                                                            FILED
                                                             MAR 17 2014
 1
                                                         SUSAN M. SPRAUL, CLERK
                                                           U.S. BKCY. APP. PANEL
 2                                                         OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )       BAP No. CC-13-1368-TaKuPa
                                   )
 6   MATTHEW F. GALLAGHER and      )      Bk. No. 12-10213-NB
     MELISSA A. GALLAGHER,         )
 7                                 )
                    Debtors.       )
 8   ______________________________)
     MATTHEW F. GALLAGHER;         )
 9   MELISSA A. GALLAGHER,         )
                                   )
10                  Appellants,    )
                                   )
11   v.                            )       MEMORANDUM*
                                   )
12   KATHY A. DOCKERY, Chapter 13 )
     Trustee; BOROWITZ & CLARK LLP,)
13                                 )
                    Appellees.     )
14   ______________________________)
15                  Argued and Submitted on February 20, 2014
                             at Pasadena, California
16
                             Filed - March 17, 2014
17
                 Appeal from the United States Bankruptcy Court
18                   for the Central District of California
19            Honorable Neil W. Bason, Bankruptcy Judge, Presiding
                        ________________________________
20
     Appearances:     Appellant Melissa A. Gallagher argued pro se;
21                    Akihito Koyama on brief for Appellee, Kathy A.
                      Dockery, Chapter 13 Trustee; Michael Erik Clark,
22                    Nancy Bonaccorso Clark and Shannon A. Doyle of
                      Borowitz & Clark, LLP, on brief for Appellee,
23                    Borowitz & Clark, LLP.
                        ________________________________
24
     Before: TAYLOR, PAPPAS, and KURTZ, Bankruptcy Judges.
25
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                               INTRODUCTION
 2        Debtors Matthew and Melissa Gallagher retained appellee
 3   Borowitz & Clark, LLP (the "Firm") as bankruptcy counsel in a
 4   chapter 131 case.    The Firm represented Debtors until the
 5   bankruptcy court sustained objections to Debtors’ amended
 6   chapter 13 plan and then substituted out of the case.    It
 7   obtained a fee award, but only after the bankruptcy court
 8   converted the case to a chapter 7 proceeding.    The bankruptcy
 9   court later reconverted the case to chapter 13.    This appeal
10   stems from a post-reconversion order2 (the “Turnover Order”)
11   requiring that Debtors return to Chapter 13 Trustee Kathy Dockery
12   the plan payments that she refunded to them after the initial
13   conversion.    The Chapter 13 Trustee sought return pursuant to
14   § 105(a) and for the specific and sole purpose of paying the
15   Firm's fees.   The bankruptcy court granted the Chapter 13
16   Trustee’s request – not under § 105(a) but under § 542 – and, in
17   addition to ordering turnover, provided the Firm with immediate
18   collection rights.
19        We determine that the bankruptcy court erred, as a matter of
20   law, and, therefore, we REVERSE.
21                                   FACTS
22        The relevant facts are not in dispute.     Debtors filed their
23
          1
             Unless specified otherwise, all chapter and section
24   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
     all “Rule” references are to the Federal Rules of Bankruptcy
25   Procedure, Rules 1001-9037.
26        2
             Debtors’ notice of appeal states that they appeal from
     the Memorandum Decision Holding Debtors Jointly and Severally
27   Liable Under 11 U.S.C. [§] 542, which the bankruptcy court
     entered on July 22, 2012, the same day that it issued the
28   Turnover Order.
                                     - 2 -
 1   petition pro se, but subsequently retained the Firm which filed
 2   an amended chapter 13 plan and responded extensively to plan
 3   objections filed by Debtors’ mortgage lender, U.S. Bank.     The
 4   Debtors challenged the mortgage debt on their residence on
 5   multiple grounds.3   The bankruptcy court ultimately sustained
 6   U.S. Bank's objections in a memorandum decision entered on
 7   July 12, 2012.    It then held two hearings on July 17, 2012.
 8   Debtors did not appear at either hearing, but the Firm appeared
 9   at both.
10        At the first hearing, the Firm advised the bankruptcy court
11   that the Firm no longer represented the Debtors.   It then
12   disclosed that the Debtors did not make their July plan payment.
13   In response, the bankruptcy court converted the case to a
14   chapter 7 case.
15        At the second hearing, held in connection with U.S. Bank’s
16   relief from stay motion, the Firm appeared on behalf of Debtors.
