                                                      FILED
                                                       APR 05 2013
 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 Nos. NV-12-1456-PaKiTa
                                        )          NV-12-1474-PaKiTa
 6   THE VILLAGE AT LAKERIDGE, LLC, fka )          (Cross-appeals)
     Magnolia Village, LLC,             )
 7                                      ) Bk. No. 11-51994-BTB
                    Debtor.             )
 8   ___________________________________)
                                        )
 9   THE VILLAGE AT LAKERIDGE, LLC, fka )
     Magnolia Village, LLC; ROBERT      )
10   ALAN RABKIN, M.D.,                 )
                                        )
11                  Appellants/         )
                    Cross-appellees,    )
12                                      )
     v.                                 ) M E M O R A N D U M1
13                                      )
     U.S. BANK NATIONAL ASSOCIATION, AS )
14   TRUSTEE, AS SUCCESSOR-IN-INTEREST )
     TO BANK OF AMERICA, N.A., AS       )
15   SUCCESSOR BY MERGER TO LASALLE     )
     BANK NATIONAL ASSOCIATION, AS      )
16   TRUSTEE, FOR THE REGISTERED        )
     HOLDERS OF GREENWICH CAPITAL       )
17   COMMERCIAL FUNDING CORP.,          )
     COMMERCIAL MORTGAGE TRUST 2005-    )
18   GG3, COMMERCIAL MORTGAGE PASS      )
     THROUGH CERTIFICATES, SERIES       )
19   2005-GG3, BY AND THROUGH,          )
     CWCAPITAL ASSET MANAGEMENT LLC,    )
20   SOLELY IN ITS CAPACITY AS SPECIAL )
     SERVICER,                          )
21                                      )
                    Appellee/           )
22                  Cross-appellant.    )
     ___________________________________)
23
                  Argued and Submitted on March 22, 2013,
24                        at Pasadena, California
25                         Filed - April 5, 2013
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. See 9th
28   Cir. BAP Rule 8013-1.

                                    -1-
 1              Appeal from the United States Bankruptcy Court
                          for the District of Nevada
 2
          Honorable Bruce T. Beesley, Bankruptcy Judge, Presiding
 3
 4   Appearances:    Holly E. Estes of Law Offices of Alan R. Smith
                     argued for appellant/cross-appellee The Village at
 5                   Lakeridge, LLC; Keith Charles Owens of Venable Llp
                     argued for appellee/cross-appellant U.S. Bank
 6                   National Association.
 7
     Before: PAPPAS, KIRSCHER and TAYLOR, Bankruptcy Judges.
 8
 9
10        Chapter 112 debtor The Village at Lakeridge, LLC
11   (“Lakeridge”) appeals the order of the bankruptcy court granting
12   in part the motion of U.S. Bank National Association as Trustee3
13   (“USB”) to (A) designate claim of Robert Rabkin and (B) disallow
14   such claim for plan voting purposes (“Designation Motion”).    USB
15   cross-appeals (1) the part of the order granting the Designation
16   Motion holding that Dr. Robert Rabkin ("Rabkin") was not a non-
17   statutory insider of Lakeridge and (2) an order denying requests
18   to intervene in discovery disputes (“Discovery Requests”).    We
19   AFFIRM in part, REVERSE in part, and VACATE in part the order
20   regarding the Designation Motion.     We AFFIRM in part and VACATE in
21   part the order denying the Discovery Requests.
22                                  FACTS
23        Lakeridge filed a chapter 11 petition on June 16, 2011.       It
24
25        2
             Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
     The Federal Rules of Civil Procedure are referred to as Civil
27   Rules.
28        3
              For USB’s full authority as trustee, see caption.

                                     -2-
 1   owned and operated a commercial real estate development in Reno,
 2   Nevada (the “Property”).    It purchased the Property in January
 3   2004 and financed the purchase with a loan, evidenced by a
 4   promissory note, from Greenwich Financial Products, Inc.
 5   Apparently, USB now holds the fully secured claim for the balance
 6   due on this loan, which amounts to about $10 million; this is the
 7   only secured claim in the bankruptcy case.
 8        The sole member of Lakeridge is MBP Equity Partners 1, LLC
 9   (“MBP”).   Kathie Bartlett (“Bartlett”) is a member of the board of
10   managers of MBP.   The only unsecured claim listed in Lakeridge’s
11   bankruptcy schedules was one for $2,761,000.00 held by MBP (the
12   “MBP Claim”).4   Bartlett signed the bankruptcy petition and all
13   related documents on behalf of Lakeridge.5
14        Lakeridge filed a Disclosure Statement and Plan of
15   Reorganization on September 14, 2011.6   The only claims addressed
16   in the Disclosure Statement and Plan were the fully secured claim
17   of USB and the MBP Claim.
18
19
          4
             The schedules also listed about $50,000 in tenant deposits
20   as unsecured claims. Later, Lakeview withdrew classification of
     those deposits as unsecured claims when it assumed the leases; USB
21   has not challenged Lakeridge’s position.
22        5
             None of the papers signed by Bartlett indicate her title.
     We are unable to determine from the record the precise nature of
23   her position and authority in Lakeridge other than that she is a
     member of the board of managers. She described her position at
24   her deposition as “representative of both the Village at
     Lakeridge, LLC and the equity owners.” Bartlett Dep. 9:10-11,
25   February 9, 2012. However, the parties do not dispute that she
     was the officer of the debtor responsible for its filings or that
26   she is an “insider” of the debtor.
27        6
             With changes not relevant in this appeal, the Plan of
     Reorganization was amended on November 4, 2011, and January 12,
28   2012.

