                                                        FILED
 1                                                       MAY 29 2013
                                                     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   In re:                        )      BAP No. CC-12-1636-DKiTa
                                   )
 6   LSSR, LLC,                    )      Bk. No. 12-24557-VZ
                                   )
 7                  Debtor.        )
     ______________________________)
 8                                 )
     BANK OF AMERICA, N.A.,        )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      M E M O R A N D U M1
11                                 )
     LSSR, LLC,                    )
12                                 )
                    Appellee.      )
13   ______________________________)
14                    Argued and Submitted on May 15, 2013
                             at Pasadena, California
15
                              Filed - May 29, 2013
16
               Appeal from the United States Bankruptcy Court
17                 for the Central District of California
18       Honorable Vincent P. Zurzolo, Bankruptcy Judge, Presiding
19
     Appearances:     Teresa H. Pearson of Miller Nash LLP argued for
20                    Appellant, Bank of America, N.A.; David B.
                      Golubchik of Levene, Neale, Bender, Yoo & Brill
21                    LLP argued for Appellee, LSSR, LLC.
22
23   Before:   DUNN, KIRSCHER and TAYLOR, Bankruptcy Judges.
24
25
26        1
            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        Bank of America sought relief from the automatic stay as to
 2   certain real property owned by the debtor, LSSR, LLC.2   The
 3   bankruptcy court denied without prejudice Bank of America’s
 4   request for relief from stay on the ground that Bank of America
 5   failed to serve its motion for relief from the stay (“Motion”)
 6   properly on the 20 largest unsecured creditors, among other
 7   reasons.3
 8        We AFFIRM.
 9
10                                 FACTS
11        The debtor owns several acres of undeveloped real property
12   located in Lincoln City, Oregon (“Lincoln City property”).4    The
13
          2
14          Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
15   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
16        3
            The bankruptcy court actually denied Bank of America’s
17   Motion on at least two grounds; it also denied relief from stay
     because the debtor timely made payment to Bank of America through
18   one of the debtor’s affiliates. Because we determine that the
19   bankruptcy court did not abuse its discretion in granting relief
     from stay on the first ground and because we may affirm on any
20   ground supported by the record, see Shanks v. Dressel, 540 F.3d
     1082, 1086 (9th Cir. 2008), we need not reach the merits of any
21
     other grounds.
22
          4
            The debtor is an Oregon limited liability company with its
23   principal office located in Portland, Oregon. Mark Hemstreet
     (“Hemstreet”) is the debtor’s principal and sole member. Shilo
24
     Management Corporation (“SMC”), the debtor’s management company,
25   has its principal office in Portland, Oregon.
          According to Bank of America, the debtor filed its
26   chapter 11 petition in the Central District of California because
27   one of its affiliates, Shilo Inn, Seaside Oceanfront, LLC (“Shilo
     Inn”), filed its own chapter 11 petition there (11-34669) on
28                                                      (continued...)

                                     2
 1   Lincoln City property consists of two adjacent lots, with one lot
 2   encumbered by a trust deed held by Bank of America.   Bank of
 3   America’s trust deed also encumbers other real properties owned
 4   by the debtor’s affiliates, JDCK, LLC (“JDCK”) and Troy Lodge,
 5   LLC (“Troy Lodge”)(collectively, “affiliates”).5
 6        Hemstreet owns 100% of the debtor.   SMC manages the debtor,
 7   JDCK and Troy Lodge.
 8        A few years prepetition, Bank of America initiated a state
 9   court action against Hemstreet, SMC, the debtor and its
10   affiliates for failing to make payments on the trust deed
11   obligation.   Bank of America, Hemstreet, SMC, the debtor and its
12
          4
           (...continued)
13
     June 7, 2011. See Bank of America, N.A.’s Motion to Dismiss
14   Debtor or Alternatively, to Transfer Venue, docket no. 30. Shilo
     Inn operates a hotel in Seaside, Oregon.
15        Shilo Inn apparently filed its chapter 11 bankruptcy
16   petition in the Central District of California because it had
     several affiliates that filed their own chapter 11 bankruptcy
17   petitions in the same district. Bank of America sought to
     transfer venue of the debtor’s bankruptcy case to Portland,
18   Oregon, but the bankruptcy court denied its request. See Order
19   Denying Motion to Dismiss Bankruptcy Case or, Alternatively,
     Transfer Venue, docket no. 73.
20
          5
             According to the debtor’s Schedule D, Bank of America’s
21   trust deed is “secured by numerous [real] properties of Debtor’s
22   affiliates.” (Emphasis added.) The debtor listed Shilo Inn as
     its only affiliate on its petition.
23         Our search on the bankruptcy court’s electronic docket
     revealed, however, two associated cases filed by JDCK (12-36468)
24
     and Troy Lodge (12-26469). JDCK and Troy Lodge both list the
25   debtor and Shilo Inn as affiliates. Hemstreet owns 100% of JDCK
     and Troy Lodge. SMC manages both JDCK and Troy Lodge.
26         On June 4, 2012, the bankruptcy court entered an order for
27   joint administration of the bankruptcy cases of the debtor, Troy
     Lodge and JDCK, with the debtor’s bankruptcy case as the lead
28   case.

