                                                                          FILED
                                                                           APR 16 2020
                           NOT FOR PUBLICATION
                                                                      SUSAN M. SPRAUL, CLERK
                                                                         U.S. BKCY. APP. PANEL
                                                                         OF THE NINTH CIRCUIT



             UNITED STATES BANKRUPTCY APPELLATE PANEL
                       OF THE NINTH CIRCUIT

In re:                                               BAP No. SC-18-1190-SLG

JORDANA BAUMAN,                                      Bk. No. 3:17-bk-06250

                    Debtor.

JORDANA BAUMAN,

                    Appellant,

v.                                                   MEMORANDUM*

DAVID L. SKELTON, Chapter 13 Trustee,

                    Appellee.

                    Argued and Submitted on March 26, 2020

                                Filed – April 16, 2020

                Appeal from the United States Bankruptcy Court
                    for the Southern District of California

         Honorable Christopher B. Latham, Bankruptcy Judge, Presiding


         *
        This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value. See 9th Cir. BAP Rule 8024-1.
Appearances:        Appellant Jordana Bauman argued pro se.



Before: SPRAKER, LAFFERTY, and GAN, Bankruptcy Judges.



                                 INTRODUCTION

      Chapter 131debtor Jordana Bauman appeals from orders dismissing

her bankruptcy case and denying her motion under Rule 9023. Because

none of Bauman’s arguments on appeal have merit, we AFFIRM.

                                       FACTS

A.    Bauman’s initial schedules and plan.

      Bauman commenced her fifth bankruptcy since 2010 by filing a

voluntary chapter 13 petition on October 16, 2017.2 The bankruptcy

documents she filed were largely blank or incomplete. In her schedules, she


      1
        Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules
of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of
Civil Procedure. All “Local Rule” references are to the Local Bankruptcy Rules for the
Southern District of California.
      2
        Prior to this bankruptcy filing, Bauman filed four other bankruptcies in the
Southern District of California: (1) Case No. 10-18930-PB7; (2) Case No. 11-11223-CL13;
(3) Case No. 13-01890-CL7; and (4) Case No. 16-00301-CL13. Subsequent to her 2017
bankruptcy filing, Bauman filed her sixth bankruptcy case, Case No. 18-02875-CL13.
With the exception of Case No. 13-01890-CL7, all of her bankruptcies eventually were
dismissed. Bauman took numerous appeals from these dismissals. In all but one
instance, her appeals were unsuccessful. After the one successful appeal, the
bankruptcy court later dismissed the case a second time, and her appeals from that case
dismissal also were unsuccessful.

                                           2
listed the value of many of her assets as unknown, claiming that her ex-

husband had all of the relevant records and indicating that he would not

cooperate in providing her with the necessary records. Even so, she still

listed assets valued at several million dollars.

        As for her creditors, she identified the Internal Revenue Service

(“IRS”), the Franchise Tax Board (“FTB”), her divorce counsel, and an

attorney service as her only unsecured creditors though she only stated

amounts owed for the IRS’s and FTB’s unsecured claims. Wells Fargo was

the only secured creditor listed in her schedules, and she listed its claim as

disputed in the amount of $365,000.00.

        Bauman’s Statement of Monthly Income and Calculation of

Commitment Period was essentially blank, though she did indicate that her

applicable commitment period was five years. Similarly, she filed a blank

Calculation of Your Disposable Income, again noting that her financial

records were held by others. Meanwhile, in her Schedules I and J she listed

$3,000.00 per month in retirement income, but monthly expenses of

$7,150.00.

        In her initial plan, Bauman left much of the required form blank. But

she did specify that, in lieu of making payments to the chapter 13 trustee,

she anticipated acting as her own “disbursing agent.” Therefore, she stated

that she would make $0 in estimated payments over the course of her plan

term.


                                        3
      The plan identified Wells Fargo as a secured creditor with a claim

amount of $230,370.00. But Bauman did not propose any payments to the

secured creditor either. Though she did not list her brother Mel Marin as a

secured creditor in her schedules, she included him in her plan as a

claimant with a lien on her real property. She did not specify any amount

for this lien or the property encumbered. While she did not propose

making any payments to the trustee, she oddly proposed that the trustee

would pay her $3,200.00 monthly in domestic support obligations.

      Bauman’s plan disclosed priority claims owed to the IRS for

$28,810.00 and to the the FTB for $4,784.00. But the plan did not provide for

payments to either of these priority creditors.

      Within her plan Bauman calculated that $10,057.00 would be

available to pay her general unsecured creditors in a chapter 7 bankruptcy.

Bauman separately classified the IRS’s unsecured, nonpriority claim for

$8,006.00 and the FTB’s unsecured, nonpriority claim for $2,051.00. Her

plan stated that these amounts would be paid in full over the life of the

plan even though the plan provided for no payments.

      At the end of her plan, Bauman attached four pages of nonstandard

provisions. Of particular note, Bauman stated that she contested each and

every claim mentioned in her plan and that her statement of dispute

constituted her formal objection to each and every claim against her.