                                      -3-
 1           On October 27, 2011, Rabkin purchased the MBP Claim for the
 2   sum of $5,000.00.    A Notice of Assignment of the MBP Claim to
 3   Rabkin was filed with the bankruptcy court on November 4, 2011.
 4           A hearing was held on the Disclosure Statement on November 7,
 5   2011.    It does not appear that the Rabkin assignment was discussed
 6   at the hearing.    The bankruptcy court approved the Disclosure
 7   Statement by order on November 23, 2011.
 8           Bartlett was deposed by USB on February 9, 2012, in her
 9   capacity as a representative of Lakeridge.
10           On June 7, 2012, Rabkin testified at a USB deposition.    Early
11   in his deposition, Rabkin testified that he had attended a meeting
12   one hour before the deposition with his counsel and counsel for
13   Lakeridge.    When asked what he discussed with Lakeridge's counsel,
14   Lakeridge's attorney objected, invoking the "common interest
15   privilege."    Rabkin Dep. 11:20-2, June 7, 2012.   Rabkin's counsel
16   joined in the objection and ultimately directed Rabkin not to
17   answer the question.
18           Rabkin testified to the following matters in that deposition:
19   (1) that he had both a business and close personal relationship
20   with Bartlett; (2) that he saw Bartlett regularly, including on
21   the day of the deposition; and (3) that he purchased the MBP Claim
22   for $5,000 as a business investment and expected to be paid a pro
23   rata dividend of $30,000 under the Lakeridge plan.    As to any
24   other interest in the Lakeridge bankruptcy case, Rabkin testified
25   as follows:
26           USB COUNSEL: Other than getting paid in this bankruptcy
             case, do you have any other concerns?
27
             RABKIN: I’m concerned that I may run up a lot of
28           expenses and get paid nothing.

                                       -4-
 1        USB COUNSEL: Other than getting paid the $30,000, do you
          care whether the Village at Lakeridge plan gets
 2        confirmed? Setting aside the payment, if you were to
          get paid the $30,000, would you care if the plan was
 3        confirmed?
 4        RABKIN: I have no other interest in the Village at
          Lakeridge.
 5
 6   Rabkin Dep. 82:3-14.
 7        Near the end of the deposition, USB, through counsel, offered
 8   to purchase the MBP Claim from Rabkin for $50,000; when he
 9   declined, counsel increased the offer to $60,000.   Rabkin did not
10   accept the offer.7
11        Shortly after the Rabkin deposition, USB by letter requested
12   that the bankruptcy court intervene in two discovery disputes in
13   the bankruptcy case: (1) whether the common interest privilege
14   applied so as to protect disclosure of communications between
15   Rabkin and Lakeridge’s counsel; and (2) to compel Bartlett to sit
16   for a second deposition, this time in her individual capacity as
17   opposed to her first deposition as representative of Lakeridge
18   (previously defined as the “Discovery Requests”).
19        The bankruptcy court held a hearing on June 21, 2012, on
20   USB’s Discovery Requests.   After reviewing letter briefs from USB,
21   Lakeridge and Rabkin, and hearing from their counsel, the court
22   ruled on the record that the Ninth Circuit’s decision in United
23   States v. Gonzalez, 669 F.3d 974 (9th Cir. 2012) supported the
24
25        7
             At a hearing on August 29, 2012, Rabkin indicated that he
     felt USB’s counsel took advantage of a deponent who was under oath
26   by pressuring him to accept a cash offer without an adequate
     chance to review it. The bankruptcy court would later apologize
27   to Rabkin “on behalf of the legal profession” for the offensive
     conduct of USB’s attorney in the deposition. Hr’g Tr. 21:1-2,
28   August 29, 2012.

                                     -5-
 1   application of the common interest privilege in this case and
 2   denied USB’s request to compel Rabkin to disclose his
 3   communications with Lakeridge’s attorneys.   As to USB’s request
 4   for a second deposition for Bartlett, the court ruled that she had
 5   been extensively examined already and the court would not require
 6   a second examination.
 7        On July 1, 2012, USB filed the Designation Motion.   USB
 8   contended in that motion that Rabkin was a statutory insider by
 9   virtue of the assignment of the MBP insider claim to him, and that
10   he was a non-statutory insider because of his relationship with
11   Bartlett.   USB also argued that the assignment of the claim to
12   Rabkin was in bad faith.   Lakeridge responded, arguing that Rabkin
13   was neither a statutory nor a non-statutory insider, and that
14   there was no bad faith involved in Rabkin’s acquisition of the
15   claim.
16        The bankruptcy court held an evidentiary hearing on the
17   Designation Motion on August 1, 2012.   USB, Lakeridge, and Rabkin
18   were represented by counsel, and Rabkin and Bartlett testified.
19        After a recess, the bankruptcy court announced its decision
20   on the record.   It granted the Designation Motion in part and
21   denied it in part.   The court entered an order to memorialize its
22   ruling on August 20, 2012 (the “Designation Order”).
23        First, the Designation Order recited that “The court finds
24   and concludes as a matter of law that Dr. Rabkin is not a non-
25   statutory insider because, among other things: (a) Dr. Rabkin does
26   not exercise control over the Debtor; (b) Dr. Rabkin does not
27   cohabit with Ms. Bartlett and does not pay Ms. Bartlett’s bills or
28   living expenses; (c) Dr. Rabkin has never purchased expensive

