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

 3                UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                          OF THE NINTH CIRCUIT
 5
 6   In re:                        )      BAP No.    HI-10-1284-JuPaD
                                   )      BAP No.    HI-10-1403-JuPaD
 7   JIM SLEMONS HAWAII, INC.,     )      BAP No.    HI-10-1404-JuPaD
                                   )      BAP No.    HI-10-1405-JuPaD*
 8                  Debtor.        )      (related   appeals)
     ______________________________)
 9   JIM SLEMONS HAWAII, INC.;     )      Bk. No.    09-01802
     ANTHONY P. LOCRICCHIO,        )
10                                 )
                    Appellants,    )
11                                 )
     v.                            )      M E M O R A N D U M**
12                                 )
     OFFICE OF THE UNITED STATES   )
13   TRUSTEE; CONTINENTAL          )
     INVESTMENT COMPANY, LTD.,     )
14                                 )
                    Appellees.     )
15   ______________________________)
16
      Argued and Submitted by Video Conference on September 22, 2011
17                       at Pasadena, California
18                        Filed - October 12, 2011
19             Appeal from the United States Bankruptcy Court
                         for the District of Hawaii
20
21
22
          *
23          While not formally consolidated, these four related
     appeals were heard at the same time and were considered together.
24   This single disposition applies to the four appeals, and the
     clerk is directed to file a copy of this disposition in each
25   appeal.
26        **
            This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.

                                    -1-
 1    Honorable Robert J. Faris, Chief Bankruptcy Judge, Presiding***
       Honorable Lloyd King, Recalled Bankruptcy Judge, Presiding****
 2                        _______________________
 3   Appearances:       Anthony P. Locricchio, Esq. argued for Appellant
                        Jim Slemons Hawaii, Inc. and himself pro se;
 4                      Noah M. Schottenstein, Esq. argued for Appellee
                        Office of the United States Trustee; and Jerrold
 5                      K. Guben, Esq., of O’Connor, Playdon & Guben LLP,
                        argued for Appellee Continental Investment
 6                      Company, Ltd.
                             _________________________
 7
 8   Before:      JURY, DUNN, and PAPPAS, Bankruptcy Judges.
 9
10            Appellant, chapter 111 debtor Jim Slemons Hawaii, Inc.,
11   appeals from five orders entered by the bankruptcy court:
12            (1) Order Denying Debtor’s Motion To Disqualify Bankruptcy
13   Judge (BAP No. 10-1284);
14            (2) Order Regarding Motion To Set Aside Judgment Re:
15   Termination Of Non-Residential Lease (BAP No. 10-1403);
16            (3) Order Regarding Motion to Pay § 365(d)(3)
17   Administrative Expense and Request For Payment of Sublessee
18   Rents (BAP No. 10-1404);
19            (4) Order Regarding Motion To Pay Only Certain Rent
20   Payments And to Have Credited $85,000 Plus Interest And
21   Penalties Against Rent Payments For Remainder Of August And All
22
          ***
23           Judge Faris entered all the orders on appeal except for
     the Order Denying Debtor’s Motion To Disqualify Bankruptcy Judge
24   (BAP No. 10-1284).
25        ****
             Judge King entered the Order Denying Debtor’s Motion To
26   Disqualify Bankruptcy Judge (BAP No. 10-1284).
          1
27          Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

                                       -2-
 1   Of September And To Set Evidentiary Hearing And Permit Discovery
 2   Sworn Depositions On This Matter (BAP No. 10-1405); and
 3        (5) Order Dismissing Case (BAP No. 10-1284).
 4        Appellant, Anthony P. Locricchio (“Locricchio”), debtor’s
 5   bankruptcy counsel, appeals the Order Denying Application for
 6   Professional Compensation By Debtor’s Counsel (BAP No. 1284).
 7        For the reasons stated, we AFFIRM each of these orders.
 8                              I.   FACTS
 9        On March 21, 1983, Slemons Enterprises, Inc. (“SEI”), as
10   lessee, and appellee, Continental Investment Company, Ltd.
11   (“CIC”), as lessor, entered into a lease for three parcels of
12   real property located on Kamehameha Highway, Aiea, Hawaii.    In
13   1992, SEI assigned the lease to debtor.   Debtor and CIC entered
14   into a second lease dated April 15, 1993, for two additional
15   parcels of real property also located on Kamehameha Highway
16   (hereinafter, we refer to the 1983 lease and the 1993 lease as
17   the “Lease”).
18        Debtor’s monthly lease payments to CIC were $61,300.     To
19   meet its obligation, debtor subleased the property to Tony
20   Hawaii Corp. (“Tony Honda”) for $42,632 per month and Car
21   Stereo, Inc. (“Car Stereo”) for $10,000 per month, with the
22   remaining subleases to other parties to make up the difference.
23   Debtor did not conduct any business on the leased property.
24        At some point, a portion of the leased property became
25   subject to an eminent domain proceeding by the City of Honolulu
26   for the development of a fixed rail system.   Debtor evidently
27   concluded that the portion of the leased property that was not
28   subject to the eminent domain proceeding was extremely valuable

                                     -3-
 1   because it could be used for parking and passenger services.
 2            The record indicates that debtor’s relationships with Tony
 3   Honda, Car Stereo, and CIC were strained prior to debtor’s
 4   bankruptcy filing.     Debtor alleged that CIC wrongfully collected
 5   rental payments directly from Tony Honda.       Debtor further
 6   alleged that CIC was engaged in conspiracy with Tony Honda and
 7   Car Stereo to oust it from the property.       According to debtor,
 8   CIC’s motivation as lead conspirator was to obtain the
 9   condemnation funds for itself and develop the property for a
10   parking and passenger services area for the nine years remaining
11   on debtor’s Lease.2
12            In March 2009, debtor defaulted on the Lease.
13                              Bankruptcy Events
14            On August 10, 2009, debtor filed a chapter 11 bankruptcy
15   case to prevent eviction by CIC.        Debtor’s petition described
16   its business as a single real estate lease that it subleased and
17   showed Jim Slemons as debtor’s 100% owner.       Debtor’s schedules
18   showed that the Lease was the main asset of the bankruptcy
19   estate, with debtor’s only source of income from its subtenants.
20   In Schedule B, Debtor listed a condemnation claim against the
21   City of Honolulu in the estimated amount of $750,000.       The
22   schedules further showed that debtor had no secured creditors
23   and three unsecured creditors, one of which was CIC listed with
24   a disputed claim of $225,000.
25            Under § 365(d)(4)(A) and (B), the deadline for debtor to
26
27
          2
            We describe the disputes between the parties in further
28   detail below.