Additionally, she reiterated that she was electing to self-disburse any


                                      4
payments on any claims that ultimately might be allowed over her

objections, that she rejected the trustee as a disbursing agent, and that she

would not make any plan payments unless and until each claims dispute

was resolved against her. She further indicated that any necessary

payments would be funded from whatever litigation recoveries she

obtained from her husband or others.

B.    Wells Fargo’s plan objections.

      Wells Fargo objected to Bauman’s plan.3 It noted that the plan

provided for no payments on account of its claim, for the debtor to act as

the disbursing agent, and excluded the trustee from administering the plan.

The court sustained Wells Fargo’s objections, but also granted Bauman

leave to amend. The court required Bauman to file her amended plan by

February 13, 2018.

C.    The trustee’s plan objection and motion to dismiss.

      The day after the hearing on Wells Fargo’s objections, January 18,

2018, David Skelton, the chapter 13 trustee, filed a lengthy objection to the

initial plan and also moved to dismiss the case. The objection and motion to

dismiss were noticed for hearing on February 28, 2018. As Skelton put it,



      3
        Actually, Wells Fargo filed two objections to the plan, each by a different
counsel, within a day of each other. One plan objection pertained to a claim for roughly
$167,000 arising from a loan secured by a senior deed of trust against Bauman’s
residence on Albatross Street. The other plan objection pertained to a claim for roughly
$240,000 arising from a line of credit, also secured by her Albatross Street residence.

                                           5
dismissal was justified under § 1307(c)(1) for prejudicial delay and under

§ 1307(c)(4) for failure to timely commence plan payments. In addition,

Skelton said that dismissal was appropriate under §§ 521(a)(1)(B)(iv) and

(e)(2)(B) for failure to provide copies of payment advices and federal tax

returns.

      As for Skelton’s plan objections, they were numerous. Generally

speaking, Skelton observed that Bauman failed to provide proof of the

amount and source of her income and failed to adequately provide for any

of her creditors. Skelton further noted that Bauman’s plan was internally

inconsistent and that her schedules and plan contained numerous

omissions and errors. Nor was the plan feasible, administrable, or

comprehensible. In particular, Skelton pointed to the provision requiring

him to disburse $3,200.00 per month in domestic support obligations to

Bauman. He also pointed to the provisions naming Bauman as the

disbursing agent and omitting any trustee’s fees. As Skelton additionally

noted, Bauman’s nonstandard provisions contemplated lots of litigation

but no payments for an indefinite period of time. In light of all of the

above, and in light of Bauman’s serial bankruptcy filings, Skelton asserted

that Bauman had not proposed her plan in good faith or for a legitimate

bankruptcy purpose.

      A few days later, the Harbor View Villa Homeowners Association

(“Harbor View”) filed an objection to Bauman’s plan. Harbor View


                                       6
asserted that it was a secured creditor, that the plan failed to deal with its

secured claim, and that the plan was not proposed in good faith.4 The

hearing on Harbor View’s objection also was scheduled for February 28,

2018.

D.      Bauman’s response to Skelton’s plan objection and motion to
        dismiss.

        On February 8, 2018, Bauman responded to Skelton’s plan objections

and motion to dismiss. Bauman contended that Skelton waived his

grounds for dismissal by not presenting any legal authority. She alternately

maintained that the dismissal motion was a contested matter, which

necessitated an evidentiary hearing because the contested matter presented

disputed factual issues.

        She further asserted that her plan’s omnibus objection to all claims

meant that she did not need to make any payments to any creditor unless

and until the creditors’ claims were subsequently allowed. She also claimed

that she could self-disburse any and all necessary payments. According to



        4
         Per Bauman’s schedules and SOFA, her condominium unit on Albatross Street
was her principal residence. She listed her condominium association as a former litigant
and as a party to an executory contract with her. But Bauman did not list Harbor View
as a creditor, disputed or otherwise. Nor was Harbor View mentioned in the body of
Bauman’s form plan. Harbor View is mentioned for the first time in her nonstandard
provisions. She only spoke about her prospective litigation against Harbor View as a
potential source of future funds that she might eventually disburse to holders of
allowed claims, if any. She did not deal with any liability she might have to Harbor
View or propose any treatment for Harbor View’s claim.

                                           7
her, Skelton did not need to be involved at all in the administration of her

case as chapter 13 trustee. She also maintained that she presented her 2016

tax return to Skelton at her second § 341(a) meeting of creditors, though she

did not provide any evidence to support this statement.

E.    The amended plan.

      Shortly thereafter, on February 13, 2018, Bauman filed amended

schedules and an amended chapter 13 plan. Bauman’s amended

documents raised as many concerns as her originals.5 This time she listed

the aggregate amount of her debt as exceeding $800,000.00 but still insisted

that all claims against her were disputed. Additionally, her amended

Schedule E/F listed only two nonpriority unsecured claims – her utility

company and divorce counsel. She listed both of these unsecured claims as

disputed and did not specify any amount for either claim.