                                     -6-
 1   gifts for Ms. Bartlett.”    Designation Order at ¶ 2, August 20,
 2   2012.    The bankruptcy court also concluded that the converse was
 3   true:    that Bartlett exercised no such control or provided gifts
 4   to Rabkin.
 5           Next, the bankruptcy court decided that the MBP Claim “was
 6   not assigned to Dr. Rabkin in bad faith.”      Designation Order at
 7   ¶ 3.    It explained that Dr. Rabkin was not compelled to sell his
 8   claim to USB, his purchase of the MBP claim was a legitimate
 9   investment, and that Bartlett never asked him to vote in favor of
10   the plan.
11           However, the bankruptcy court reasoned, “Because [MBP] is a
12   statutory insider, Dr. Rabkin, as the assignee of the claim,
13   acquired the same status as a statutory insider when he purchased
14   the claim.”    Designation Order at § 6.     The court supported its
15   conclusion with citation to several authorities.      The Designation
16   Order gave no other explanation for its ruling that Rabkin was a
17   statutory insider.    As a consequence, the court decided that
18   “[b]ecause Dr. Rabkin’s vote cannot be considered for voting
19   purposes in order to confirm the Debtor’s Plan, the Debtor does
20   not have an impaired, assenting class of claims necessary to
21   confirm his Plan.”    Designation Order at ¶ 9.
22           Lakeridge and Rabkin both filed timely appeals of the
23   Designation Order.    USB also filed a timely cross-appeal
24   challenging the provision of the Designation Order that Rabkin was
25   not a non-statutory insider, and also seeking review of the
26   bankruptcy court’s prior order denying the Discovery Requests.
27                                 JURISDICTION
28           The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334

                                       -7-
 1   and 157(b)(2)(A),(L) and (O).   We have jurisdiction under
 2   28 U.S.C. § 158.
 3                                   ISSUES
 4   1.   Whether the bankruptcy court erred in deciding that Rabkin
 5        was an insider of Lakeridge under § 101(31).
 6   2.   Whether the bankruptcy court erred in deciding that Rabkin’s
 7        acceptance of the Lakeridge plan would be excluded under
 8        § 1129(a)(10).
 9   3.   Whether the bankruptcy court erred in declining to designate
10        that Rabkin’s acceptance of the plan was not in good faith
11        for purposes of § 1126(e).
12   4.   Whether the bankruptcy court abused its discretion in
13        declining to order that Bartlett submit to a second
14        deposition.
15   5.   Whether the bankruptcy court erred in refusing to compel
16        Rabkin to answer questions during his deposition based on the
17        common interest privilege.
18                           STANDARDS OF REVIEW
19        Whether a party is an insider in relation to a debtor is a
20   question of fact reviewed for clear error.    Friedman v. Sheila
21   Plotsky Brokers, Inc. (In re Friedman), 126 B.R. 63, 67 (9th Cir.
22   BAP 1991).   In making this determination, the bankruptcy court
23   must determine, “on a case-by-case basis whether the relationship
24   between a creditor and its debtor, considered in the light of the
25   statutory scheme, amounts to an ‘insider’ relationship.”     Id.
26        We review issues of statutory construction, including a
27   bankruptcy court’s interpretation of the Bankruptcy Code, de novo.
28   Samson v. W. Capital Partners, LLC (In re Blixseth), 684 F.3d 865,

                                       -8-
 1   869 (9th Cir. 2012).   Construction and application of
 2   § 1129(a)(10) is reviewed de novo.    W. Real Estate Equities, LLC
 3   v. Vill. at Camp Bowie I, LP (In re Village at Camp Bowie I, LP),
 4   ___ F.3d ___, 2013 U.S. App. LEXIS 3949 * 17 (5th Cir. 2013).
 5        We review good faith determinations under § 1126(e) for clear
 6   error.   Figter Ltd. v. Teachers Ins. & Annuity Ass’n of Am.
 7   (In re Figter Ltd.), 118 F.3d 635, 638 (9th Cir. 1997).
 8        The bankruptcy court’s decisions resolving deposition
 9   disputes are reviewed for an abuse of discretion.   Childress v.
10   Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004).
11        A trial court’s application of the attorney-client privilege
12   is reviewed de novo.   United States v. Richey, 632 F.3d 559,
13   563-64 (9th Cir. 2012).   The common interest privilege is an
14   extension of the attorney-client privilege.    United States v.
15   Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012).
16        De novo review requires the Panel to review an issue
17   independently, without giving deference to the bankruptcy court's
18   conclusions.   First Ave. W. Bldg., LLC v. James (In re Onecast
19   Media, Inc.), 439 F.3d 558, 561 (9th Cir. 2006); Cal. Franchise
20   Tax Bd. v. Wilshire Courtyard (In re Wilshire Courtyard), 459 B.R.
21   416, 423 (9th Cir. BAP 2011).
22        Clear error is found when the reviewing court has a definite
23   and firm conviction that a mistake has been committed.    Lewis v.
24   Ayers, 681 F.3d 992, 998 (9th Cir. 2012).
25        We apply a two-part test to determine objectively whether the
26   bankruptcy court abused its discretion.   United States v. Hinkson,
27   585 F.3d 1247, 1261-62 (9th Cir. 2009)(en banc). First, we
28   "determine de novo whether the bankruptcy court identified the

                                     -9-
 1   correct legal rule to apply to the relief requested." Id.      Second,
 2   we examine the bankruptcy court's factual findings under the
 3   clearly erroneous standard.   Id. at 1262 & n.20.     We must affirm
 4   the bankruptcy court's factual findings unless those findings are
 5   "(1) 'illogical,' (2) 'implausible,' or (3) without 'support in
 6   inferences that may be drawn from the facts in the record.'"     Id.
 7                                 DISCUSSION
 8                                     I.
 9        Rabkin was neither a statutory nor a non-statutory
          insider of debtor Lakeridge under § 101(31).
10
11        The fundamental issue raised in this appeal is whether Rabkin
12   was an “insider” as to Lakeridge.      If he was an insider, his vote
13   to accept the Lakeridge plan must be excluded under § 1129(a)(10).
14        The Bankruptcy Code definition of an insider in § 101(31) for
15   a case involving a corporate debtor8 provides:
16        The term "insider" includes– . . .
17             (B) if the debtor is a corporation--
18                 (I) director of the debtor;
                   (ii) officer of the debtor;
19                 (iii) person in control of the debtor;
                   (iv) partnership in which the debtor is a
20             general partner;
                   (v) general partner of the debtor; or
21                 (vi) relative of a general partner, director,
               officer, or person in control of the debtor; . . .
22
                (F) managing agent of the debtor.
23
24        If a word or phrase is defined in the statute, then that
25   definition governs.   Perroton v. Gray (In re Perroton), 958 F.2d
26
          8
             The definition of “corporation” in the Bankruptcy Code
27   includes unincorporated limited liability companies, such as
     Lakeridge. § 101(9)(A)(4); In re Longview Aluminum, LLC, 657 F.3d
28   507, 509 n.1 (7th Cir. 2011).