                                       -4-
 1   assume the Lease or move for an extension of time to assume was
 2   December 8, 2009.      The record reveals that Locricchio’s failure
 3   to abide by these statutory directives led to the rejection of
 4   the Lease and the eventual dismissal of debtor’s case.
 5   A.        Locricchio’s Employment
 6             On September 28, 2009, appellant Locricchio filed his
 7   application to be employed as debtor’s attorney.      The United
 8   States Trustee (“UST”) objected on the grounds that Locricchio
 9   failed to make the appropriate disclosures under § 329(a) and
10   Rule 2016(b).      The UST also questioned Locricchio’s experience
11   in the chapter 11 arena due to a number of administrative issues
12   that arose soon after the filing of the case.3
13             On October 19, 2009, the bankruptcy court heard the matter
14   and tentatively approved Locricchio’s employment conditioned on
15   his providing the necessary disclosures.      The court also
16   expressed its view that Locricchio and debtor should consider
17   associating with an attorney who had chapter 11 experience.4
18             One day later, Locricchio provided the necessary
19   disclosures.      On January 1, 2010, the court entered the order
20   approving his employment.
21   ///
22
23
           3
            Among other things, the UST complained that debtor had not
24   filed a Statement of Financial Affairs, had not opened a proper
     debtor-in-possession bank account, did not have a Federal Tax
25
     Identification number, did not have a General Excise Tax license,
26   had not filed a designation of responsible person, and had not
     filed an operating report for August 2009.
27
           4
            Locricchio represented at the hearing on these appeals
28   that he specialized in eminent domain proceedings.

                                         -5-
 1   B.       CIC’s Motion For Timely Payment of Post-Petition Rent
 2            On August 25, 2009, CIC moved for the timely payment of
 3   postpetition rent under § 365(d)(3).
 4            On October 7, 2009, CIC filed a supplemental pleading in
 5   support of its motion to address debtor’s statement in its
 6   August 2009 operating report that CIC had wrongfully taken the
 7   June and July 2009 rental checks from Tony Honda.     CIC
 8   maintained that Tony Honda’s rental payments directly to CIC
 9   were consistent with an agreement in effect since October 21,
10   1998.
11            CIC’s supplemental pleading also revealed that prior to
12   debtor’s bankruptcy filing, on July 7, 2009, Locricchio wrote to
13   Tony Honda’s counsel, Ms. Sugimura, directing that Tony Honda
14   make its rental payments to debtor rather than to CIC.
15   Locricchio also stated that debtor would have the bankruptcy
16   court make a determination whether Tony Honda’s conduct caused
17   debtor economic harm.5     In response to the letter, Tony Honda
18   evidently paid its August 2009 rent to debtor.
19            CIC also stated that it paid the real property taxes for
20   July 1, 2009 to December 31, 2009, even though debtor was
21   required to make those payments under the Lease.     Finally, CIC
22   stated that it credited all amounts received, whether from Tony
23   Honda or debtor, to debtor’s account and attached the supporting
24   documentation.
25            On October 8, 2009, debtor opposed CIC’s motion.   Debtor’s
26
27
          5
            This statement was made more than a month before the
28   bankruptcy case was filed.

                                       -6-
 1   opposition was based on CIC’s alleged lack of standing to bring
 2   the motion because the motion and memorandum in support
 3   occasionally referred to CIC as Consolidated Investment Company,
 4   Ltd. rather than Continental Investment Company, Ltd.     Debtor
 5   made no other arguments in opposition.
 6        On October 9, 2009, CIC filed a second supplement to its
 7   motion further clarifying that the payments made by Tony Honda
 8   to CIC were authorized by the October 21, 1998 letter agreement.
 9   CIC also attached accounting records for May, June and July 2009
10   and renewed its request for an order requiring debtor to pay
11   postpetition rent as it became due.
12        On the morning of October 19, 2009 — the day of the hearing
13   on CIC’s motion — debtor filed a pleading labeled as a motion
14   without notice of a hearing date.      In the motion, debtor sought
15   to (1) obtain a $85,000 credit against rent payments due CIC for
16   the remainder of August and all of September; (2) pay the
17   October rent; and (3) set an evidentiary hearing for the
18   resolution of various disputes (hereinafter, the “Rent Offset
19   Motion”).   The factual basis for the offset of postpetition rent
20   was CIC’s alleged conspiracy with Tony Honda to deprive debtor
21   of sublease funds and CIC’s attempt to force debtor out of
22   bankruptcy so that CIC could use the property to profit for
23   itself.
24        Debtor described its dispute with Car Stereo, which had
25   defaulted on its rent payments postpetition.     Debtor contended
26   that Car Stereo refused to pay its rent because of an “alleged
27   fraudulent agreement” where debtor had orally agreed to pay 75%
28   of Car Stereo’s electric bill.    Debtor asserted that no such

                                      -7-
 1   agreement ever existed.   Debtor also alleged that the owners of
 2   Car Stereo fraudulently altered the sublease document between
 3   debtor and itself to extend the term of lease at the same rent.
 4   Because Car Stereo and Tony Honda were represented by
 5   Ms. Sugimura, debtor implied in its motion that Car Stereo was
 6   also part of the conspiracy with Tony Honda and CIC to oust
 7   debtor from the property.
 8        The Rent Offset Motion also described other disputes
 9   between debtor and Tony Honda.    Debtor alleged that Tony Honda
10   had subleased the property without debtor’s permission and had
11   kept the rental payments for itself.   Further, to add to
12   debtor’s troubles, Tony Honda had informed debtor that it would
13   not pay debtor rent beginning with the October 2009 payment.
14   Tony Honda’s reason for withholding rent was due to debtor’s
15   alleged failure to abide by an agreement which required debtor
16   to complete some environmental remediation work on the property
17   leased to Tony Honda.   Debtor maintained that it had already
18   paid for that work.
19        In the end, debtor’s thirty-six page motion sought an
20   offset of rent of $85,000 for the months of August and September
21   2009 due to CIC’s wrongful collection of prepetition rents from
22   Tony Honda in June and July 2009 and an undisclosed amount of
23   damages due to the alleged wrongful conduct of its subtenants
24   and CIC.
25        At the October 19, 2009 hearing, the bankruptcy court
26   stated that it had not read debtor’s papers that were filed that
27   morning because they were untimely.    The court further explained
28   that it would address whether the August and September rents had

                                      -8-
 1   to be paid when the Rent Offset Motion came on for hearing.        The
 2   court also summarily rejected debtor’s opposition based on the
 3   “typo” in the name of CIC in its pleadings.     Finally, the court
 4   granted CIC’s motion, but opined that it was unclear what the
 5   consequences would be if debtor did not comply with § 365(d)(3).
 6            After some discussion with CIC’s counsel about possible
 7   consequences, the court observed that the nonpayment of rent
 8   could be a factor in considering whether to grant debtor an
 9   extension of time to assume the Lease or if CIC sought to lift
10   the stay.6     However, the court concluded by stating that these
11   issues would be left for “another day.”     Hr’g Tr. (October 19,
12   2009) at 17:1-4.
13            The court entered the order granting CIC’s motion on
14   November 9, 2009.     The order clearly stated that debtor was
15   required to pay the monthly rent or prorated monthly rent for
16   the postpetition period from the petition date; it did not
17   relieve debtor from paying August or September rent.     Although
18   the order was inconsistent with the court’s statements at the
19   hearing that it would leave the issue of offset for “another
20   day,” debtor did not appeal the November 9, 2009 order and it
21   became a final order in the case.
22            On November 22, 2009, debtor tendered $80,300 to CIC for
23   postpetition rent and other obligations.     Because CIC had
24
          6
            As described below, debtor construes the court’s comments
25   as a “threat” that it would deny debtor any extension of time to
26   assume the Lease if it was not current on postpetition rent.
     Throughout its briefs, debtor uses this alleged “threat” to show
27   the bankruptcy judge’s bias and prejudice against it and to
     explain why debtor never filed a motion for an extension of time
28   (because it would have been denied).