      Bauman also amended her Schedules I and J to restate her monthly

income and expenses. As to her monthly income, she revised her monthly

pension or retirement income to $3,600.00 but added an additional

$3,838.00 in monthly pension or retirement income for her nondebtor

spouse. To these amounts, Bauman also included an additional $20,412.00


      5
        For example, they listed the same three parcels of residential real property, but
now disclosed that the house on Archer Street had been foreclosed prepetition.
Furthermore, the listing and values of Bauman’s specific financial assets changed
drastically. Whereas her original Schedule A/B listed the aggregate value of all of her
financial assets as just over $21 million, her amended Schedule A/B listed the aggregate
value of all of her financial assets as just under $176 million.

                                            8
for “liquidate Wilbur & bank accts.” According to Bauman’s amended

Schedule J, her monthly expenses were $7,752.00, leaving a total of

$21,098.00 in monthly net income.

      Bauman’s amended plan, however, still objected to all claims, still

asserted that she was entitled to act as the disbursing agent for her plan,

and still maintained that no payments needed to be made until each claim

was formally allowed. Bauman did include the following provision at

paragraph 2.5 for Additional Payments:

            If the court orders debtor to pay unsecured
            creditors through the trustee, she will pay trustee
            monthly starting 30 days after husband’s secret
            accts have been transferred to debtor’s control.
            Except FTB, IRS and SD Tax will be paid its allowed
            priority claims at $500 a month, if approved.

      In keeping with her plan proposals, Bauman never commenced

making any plan payments.

F.    Proofs of claim filed against the estate.

      While no creditor had filed a proof of claim when Bauman filed her

initial plan in October 2017, that situation had changed by the time she

filed her amended plan. By mid-November 2017, Wells Fargo and the FTB

already had filed their proofs of claim. Wells Fargo filed a secured claim in

the amount of $240,508.94, though it disclosed no arrears. The FTB filed a

claim in the total amount of $7,249.89, of which it claimed $5,077.58 was

entitled to priority under § 507(a)(8). In December, the San Diego County

                                      9
Treasurer-Tax Collector filed a secured claim in the amount of $2,331.78.

Wells Fargo filed an additional secured claim in December for a separate

obligation in the amount of $166,735.34, and stated that $77,886.02 was due

and owing as of the petition date.

      The day before Bauman filed her amended schedules and chapter 13

plan, her brother, Mel Marin, filed a secured claim in the amount of

$400,000. Two days after Bauman filed her amended plan, Harbor View

filed a secured claim in the amount of $105,072.31.

      In January 2018, Bauman commenced separate adversary

proceedings against Harbor View and Wells Fargo seeking to disallow

their claims and various other relief including damages.

      Finally, on March 7, 2018, the IRS filed its proof of claim in the total

amount of $53,043.47, of which it claimed $26,951.63 was entitled to

priority under § 507(a)(8).

G.    Skelton’s case status report and his amended plan objection and
      motion to dismiss.

      On February 21, 2018, Skelton filed a case status report. Two days

later he filed an amendment to his plan objection and motion to dismiss.

The documents largely overlap, though the amended plan objection and

motion to dismiss continued to request dismissal for failure to commence

plan payments and failure to provide tax returns under § 521(e)(2)(B),

among other grounds. In short, these documents pointed out that


                                       10
Bauman’s amended schedules and plan did not fix the numerous problems

referenced in Skelton’s original plan objection and motion to dismiss.

Skelton particularly noted that Bauman still had neither made, nor

expressed any intent to make, any plan payments to the trustee in spite of

Skelton’s original plan objection and motion to dismiss.

      As for the tax return, Skelton disputed Bauman’s claim that she

presented him with a copy of her 2016 federal tax return at the second

§ 341(a) meeting of creditors. He also explained that, even if the 2016 return

had been presented at that time, it was still untimely because it should

have been submitted at or before the time of the first § 341(a) meeting of

creditors held on January 12, 2018. Skelton further emphasized that

Bauman conditioned any recovery for her creditors on her success in her

litigation against her husband and other parties.

H.    The hearing on Skelton’s plan objection and motion to dismiss.

      On February 28, 2018, the bankruptcy court heard Skelton’s plan

objection and motion to dismiss. Bauman did not provide us with the

transcript from this hearing, but the minute order from that hearing

indicates that the court dismissed the bankruptcy principally based on

Bauman’s failure to provide her 2016 tax return or other proof of income to

Skelton, and on her failure to make any plan payments since the case was

commenced in October 2017. The court additionally noted that Bauman’s

plan as amended impermissibly proposed no plan payments to Skelton and


                                      11
impermissibly contemplated that Bauman would self-administer her own

plan. The court further found that Bauman had been given ample

opportunity to address the various plan objections and had opposed the

operative plan objections in writing.