                                      -10-
 1   889, 894 (9th Cir. 1992) (citing Colautti v. Franklin, 439 U.S.
 2   379, 392 (1979)).   A term appearing in several places in the
 3   statute is ordinarily interpreted as having the same meaning each
 4   time it appears.    Warfield v. Salazar (In re Salazar), 465 B.R.
 5   875, 879-880 (9th Cir. BAP 2012) (citing Ratzlaf v. United States,
 6   510 U.S. 135, 143 (1994)).
 7        It is not disputed that Rabkin would not be included in any
 8   of the categories of insiders set forth expressly in § 101(31):
 9   he is not a director, officer, or a controlling party, relative of
10   a controlling party, or a managing agent of Lakeridge.   However,
11   the statutory list of insiders is not exclusive.   See 11 U.S.C.
12   § 101(31) (“The term insider includes . . . .”); § 102(3)
13   (explaining that, when used in the Code, the term “includes” is
14   not limiting); In re Bonner Mall P’ship, 2 F.3d 899, 912 (9th Cir.
15   1993); Miller Ave. Prof’l & Promotional Servs v. Brady
16   (In re Enterprise Acquisition Partners, Inc.), 319 B.R. 626, 631
17   (9th Cir. BAP 2004) (“The definition of ‘insider’ in 11 U.S.C.
18   § 101(31) is not limiting: the use of the word ‘includes’ is
19   indicative of Congress's intent not to limit the classification of
20   insiders to the statutory definition.”).   In other words, Rabkin
21   could be deemed an insider as to Lakeridge even if he did not fall
22   into one of the classifications listed in the statute.   The
23   parties in this appeal and others sometimes refer to such parties
24   as “non-statutory insiders.”
25        A.   The bankruptcy court did not err in determining that
               Rabkin was not a non-statutory insider of Lakeridge.
26
27        Because the Code’s definition of an insider is not exclusive,
28   courts must necessarily develop the factors that may render a

                                      -11-
 1   party a non-statutory insider.   As explained by the Panel, at
 2   bottom, this category includes those individuals or entities whose
 3   business or professional relationship with the debtor “compels the
 4   conclusion that the individual or entity has a relationship with
 5   the debtor, close enough to gain an advantage attributable simply
 6   to affinity rather than to the course of business dealings between
 7   the parties.”   In re Friedman, 126 B.R. at 70.    Put another way, a
 8   non-statutory insider is one “who has a sufficiently close
 9   relationship with the debtor that his conduct is made subject to
10   closer scrutiny than those dealing at arms length with the
11   debtor.”   Id. (quoting S. Rep. No. 95–989, 95th Cong., 2nd Sess.
12   25 (1978) and H. R. Rep. No. 95–595, 95th Cong. 1st Sess. 312
13   (1977), reprinted in U.S. CODE CONG. & ADMIN. NEWS, 1978, pp. 5787,
14   5810, 6269).    In determining whether a creditor qualifies as a
15   non-statutory insider, courts look at the closeness of the
16   parties, and the degree to which the creditor is able to exert
17   control or influence over the debtor.    In re Entm’t Acquisition
18   Partners, Inc., 319 B.R. at 626;    Miller v. Schuman
19   (In re Schuman), 81 B.R. 583, 586 (9th Cir. BAP 1987).     The
20   primary test of a non-statutory insider is whether the creditor
21   “exercises such control or influence over the debtor as to render
22   their transaction not arms-length.”     Id.   In the context of
23   debtor-creditor relations, “[a]n arm's-length transaction is ‘[a]
24   transaction in good faith in the ordinary course of business by
25   parties with independent interests. . . .     The standard under
26   which unrelated parties, each acting in his or her own best
27   interest, would carry out a particular transaction.’”     Anstine v.
28   Carl Zeiss Meditec AG (In re U.S. Medical, Inc.), 531 F.3d 1272,

                                      -12-
 1   1277 n.4 (10th Cir. 2008) (quoting BLACK’S LAW DICTIONARY 109 (6th ed.
 2   1990)).
 3        Besides the control test and examination for an arms-length
 4   transaction, other courts have expanded the non-statutory insider
 5   group to include those with a close personal or romantic
 6   relationship with the debtor.   Kaisha v. Dodson, 423 B.R. 888, 901
 7   (N.D. Cal. 2010) (woman who was romantically involved with debtor
 8   considered an insider for stock transfer purposes); In re Demko,
 9   264 B.R. 404, 408 (Bankr. W.D. Pa. 2001)(cohabitation may render
10   individual an insider); In re McIver, 177 B.R. 366 (Bankr. N.D.
11   Fla. 1995)(live-in girlfriend may be insider); but see
12   In re Reinbold, 182 B.R. 244, 246 (D. S.D. 1995) (holding that
13   mere cohabitation is insufficient and that “a de facto or de jure
14   family relationship is required.”).
15        In sum, then, to find that a party is a non-statutory insider
16   as to a debtor, the bankruptcy court must consider: (1) the
17   closeness of the parties and the relative control each has over
18   the other, and (2) whether the degree of control is such that it
19   would render its transaction with the debtor not arms-length.
20        Here, the bankruptcy court found that, despite his personal
21   relationship with Bartlett, there was no control exerted by Rabkin
22   over Lakeridge and/or Bartlett, and vice versa.    Hr’g Tr.
23   77:25–78:6.   The court also indicated in its comments on the
24   record that it had reviewed the case law concerning personal
25   relationships and determined that they would not support USB’s
26   argument that the relationship between Rabkin and Bartlett was
27   such as to confer non-statutory insider status on Rabkin:
28        The cases that have found non-statutory insiders have