                                      3
 1   affiliates eventually resolved the state court action under a
 2   “Covenant Not to Execute” (“covenant”).
 3        Under the covenant, Bank of America agreed to dismiss
 4   without prejudice the state court action in exchange for
 5   scheduled payments from Hemstreet, SMC, the debtor and its
 6   affiliates.   In turn, they agreed to enter into a confession of
 7   judgment (“Confession Judgment”) as to the amounts due Bank of
 8   America.    Bank of America recorded the Confession Judgment on
 9   September 21, 2011.
10        Under the Confession Judgment, Hemstreet, SMC, the debtor
11   and its affiliates were jointly and severally liable to Bank of
12   America in the principal amount of $5,049,778.93.   The
13   prejudgment interest rate was
14        at a variable interest rate computed by taking the sum
          of 4% per annum and the interest rate from time to time
15        published in the ‘Money Rates’ section of the Wall
          Street Journal as the ‘Dealer Commercial Paper’ rate
16        for 30-day high grade unsecured notes sold through
          dealers by major corporations, which interest rate
17        changes as of the date of publication in the Wall
          Street Journal of a 30-day dealer commercial paper rate
18        that is different from that published on the preceding
          business day (the “Contract Interest Rate”).
19
20        The postjudgment interest rate was “simple interest at at
21   [sic] the Contract Interest Rate or the rate of [9%] per annum,
22   whichever [was] greater.”
23        If Hemstreet, SMC, the debtor and its affiliates failed to
24   make any scheduled payment and to cure any default, Bank of
25   America could file the Confession Judgment in state court.    Bank
26   of America also could take any action to enforce the Confession
27   Judgment.
28        The debtor filed its chapter 11 bankruptcy petition on


                                       4
 1   April 25, 2012.   Notably, a sheriff’s sale of the Lincoln City
 2   property had been scheduled for April 26, 2012.    The bankruptcy
 3   court entered an order determining that the debtor was a single
 4   asset real estate debtor (“single asset debtor order”) on
 5   September 17, 2012.
 6        In addition to Bank of America, the debtor scheduled the
 7   Lincoln County Tax Assessor as the only other secured creditor.
 8   It scheduled the Internal Revenue Service (“IRS”) for notice
 9   purposes.   The debtor scheduled two general unsecured creditors
10   only: Clark Signs and Green & Markley, PC (“Green & Markley”), a
11   law firm based in Portland, Oregon.   It named these general
12   unsecured creditors on its “List of Creditors Holding 20 Largest
13   Unsecured Claims” (“20 Largest Unsecured Creditors List”).     No
14   unsecured creditors committee was appointed.
15        SMC sent Bank of America a check, dated September 27, 2012,
16   in the amount of $7,784.   The check named another one of the
17   debtor’s affiliates, Shilo Franchise International, LLC (“SFI”),
18   as the account payable obligor.
19        SMC enclosed with the check a letter, also dated
20   September 27, 2012.   In the letter, SMC referenced the debtor and
21   its bankruptcy case number, as well as SMC’s customer number.
22   SMC also stated in the letter that the check amount
23   “constitut[ed] the monthly interest payment for the above-
24   referenced customer number” and asked that Bank of America “apply
25   the interest payment accordingly.”    Bank of America accepted the
26   check, applying the payment to debt owed by SMC.
27        On October 19, 2012, Bank of America filed its Motion under
28