      The bankruptcy court entered its order dismissing the case on March

7, 2018.6

I.    Bauman’s Rule 9023 motion.

      On March 21, 2018, Bauman filed her timely motion for rehearing and

reconsideration under Rule 9023 and Civil Rule 59. She attached to her

motion a declaration stating that she presented to Skelton copies of both

her 2015 and her 2016 tax returns at the second § 341(a) meeting of

creditors.7 She also claimed in her declaration that, at the February 28, 2018

plan objection hearing, she offered to have a witness testify regarding her

presentation of the tax returns to Skelton.

      In support of her Rule 9023 motion, Bauman asserted that neither

Skelton nor the objecting creditors had standing to challenge her plan. She

argued that the court incorrectly treated the creditors’ disputed claims as if

they already had been allowed, and that disputed claims do not confer


      6
        On March 5, 2018, the court entered a separate order sustaining Harbor View’s
plan objection. But Bauman’s appeal focuses on the case dismissal order. So shall we.
      7
         The contents of the declaration appear somewhat inconsistent with Bauman’s
prior unsworn statements made in her response to Skelton’s plan objection, which only
refer to the 2016 tax return.

                                          12
either standing or any entitlement to immediate payment. Alternately, she

insisted that, even if she was wrong about the immediate need to make

plan payments, she had offered in her amended plan to commence making

payments if the court ordered her to do so.

      She further contended that she was denied due process because she

was not afforded adequate time to respond to Skelton’s amended plan

objection and motion to dismiss. Along similar lines, she claimed that, by

separately sustaining Wells Fargo’s plan objections, the court lulled her

into believing that if she addressed Wells Fargo’s plan objections, she was

sufficiently in compliance with her chapter 13 duties.

      Bauman offered additional arguments of lesser import. In part, she

relied on events that transpired in her prior, dismissed bankruptcy cases to

support her contention that the bankruptcy court should reconsider its

dismissal ruling. For instance, she posited that creditors who failed to file

proofs of claim in her prior, dismissed bankruptcy cases had waived their

right to be treated as creditors in her current bankruptcy case. She also

reasoned that, because the district court had vacated a case dismissal order

in one of her prior bankruptcy cases, the bankruptcy court’s current case

dismissal order was improper for those same reasons. Finally, according to

Bauman, the court cited to the wrong local rule in support of its concurrent

dismissal of Bauman’s related adversary proceedings.

      The court held a hearing on the Rule 9023 motion on May 23, 2018.


                                      13
Bauman did not appear. The court took the matter under submission on the

papers. On July 3, 2018, the bankruptcy court entered an order denying

Bauman’s motion. The order addressed at length, and rejected, virtually all

of Bauman’s arguments though the court agreed with Bauman that it had

inadvertently referenced the wrong local rule.

      Bauman timely appealed.

                                  JURISDICTION

      The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334

and 157(b)(2)(A) and (L). We have jurisdiction under 28 U.S.C. § 158. 8

                                        ISSUES

1.    Did the bankruptcy court commit reversible error when it dismissed

      Bauman’s chapter 13 case?

2.    Did the bankruptcy court abuse its discretion when it denied

      Bauman’s Rule 9023 motion?

                            STANDARDS OF REVIEW

      We review a decision to dismiss under § 1307(c)(4) for failure to


      8
         A BAP motions panel previously raised the issue of whether this appeal is moot
because the bankruptcy court’s dismissal order did not restrict Bauman from
commencing a new bankruptcy case. Indeed, Bauman filed a subsequent bankruptcy
case, Case No. 18-02875-CL13, which the bankruptcy court dismissed on November 8,
2018, for failure to make plan payments, for bad faith, and for failure to propose a
feasible plan. Even so, this appeal is not moot. The BAP has held that even the relatively
minor detriment of having to pay a new case filing fee is sufficient to prevent a prior
case dismissal order from becoming moot. See Tennant v. Rojas (In re Tennant), 318 B.R.
860, 868 (9th Cir. BAP 2004).

                                           14
commence plan payments for an abuse of discretion. Ellsworth v. Lifescape

Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP 2011);

Sievers v. Green (In re Green), 64 B.R. 530, 530 (9th Cir. BAP 1986). We also

review for an abuse of discretion the bankruptcy court’s ruling on

Bauman’s Rule 9023 motion. Dicker v. Dye (In re Edelman), 237 B.R. 146, 150

(9th Cir. BAP 1999). The court abuses its discretion if it applies an incorrect

legal rule or its factual findings are clearly erroneous. TrafficSchool.com, Inc.

v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).

      In contrast, dismissal under § 521(e)(2)(B) for failure to file a

prepetition tax return is mandatory unless the debtor demonstrates that the

failure was the result of circumstances beyond his or her control. In re

Rathbone, Case No. 11-29544-E-13, 2011 WL 10725949, at *3 (Bankr. E.D. Cal.