                                     -13-
 1        involved generally cohabitation, longer periods of
          association, associations in which the property that the
 2        parties become economically entwined, they share
          checking accounts or sign on each other’s checking
 3        accounts. They use each other’s credit cards. They
          share each other’s property. There was not any of that
 4        sort of activity in this case.
 5   Hr’g Tr. 77:14-24.
 6        The bankruptcy court heard testimony from Rabkin and Bartlett
 7   concerning Rabkin’s motivations for purchasing the MBP Claim, the
 8   lack of control exerted by either Rabkin or Bartlett over each
 9   other’s actions, and the nature of their relationship.   The court
10   concluded in its Designation Order:
11        The court finds and concludes as a matter of law that
          Dr. Rabkin is not a non-statutory insider because, among
12        other things: (a) Dr. Rabkin does not exercise control
          over the Debtor; (b) Dr. Rabkin does not cohabit with
13        Ms. Bartlett and does not pay Ms. Bartlett's bills or
          living expenses; (c) Dr. Rabkin has never purchased
14        expensive gifts for Ms. Bartlett.
15   Designation Order at ¶ 2, August 20, 2012.    As noted above,
16   whether a party is an insider is a question of fact we review for
17   clear error.   The bankruptcy court’s determination in this case
18   was consistent with case law and supported by the testimony of the
19   witnesses and other evidence presented at the hearing.   While
20   others might come to a different conclusion, where two permissible
21   views of the evidence exist, the fact finder's choice between them
22   cannot be clearly erroneous.   Anderson v. City of Bessemer City,
23   N.C., 470 U.S. 564, 573-74 (1985).
24        We conclude that the bankruptcy court did not clearly err in
25   deciding that Rabkin was not a non-statutory insider as to
26   Lakeridge.   We therefore reject USB’s contention in the cross
27   appeal that Rabkin was a non-statutory insider and AFFIRM this
28   portion of the bankruptcy court’s decision.

                                     -14-
 1        B.   The bankruptcy court erred in determining that, by
               acquiring MBP’s insider claim, Rabkin also automatically
 2             became a statutory insider of Lakeridge.
 3        As noted above, none of the parties asserted that Rabkin was
 4   a statutory insider of Lakeridge as specified in the statute,
 5   because he was clearly not a member of one of the enumerated
 6   categories in § 101(31)(B).   Despite this, however, in its order,
 7   the bankruptcy court reasoned, "[b]ecause [MBP] is a statutory
 8   insider, Dr. Rabkin, as the assignee of the claim, acquired the
 9   same status as a statutory insider when he purchased the claim."
10   Designation Order at § 6.   In short, the bankruptcy court
11   apparently ruled that, as a matter of law, a non-insider becomes a
12   statutory insider automatically by acquiring an insider claim.    In
13   making this decision, the court did not rely upon any facts other
14   than the existence of the assignment of Bartlett’s claim to
15   Rabkin.
16        The bankruptcy court’s conclusion is not supported in the
17   case law it cited for the proposition and, indeed, it is
18   inconsistent with the Panel’s published decisions.   The Panel has
19   on multiple occasions explained that “insider determination . . .
20   is made on a case-by-case basis, after the consideration of
21   various factors.”   In re Friedman, 126 B.R. at 70 (quoting
22   In re Schuman, 81 B.R. at 586 n.1).    That the inquiry as to
23   insider status is fact-intensive, and made on a case-by-case
24   basis, is generally supported in the case law.   Browning Interests
25   v. Allison, 955 F.2d 1008, 1011 (5th Cir. 1992) (holding that a
26   non-statutory insider status must be determined by a factual
27   inquiry into the Debtor's relationship with the alleged insider);
28   Hyman v. Korshak & Assocs. (In re Island One, Inc.), 2013 Bankr.

                                     -15-
 1   LEXIS 662 *6 (Bankr. M.D. Fla. 2013) (“This more nebulous
 2   ‘non-statutory’ insider status must be determined by a factual
 3   inquiry into the Debtor's relationship with the alleged insider.
 4   The determination is fact-intensive and must be made on a
 5   case-by-case basis.”); In re Velo Holdings, 472 B.R. 201, 208
 6   (Bankr. S.D.N.Y. 2012) (insider status can be “be determined on a
 7   case-by-case basis from the totality of the circumstances”).
 8   Accord In re Smith, 415 B.R. 222, 233 (Bankr. D. Haw. 2009);
 9   Rainsdon v. Farson (In re Farson), 387 B.R. 784, 792 (Bankr. D.
10   Idaho 2008).
11        Two of the three cases cited by the bankruptcy court in its
12   ruling do not support its conclusion that when, by purchase or
13   assignment, a non-insider acquires a claim from an insider, the
14   new holder of the claim also assumes insider status.   One case
15   cited by the court, In re Applegate Prop., Ltd., 133 B.R. 827
16   (Bankr. W.D. Tex. 1991) does not deal with the purchase of an
17   insider claim by a non-insider.    Instead, that case dealt with the
18   purchase of a non-insider claim by an insider, as the result of
19   which the bankruptcy court deemed the insider’s acceptance of a
20   plan excluded for purpose of voting under § 1129(a)(10) because
21   the claimant was, independent of the claim, an insider.   The other
22   case cited by the bankruptcy court, In re Holly Knoll P’ship,
23   167 B.R. 381, 386 (Bankr. E.D. Pa. 1994), is nearly identical, in
24   that it also dealt with an insider purchasing a non-insider claim.
25   In that case, the court also conducted an inquiry that considered
26   more than the simple transfer of the claim in examining the
27   claimant’s insider status.   Id. at 798-99.   As can be seen, in
28   both of these cases, the bankruptcy courts understood that the