17   U.S. Bank advised the bankruptcy court that it would accept its
18   tentative ruling, which provided for a four-week continuance to
19   allow U.S. Bank to supplement the record, but asked that Debtors
20   resume regular payments in the interim.   The Firm then disclosed
21   that the Debtors could not do so.   In response, the bankruptcy
22   court granted stay relief.
23        The following day, the Firm filed an application for
24   approval of supplemental attorney’s fees.   No one objected to
25
26        3
             We take judicial notice of the documents on the
     bankruptcy court’s electronic docket in the bankruptcy case. See
27   O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d
     955, 957-58 (9th Cir. 1989) (reviewing court may take judicial
28   notice of underlying bankruptcy documents).
                                     - 3 -
 1   this request, and the bankruptcy court later entered an order
 2   (the “Fee Order”) awarding fees in the amount of $17,415.21.     Two
 3   weeks before entry of the Fee Order, however, the bankruptcy
 4   court entered the order converting the case (the “Conversion
 5   Order”).   The bankruptcy court, therefore, modified the Fee Order
 6   by striking “13" and inserting “7," to provide that the
 7   “Chapter 7 Trustee is directed to pay” the allowed fees from the
 8   estate, funds permitting and subject to § 726(b).4   Fee Order
 9   (dkt. #67).
10        Shortly thereafter, the Chapter 13 Trustee filed and served
11   her Notice of Intent to File Trustee’s Final Report and Account
12   (“Notice of Intent”).   The Notice of Intent provided an objection
13   period of thirty days after the service date of August 23, 2012.
14   The first page of the attachment to the Notice of Intent
15   disclosed that the Firm did not hold an allowed claim.    The
16   second page identified $8,297.00 as “Debtor Refunds.”    The
17   Chapter 13 Trustee also mailed a check for $8,297.00 (the
18   "Refund") to the Debtors on August 23, 2012; the Debtors promptly
19   cashed it.
20        Seven days later, and before termination of the 30-day
21   notice period, the Chapter 13 Trustee filed a declaration
22   (purportedly executed the next day, August 31, 2012) and stated
23   under penalty of perjury that she had received no objection to
24   the Notice of Intent within the period permitted by Rule 5009.
25   She filed her Final Report and Account on August 31, 2012; an
26
27        4
             Section 726(b) provides that allowed § 503(b)
     administrative claims incurred postconversion take priority over
28   allowed § 503(b) administrative claims incurred preconversion.
                                    - 4 -
 1   order entered September 12, 2012 that discharged her as Trustee
 2   in the chapter 13 case and exonerated her bond.
 3           The Chapter 13 Trustee eventually realized that the Firm
 4   obtained a Supplemental Fee Award postconversion, but did not get
 5   paid.       She sent a written demand to the Debtors requesting prompt
 6   return of the Refund; the Debtors did not respond.      She then
 7   entered into a stipulation with the chapter 7 trustee5
 8   (“Stipulation”) agreeing to reconvert the chapter 7 case to
 9   chapter 13 for the purpose of filing a motion seeking to require
10   turnover of the Refund and payment of the Firm.      The bankruptcy
11   court6 entered an order approving the Stipulation and
12   reconverting the case to chapter 13 (“Reconversion Order”), and
13   thereafter the Chapter 13 Trustee filed her motion to compel
14   turnover (“Turnover Motion”).
15           The Chapter 13 Trustee based the Turnover Motion on the
16   bankruptcy court’s broad discretion under § 105(a).      She argued
17   that fairness and equity demanded that the Debtors return the
18   Refund because they received it “purely due to an administrative
19   error” and as a result of “excusable neglect or mistake."
20   Turnover Motion at 6 (dkt. #89).
21           The Debtors opposed the Motion to Compel Turnover on
22   multiple grounds.      Of most relevance here, they argued that use
23   of § 105 to require return of the Refund and to require payment
24
25           5
             The Chapter 13 Trustee’s counsel executed the Stipulation
     on behalf of the Chapter 13 Trustee on September 11, 2012, and
26   filed it on September 12, 2012, the day the Chapter 13 Trustee
     was discharged.
27
             6
             Judge Barry Russell, the judge assigned the chapter 7
28   case, signed the Reconversion Order.