                                       -9-
 1   calculated the postpetition amount due as $347,606.27, CIC
 2   returned the check to debtor on December 3, 2009, contending
 3   that debtor’s payment did not comply with the bankruptcy court’s
 4   November 9, 2009 order and that debtor was now in default.     It
 5   was at this point that Locricchio contends he first learned
 6   about the contents of the November 9, 2009 order, which he
 7   claims was fraudulently submitted and obtained by CIC’s counsel.
 8   C.   CIC’s Motion To Terminate The Lease
 9        The December 8, 2009, deadline for assuming the Lease came
10   and went without debtor filing a motion to assume the Lease.
11   § 365(d)(4)(A).   Moreover, debtor did not move to extend the
12   time to assume the Lease under § 365(d)(4)(B) within the 120-day
13   period.   As a result, on December 23, 2009, CIC filed a motion
14   seeking (1) a declaration from the bankruptcy court that the
15   Lease was terminated and (2) an order directing debtor to
16   surrender the premises (the “Lease Termination Motion”).
17        On January 8, 2010, debtor filed an opposition, contending,
18   among other things, that its Rent Offset Motion barred CIC from
19   seeking to terminate the Lease until the court ruled on the
20   various disputes.   Debtor further asserted that its Rent Offset
21   Motion made clear that it had assumed the unexpired Lease under
22   § 365(d)(4).   Finally, debtor maintained that once CIC filed its
23   motion seeking timely payment of the postpetition rent, it was
24   barred from claiming that debtor had not assumed the Lease.
25        At the January 19, 2010 hearing, the court took the matter
26   under advisement due to debtor’s complaint that CIC gave debtor
27   twenty-seven days notice instead of twenty-eight days.   The
28   court gave debtor until February 11, 2010, to file a

                                    -10-
 1   supplemental memorandum and CIC’s counsel was given to
 2   February 18, 2010, to file a reply.7     Debtor requested a further
 3   extension to February 18, 2010, which the bankruptcy court
 4   granted, and the time for CIC’s reply was extended to
 5   February 25, 2010.
 6            In debtor’s supplemental pleading filed on February 18,
 7   2010, debtor accused the bankruptcy judge of being biased and
 8   stated that it would be filing a motion to disqualify him.
 9            On February 22, 2010, before the filing of CIC’s reply, the
10   bankruptcy court issued a Memorandum Decision, finding that the
11   Lease was rejected on December 9, 2009, by operation of law
12   under § 365(d)(4).     Citing Sea Harvest Corp. v. Riviera Land
13   Co., 868 F.2d 1077 (9th Cir. 1989), the bankruptcy court
14   rejected debtor’s argument that its Rent Offset Motion
15   constituted a properly noticed and timely motion to assume the
16   Lease.     The court also observed that a debtor must pay
17   postpetition rent under § 365(d)(3) even if it later decided to
18   reject the lease.     Finally, because debtor had mentioned in its
19   papers that it intended to file a motion for recusal, the
20   bankruptcy judge addressed the issue in the Memorandum Decision,
21   concluding there was no basis for his disqualification.
22            The court entered judgment for CIC on March 3, 2010 (the
23   “Termination Judgment”).
24
25
          7
26          CIC filed its motion on December 23, 2009, and the hearing
     was set for January 19, 2010. Because the motion was filed
27   during the holiday season and Locricchio did not participate in
     the court’s non-mandatory electronic filing system which provides
28   immediate notice, the court gave debtor additional time.

                                       -11-
 1   D.       Debtor’s Recusal Motion
 2            On February 23, 2010 — one day after the court issued its
 3   Memorandum Decision terminating debtor’s Lease — debtor filed a
 4   motion to disqualify Bankruptcy Judge Robert Faris (the “Recusal
 5   Motion”).     Debtor alleged that the judge overlooked CIC’s
 6   procedural irregularities and considered pleadings it should
 7   have stricken.     Specifically, debtor asserted that the court
 8   should have stricken CIC’s Lease Termination Motion because of
 9   the insufficient notice (twenty-seven days instead of twenty-
10   eight).     Debtor also alleged that CIC’s counsel was part of a
11   “bankruptcy club,” which was a social luncheon gathering of
12   bankruptcy attorneys that the bankruptcy judge regularly
13   attended, and which excluded some attorneys from attending.
14   Finally, debtor alleged that the court rushed out its
15   February 22 memorandum on CIC’s Lease Termination Motion due to
16   the possible delay caused by debtor’s notice of its yet-to-be-
17   filed Recusal Motion.
18            Debtor’s motion was set for hearing on April 26, 2010,
19   before recalled Bankruptcy Judge Lloyd King.8     On April 7, 2010,
20   debtor filed an ex parte motion to stay the hearing so that it
21   could conduct an investigation into the court’s internal
22   procedures.     The investigation would supposedly uncover whether
23   Judge Faris had improperly back-dated his Memorandum Decision
24
25        8
            A federal judge who is the    subject of a recusal motion may
26   hear that motion himself. United     States v. Sibla, 624 F.2d 864,
     867-68 (9th Cir. 1980). To avoid     any appearance of conflict or
27   bias, some districts or divisions    use a procedure that had a
     different judge rule on a recusal    motion. The District of Hawaii
28   used this optional procedure.

                                        -12-
 1   from February 24 to February 22 due to debtor’s pending Recusal
 2   Motion.     Judge King denied debtor’s ex parte motion by
 3   Memorandum Decision and an order entered April 9, 2010.
 4            At the April 26, 2010 hearing, Judge King denied debtor’s
 5   Recusal Motion.
 6            On May 5, 2010, Judge King issued a Memorandum Decision,
 7   finding that (1) Locricchio had not offered any evidence that if
 8   luncheon meetings were held and Judge Faris participated, the
 9   attendees precluded him, or any other attorney, from attending;
10   (2) although debtor had insufficient notice of CIC’s motion to
11   terminate the Lease, the notice deficiency resulted in no
12   prejudice to debtor because Judge Faris gave debtor the
13   opportunity to file a supplemental pleading; (3) debtor failed
14   to cite any case law that would require a court to deny a motion
15   (versus continuing it) due to insufficient notice; and (4) Judge
16   Faris did not err by issuing his Memorandum Decision granting
17   CIC’s motion to terminate the Lease prior to the hearing on
18   debtor’s motion to disqualify him.       Judge King concluded by
19   stating that debtor’s allegations of bias against Judge Faris
20   lacked factual and legal support.9
21            The bankruptcy court entered the order denying debtor’s
22   Recusal Motion on May 5, 2010.
23   E.       The May 24, 2010 Hearing On Various Motions
24            Meanwhile, the parties to this appeal filed various
25   motions.
26
          9
27          Judge King commented that debtor’s original and
     supplemental memoranda in support of its Recusal Motion did not
28   contain a single citation to a statute, rule, or reported case.