                                       5
 1   § 362(d)(3)(B) as to the Lincoln City property.6
 2        In the Motion, Bank of America contended that the debtor had
 3   made no payments to it since the petition date.    It provided a
 4   copy of the check, pointing out that the check was not from the
 5   debtor’s bank account but from that of its affiliate, SFI.
 6   Because the check came from SFI and not from the debtor directly,
 7   Bank of America argued that the debtor failed to pay Bank of
 8   America pursuant to § 362(d)(3)(B).
 9        Bank of America further contended that the amount of the
10   check was not “equal to the then-applicable non-default contract
11   rate of interest on the value of [its] interest in the [Lincoln
12   City property].”   It claimed that the appropriate interest
13   payment amount due was $14,625.7
14
15        6
            At the time Bank of America filed the Motion, the debtor
16   had not filed its disclosure statement or its chapter 11 plan.
     The debtor filed its initial disclosure statement and chapter 11
17   plan on December 6, 2012. It filed amended disclosure statements
     and chapter 11 plans on January 16, 2013, March 7, 2013, and
18   April 11, 2013. See docket nos. 210, 238 and 255. A hearing has
19   been set for June 6, 2013, for approval of the second amended
     disclosure statement (docket no. 255).
20        Under § 362(d)(3), a debtor must either file a confirmable
     chapter 11 plan or commence monthly payments not later than
21
     90 days after entry of the order for relief (the bankruptcy
22   filing date) or within 30 days after the court determines that
     the debtor is a single asset real estate debtor, whichever occurs
23   later. Here, the debtor either had to file its chapter 11 plan
24   or start monthly payments by October 17, 2012. The debtor filed
     its chapter 11 plan more than a month past the October 17, 2012
25   deadline.
26        7
            To determine the monthly interest payment amount, Bank of
27   America took the value of the Lincoln City property, which its
     appraiser estimated to be $1.95 million, and multiplied it by 9%
28                                                      (continued...)

                                        6
 1        Bank of America included a proof of service with its Motion.
 2   The proof of service indicated that Bank of America served a copy
 3   of the Motion by U.S. Mail, first class, postage prepaid, on the
 4   debtor, its attorney, the Lincoln County Tax Assessor, Hemstreet,
 5   Clark Signs and Green & Markley.8     With respect to Clark Signs
 6
 7        7
           (...continued)
 8   per annum divided by 12 months.
          8
 9          The proof of service also listed the United States Trustee
     (“UST”) and the IRS among the parties served with the Motion.
10        LBR 2002-2(a)(1) of the Local Bankruptcy Rules (“LBR”) of
11   the United States Bankruptcy Court for the Central District of
     California requires that “a copy of any document filed by a
12   person or entity in a bankruptcy case or adversary proceeding
     under chapters 7, 9, or 11 must be served upon the [UST].”
13        LBR 2002-2(b) provides, in relevant part, that “the United
14   States attorney for [the Central District of California] has
     waived notice under FRBP 2002(j).”
15        LBR 2002-2(c)(1) provides that “[e]xcept with respect to
     contested matters or adversary proceedings (where service must
16
     comply with the requirements of FRBP 7004 and LBR 2002-2(c)(2)),
17   or as otherwise ordered by the court, the United States [IRS]
     must be served at the address . . . contained in the Court Manual
18   . . . .” LBR 2002-2(c)(2) requires that “[i]n all contested
19   matters and adversary proceedings involving the United States
     [IRS], the United States, the Attorney General in Washington,
20   D.C., and the United States attorney in Los Angeles must be
     served at addresses listed in the Register of Federal and State
21   Governmental Unit Addresses contained in the Court Manual
22   available from the clerk and on the court’s website.”
          Appendix D of the Court Manual lists the addresses of
23   various state and federal government agencies and offices,
     including the United States Attorney General, the United States
24
     Civil Process Clerk, the IRS and the local offices of the UST.
25        Bank of America properly served the IRS and the UST at its
     local office in Los Angeles, California, as listed in Appendix D
26   of the Court Manual. Although the IRS was listed in the proof of
27   service, Bank of America did not serve the United States, the
     United States attorney or the Attorney General, presumably in
28                                                      (continued...)