                                        - 5 -
 1   of the Firm from the Refund created a conflict with other
 2   provisions of the Bankruptcy Code.7        They pointed out that,
 3   pursuant to § 1326(a)(2), the Chapter 13 Trustee lacked authority
 4   following conversion to pay creditors any undistributed funds and
 5   that payment to the Debtors of the Refund did not create a
 6   windfall to the Debtors because § 541(a)(6) excluded the Debtors’
 7   postpetition earnings from inclusion in the chapter 7 estate.
 8   The Debtors also cited Warfield v. Salazar (In re Salazar),
 9   465 B.R. 875 (9th Cir. BAP 2012), for its discussion and
10   application of the plain language of § 348(f)(1)(A) to exclude
11   from property of a converted chapter 7 estate, tax refunds that
12   the debtors spent during their chapter 13 case for normal living
13   expenses.
14           Over the Debtors’ opposition, and after hearing,8 the
15   bankruptcy court granted the Chapter 13 Trustee’s request.          It
16   entered a memorandum decision and the Turnover Order on July 22,
17   2013.       The bankruptcy court, however, did not grant the Turnover
18   Motion pursuant to § 105(a).      Rather, it based the Turnover Order
19   on § 542.9      The Turnover Order also recites that it is
20   enforceable by any appropriate representative of the bankruptcy
21
22           7
             Debtors direct this argument, in part, to the
     reconversion of the case to chapter 13, which they argue violates
23   their rights under the 13th Amendment of the Constitution. As
     discussed below, we lack jurisdiction to review the Reconversion
24   Order, and we therefore do not consider this argument.
25           8
             At the hearing, the Debtors advised the bankruptcy court
     that they had not been unwilling to return the Refund to the
26   Chapter 13 Trustee, they just did not have it anymore.
27           9
             The bankruptcy court, however, misstated in the
     Memorandum Decision that the Chapter 13 Trustee brought the
28   Turnover Motion pursuant to § 542.
                                        - 6 -
 1   estate; if not paid in full within 60 days, allowed entry of a
 2   payroll deduction order; and, was explicitly without prejudice to
 3   the rights of the Firm, subject to the automatic stay, to collect
 4   their allowed fees from Debtors, "together with any appropriate
 5   interest, costs of collection, and other charges."    Turnover
 6   Order at 2 (dkt. #106).
 7        The Debtors timely filed a notice of appeal from the
 8   Turnover Order.
 9                              JURISDICTION
10        The bankruptcy court had jurisdiction under 28 U.S.C.
11   §§ 1334 and 157(b)(2)(A) and (E).
12        We have jurisdiction under 28 U.S.C. § 158(a) and (b) to
13   hear appeals from final judgments, orders, and decrees; and with
14   leave of the Panel, from interlocutory orders and decrees of
15   bankruptcy judges.   Rule 8002 provides that a notice of appeal
16   must be filed with the clerk within 14 days of entry of the
17   judgment, order, or decree.
18        Debtors include in their statement of issues on appeal
19   several issues relating to the Conversion Order, the Fee Order,
20   and the Reconversion Order.    The bankruptcy court entered the
21   Conversion Order on July 26, 2012, the Fee Order on August 9,
22   2012, and the Reconversion Order on September 20, 2012.    Debtors
23   filed their notice of appeal from the Turnover Order on July 31,
24   2013, long after the 14-day filing period provided under
25   Rule 8002 expired as to all but the Turnover Order.
26        The burden of demonstrating jurisdiction lies with the party
27   asserting it.   Kokkonen v. Guardian Life Ins. Co. of Am.,
28   511 U.S. 375, 379-80 (1994).   Here, Appellants merely state that
                                     - 7 -
 1   we have appellate jurisdiction pursuant to 28 U.S.C. § 158.     They
 2   offer no authority to establish our jurisdiction to hear
 3   challenges to the final and non-appealable Conversion Order, Fee
 4   Order, or Reconversion Order.    We, therefore, conclude that we
 5   have jurisdiction under 28 U.S.C. § 158 solely with respect to
 6   the Turnover Order.
 7                                    ISSUE
 8        Whether the bankruptcy court erred in entering the Turnover
 9   Order.
10                            STANDARD OF REVIEW
11        We review the bankruptcy court’s interpretation of the
12   Bankruptcy Code de novo.   Shapiro v. Henson, 739 F.3d 1198, 2014
13   U.S. App. LEXIS 440, *4 (9th Cir. 2014).      De novo review means
14   that our review is independent; we give no deference to the
15   bankruptcy court's conclusion.    See First Ave. W. Bldg., LLC v.