                                       -13-
 1         On February 4, 2010, Locricchio filed an application for
 2   interim fees, requesting $39,647.40 for his services (the “Fee
 3   Application”).    On February 25, 2010, the UST objected to the
 4   Fee Application on the grounds that Locricchio failed to follow
 5   the UST’s guidelines for fee applications or discuss any of the
 6   factors in § 330(a) to assist the court in determining the
 7   reasonableness of the fees.   CIC also objected, arguing that its
 8   postpetition rent had administrative priority over debtor’s
 9   counsel’s fees.
10         On April 5, 2010, debtor moved to set aside the Termination
11   Judgment under Rule 9023 (the “Set Aside Motion”).     Debtor’s
12   motion essentially rehashed the same arguments it made in the
13   Recusal Motion.   In other words, debtor argued that the
14   bankruptcy judge’s alleged bias was debtor’s sole argument for
15   setting aside the Termination Judgment.
16         On April 7, 2010, CIC moved for payment of administrative
17   rent for the period August 10, 2009 (the petition date), to
18   December 9, 2009 (the rejection date)(the “Administrative Rent
19   Motion”).   Debtor did not oppose the motion.
20         On April 26, 2010, the UST moved to dismiss debtor’s case
21   under § 1112(b) for “cause” (the “Dismissal Motion”).     The UST
22   asserted that debtor had no possibility of a successful
23   reorganization without the Lease.      Debtor responded by stating
24   that it would not oppose the motion.
25         These motions, along with debtor’s Rent Offset Motion
26   ///
27   ///
28   ///

                                     -14-
 1   filed on October 19, 2009,10 were noticed for a hearing on
 2   May 24, 2010.
 3           On May 20, 2010, the bankruptcy court issued a tentative
 4   decision regarding the various motions.    The court granted the
 5   UST’s Dismissal Motion on the ground that debtor could not
 6   reorganize without the Lease, its primary asset.    The court
 7   further stated that it was inclined to deny all other pending
 8   motions as moot due to its decision to dismiss the bankruptcy
 9   case.
10           At the May 24, 2010 hearing, the bankruptcy court granted
11   the UST’s Dismissal Motion.    The court also decided that it
12   needed to rule on debtor’s Set Aside Motion and found it
13   untimely.    The court requested that the parties focus their
14   arguments on whether the remaining motions should be addressed
15   by the bankruptcy court or litigated in state court.
16           Debtor argued that the remaining motions should be
17   litigated in state court.    CIC argued that the matter of
18   Locricchio’s Fee Application and its request for administrative
19   rent under § 365(d)(3) were within the bankruptcy court’s
20   exclusive jurisdiction.    The UST argued for dismissal with the
21   rent issue decided by the state court.    The court took the
22   matters under advisement.
23           In a May 27, 2010 Memorandum Decision, the bankruptcy court
24   denied debtor’s Set Aside Motion on the grounds that it was
25
         10
26          On January 12, 2010, debtor filed a notice that the Rent
     Offset Motion would be heard on February 16, 2010. Therefore, by
27   the time debtor noticed the hearing, the date for assuming the
     Lease — December 8, 2009 — had passed. The hearing for the Rent
28   Offset Motion was continued from February 16 to May 24, 2010.

                                      -15-
 1   untimely and did not meet the standards for altering or amending
 2   a judgment; i.e., the debtor did not demonstrate a manifest
 3   error of law or fact or produce any newly discovered evidence.
 4          Citing Pavelich v. McCormick, Barstow (In re Pavelich),
 5   229 B.R. 777, 780-81 (9th Cir. BAP 1999), the bankruptcy court
 6   also found that it had jurisdiction post-dismissal over its own
 7   orders and to dispose of ancillary matters that were otherwise
 8   not moot.   However, the court stated that it did not view its
 9   jurisdiction over the amount of the rent or compensation due
10   debtor’s attorney as exclusive.   Nonetheless, the court found it
11   would be unfair to avoid deciding the pending motions because
12   debtor was holding $95,000 cash that, without a ruling, it could
13   freely use after the dismissal of its case to the detriment of
14   CIC.   Accordingly, the court exercised its discretion to decide
15   the remaining motions.
16          First, the court denied Locricchio’s Fee Application in its
17   entirety.   The bankruptcy court found that Locricchio’s services
18   were not beneficial to the estate because he missed the deadline
19   for assumption of the Lease under § 365(d)(4) and, as a result,
20   debtor lost its most valuable asset.   The bankruptcy court also
21   denied the application on the alternative ground that it lacked
22   information required by Rule 2016 and, although the UST pointed
23   out the deficiencies, Locricchio made no effort to correct them.
24          Next, the court denied debtor’s Rent Offset Motion which
25   alleged CIC’s misconduct and interference with its business
26   relationships was grounds for relieving debtor from the
27   statutory requirement under § 365(d)(3) of paying postpetition
28   rent for the months of August and September.   The court observed

                                     -16-
 1   that in response to debtor’s allegation that CIC had wrongfully
 2   collected rent from Tony Honda, CIC had produced a 1998 letter
 3   agreement that authorized those payments.       The court found that
 4   debtor had never offered any reason why the agreement might be
 5   invalid.    Thus, the court concluded that there was no legitimate
 6   dispute that debtor owed the full amount of the rent due under
 7   the Lease, minus any amounts which the subtenants paid to CIC.
 8           Third, the court granted CIC’s Administrative Rent Motion.
 9   The court noted that debtor filed no opposition to this motion.
10   The court further noted that debtor failed to comply with its
11   November 9, 2009 order, which required debtor to timely pay all
12   postpetition rents until further order.        Therefore, the court
13   directed debtor and its counsel to remit all of the estate’s
14   cash to CIC in partial satisfaction of CIC’s administrative
15   claim and reserved jurisdiction to enforce this requirement.
16           The court entered the order denying Locricchio’s Fee
17   Application on June 29, 2010.     The court entered the orders
18   denying debtor’s Set Aside Motion and Rent Offset Motion on
19   July 13, 2010, and the corresponding judgments on July 26, 2010.
20   The court entered the order granting CIC’s Administrative Rent
21   Motion on July 13, 2010, and corresponding judgment on July 26,
22   2010.    Finally, the court entered the order granting the UST’s
23   Dismissal Motion on July 13, 2010.
24           Debtor timely appealed each of the orders involved in these
25   four appeals.    Further, as discussed below, Locricchio timely
26   appealed the order denying his Fee Application.
27                             II.   JURISDICTION
28           The bankruptcy court had jurisdiction over this proceeding

