bankruptcy   court   correctly   determined   that   those   seven

creditors remained eligible for purposes of section 303(b)(1).

                                  2.

           The Banks next contend that they did come forward with

evidence sufficient to carry their burden with respect to four of

the remaining eight creditors found by the district court to be

eligible creditors.    One of those creditors is Miami Dade County

Tax Collector.     The Banks argue to us that Miami Dade County Tax
                                - 16 -
Collector is not an eligible creditor because it received a post-

petition voidable transfer.        See 11 U.S.C. § 303(b)(2) (excluding

certain   voidable    transfers      from   consideration    in    determining

creditor numerosity).       But the Banks do not contest Reyes-Colon's

contention   that    they   failed    to    raise   this   challenge     in   the

bankruptcy court.     And our law is clear that this type of failure

in a civil case precludes a party from advancing the argument to

secure a reversal of the court in which the party did not raise

the argument, absent "extraordinary circumstances."                 In re Net-

Velázquez, 625 F.3d 34, 40 (1st Cir. 2010).

           That leaves the Banks able only to claim that the

district court erred in finding that Westernbank, Bank of America,

and Citibank were eligible creditors.               Even if the Banks were

correct on all three, Reyes-Colon would still have had, at a

minimum, twelve eligible creditors at the time the involuntary

petition was filed, triggering the requirement that there be at

least three petitioning creditors under section 303(b)(1).

                                       3.

           We turn, finally, to the Banks' argument that special

circumstances   warrant     an   equitable    exception     to    the   creditor

numerosity requirements in this case because Reyes-Colon schemed

to defraud his creditors.        See In re Reyes-Colon, 558 B.R. at 565.

           "Congress has given bankruptcy courts the authority to

'issue any order, process, or judgment that is necessary or
                                     - 17 -
appropriate to carry out the provisions' of the Bankruptcy Code."

In re Oak Knoll Assocs., L.P., 835 F.3d 24, 34 (1st Cir. 2016)

(quoting 11 U.S.C. § 105(a)); see also Marrama v. Citizens Bank of

Mass., 549 U.S. 365, 375–76 (2007) (noting that bankruptcy courts

have the "inherent power . . . to sanction 'abusive litigation

practices'" (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752,

765 (1980))).            This court has cautioned, however, that this

expression of authority should not be construed as being "'a roving

writ, much less a free hand' to provide equitable relief."                     In re

Oak Knoll Assocs., L.P., 835 F.3d at 34 (quoting In re Jamo, 283

F.3d 392, 403 (1st Cir. 2002)).

             In Siegel, 571 U.S. at 421, the Supreme Court held that

bankruptcy     courts       "may    not      contravene    specific         statutory

provisions"       when    they   exercise     their    statutory      and    inherent

powers.      The    bankruptcy      court    had    "surcharge[d]"      a   debtor's

homestead exemption to defray costs incurred by the bankruptcy

trustee who uncovered the debtor's fraudulent misrepresentations.

Id.   at   420.      The    Supreme       Court    reversed,   holding      that   the

Bankruptcy Code's exemption section, 11 U.S.C. § 522, "does not

give courts discretion to grant or withhold exemptions based on

whatever    considerations         they    deem    appropriate.       Rather,      the

statute    exhaustively      specifies       the    criteria   that    will    render

property exempt."          Id. at 423-24, 428.          The Court acknowledged

that its holding "may produce inequitable results for trustees and
                                      - 18 -
creditors    in   other   cases,"     but   recognized   that     Congress,   in

creating the Bankruptcy Code, "balanced the difficult choices that

exemption limits impose on debtors with the economic harm that

exemptions visit on creditors."         Id. at 426-27 (quoting Schwab v.

Reilly, 560 U.S. 770, 791 (2010)).

            Siegel      may   not   restrict      the    bankruptcy       court's

discretion in all instances.          See, e.g., United States v. Colón-

Ledée, 772 F.3d 21, 29 n.10 (1st Cir. 2014).              But it makes clear

that the bankruptcy court cannot "override explicit mandates of

other sections of the Bankruptcy Code."            Siegel, 571 U.S. at 421

(quoting 2 Collier on Bankruptcy ¶ 105.01[2], 105-06 (16th ed.

2013)); see also In re Tempnology, LLC, 879 F.3d 389, 401 (1st

Cir. 2018) (citing Sunbeam Prod., Inc. v. Chi. Am. Mfg., LLC, 686

F.3d 372, 375 (7th Cir. 2012) ("What the Bankruptcy Code provides,

a judge cannot override by declaring that enforcement would be

'inequitable.'")), cert. granted in part sub nom., Mission Prod.

Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 397 (2018).                  Here,

the bankruptcy court would have plainly contravened section 303(b)

if it bypassed the involuntary petition's creditor numerosity

deficiency via the "special circumstances" doctrine.              Allowing the

case to proceed with only two petitioning creditors would have

flown in the face of the Code's directive that there be three

petitioning creditors when a debtor has more than twelve creditors

at   the   time   the   involuntary    petition    was   filed.      11   U.S.C.
                                    - 19 -
§ 303(b).       Siegel forecloses employing equity to waive this plain

statutory requirement.

               The Banks nonetheless point to In re Zenga, 562 B.R. 341

(B.A.P. 6th Cir. 2017), a decision by the Sixth Circuit BAP, to

support their argument that the "special circumstances" doctrine

can be utilized to overcome section 303 deficiencies post-Siegel.

In Zenga, a creditor filed an involuntary petition against debtors.

Id. at 345.      The debtors moved to dismiss, asserting that they had

twelve or more creditors at the time of filing, and that the

involuntary       petition    was     deficient     under      section 303(b)(1)'s

creditor numerosity requirement.              Id.     The bankruptcy court did

not    waive    the   statutory     numerosity      requirement.       Rather,    it

estopped the debtors from presenting evidence that they had more

than eleven creditors based on their responses to post-judgment

sworn   interrogatories        that    were   served      in   prior   state   court

proceedings.       Id. at 345-46.

               Had Reyes-Colon led the Banks or the bankruptcy court to

believe that he only had eleven or fewer creditors, a court post-

Siegal might well have found him estopped from now presenting

argument to the contrary.           See Perry v. Blum, 629 F.3d 1, 8 (1st

Cir.    2010)    (explaining       that    judicial      estoppel   "prevent[s]   a

litigant from taking a litigation position that is inconsistent

with a litigation position successfully asserted by him in an

earlier     phrase    of     the    same    case    or    in   an   earlier    court
                                       - 20 -
proceeding").    But the Banks make no such claim.        Rather, they

assert that he has conducted himself fraudulently to avoid paying

his debts and claiming more creditors than he has.      In such a case,

estoppel has no role to play, and Siegal otherwise provides no

basis for simply deeming the creditor numerosity requirement to be

inapplicable.    Dismissal of the involuntary petition was therefore

proper.3

                                   III.

           For   the   foregoing   reasons,   the   bankruptcy   court's

decision is affirmed.




     3 Because we affirm for the reasons stated in the bankruptcy
court opinion, we need not address Reyes-Colon's alternative
argument for dismissal (that the involuntary petition was filed in
bad faith as an improper collection tool), nor do we need to
inquire as to whether that argument was waived.
                              - 21 -