16   James (In re Onecast Media, Inc.), 439 F.3d 558, 561 (9th Cir.
17   2006).
18                                DISCUSSION
19        A.    Section 542 does not support the Turnover Order.
20        The bankruptcy court’s analysis under § 542 was relatively
21   brief.    The bankruptcy court recited that § 542 requires that:
22   “Persons who receive ‘possession, custody, or control’ of
23   property of the bankruptcy estate must deliver such property to
24   the trustee and account for such property ‘or the value of such
25   property.’”   Memorandum Decision at 3 (dkt. #105)(emphasis in
26   original).    From there, the bankruptcy court quoted Ninth Circuit
27   authority:
28        “If a debtor demonstrates that she is not in possession
                                      - 8 -
 1         of the property of the estate or its value at the time
           of the turnover action, the trustee is entitled to
 2         recovery of a money judgment for the value of the
           property of the estate.” In re Rynda, 2012 WL 603657
 3         at *2 (9th Cir. BAP) (sic) (unpublished); and In re
           Newman, 487 B.R. 193, 198-202 (9th Cir. BAP 2013)
 4         (following Rynda).
 5   Id.   The bankruptcy court then concluded that “Debtors are liable
 6   for the dollar amount of the [Refund].”10   Id.   The bankruptcy
 7   court found the Debtors’ Salazar argument inapplicable.11
 8   Instead, the bankruptcy court reasoned that the Debtors
 9   accidentally received property of the estate12 that should have
10   been paid to the Firm and that, despite having spent the Refund,
11   they remained contractually and legally obligated to return the
12   Refund or its value.   We determine that the bankruptcy court
13   erred, as a matter of law, in its application of § 542.
14         As the Debtors correctly argue on appeal, their chapter 13
15   plan payments were not property of the chapter 7 estate, and the
16   Chapter 13 Trustee properly paid the Refund to the Debtors as
17   required by §§ 348(f)(1)(A) and 1326(a)(2).   And because the
18
           10
             The bankruptcy court’s memorandum decision specifically
19   states that it “memorializes and elaborates on the Court’s ruling
     at the hearing.” Memorandum Decision at 3. The bankruptcy
20   court’s oral ruling, however, did not further expand its
     reasoning, and the tentative ruling issued in advance of the
21   hearing likewise contained very limited analysis.
22         11
             We agree that Salazar is distinguishable on its facts;
     it involved (a) a § 542 motion filed by the chapter 7 trustee in
23   the debtors’ converted case, not a motion by a chapter 13
     trustee; and (b) tax refunds received by the debtors prior to
24   conversion that they conceded to be property of their estate
     pursuant to § 541(a). Salazar, 465 B.R. at 877-78. Nonetheless,
25   Salazar does support a conclusion that the Debtors were permitted
     to spend the refunded amounts for living expenses during the
26   converted chapter 7 case.
27         12
             The bankruptcy court did not discuss or present analysis
     as to whether the funds continued to be property of the estate
28   after conversion, during the chapter 7 case, or on reconversion.
                                    - 9 -
 1   Debtors were no longer in possession or control of the Refund at
 2   the time of reconversion, the Refund did not become property of
 3   the chapter 13 estate on reconversion.
 4        We further determine that even if the Refund became property
 5   of the chapter 13 estate on reconversion, the Chapter 13 Trustee
 6   lacked standing to bring a motion under § 542.    Thus, the
 7   bankruptcy court erred by granting relief under § 542.
 8             1.   Property of the estate on reconversion.
 9        When the Debtors’ case converted to chapter 7,
10   § 348(f)(1)(A) defined the property of the chapter 7 estate as
11   “property of the estate, as of the date of filing of the
12   petition, that remains in the possession of or is under the
13   control of the debtor on the date of conversion.”   It is
14   undisputed that the Refund consisted of postpetition plan
15   payments made from the Debtors’ postpetition earnings.   And it is
16   undisputed that the Chapter 13 Trustee remained in custody and
17   control of the Refund on the conversion date.    Thus, on the
18   conversion date, the Refund was not a prepetition asset, was not
19   in the “possession of” the Debtors, and was not under the
20   Debtors’ “control.”   As such, the Refund did not become property
21   of the Debtors' chapter 7 estate.   See In re Michael, 699 F.3d
22   305, 313 (3d Cir. 2012) (“property acquired post-petition that is
23   in the Chapter 13 estate at the time of conversion is not
24   property of the new Chapter 7 estate.”).