                                       -16-
 1   transfer or assignment of a claim did not alone change the status
 2   of the claimant, and that further inquiry was necessary to
 3   determine that status.
 4        The one case cited by the bankruptcy court that partly
 5   supports its conclusion that a non-insider who acquires an insider
 6   claim “steps into the shoes of that claimant” is the unpublished
 7   decision of our Court of Appeals, In re Greer W. Investment Ltd.
 8   P’ship, 81 F.3d 168, 1996 WL 134293 (9th Cir. Mar. 25, 1996).
 9   However, even this case does not tie the status of the claimant
10   solely to the status of the claim he acquired.   After agreeing
11   with the bankruptcy court that the non-insider “assumed the claim
12   subject to its insider status,” the Ninth Circuit continued its
13   analysis with “we next address whether [claimant] is an insider.”
14   1996 WL 134293 at *3.    Upon further examination, the Ninth Circuit
15   determined that the claimant was in fact an insider where the
16   debtor exercised considerable control over the creditor or vice
17   versa.   We take both of these observations to mean that the
18   assignment or purchase of a claim does not by itself change the
19   insider status of the claimant without further inquiry and factual
20   findings to support designating a creditor as an insider.
21        There is also a logical and legal inconsistency in the
22   bankruptcy court’s reasoning that the assignment of a claim by
23   itself may change the insider status of the claimant.   If
24   assignment of an insider claim to a non-insider alone changes the
25   non-insider’s status to insider, then it would follow that an
26   assignment or purchase of a non-insider claim by an insider would
27   change the insider into a non-insider.   As both the Applegate and
28   Holly Knoll courts observed, that cannot be allowed because, both

                                      -17-
 1   before and after the assignment, the insider is still an insider.
 2        The bankruptcy court applied an erroneous legal rule in this
 3   case when it determined that Rabkin, who was otherwise a non-
 4   insider, became an insider in the Lakeridge bankruptcy case by
 5   merely purchasing an insider’s claim.   This portion of the
 6   bankruptcy court’s decision is therefore REVERSED.
 7                                  II.
 8        Since the bankruptcy court failed to make appropriate
          findings regarding the insider status of Rabkin, it was
 9        error to exclude Rabkin’s acceptance of the plan of
          reorganization under § 1129(a)(10).
10
11        Section 1129 provides the requirements for confirmation of a
12   chapter 11 plan of reorganization.    Of interest in this appeal is
13   one such requirement, § 1129(a)(10).    This provision dictates
14   that, if a chapter 11 plan proposes to impair a class or classes
15   of claims, to be confirmed at least one impaired class must
16   affirmatively accept the plan, and that class acceptance must be
17   determined without including the “acceptance of the plan by any
18   insider.”9
19        In this case, Lakeridge has just two creditors.    Its proposed
20   plan separately classified each creditor:   Class 1 for secured
21   creditor USB and Class 3 for Rabkin, the sole unsecured creditor.
22   Because the plan does not provide for full payment to Class 3
23   creditors, that class is impaired. § 1124(1) (providing that a
24   class is impaired unless, as to each claim in the class, the plan
25
          9
             Section 1129 provides ”(a) The court shall confirm a plan
26   only if all of the following requirements are met: . . . (10) If a
     class of claims is impaired under the plan, at least one class of
27   claims that is impaired under the plan has accepted the plan,
     determined without including any acceptance of the plan by any
28   insider.”

                                    -18-
 1   leaves unaltered the contractual rights of the claim).        According
 2   to a ballot summary submitted to the bankruptcy court on July 30,
 3   2012 by Lakeridge’s counsel, Class 1 (USB) voted to reject the
 4   plan.        However, Class 3 (Rabkin) voted to accept the plan.10   Thus,
 5   if Rabkin’s accepting vote is counted, Class 3 has accepted the
 6   plan, and Lakeridge has satisfied § 1129(a)(10).
 7           Since the bankruptcy court determined that Rabkin was an
 8   insider, though, his vote would necessarily be excluded in
 9   determining whether Class 3 had accepted the plan.        We conclude
10   the bankruptcy court’s decision that his vote must be excluded was
11   incorrect because Rabkin was not an insider, and § 1129(a)(10)
12   does not require that his acceptance of the Lakeridge plan be
13   excluded in determining whether Class 3 accepted that plan.11         We
14   therefore REVERSE that portion of the bankruptcy court’s order
15
16
             10
             At oral argument before the Panel, counsel for USB
17   suggested that Rabkin placed a condition on his accepting vote,
     “that he receive more money.” We have examined the record and
18   find no support for this allegation. Indeed, a copy of Rabkin’s
     ballot is included in the bankruptcy docket at no. 240, Exhibit B,
19   attached to Lakeridge’s Certificate of Acceptance and Rejection of
     Chapter 11 Plan [Ballot Summary]. The ballot contains only a
20   check mark after “accepts” and is signed by Rabkin with his
     address. There are no indications of a condition on the ballot.
21
             11
             A leading treatise has described the test under
22   § 1129(a)(10) as “somewhat mechanical on its face, and thus would
     not under a plain meaning analysis permit an inquiry into motive”
23   of the accepting creditor. 7 COLLIER ON BANKRUPTCY § 1129.02[10] (Alan
     N. Resnick & Henry J. Somer, eds. 16th ed. 2009). Some courts
24   have suggested that attempts to artificially manufacture classes
     to obtain an accepting impaired non-insider class raise questions
25   under § 1129(a)(10). Windsor on the River Assocs. v. Balcor Real
     Estate Fin. (In re Windsor on the River Assocs), 7 F.3d 127, 183
26   (8th Cir. 1993). We decline to import an intent or purpose
     requirement into § 1129(a)(10). In re Hotel Assocs. of Tucson,
27   165 B.R. at 474. However, we note that, in § 1129(a)(3), the Code
     also requires, as a condition of confirmation, that the plan
28   proponent prove that the plan has been proposed in good faith.