Sept. 19, 2011). We review the bankruptcy court’s interpretation of the

Code under the de novo standard of review, Hopkins v. Cerchione (In re

Cerchione), 414 B.R. 540, 545 (9th Cir. BAP 2009), and we review the court’s

factual findings for clear error, Retz v. Samson (In re Retz), 606 F.3d 1189,

1196 (9th Cir. 2010). “A court's factual determination is clearly erroneous if

it is illogical, implausible, or without support in the record.” Id. (citing

United States v. Hinkson, 585 F.3d 1247, 1261–62 & n.21 (9th Cir. 2009) (en

banc)).




                                        15
                                  DISCUSSION

A.    The motion to dismiss did not deny Bauman due process.

      Bauman first argues that the bankruptcy court violated her due

process rights. According to Bauman, the due process violation arose when

the court dismissed her case shortly after she complied with the court’s

prior order sustaining Wells Fargo’s plan objections and amended her plan.

She maintains that she was entitled to more time to respond to Skelton’s

amended plan objections, which were filed less than a week before the

hearing on the motion to dismiss. She further claims that the bankruptcy

court violated its own Local Rule – Local Rule 3015-5 – which requires that

an objection to the original plan “must be noticed for hearing at least 28

days after filing the objection.”

      The notice requirement subsumed within the Constitution’s Due

Process Clause is a relatively minimal standard. Strickland v. U.S. Tr. (In re

Wojcik), 560 B.R. 763, 768–69 (9th Cir. BAP 2016). It merely requires “‘notice

reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to

present their objections.’” Id. (quoting Mullane v. Cent. Hanover Bank & Tr.

Co., 339 U.S. 306, 314 (1950)).

      Bauman discounts the pending motion to dismiss filed on January 18,

2018, along with Skelton’s original plan objection. Skelton noticed the plan

objection and motion to dismiss to be heard on February 28, 2018, well


                                      16
beyond the 28-day notice requirement in the Local Rule. Bauman had

ample notice and time to respond. In fact, she did file a lengthy written

response.

      As for Skelton’s amended plan objection and motion to dismiss filed

on February 23, 2018, it did not materially change Skelton’s position on

Bauman’s plan or on case dismissal. Skelton sought dismissal of the

bankruptcy in both his initial and amended motions to dismiss. The

grounds for dismissal were identical. Consequently, the filing of Skelton’s

amended papers did not prejudice Bauman. Because the record establishes

that Bauman had “the opportunity to be heard at a meaningful time and in

a meaningful manner,” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(citation and internal quotation marks omitted), Bauman’s due process

rights were not violated.

B.    Bauman’s failure to make plan payments constituted cause to
      dismiss.

      Bauman concedes that she never made any plan payments to the

trustee. Section 1326(a)(1) requires chapter 13 debtors to commence making

plan payments to the trustee within 30 days of filing their bankruptcy case.

See Zapata v. U.S. Tr. (In re Zapata), BAP No. CC–11–1184–PaKiNo, 2012 WL

4466283, at *5 (9th Cir. BAP Sept. 28, 2012); see also Keith M. Lundin,

Lundin On Chapter 13 § 44.1, at ¶ [1], https://lundinonchapter13.com (last

visited April 6, 2020) (“Without regard to when a plan is filed, every


                                      17
Chapter 13 debtor must commence payments not later than 30 days after

filing the petition or seek a court order for relief from that requirement.”).

Section 1307(c)(4) provides that a bankruptcy court may dismiss a case for

failure to timely commence such payments. In re Zapata, 2012 WL 4466283,

at *5 (citing In re MacDonald, 118 F.3d 568, 570 (7th Cir. 1997)); accord,

Witkowski v. Boyajian (In re Witkowski), 523 B.R. 300, 305 (1st Cir. BAP 2014).

It necessarily follows that the bankruptcy court had the discretion to

dismiss Bauman’s bankruptcy case for failing to commence plan payments

by the date of the hearing on the motion to dismiss.

      Bauman’s arguments on appeal are scattered. First, she directs us to

her amended plan and argues that she was willing to make plan payments

if directed to by the bankruptcy court. This argument misperceives the

affirmative requirement imposed upon chapter 13 debtors by § 1326(a)(1)

to begin making plan payments within 30 days of their bankruptcy filing.

Alternatively, § 1326(a)(1) enables a debtor to obtain an order from the

court to alter this requirement. Here, Bauman neither made plan payments

nor sought an order from the court excusing such payments.

      Second, Bauman contends that no plan payments were required

because no creditor had established that it held an allowed claim. Bauman

directs us to her general statement of dispute challenging all creditors’

claims included as a nonstandard provision in both her initial and

amended plans. As the bankruptcy court pointed out in its order denying


                                       18
her Rule 9023 motion, Bauman’s argument misconstrues the claims

allowance process.