                                       7
 1   and Green & Markley, Bank of America provided their addresses,
 2   but did not name any individual, such as an officer or a
 3   registered agent.9
 4        The debtor opposed the Motion, arguing that it timely paid
 5   the correct amount to Bank of America.   It stressed that Bank of
 6   America did not explain why the payment amount was incorrect or
 7   provide the correct payment amount.    The debtor also contended
 8   that, although the check was from SFI’s bank account, it was made
 9   as a payment on the debtor’s behalf.
10        The bankruptcy court held a hearing on the Motion on
11   November 13, 2012.   It issued its ruling orally, denying the
12   Motion without prejudice on two grounds.
13        First, the bankruptcy court determined that Bank of America
14   failed to serve the Motion properly because it did not serve the
15   20 largest unsecured creditors as required under the Rules.
16   However, it did not cite the specific Rule on which it relied in
17   making its determination.   The bankruptcy court looked to the
18   proof of service, noting that it “[did] not state the capacity or
19   establish that that obligation of service with regards to the
20
21        8
           (...continued)
22   accordance with LBR 2002-2(b) and (c)(2) as the IRS was not
     involved in the Motion.
23
          9
            Both the 20 Largest Unsecured Creditors List and the proof
24
     of service state these names and addresses as follows:
25
          Green & Markley, P.C.
26        1515 SW Fifth Avenue, Ste. 600, Portland, OR 97201
27
          Clark Signs
28        31321 Signs Drive, Deer Island, OR 97054

                                      8
 1   holders of the 20 largest unsecured claims [had] been met.”
 2   Tr. of November 13, 2012 hr’g, 4:4-6.
 3        Second, the bankruptcy court determined that the debtor made
 4   a payment to Bank of America as required under § 362 for single
 5   asset real estate cases, even though SMC tendered the payment on
 6   the debtor’s behalf.
 7        The bankruptcy court acknowledged that the debtor and Bank
 8   of America disagreed as to the correct payment amount.    But it
 9   believed that such a dispute was “the subject of an adversary
10   proceeding for declaratory relief [that] would need to be
11   adjudicated first before [the bankruptcy court] could make a
12   determination as to whether or not the amount tendered was
13   adequate.”   Tr. of November 13, 2012 hr’g, 4:19-22.
14        On December 3, 2012, the bankruptcy court entered an order
15   consistent with its ruling.   Bank of America timely appealed.
16
17                               JURISDICTION
18        The bankruptcy court had jurisdiction under 28 U.S.C.
19   §§ 1334 and 157(b)(2)(G).   We have jurisdiction under 28 U.S.C.
20   § 158.
21
22                                  ISSUE
23        Did the bankruptcy court abuse its discretion in denying
24   Bank of America’s Motion?
25
26                           STANDARDS OF REVIEW
27        We review de novo a bankruptcy court’s interpretation of the
28   Bankruptcy Code, as it presents a question of law.     Meruelo

                                      9
 1   Maddux Properties-760 S. Hill Street LLC v. Bank of America, N.A.
 2   (In re Meruelo Maddux Props., Inc.), 667 F.3d 1072, 1076 (9th
 3   Cir. 2012).   We review the bankruptcy court’s factual findings
 4   for clear error.   Id.
 5        We review the bankruptcy court’s decision to deny relief
 6   from stay for an abuse of discretion.    Gruntz v. County of Los
 7   Angeles (In re Gruntz), 202 F.3d 1074, 1084 n.9 (9th Cir. 2000).
 8   We apply a two-part test to determine objectively whether the
 9   bankruptcy court abused its discretion.   United States v.
10   Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc).      First,
11   we “determine de novo whether the bankruptcy court identified the
12   correct legal rule to apply to the relief requested.”    Id.
13   Second, we examine the bankruptcy court’s factual findings under
14   the clearly erroneous standard.    Id. at 1262 & n.20.   A
15   bankruptcy court abuses its discretion if it applied the wrong
16   legal standard or its factual findings were illogical,
17   implausible or without support in the record.   TrafficSchool.com
18   v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
19        We may affirm on any ground supported by the record.      Shanks
20   v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
21
22                               DISCUSSION
23        On appeal, Bank of America contends that the bankruptcy
24   court abused its discretion in denying relief from stay by
25   finding that Bank of America did not properly serve the Motion on
26   the 20 largest unsecured creditors.    Bank of America insists that
27   it properly served the Motion by serving the Motion on each and
28   every one of the creditors scheduled by the debtor.