25        It is not disputed that the Debtors received the Refund
26   postconversion and in accordance with the Notice of Intent.     The
27   Debtors advised the bankruptcy court that they spent the Refund
28   on living expenses during their chapter 7 case.   At the time they
                                   - 10 -
 1   spent the Refund, it was not property of their chapter 7 estate,
 2   and no Bankruptcy Code provision prohibited their use of the
 3   Refund.   The bankruptcy court’s conclusion that Debtors had no
 4   right to spend the Refund, thus, was in error.
 5        Upon reconversion to chapter 13, § 1306 defined property of
 6   this second chapter 13 estate.    In relevant part, § 1306 provides
 7   that property of a chapter 13 estate includes, in addition to the
 8   property specified in § 541, “earnings from services performed by
 9   the debtor after commencement of the case but before the case is
10   closed, dismissed, or converted to a case under chapter 7, 11, or
11   12 of this title, whichever occurs first.”13   Thus, property of
12   the second chapter 13 estate could include the Debtors’
13   postpetition earnings and, thus, the Refund.   Debtors, however,
14   must have retained some interest in the Refund at the time of
15   reconversion for it to constitute property of the second
16   chapter 13 estate.   To the extent Debtors spent the Refund, they
17   no longer held any interest therein.   See § 541(a) (property
18   includes all “interests” of the debtor).   Put another way,
19   reconstituting the estate on reconversion does not change the
20   nature of the asset when spent.   The Refund, which was the
21   Debtors’ property during the chapter 7 case and spent by Debtors
22   during the chapter 7 case, did not become property of the
23   reconverted chapter 13 estate because it no longer existed.
24   Therefore, the Refund is not appropriately subject to a § 542
25   order in the second chapter 13 case.
26
27
          13
             Neither conversion, nor reconversion, effects a change
28   in the date of “commencement of the case.” See § 348(a).
                                   - 11 -
 1                2.   The Chapter 13 Trustee lacks § 542 standing.
 2        In a § 542 turnover action, the “property being sought is
 3   ‘property that the trustee may use, sell, or lease under section
 4   363 of this title.”     Shields v. Adams (In re Adams), 453 B.R.
 5   774, 777 (Bankr. N.D. Ala. 2011).     This necessary element of
 6   § 542 presents an insurmountable problem for the Chapter 13
 7   Trustee.    Under § 1303, a chapter 13 trustee is prohibited from
 8   using, selling, or leasing property of the estate.      Rather,
 9   § 1303 provides that the debtor, “exclusive of the trustee,” has
10   the rights and powers of a trustee under § 363(b).
11        On reconversion, the Debtors became entitled under § 1306 to
12   sole possession of property of the second chapter 13 estate, and
13   under § 1303 they had the sole authority to exercise rights under
14   § 363(b).    If the Refund became an asset of the second chapter 13
15   estate upon reconversion, only the Debtors could use and control
16   the Refund; the Chapter 13 Trustee could not compel turnover.
17   She could object to their plan (they didn't intend to file one).
18   She could request dismissal of their case (they wanted that to
19   happen).    What she could not do as a chapter 13 trustee was
20   require them to turnover the Refund or any other asset under
21   § 542 or to use any particular asset for a particular purpose
22   under § 542.      Therefore, the bankruptcy court erred as a matter
23   of law when it granted the Chapter 13 Trustee turnover rights
24   under § 542.
25        B.     Section 105(a) does not support turnover.
26        We may affirm on any basis in the record.      See Caviata
27   Attached Homes, LLC v. U.S. Bank, N.A. (In re Caviata Attached
28   Homes, LLC), 481 B.R. 34, 44 (9th Cir. BAP 2012).       Because the
                                      - 12 -
 1   chapter 13 Trustee initially brought this motion under § 105(a),
 2   we also consider whether it supports affirmance here.   We
 3   determine that it does not.
 4        Section 105(a) provides, in relevant part, that the “court
 5   may issue any order, process, or judgment that is necessary or
 6   appropriate to carry out the provisions of this title.”   Despite
 7   this broad statement, “it is generally agreed that § 105 is not a
 8   roving commission to do equity or to do anything inconsistent
 9   with the Bankruptcy Code.”    Yadidi v. Herzlich (In re Yadidi),
10   274 B.R. 843, 848 (9th Cir. BAP 2002).    As the Supreme Court
11   recently observed, it is impossible to "carry out" the provisions
12   of the Bankruptcy Code through actions that the Bankruptcy Code
13   does not allow.   Law v. Siegel, 571 U.S. ____, 2014 U.S. LEXIS
14   1784, *11 (2014).   Here, the Chapter 13 Trustee attempts to use
15   § 105(a) to achieve results that are directly contrary to the
16   result required by other Bankruptcy Code provisions.