      Rule 3007 governs objections to claims. It provides that “[a]n

objection to the allowance of a claim and a notice of objection that

substantially conforms to the appropriate Official Form shall be filed and

served at least 30 days before any scheduled hearing on the objection or

any deadline for the claimant to request a hearing.” The rule further

provides for specific service of an objection to any claims filed by the

United States or an insured depository institution. Absent objection, a

timely filed proof of claim is deemed allowed. § 502(a). The creditor

holding the allowed claim does not need to take any further action in order

to participate in the proposed chapter 13 distribution. Rule 3021.

      Bauman failed to comply with any of these requirements. In support

of her argument, Bauman primarily relies on Litton Loan Servicing LP v.

Garvida (In re Garvida), 347 B.R. 697, 704 (9th Cir. BAP 2006), for the

proposition that “a creditor’s claim” may be objected to through a

proposed plan if the subject creditor is given full and proper notice. Id. But

Garvida never says that a debtor can satisfy Rule 3007 as to each and every

creditor in their case by filing a generalized, blanket objection to all claims.

To the contrary, Garvida states that caution must be exercised whenever

“ersatz procedure” is used to object to claims, in order to ensure that each

creditor is given the “specific notice” and the one-on-one opportunity to


                                       19
litigate contemplated by Rule 3007. Id. (citing Varela v. Dynamic Brokers, Inc.

(In re Dynamic Brokers, Inc.), 293 B.R. 489, 497–500 (9th Cir. BAP 2003)).

      Alternately, Bauman claims that she did file formal claim objections.

But she only cites to the two adversary proceedings she commenced prior

to the dismissal hearing: one against Wells Fargo and the other against

Harbor View. Assuming that these adversary complaints subsumed claim

objections, see Rule 3007(d), this still means that Bauman never properly

filed and served specific objections to other proofs of claim, including those

filed by the IRS and FTB, which included priority and unsecured

components. Indeed, Bauman’s amended plan committed to pay at least

the priority components of these creditors’ claims. This required Bauman to

commence plan payments within 30 days of her bankruptcy filing.

      Bauman further argues that she was not required to make plan

payments to the trustee because she elected to disburse plan payments

herself. Both her initial and amended plan sought to write the chapter 13

trustee out of her bankruptcy. She contends that Cohen v. Lopez (In re Lopez),

372 B.R. 40 (9th Cir. BAP 2007), aff’d and adopted, 550 F.3d 1202 (9th Cir.

2008), supports her position. Lopez acknowledged that “the power to make

payments in Chapter 13 directly to creditors has never been in doubt. The

problem, however, lies in setting proper boundaries to the power contained

in Section 1326(c).” Id. at 46 (citation omitted). The debtor in Lopez

committed to make plan payments to the trustee for all arrears on his


                                       20
secured debt, his delinquent property taxes, priority debt to the California

Employment Development Department, his attorney’s fees, and the

trustee’s fee. Id. at 42. He was, however, permitted to pay directly debts

coming due postpetition to secured creditors and the Orange County Tax

Collector. Id. at 42-43.

      As in Lopez, chapter 13 debtors are most often permitted to pay

secured creditors directly to maintain their postpetition obligations. See,

e.g., In re Stinebaugh, Case No. 13-20447-TLM, 2013 WL 5883765, at *3

(Bankr. D. Idaho Oct. 30, 2013) (“Lopez validated the cure of prepetition

defaults to a secured creditor by a chapter 13 debtor’s plan payments

disbursed by the trustee . . . , but with the post-petition ongoing payments

made directly by the debtor, bypassing the trustee and the trustee’s fee.”).

Debtors do not, however, have an absolute right to make direct payments

to all creditors. See Giesbrecht v. Fitzgerald (In re Giesbrecht), 429 B.R. 682,

690-91 (9th Cir. BAP 2010) (“Bankruptcy courts may require that payments

be made through the plan based on specific factors or reasons such as

administrative efficiency, tracking of payments, fairness and treatment of

creditors, and the determination that there is a reduction of plan failure

when all payments are made through the plan.”). Bauman points to no case

that has permitted a chapter 13 debtor to excise the trustee and make all

payments directly to creditors. Rather, as a leading commentator on

chapter 13 notes, “[t]hough the separate classification of some fully secured


                                         21
claims for direct payment by the debtor has been permitted, most courts

refuse the separate classification of unsecured claims for payment directly

by the debtor.” Lundin, supra, § 89.1, at ¶ [2] (emphasis in original).

      Lopez does not provide Bauman with a sweeping authorization to

self-disburse under a chapter 13 plan as she contends. It does not permit a

chapter 13 debtor to avoid making any plan payments simply because she

elects to pay all of her creditors directly. Bauman may not usurp the

chapter 13 trustee’s statutory role. Among other things, the trustee has

many of the same financial oversight and administrative duties as a

chapter 7 trustee has. See § 1302(b)(1). Furthermore, the chapter 13 trustee

must “ensure that the debtor commences making timely payments under

section 1326 of this title.” § 1302(b)(5); see also Lundin, supra, § 53.9, at ¶ [1].