                                      -17-
 1   under 28 U.S.C. §§ 1334 and 157(b)(2)(A).     We have jurisdiction
 2   under 28 U.S.C. § 158.
 3                                III.    ISSUES
 4        A.   Whether the bankruptcy court erred in denying debtor’s
 5   Recusal Motion;
 6        B.   Whether the bankruptcy court erred in denying debtor’s
 7   Set Aside Motion;
 8        C.   Whether the bankruptcy court erred in denying
 9   Locricchio’s Fee Application;
10        D.   Whether the bankruptcy court erred in granting CIC’s
11   Administrative Rent Motion;
12        E.   Whether the bankruptcy court erred in denying debtor’s
13   Rent Offset Motion; and
14        F.   Whether the bankruptcy court erred in granting the
15   UST’s Dismissal Motion.
16                         IV.   STANDARDS OF REVIEW
17        We review under an abuse of discretion standard, a
18   bankruptcy court’s decision to (1) deny a motion for recusal of
19   a bankruptcy judge, (2) deny a motion for reconsideration under
20   Rule 9023, (3) grant an award of attorney’s fees, and (4) grant
21   a motion to dismiss a debtor’s case for cause under § 1112(b).
22   See Berry v. U.S. Tr. (In re Sustaita), 438 B.R. 198, 208 (9th
23   Cir. BAP 2010) (recusal motion); Diker v. Dye (In re Edelman),
24   237 B.R. 146, 150 (9th Cir. BAP 1999) (reconsideration under
25   Rule 9023); Leichty v. Neary (In re Strand), 375 F.3d 854, 857
26   (9th Cir. 2004) (attorney’s fees); Marsch v. Marsch (In re
27   Marsch), 36 F.3d 825, 828 (9th Cir. 1994) (dismissal of chapter
28   11 case for cause).

                                         -18-
 1         We follow a two-part test to determine objectively whether
 2   the bankruptcy court abused its discretion.    United States v.
 3   Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009)(en banc).         If we
 4   determine that the court erred under either part of the test, we
 5   must reverse for an abuse of discretion.     Id.   First, we
 6   “determine de novo whether the [bankruptcy] court identified the
 7   correct legal rule to apply to the relief requested.”     Id.
 8   Second, we examine the bankruptcy court’s factual findings under
 9   the clearly erroneous standard. Id. at 1262 n.20.      We must
10   affirm the court’s factual findings unless those findings are
11   “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
12   inferences that may be drawn from the facts in the record.’” Id.
13         Whether CIC was entitled to an administrative rent claim
14   under § 365(d)(3) involves a question of law.      A bankruptcy
15   court’s conclusions of law are reviewed de novo.     In re Strand,
16   375 F.3d at 857.   We also review due process challenges de novo.
17   Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th
18   Cir. 2009).
19                              V.   DISCUSSION
20   A.    CIC’s Motion To Dismiss Or Strike Debtor’s Briefs In BAP
           Nos. 10-1403, 10-1404 And 10-1405
21
22         CIC moved to dismiss the appeals for BAP Nos. 10-1403,
23   10-1404 and 10-1405 under Rule 8010, or, alternatively, strike
24   debtor’s briefs under Rule 8006 and debtor opposed.11     On
25
          11
26          Debtor sought   and obtained permission to file a single
     brief in each of the   three appeals not to exceed forty pages.
27   Debtor explains that   it was impossible to cover all the issues in
     a single brief so it   abandoned that approach in favor of filing a
28                                                        (continued...)

                                      -19-
 1   February 1, 2011, a motions panel of this court denied CIC’s
 2   motion without prejudice for reconsideration by the merits
 3   panel.    On reconsideration, we also deny CIC’s motion.
 4        Rule 8010 requires, among other things, a table of
 5   contents, a statement of the basis of appellate jurisdiction, a
 6   statement of issues presented, the applicable standard of
 7   appellate review, and a statement of the case.   Rule
 8   8010(a)(1)(A-D).   Rule 8010(a)(1)(E) states that the “argument
 9   shall contain the contentions of the appellant with respect to
10   the issues presented, and the reasons therefore, with citations
11   to the authorities, statutes and parts of the record relied on.”
12        Although debtor’s briefs are mostly noncompliant with
13   Rule 8010, we decline to dismiss the appeals on this basis.     The
14   issues involved are not complex and we may rely on the relevant
15   authorities and the record that was before the bankruptcy court
16   to evaluate the merits of these appeals.   Kyle v. Dye (In re
17   Kyle), 317 B.R. 390, 393 (9th Cir. BAP 2004) (noting that
18   although summary dismissal is within the Panel’s discretion, it
19   should first consider whether informed review is possible in
20   light of the record provided).
21        Rule 8006 provides that the record on appeal from a
22   bankruptcy court decision consists of designated materials that
23   became part of the bankruptcy court’s record in the first
24   instance.   On December 13, 2010, debtor filed a Supplemental
25   Designation of the Record, seeking to include in the record
26
          11
27          (...continued)
     separate brief in each of the appeals. Apparently, this change
28   caused some compliance problems with Rule 8010.

                                      -20-
 1   numerous orders, pleadings and documents that were entered on
 2   the bankruptcy court’s docket after the entry of the orders and
 3   judgments in these appeals.   Rule 8006 does not permit items to
 4   be added to the record on appeal to this Panel if they were not
 5   part of the record before the bankruptcy court.   Kirshner v.
 6   Uniden Corp. of Am., 842 F.2d 1074, 1077-78 (9th Cir. 1988).
 7        Because debtor may have referred to these documents in its
 8   briefs, CIC seeks to have the briefs stricken with instructions
 9   to debtor not to include or refer to any of these supplemental
10   orders, pleadings or documents.   At this juncture, we consider
11   it unproductive and unnecessary to strike the briefs, with
12   instructions to debtor to delete references to these orders,
13   pleadings or documents.   It is sufficient that we simply do not
14   consider debtor’s supplemental designation of the record in
15   evaluating debtor’s arguments and we have not done so.
16   B.   The Order Denying Debtor’s Recusal Motion (BAP No. 10-1284)
17        Debtor’s main theory for reversal in all four appeals
18   centers on the bankruptcy judge’s bias and prejudice against it.
19   Therefore, we review first the court’s order denying debtor’s
20   Recusal Motion.
21        Initially, we note that on October 18, 2010, debtor filed a
22   motion for reconsideration of the May 5, 2010, order denying its
23   Recusal Motion.   In an October 29, 2010 Memorandum Decision and
24   separate order of the same date, Judge King denied debtor’s
25   motion for lack of jurisdiction due to debtor’s pending appeal
26   of the May 5, 2010 order.   On November 30, 2010, debtor filed a
27   notice of appeal of the order denying its motion for
28   reconsideration (BAP No. 10-1469).    On February 11, 2011, the