                                          -19-
 1   determining that Rabkin’s vote to accept the plan must be
 2   excluded.
 3                                    III.
 4        The bankruptcy court did not err in declining to designate
          that Rabkin’s acceptance of the plan was not in good faith
 5        for purposes of § 1126(e).
 6        Even if Rabkin is not an insider and his claim is not
 7   excluded under § 1129(a)(10), USB argues that his acceptance of
 8   the Lakeridge plan should be “designated” under § 1126(e).    That
 9   Code provision permits the bankruptcy court, on request of a party
10   in interest, to disqualify any plan vote that was not made in good
11   faith, or that was not solicited in good faith or in accordance
12   with the provisions of the Bankruptcy Code.12   The bankruptcy court
13   declined to designate Rabkin’s acceptance here, and we perceive no
14   error in this decision.
15        In this context, “good faith” does not require a creditor to
16   act with selfless disinterest:
17        If a person seeks to secure some untoward advantage over
          other creditors for some ulterior motive, that will
18        indicate bad faith. See In re Marin Town Ctr., 142 B.R.
          374, 378-79 (N.D. Cal. 1992). But that does not mean
19        that creditors are expected to approach reorganization
          plan votes with a high degree of altruism and with the
20        desire to help the debtor and their fellow creditors.
          Far from it.
21
22   In re Figter Ltd., 118 F.3d at 638-39.   Put another way, a
23   creditor acting out of self-interest “is not to be condemned
24   simply because it frustrated [some other creditor’s] desires.”
25
26        12
            “On request of a party in interest, and after notice and a
     hearing, the court may designate any entity whose acceptance or
27   rejection of such plan was not in good faith, or was not solicited
     or procured in good faith or in accordance with the provisions of
28   this title.” § 1126(e).

                                      -20-
 1   Id. at 639.     On the other hand, if a person seeks to secure some
 2   untoward advantage over other creditors for some ulterior motive,
 3   that will indicate bad faith for purposes of § 1126(e).     Id. at
 4   639.
 5           Rabkin testified that he purchased the MBP Claim as a
 6   business investment with the expectation of receiving a $30,000
 7   return through the Lakeridge plan on a $5,000 investment.       Rabkin
 8   Dep. 82:3-14.    USB contends that Rabkin was involved in a romantic
 9   relationship with Bartlett, a principal of Lakeridge, and
10   conspired with her to acquire the MBP claim solely to accept
11   Lakeridge’s plan of reorganization.      On the one hand, Rabkin’s
12   argument that he was interested in making money is not an example
13   of bad faith.    In re Figter, 118 F.3d at 638.    On the other hand,
14   the acquisition of a claim solely to create an impaired assenting
15   class may constitute bad faith under § 1129(a)(3).     In re Hotel
16   Assocs. Of Tucson, 165 B.R. 470, 475 (9th Cir. BAP 1994).
17           USB insists that Rabkin did not act in accordance with his
18   financial interests, and as evidence, it points to his deposition
19   where counsel for USB offered Rabkin $50,000, and then $60,000, to
20   acquire his claim, which would generate an immediate profit of
21   $20,000-30,000 above what Rabkin expected to gain through the
22   plan.    According to USB, Rabkin’s refusal to take the bait clearly
23   demonstrated his motive in the case was something other than
24   financial gain.    When a creditor appears to act against
25   self-interest, that may be an indication of bad faith.
26   In re Hotel Assocs. Of Tucson, 165 B.R. at 475.
27           The bankruptcy court addressed this argument both at the
28   hearing on August 29, 2012, and in the order denying USB’s

                                       -21-
 1   motions.   At the hearing, Rabkin expressed outrage that he was
 2   pressured to make a deal in the context of a deposition hearing.
 3   The court agreed that USB’s tactic was “appalling” and apologized
 4   “on behalf of the legal profession” for USB’s counsel’s behavior.
 5   Hr'g Tr. 21:1-2.   In the order, the court characterized USB’s ploy
 6   during the deposition as “offensive” and noted that Rabkin was
 7   under no obligation to accept the offer.   Designation Order at
 8   ¶ 3.   The court also decided in the order that Rabkin’s purchase
 9   of a $2,671,000.00 unsecured claim under these circumstances for
10   $5,000, with a $30,000 expected gain, was an example of a
11   speculative investment and that no special due diligence was
12   required by Rabkin.   Id.
13          As to USB’s arguments concerning the Rabkin-Bartlett personal
14   relationship, the bankruptcy court made several findings on the
15   record, discussed above, indicating that the evidence presented to
16   him did not support insider standing on the basis of a putative
17   romantic relationship between Rabkin and Bartlett.   Designation
18   Order at ¶ 2.   In addition, in the order, the court found that, on
19   the evidence before it, “Ms. Bartlett did not ask Dr. Rabkin to
20   vote in favor of the Debtor’s Plan.”    Designation Order at ¶ 3(c).
21   In general, bad faith solicitation of a vote requires a “specific
22   request” for a creditor’s official vote.   In re Bataa/Kierland,
23   LLC, 476 B.R. 558, 565 (Bankr. D. Ariz. 2012) (citing Century
24   Glove v. First Am. Bank of New York, 860 F.2d 94, 102-03 (3d Cir.
25   1988).
26          Whether Rabkin’s vote on the Lakeridege plan should be
27   designated as “not in good faith” under § 1126(e) is a question of
28   fact reviewed for clear error.   In re Figter, 138 F.3d at 638.