Permitting a debtor to make all chapter 13 payments outside of the plan

would undermine the trustee’s ability to carry out these duties or render

them impracticable. See id. at § 44.6, at ¶ [6] (“Direct payments by a debtor

to a creditor are difficult or impossible to account for. Debtors don’t keep

adequate records. Creditors are often incorporeal and have no obligation to

report the receipt of payments to Chapter 13 trustees. There is no ready

mechanism for informing the Chapter 13 trustee exactly what payments

have been made or how the money was allocated before the trustee must

administer a confirmed plan.”).

      Unlike the debtors in Lopez and Giesbrecht, who sought merely to


                                         22
continue making their recurring postpetition payments directly to their

secured creditors, Bauman has never articulated any reason justifying her

proposal to pay all of her creditors directly. At bottom, she was required to

make some plan payment to the trustee and to begin making those

payments by November 16, 2017. She failed to do so.

      Courts have rejected interpretations of § 1326(a)(1) that would permit

debtors to avoid or condition the commencement of their payments under

§ 1326(a)(1). See, e.g., In re Burgos, 476 B.R. 107, 112 (Bankr. S.D.N.Y. 2012)

(indicating that failure to file plan did not excuse debtor from commencing

plan payments as required by § 1326(a)(1) and holding that failure to

commence plan payments can be sufficient cause, by itself, to justify

dismissal under § 1307(c)(4)); In re Nowak, 143 B.R. 154, 159–60 (Bankr. N.D.

Ill. 1992) (“Clearly, chapter 13 was not enacted to grant debtors a hiatus

from paying bills while their liability is adjudicated and a payment plan

worked out.”). Bauman’s proposed plans attempted to do just that by

reciting a generalized dispute as to all of her claims and by electing to pay

her creditors directly to the exclusion of the chapter 13 trustee’s

involvement and participation. Her proposed plans did not absolve her of

the duty to commence plan payments under § 1326(a)(1). After several

months of failing to make plan payments while enjoying the automatic

stay, dismissal of her case under § 1307(c)(4) was appropriate.




                                       23
C.    Bauman’s failure to provide her 2016 tax return also justified
      dismissal.

      Alternately, the court’s dismissal was sufficiently supported by

Bauman’s failure to submit to Skelton her 2016 tax return. Section

521(e)(2)(A) required Bauman to submit this return to the trustee no later

than seven days before her first meeting of creditors, which was held on

November 17, 2017. In turn, § 521(e)(2)(B) required the bankruptcy court to

dismiss the case when Bauman failed to comply, unless she demonstrated

that her “failure to so comply [was] due to circumstances beyond the

control of the debtor.” § 521(e)(2)(B); see also In re Rathbone, 2011 WL

10725949, at *3 (upholding dismissal under § 521(e)(2)(B)); In re Walker,

Case No. 06-10879, 2006 WL 4671832, at *2 (Bankr. D. Md. July 20, 2006)

(ordering case dismissed based on debtor’s failure to provide tax return).

      As of January 18, 2018, when Skelton filed his initial plan objection

and motion to dismiss, he asserted that Bauman had failed to provide him

with her 2016 tax return. In her February 8, 2018 response Bauman claimed,

without submitting any proof, that she presented the 2016 tax return to

Skelton at the continued § 341(a) meeting of creditors held on January 12,

2018. But the original meeting of creditors was scheduled for November 17,

2017. Bauman has never attempted to claim that she timely submitted the

return in compliance with § 521(e)(2)(A) or that she failed to do so for

reasons beyond her control as contemplated in § 521(e)(2)(B).


                                       24
         With her Rule 9023 motion, Bauman submitted a declaration in which

she swore that she presented the tax return to Skelton at the continued

meeting of creditors on January 12, 2018. We separately deal with the Rule

9023 motion below. But it suffices to say here that, even if the court had

accepted this belated evidence as timely presented and credited its

contents, the 2016 return still was untimely. And Bauman never offered

any excuse for her noncompliance. This was a sufficient ground for

dismissal based on §§ 521(e)(2)(A) and (B). In re Walker, 2006 WL 4671832,

at *2.

D.       None of Bauman’s other arguments justify reversal.

         Bauman advances several other arguments, but none of them justify

reversal. Bauman claims that the district court’s decision in Bauman v.

Billingslea (In re Bauman), Case Nos. 12cv2476-IEG (RBB) & 12cv2482-IEG

(BLM), 2013 WL 4679987 (S.D. Cal. 2013), mandates reversal. But her

reliance on Billingslea is misplaced. Billingslea vacated the bankruptcy

court’s dismissal order in a prior bankruptcy under § 1307(c)(5) based on

Bauman’s failure to address plan deficiencies in that case – deficiencies that

the bankruptcy court never adequately apprised her of. Id. at *2. Nor did

Bauman have in Billingslea “an opportunity to either argue that the plan

was not deficient or to correct the plan to meet the perceived problems.” Id.