                                    -21-
 1   Panel dismissed the appeal as untimely.   Therefore, debtor’s
 2   filing of the motion for reconsideration is of no consequence to
 3   us in this appeal.
 4         In its appellate brief, debtor describes alleged incidents
 5   of judicial bias and misconduct that are much different than
 6   those raised in the bankruptcy court and addressed by Judge
 7   King’s Memorandum Decision.   One of the new alleged incidents
 8   includes CIC’s attorney submitting the November 9, 2009 order to
 9   Judge Faris which misstated the court’s ruling on CIC’s motion
10   for the timely payment of postpetition rent; i.e., debtor
11   maintains that the court ruled that it did not have to pay
12   postpetition rent for August or September whereas the order
13   stated that debtor was to pay all postpetition rent due.    Debtor
14   asserts that the judge’s signing of the allegedly fraudulent
15   order indicates that CIC’s counsel and the judge were working in
16   concert.   Debtor further alleges that at the October 19, 2009
17   hearing on CIC’s motion for the timely payment of postpetition
18   rent, the bankruptcy court threatened to deny debtor an
19   extension of time to assume or reject the Lease as a consequence
20   for its nonpayment of the postpetition rent.12
21
          12
            Debtor recites these arguments in some fashion in all of
22
     its briefs. Debtor overlooks the fact that the November 9, 2009
23   order for the payment of postpetition rent — which it contends is
     fraudulent — is a final order. Moreover, the bankruptcy court’s
24   comments regarding the consequences to a debtor for nonpayment of
     postpetition rent were entirely consistent with Ninth Circuit
25   case law. See Sw. Aircraft Servs., Inc. v. City of Long Beach
26   (In re Sw. Aircraft Servs., Inc.), 831 F.3d 848 (9th Cir. 1987).
     In In re Sw. Aircraft Servs., Inc., the Ninth Circuit held that
27   the bankruptcy court had discretion to consider all the
     particular facts and circumstances involved in each bankruptcy
28   case and to decide whether the consequence of a violation of
                                                        (continued...)

                                    -22-
 1        Presumably debtor relies on Polaroid Corp. v. Eastman Kodak
 2   Co., 867 F.2d 1415 (1989), as authority for allowing these new
 3   examples of alleged judicial bias and misconduct to be raised
 4   for the first time on appeal.   According to debtor, Polaroid
 5   holds that a recusal motion “has no time limits.”    Thus, debtor
 6   contends that it is not prohibited from raising new examples of
 7   bias for the judge’s disqualification at “anytime.”    We are not
 8   persuaded that the holding in Polaroid stretches so far.
 9        In Polaroid, the judge made numerous rulings and issued
10   orders in the case for six and half years before she
11   disqualified herself after learning that her mother-in-law had
12   an interest in Kodak.   After she disqualified herself, Kodak
13   filed a motion to disqualify and sought to vacate orders that
14   were entered six and half years earlier.     The district court
15   denied the motion and the court of appeals affirmed.    The court
16   held that although there was no time limit to file a motion for
17   recusal, under the circumstances of the case and due to the
18   passage of time, granting the motion would produce a result that
19   was inequitable and unfair.   Id. at 1419.
20        The facts of this case are far afield from those in
21   Polaroid.   Judge Faris did not disqualify himself and Judge King
22   found no basis for granting debtor’s Recusal Motion on the facts
23
          12
24          (...continued)
     § 365(d)(3) should be forfeiture of the unassumed lease, some
25   other penalty, or no penalty at all. Id. at 854. The court held
26   that the “failure to make payments under subsection (d)(3)
     constitutes simply one element to be considered, along with all
27   the other relevant factors, in determining whether cause exists
     under subsection (d)(4) to extend the [120]-day period for
28   assumption or rejection.” Id. at 853-54.

                                     -23-
 1   debtor alleged.     Moreover, the newly asserted incidents of bias
 2   raised in this appeal were considered in connection with
 3   debtor’s second motion to recuse Judge Faris.    On August 3,
 4   2011, Judge King issued a Memorandum Decision and separate order
 5   on that motion.13    That order is now the subject of a separate
 6   appeal (BAP No. 11-1464).    Accordingly, we do not address the
 7   propriety of the November 9, 2009 order or debtor’s other newly
 8   asserted allegations in this appeal.
 9         Otherwise, debtor’s opening brief fails to pinpoint with
10   any degree of specificity how Judge King abused his discretion
11   by denying debtor’s Recusal Motion.     Therefore, any assignment
12   of error has also been waived on appeal.    Laboa v. Calderon,
13   224 F.3d 972, 981 n.6 (9th Cir. 2000) (issues not specifically
14   and distinctly argued in the appellant’s opening brief are
15   waived on appeal).    As debtor’s appeal raises no substantial
16   question, we summarily affirm Judge King’s ruling on the merits.
17   There are simply no facts in the record that could create a
18   reasonable doubt concerning the bankruptcy judge’s impartiality.
19   See Seidel v. Durkin (In re Goodwin), 194 B.R. 214, 222 (9th
20   Cir. BAP 1996) (evaluations of bias or prejudice are judged from
21   an objective perspective).
22   C.    The Order Denying Debtor’s Set Aside Motion (BAP No. 10-
           1403)
23
24         Debtor sought to set aside the Termination Judgment under
25
26        13
            We take judicial notice of the documents docketed and
27   imaged at Dkt. Nos. 353 and 354 in the underlying bankruptcy
     case. Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293
28   B.R. 227, 233 n.9 (9th Cir. BAP 2003).

                                      -24-
 1   Rule 9023.   Rule 9023 provides that a motion to alter or amend a
 2   judgment shall be filed no later than fourteen days after entry
 3   of judgment.   The bankruptcy court entered the Termination
 4   Judgment on March 3, 2010, and debtor did not file its Set Aside
 5   Motion until April 5, 2010, thirty-three days later.   Thus,
 6   debtor’s Set Aside Motion was untimely and the bankruptcy court
 7   properly denied debtor’s Set Aside Motion on this ground.
 8         Because of the untimely filing, we observe that the scope
 9   of our review in this appeal is limited to the order denying
10   debtor’s Set Aside Motion.   Debtor’s notice of appeal for BAP
11   No. 10-1403 designated and attached only the order denying its
12   Set Aside Motion, not the underlying order that resulted in the
13   Termination Judgment.14   Our 9th Cir. BAP Rule 8001(a)(1)
14   requires the notice of appeal to designate the order or judgment
15   from which an appeal is taken.    There is no reason to depart
16   from our rule when debtor’s Set Aside Motion was untimely filed.
17   Compare Wall St. Plaza, LLC v. JSJF Corp. (In re JSJF Corp.),
18   344 B.R. 94, 99 (9th Cir. BAP 2006) (Panel may depart from its
19   rule when a motion under Rule 9023 is timely filed, there is no
20   prejudice to the parties and they have fully briefed the
21   issues).15
22
          14
23          Any appeal of that Judgment on July 13, 2010, when these
     appeals were filed, would have been untimely.
24
          15
            In any event, at the hearing on these appeals, Locricchio
25   offered no satisfactory reason for not seeking an extension of
26   time to assume or reject the Lease. When questioned by the
     Panel, Locricchio explained that he did not move for an extension
27   of time because once CIC wrongly declared debtor in default of
     its payments under the Lease, debtor lost its opportunity for a
28                                                      (continued...)