17        The Chapter 13 Trustee seeks control over the Refund, an
18   asset that was properly turned over to the Debtors and properly
19   spent by the Debtors.   As discussed above, it is an asset that
20   did not survive to become part of the second chapter 13 estate.
21   But if it did, § 1306(b) mandates that:   “[e]xcept as provided in
22   a confirmed plan or order confirming a plan, the [chapter 13]
23   debtor shall remain in possession of all property of the estate.”
24   Here, if the Refund became part of the second chapter 13 estate,
25   there is no confirmed plan, and no plan is even contemplated.
26   Thus, the Bankruptcy Code leaves control over the Refund - if it
27   is an estate asset at reconversion - solely in the Debtors'
28   hands.   Requiring Debtors under § 105 to disgorge funds for any
                                    - 13 -
 1   reason (equitable or otherwise) is inconsistent with the
 2   provisions of § 1306.
 3        Nor do we agree that the Chapter 13 Trustee mistakenly
 4   disbursed the Refund to the Debtors.   The interplay between
 5   §§ 348 (governing conversion) and 1326 (governing a chapter 13
 6   trustee’s retention or disbursement of plan payments) mandates
 7   this result.   See Viegelahn v. Harris (In re Harris), 491 B.R.
 8   866 (W.D. Tex. 2013) (interpreting § 348(f)(1)(A), chapter 13
 9   trustee was required to return to the debtor funds collected
10   pursuant to a confirmed chapter 13 plan as of the date of
11   conversion of the case);   In re Krahenbuhl, 2013 Bankr. LEXIS
12   2918 (Bankr. E.D. Wis. 2013) (funds acquired by the chapter 13
13   debtor postpetition and contributed toward his chapter 13 plan
14   are not property of the chapter 7 estate and must be returned to
15   the debtor upon conversion); In re DeSimone, 2013 Bankr. LEXIS
16   5121 (Bankr. N.J. 2013) (undistributed plan payments must be
17   returned to the debtor on conversion after deducting the § 503(b)
18   attorneys’ fees allowed preconversion)(emphasis added).
19        Here, the bankruptcy court entered the Fee Order after entry
20   of the Conversion Order albeit prior to return of the Refund to
21   the Debtors.   Under these facts, the Chapter 13 Trustee was
22   required to return the Refund to the Debtors.   See
23   In re Clements, 495 B.R. 74, 76 (Bankr. E.D. Pa 2013) (where no
24   order had been entered denying plan confirmation,14 and § 503(b)
25   attorney’s fees were not allowed until postconversion, all
26   postpetition assets had to be returned to the debtors on
27
          14
             Here, the bankruptcy court entered a memorandum decision
28   that sustained plan objections and denied confirmation.
                                   - 14 -
 1   conversion to chapter 7); In re Garris, 496 B.R. 343, 348-49
 2   (Bankr. S.D.N.Y. 2013) (§ 1326(a)(2) permits deduction from funds
 3   on hand of only those § 503(b) claims allowed as of the date of
 4   dismissal of a chapter 13 case, unless the bankruptcy court, for
 5   “cause,” orders otherwise, pursuant to § 349(b)).15
 6                               CONCLUSION
 7        Based on the foregoing, we REVERSE the bankruptcy court’s
 8   Turnover Order.   Because we determine that the bankruptcy court
 9   erred in ordering turnover of the Refund or its value, the
10   enforcement mechanisms contained in the Turnover Order do not
11   survive and we order that the Firm immediately return any funds
12   seized pursuant to the Turnover Order.
13
14
15
16
17
18
19
20
21
22
23
24
25        15
             The bankruptcy court relied, in part, on In re Oliver,
     222 B.R. 272, 274 (Bankr. E.D. Va. 1998) for the proposition that
26   attorneys’ fees are to be paid prior to return of funds to
     debtor. In re Oliver, however, is distinguishable as it involved
27   dismissal of a chapter 13 case in which attorneys fees were
     allowed by the court from funds on hand, simultaneously with the
28   dismissal.
                                   - 15 -