                                       10
 1        It is true that Bank of America mailed the Motion to each
 2   and every creditor scheduled by the debtor.   The problem lies in
 3   the fact that Bank of America did not serve these creditors
 4   pursuant to the Rules and the LBRs.
 5        In a chapter 11 case, Rule 4001(a)(1) requires a motion for
 6   relief from stay to be served on the debtor and its attorney and
 7   any committee of unsecured creditors (“unsecured creditors
 8   committee”) appointed by the UST pursuant to § 1102 or its
 9   authorized agent.10   If no unsecured creditors committee has been
10   appointed, the motion for relief from stay must be served on the
11   creditors holding the 20 largest unsecured claims as listed
12   pursuant to Rule 1007(d).11   LBR 4001-1(c)(1)(B)(v) also requires
13   that the motion for relief from stay be served on any party
14   entitled to notice under Rule 4001.
15        Additionally, because a motion for relief from stay is a
16   contested matter under Rule 9014, it must be served pursuant to
17   Rule 7004(b).   See Rules 4001(a)(1) and 9014(b).12
18   Rule 7004(b)(3) requires service on a domestic corporation or a
19
20        10
            Section 1102(a)(1) provides, in relevant part, that “the
21   [UST] shall appoint a committee of creditors holding unsecured
     claims and may appoint additional committees of creditors or of
22   equity security holders as the [UST] deems appropriate.”
23        11
            Rule 1007(d) provides, in relevant part, that, “a debtor
24   in a voluntary chapter 11 reorganization case shall file with the
     petition a list containing the name, address and claim of the
25   creditors that hold the 20 largest unsecured claims, excluding
     insiders, as prescribed by the appropriate Official Form.”
26
          12
27          Rule 9014(b) provides, in relevant part, that in
     contested matters, “[t]he motion must be served in the manner
28   provided for service of a summons and complaint by Rule 7004.”

                                      11
 1   partnership to be made by mailing a copy of the motion for relief
 2   from stay “to the attention of an officer, a managing or general
 3   agent, or to any other agent authorized by appointment or by law
 4   to receive service of process . . . .”   LBR 9013-3(c) moreover
 5   requires that the proof of service “explicitly indicate[] how
 6   each person who is listed on the proof of service is related to
 7   the case . . . .”
 8        “Unless all of the specified entities are served properly
 9   under the rules, the court should decline to grant the relief
10   requested.”   9 Collier on Bankruptcy ¶ 4001.02[4](Alan N. Resnick
11   & Henry J. Sommer, eds., 16th ed. 2013)(citing In re Safon
12   Ochart, 74 B.R. 131, 133 (Bankr. D.P.R. 1986)).     Here, Bank of
13   America did not indicate on the proof of service that it mailed
14   the Motion to the attention of an officer, a managing or general
15   agent or any other authorized agent of Clark Signs and Green &
16   Markley as required under Rule 7004(b)(3), LBR 4001-1(c)(1)(B)(v)
17   and 9013-3(c).   Bank of America failed to comply with the service
18   requirements set forth under both the Rules and the LBRs.    The
19   bankruptcy court therefore did not abuse its discretion in
20   denying without prejudice Bank of America’s Motion.
21
22                               CONCLUSION
23        For the foregoing reason, we determine that the bankruptcy
24   court did not abuse its discretion in denying Bank of America
25   relief from the automatic stay without prejudice.    We AFFIRM.
26
27
28

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