                                      -25-
 1   D.    The Orders Granting CIC’s Administrative Rent Motion (BAP
           No. 10-1404) And Denying Debtor’s Rent Offset Motion (BAP
 2         No. 10-1405)
 3         Because the subject matter of the orders granting CIC’s
 4   Administrative Rent Motion and denying debtor’s Rent Offset
 5   Motion are so interrelated, we consider them together.
 6         Debtor’s briefs in these appeals include its mantra-like
 7   arguments regarding the fraudulent nature of the court’s
 8   November 9, 2009 order, the bankruptcy court’s alleged threat to
 9   deny debtor’s motion for an extension of time to assume or
10   reject the Lease, and the wrongful nature of CIC’s acts or those
11   of its counsel.   None of those arguments were directly before
12   the bankruptcy court.16   Debtor offers no other clear legal basis
13   for reversing the bankruptcy court’s decisions in its briefs.
14         Section 365(d)(3) provides:
15         The trustee shall timely perform all the obligations
           of the debtor, except those specified in section
16         365(b)(2), arising from and after the order for relief
           under any unexpired lease of nonresidential real
17         property, until such lease is assumed or rejected,
           notwithstanding section 503(b)(1) of this title. . . .
18
19   “[Section] 365(d)(3) makes clear that a debtor must perform all
20   obligations owing under a lease — particularly the obligation to
21
           15
22          (...continued)
     third party to buy out the remaining time on its Lease.
23   According to Locricchio, moving for more time was irrelevant
     because it would not bring the buyer back to life, and without a
24   buyer, debtor could not file a plan with any prospect of being
     confirmed. Because of these statements, it is difficult to
25   ascertain the reason for debtor’s appeal of the order denying its
26   motion to set aside the Termination Judgment.
          16
27          As mentioned by the bankruptcy court in its May 27, 2010
     Memorandum Decision, debtor did not file an opposition to CIC’s
28   Administrative Rent Motion.

                                    -26-
 1   pay rent at the contract rate — until the lease is rejected.”
 2   Pac. Shores Dev., LLC v. At Home Corp. (In re At Home Corp.),
 3   392 F.3d 1064, 1068 (9th Cir. 2004).    If a debtor fails to
 4   timely pay postpetition rent, the lessor’s right to payment
 5   becomes an administrative claim for the accrued liability on the
 6   unpaid rent.   See Towers v. Chickering & Gregory (In re
 7   Pacific-Atlantic Trading Co.), 27 F.3d 401, 403–405 (9th Cir.
 8   1994).   Accordingly, through the plain language of § 365(d)(3)
 9   and Ninth Circuit case law, CIC was entitled to an
10   administrative claim for the unpaid postpetition rent as a
11   matter of law.
12        Moreover, nowhere did debtor cite any authority which
13   supported its request for an offset of postpetition rent.
14   Debtor could not use § 553 for several reasons.    Section 553
15   does not establish independent setoff rights in bankruptcy but
16   merely preserves setoff rights to the same extent they are
17   allowed under state law.    United States v. Gould (In re Gould),
18   401 B.R. 415, 423 (9th Cir. BAP 2009), aff’d, 603 F.3d 1100 (9th
19   Cir. 2010).    Debtor has pointed to no Hawaii law which would
20   authorize offset under these circumstances.    Further, the Lease
21   contained a provision that prohibited the abatement of rent:
22   “Non-abatement of Rent.     Except as otherwise provided herein the
23   rent shall not abate, diminish or cease.”    Thus, the Lease does
24   not authorize the abatement of rent on these facts and debtor
25   has not argued otherwise.
26        In addition, the plain language of § 553 demonstrates that
27   the statute is inapplicable.    Section 553 states that a creditor
28   may assert setoff as a defense to a claim brought by the debtor

                                      -27-
 1   against a creditor.    Carolco Television, Inc. v. Nat’l Broad.
 2   Co. (In re De Laurentiis Entm’t Grp. Inc.), 963 F.2d 1269, 1277
 3   (9th Cir. 1992) (emphasis in original).       Here, debtor is
 4   asserting offset as a defense to CIC’s claim for postpetition
 5   rent.     Finally, § 553 requires that “each debt or claim sought
 6   to be offset must have arisen prior to the filing of the
 7   bankruptcy petition.”    United States v. Carey (In re Wade Cook
 8   Fin. Corp.), 375 B.R. 580, 594 (9th Cir. BAP 2007).       Debtor
 9   seeks to offset the prepetition rent paid by Tony Honda to CIC
10   against its obligation to pay postpetition rent under
11   § 365(d)(3).    Plainly debtor cannot meet the timing requirement
12   under the statute.17
13           In reality, debtor’s offset argument is a bit of a red
14   herring.    It was unnecessary for the court to resolve whether
15   debtor was entitled to offset its postpetition rent owed to CIC
16   against CIC’s alleged wrongful collection of prepetition rents
17   from Tony Honda before granting CIC’s Administrative Rent
18   Motion.    CIC’s administrative rent claim was far greater than
19   what debtor had in its account.18       Debtor sought a credit or
20
21        17
            The bankruptcy court’s May 27, 2010 Memorandum Decision
22   does not discuss § 553. Debtor may have been able to rely on
     § 558 which provides that “[t]he estate shall have the benefit of
23   any defense available to the debtor as against any entity other
     than the estate . . . .” However, nowhere did debtor provide any
24
     authority that it had setoff rights under state law. See In re
25   PSA, Inc., 277 B.R. 51, 54 (Bankr. D. Del. 2002) (holding that “a
     right to setoff must be established under state law so that the
26   debtor then may assert the setoff as a defense reserved by
     § 558.”).
27
          18
            Debtor never opened a debtor-in-possession bank account.
28
     Instead, monies were held in Locricchio’s trust account.

                                      -28-
 1   offset of $85,000 in its Rent Offset Motion; however, the amount
 2   of CIC’s administrative rent claim was $307,975.68 and the
 3   amount remaining in debtor’s account was $95,218.54.   Therefore,
 4   even if the court allowed the $85,000 offset as debtor
 5   requested, debtor’s estate would still owe CIC a substantial
 6   amount in administrative rent.
 7        Finally, because the court denied Locricchio’s fees — a
 8   decision which we affirm on appeal — there were no other allowed
 9   and unpaid administrative expenses asserted against debtor’s
10   estate.   Therefore, CIC was entitled to all the funds in
11   debtor’s estate as of the date of the dismissal despite debtor’s
12   asserted offset.   In sum, we discern no errors in the bankruptcy
13   court decision to grant CIC’s Administrative Rent Motion and
14   deny debtor’s Rent Offset Motion.
15   E.   The Order Denying Locricchio’s Fee Application (BAP No. 10-
          1284)
16
17        The UST filed a motion to dismiss Locricchio’s appeal of
18   the order denying his Fee Application on the ground that it was
19   untimely.   Citing In re Strand, 375 F.3d at 858, the motions
20   panel denied the UST’s motion on the grounds that the fee order
21   was interlocutory, the appeal of which became timely by the
22   July 13, 2010 order dismissing debtor’s case
23        On appeal, the UST again raises the issue whether this
24   court has jurisdiction over the appeal of the bankruptcy court’s
25   order denying Locricchio’s Fee Application because it was
26   untimely.   The UST incorporates her arguments concerning lack of
27   jurisdiction in her previously filed motion to dismiss and
28   argues that the facts in In re Strand are distinguishable from