(quoting Minkes v. LaBarge (In re Minkes), 237 B.R. 476, 478–79 (8th Cir. BAP

1999)). Here, in contrast, the bankruptcy court granted dismissal based on §


                                      25
1307(c)(4) for failure to commence plan payments and under § 521(e)(2)(B)

for failure to timely submit her 2016 tax return. As held above, Bauman

had ample time to respond to these grounds for dismissal, and she did

respond in writing. Thus, the prior decision in Billingslea is inapposite to

this appeal.

      Bauman next argues that Skelton lacked standing. 9 She is simply

wrong. Any “party in interest” may seek conversion or dismissal of a

chapter 13 bankruptcy under § 1307(c). The phrase “party in interest” is

“widely understood by judges, practitioners, and commentators to include

the standing trustee even though there is no specific definition for party in

interest in chapter 13, as there is in chapter 11.” In re Slaughter, 191 B.R. 135,

144 (Bankr. W.D. Wis. 1995) (collecting authorities). This is because chapter

13 trustees have an independent statutory duty to exercise financial

oversight over the case and the specific duty to appear and be heard

regarding plan issues. See § 1302; Andrews v. Loheit (In re Andrews), 49 F.3d

1404, 1406–07 (9th Cir. 1995). Thus, it has long been established that a

chapter 13 trustee has standing as a “party in interest” to seek dismissal

under § 1307(c). See Lundin, supra, § 53.14, at ¶ [1] (listing cases).

      In contrast, § 521(e)(2)(B) does not specify who has standing when



      9
        Bauman also challenges the standing of any of her creditors to object to her
plan. But this argument could not possibly justify reversal of the order on appeal, which
granted Skelton’s motion to dismiss.

                                           26
the debtor does not submit tax returns to the trustee as required under

§ 521(e)(2)(A). The statute merely says that the court “shall” dismiss the

case unless the debtor establishes that noncompliance was the result of

circumstances beyond his or her control. Nonetheless, the role of the

trustee in the chapter 13 case in general, and in the submission of tax

returns more specifically, ineluctably leads to the conclusion that the

chapter 13 trustee must be able to bring before the court a request for

dismissal under § 521(e)(2)(B). To hold otherwise would undermine the

clear statutory scheme and the central role of the chapter 13 trustee. See

generally In re Escarcega, 573 B.R. 219, 234 (9th Cir. BAP 2017) (discussing

need for chapter 13 trustees’ involvement in the confirmation process).

      The only other issue we need to address is the denial of Bauman’s

motion under Rule 9023. Bauman’s principal argument pertaining to her

Rule 9023 motion concerns her declaration submitted with the motion in

which she stated that she presented her tax returns to Skelton at the

continued meeting of creditors.10 According to Bauman, the court ignored

her declaration. But the court actually held that she did not present any

newly discovered evidence. This was not error.

      To qualify as newly discovered evidence under Rule 9023 (which



      10
         Skelton submitted his own declaration in opposition to the Rule 9023 motion
and stated that he did not receive Bauman’s tax return until the February 28, 2018
hearing on his motion to dismiss.

                                          27
incorporates Civil Rule 59(e)), Bauman needed to demonstrate: “(1) the

evidence was discovered after trial, (2) the exercise of due diligence would

not have resulted in the evidence being discovered at an earlier stage and

(3) the newly discovered evidence is of such magnitude that production of

it earlier would likely have changed the outcome of the case.” Defenders of

Wildlife v. Bernal, 204 F.3d 920, 929 (9th Cir. 2000). On this record, it is

obvious that Bauman could not meet any of these three standards. She

certainly could have presented her own declaration testimony before the

court ruled on the dismissal motion. And she clearly knew what transpired

at the continued meeting of creditors, as she attended it.

      Equally important, this evidence would not have changed the

outcome of the dismissal motion. As explained above, even if the court had

accepted this evidence and found it credible, it merely shows that Bauman

submitted the required tax return more than two months after it was due

pursuant to § 521(e)(2)(A). Nor did Bauman ever tender any evidence of

any circumstances beyond her control that prevented her from timely

submitting the return, as contemplated by § 521(e)(2)(B).

      Bauman makes several other arguments in her papers. For instance,

she assails the court for citing Local Rule 7041-3 instead of Local Rule 7041-

1 in support of its concurrent dismissal of her related adversary

proceedings. She further complains that the bankruptcy court should have

ordered the turnover of her husband’s financial records. She also discusses


                                        28
at length events that transpired and rulings that were made in her prior

bankruptcy cases. Finally, she contends that we should order the presiding

bankruptcy judge to recuse himself even though she never brought a

recusal motion in the underlying bankruptcy case. None of these points

have any bearing on the orders appealed and do not establish that the

bankruptcy court erred when it dismissed her case or denied Bauman’s

Rule 9023 motion. Accordingly, we need not further address these points in

order to dispose of this appeal.

                               CONCLUSION

        For the reasons set forth above, we AFFIRM the bankruptcy court’s

case dismissal order and its order denying Bauman’s motion under Rule

9023.




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