                                      -29-
 1   those in this case.      In In re Strand, the court approved an
 2   initial fee application of $22,012.50 but authorized payment of
 3   $16,510.   The attorney then filed a second, final fee request.
 4   The Ninth Circuit held it was proper for the bankruptcy court to
 5   adjust its first award when determining the final compensation
 6   amount.    Id. at 858.
 7        While we give deference to motions panel decisions made in
 8   the course of the same appeal, we have an independent duty to
 9   decide whether we have jurisdiction.      Couch v. Telescope, Inc.,
10   611 F.3d 629, 632 (9th Cir. 2010).       In re Strand holds that
11   orders determining interim compensation in an ongoing bankruptcy
12   proceeding are generally considered interlocutory in nature.
13   375 F.3d at 858.   However, the interim nature of Locricchio’s
14   fee request was rendered final by the entry of the July 13,
15   2010, order dismissing debtor’s case.      See Worldwide Church of
16   God v. Phila. Church of God, Inc., 227 F.3d 1110, 1114 (9th Cir.
17   2000) (noting that prior interlocutory orders are “merged into
18   final judgment”); Munoz v. Small Bus. Admin., 644 F.2d 1361,
19   1364 (9th Cir. 1981) (noting that “an appeal from the final
20   judgment draws in question all earlier non-final orders and all
21   rulings which produced the judgment”).      Therefore, Locricchio’s
22   appeal was timely and we have jurisdiction to consider its
23   merits.
24        Locricchio again incorporates the arguments made in all
25   these appeals regarding the bankruptcy judge’s bias against
26   debtor.    Locricchio also vaguely refers to a due process
27   violation that he describes as an “ambush.”      According to
28   Locricchio, the court stated in its tentative ruling that it

                                       -30-
 1   would not decide his Fee Application and then, at the hearing,
 2   the court changed its ruling and denied his fees.   Locricchio
 3   contends that he should have been allowed to amend and add to
 4   his application.
 5        The facts alleged by Locricchio do not constitute a due
 6   process violation.   “The fundamental requisite of due process of
 7   law is the opportunity to be heard ‘at a meaningful time and in
 8   a meaningful manner.’”   Mathews v. Eldridge, 424 U.S. 319, 333
 9   (1976).    Our review of the record shows Locricchio had ample
10   opportunity to amend and add to his application after the UST
11   objected to it.    The Fee Application was filed on February 4,
12   2010 and the UST objected on February 25, 2010.   Since the
13   hearing was postponed until after the Recusal Motion was
14   determined, Locricchio had over two months to amend his
15   application before the hearing on May 24, 2010.   Per the local
16   bankruptcy rules, replies are due seven days before a hearing.
17   As a consequence, Locricchio’s reply was due before the
18   bankruptcy court issued its tentative ruling.   Furthermore,
19   Locricchio had the opportunity to present oral argument at the
20   hearing.   Under these circumstances, the court gave Locricchio
21   his full due process rights.
22        The legal standard to determine the allowance of fees
23   involves statutory interpretation and construction of § 330(a).
24   Ferrette & Slater v. U.S. Tr. (In re Garcia), 335 B.R. 717, 722
25   (9th Cir. BAP 2005).   Under § 330(a)(1), after notice and a
26   hearing, the court may award an attorney employed under § 327:
27        (A) reasonable compensation for actual, necessary
          services rendered by the . . . attorney . . .; and
28

                                     -31-
 1        (B) reimbursement for actual, necessary expenses.
 2   Under § 330(a)(2), “the court may . . . award compensation that
 3   is less than the amount of compensation that is requested.”    In
 4   turn, § 330(a)(3) provides:
 5        In determining the amount of reasonable compensation
          to be awarded, the court shall consider the nature,
 6        the extent, and the value of such services, taking
          into account all relevant factors, including–
 7
          (A) the time spent on such services;
 8        (B) the rates charged for such services;
          (C) whether the services were necessary to the
 9        administration of, or beneficial at the time at which
          the service was rendered toward the completion of, a
10        case under this title;
          (D) whether the services were performed within a
11        reasonable amount of time commensurate with the
          complexity, importance, and nature of the problem,
12        issue, or task addressed; and
          (E) whether the compensation is reasonable based on
13        the customary compensation charged by comparably
          skilled practitioners in cases other than cases under
14        this title.
15   Finally, § 330(a)(4) provides that “the court shall not allow
16   compensation for . . .(ii) services that were not —
17   (I) reasonably likely to benefit the debtor’s estate; or
18   (II) necessary to the administration of the case.”
19        The record shows that the court applied the correct legal
20   standards when making its ruling.     First, the record supports
21   the court’s factual finding that Locricchio’s services did not
22   benefit the estate.   Locricchio missed a crucial deadline that
23   caused debtor to lose the main asset of its estate.
24   Nonetheless, it is plainly evident from the record in these
25   appeals that Locricchio seeks to blame everyone else for his
26   misstep rather than accept responsibility.
27        Second, even under the most lenient standards, Locricchio’s
28   billing statements were woefully inadequate.    He simply

                                    -32-
 1   describes his services as a two-hour “meeting with Jim Slemons”
 2   or a three hour “meeting re Reorganization Plan.”    Other time
 3   entries simply give the date, the amount of time, and the name
 4   of the document worked on.   There simply was not enough detail
 5   for the court to determine whether the fees requested were
 6   reasonable.
 7        Locricchio had the burden of proof to demonstrate
 8   entitlement to the requested fees, which includes providing the
 9   proper documentation for the time worked.    Hensley v. Eckerhart,
10   461 U.S. 424, 437 (1983).    The record shows that Locricchio
11   failed to meet his burden of proof.     Accordingly, we discern no
12   error with the court’s decision to deny his fees in their
13   entirety.
14   F.   The Order Granting the UST’s Dismissal Motion (BAP No. 10-
          1284)
15
16        Section 1112(b)(1) provides that a bankruptcy court shall
17   convert or dismiss a case, whichever is in the best interests of
18   creditors and the estate, if “cause” is established.    The
19   “substantial or continuing loss to or diminution of the estate
20   and the absence of a reasonable likelihood of rehabilitation”
21   constitute “cause” to dismiss a chapter 11 case.
22   § 1112(b)(4)(A).
23        Here, the UST moved to dismiss debtor’s case due to its
24   loss of the Lease.   Debtor did not oppose the UST’s motion in
25   the bankruptcy court nor does it argue on appeal that the
26   dismissal itself was improper.    Debtor’s only challenge to the
27   order on appeal rests on its assertion that the court improperly
28   retained jurisdiction to enforce its directive to debtor and

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 1   Locricchio to remit the estate’s cash to CIC as partial
 2   satisfaction of its administrative rent claim.19   A bankruptcy
 3   court has ancillary jurisdiction to enforce its own orders.    Sea
 4   Hawk Seafoods, Inc. v. State of Alaska (In re Valdez Fisheries),
 5   439 F.3d 545, 549 (9th Cir. 2006).
 6         Therefore, based on the record before us, we summarily
 7   affirm the court’s decision to dismiss debtor’s case.
 8                            VI.   CONCLUSION
 9         Having determined that there is no basis for reversal for
10   any of the court’s decisions, we AFFIRM each of the orders on
11   appeal.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
          19
27          The order dismissing the case specifically stated that
     the court was retaining jurisdiction to enforce the payment of
28   administrative rent.

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