                                      -22-
 1   The bankruptcy court considered the testimony and evidence on this
 2   question and made adequate findings on the record and in the order
 3   to support its conclusions.   Anderson, 470 U.S. at 573-74 (Where
 4   two permissible views of the evidence exist, the fact finder's
 5   choice between them cannot be clearly erroneous.).   The bankruptcy
 6   court did not clearly err in declining to designate that Rabkin’s
 7   acceptance of the plan was not in good faith for purposes of
 8   § 1126(e).   We AFFIRM the bankruptcy court’s decision in this
 9   respect.
10                                    IV.
11        The bankruptcy court did not abuse its discretion in refusing
          to order that Bartlett submit to a second deposition.
12
13        Rules 9014 and 7030 incorporate Civil Rule 30 in contested
14   matters.   Civil Rule 30 states, “Unless otherwise stipulated or
15   ordered by the Court, a deposition is limited to 1 day of 7
16   hours.”    Civil Rule 26, also incorporated in this context by
17   Rules 9014 and 7026, provides in relevant part,
18        When Required. On motion or on its own, the court must
          limit the frequency or extent of discovery otherwise
19        allowed by these rules or by local rule if it determines
          that:
20                 (I) the discovery sought is unreasonably
          cumulative or duplicative, or can be obtained from some
21        other source that is more convenient, less burdensome,
          or less expensive;
22                 (ii) the party seeking discovery has had ample
          opportunity to obtain the information by discovery in
23        the action; or
                   (iii) the burden or expense of the proposed
24        discovery outweighs its likely benefit, considering the
          needs of the case, the amount in controversy, the
25        parties' resources, the importance of the issues at
          stake in the action, and the importance of the discovery
26        in resolving the issues.
27   Civil Rule 26(b)(2)(C).
28        USB contends that Bartlett was originally deposed only in her

                                      -23-
 1   capacity as representative of Lakeridge, and not in her personal
 2   capacity.   Lakeridge and Rabkin counter that USB did indeed have
 3   the opportunity in the first deposition to question Bartlett about
 4   personal matters, including her relationship with Rabkin.       At the
 5   hearing on June 12, 2012, the bankruptcy court declined to order
 6   Bartlett to appear at a second deposition because USB already had
 7   the opportunity to question Bartlett in the deposition on personal
 8   matters as part of an “extensive” discussion.       The record on
 9   appeal supports this conclusion:
10        Q:     When was that ([MBP Claim] transferred to
                 Mr. Rabkin?
11
          BARTLETT: I believe it was in October. October 17th,
12                  something like that. In 2011.
13        Q:     And . . . that’s after the Village filed for
                 bankruptcy?
14
          BARTLETT: Yes.
15
          Q.     The most recent time?
16
          BARTLETT: Yes. . . .
17
          Q.     Okay. Did you know Mr. Rabkin before?
18
          BARTLETT: I did. . . .
19
          Q:     Did you know him personally?      Were you guys
20               friends?
21        BARTLETT: Yes.
22   Bartlett Dep. 55:14–20, February 9, 2012.
23        The bankruptcy court’s ruling that USB had ample opportunity
24   to obtain the information it needed at the original deposition is
25   consistent with Civil Rules 30 and 26, and is not (1) illogical,
26   (2) implausible, or (3) without support in inferences that may be
27   drawn from the facts in the record.        The bankruptcy court did not
28   abuse its discretion in refusing to order that Bartlett submit to

                                         -24-
 1   a second deposition.
 2                                   V.
 3        The bankruptcy court made insufficient findings in support of
          its ruling concerning the application of the common interest
 4        privilege.
 5        Whether the bankruptcy court correctly determined that the
 6   common interest privilege applied to protect Rabkin’s discussions
 7   with Lakeridge’s attorney is an issue of law we review de novo.
 8   Richey, 632 F.3d at 563-64; Gonzalez, 669 F.3d at 978.
 9        The bankruptcy court announced its decision on the record of
10   the hearing on June 21 regarding the Discovery Requests, including
11   its ruling that the common interest privilege applied and Rabkin
12   was not required to respond to questions from USB's counsel about
13   his discussions with Lakeridge's lawyer.    The bankruptcy court was
14   apparently unaware that the Ninth Circuit had just issued a
15   published opinion relating to the common interest privilege a few
16   weeks earlier, on May 10, 2012, in Pac. Pictures Corp. v. U.S.
17   Dist. Ct., 679 F.3d 1121 (9th Cir. 2012).
18        The Common Interest Privilege (also known as Joint Defense
19   Privilege) has long been recognized in the Ninth Circuit.
20   Gonzalez, 669 F.3d at 978 (9th Cir. 2012); Continental Oil Co. v.
21   United States, 330 F.2d 347, 350 (9th Cir. 1964).    The bankruptcy
22   court relied on Gonzalez in which the Ninth Circuit held that the
23   privilege was applicable in both civil and criminal proceedings,
24   and was based on the principle that “persons who share a common
25   interest in litigation should be able to communicate with their
26   respective attorneys and with each other to more effectively
27   prosecute or defend their claims.”    Gonzalez, 669 F.3d at 978.
28   This privilege applies in bankruptcy proceedings.   In re Mortg. &

                                    -25-
 1   Realty Trust, 212 B.R. 649, 653 (Bankr. C.D. Cal. 1997).      The
 2   privilege does not require a written agreement, and its
 3   application may be implied by “conduct and situation.”    Gonzalez,
 4   669 F.3d at 978 (quoting Continental Oil, 330 F.2d at 350).
 5        The bankruptcy court received a letter from Rabkin’s attorney
 6   describing the nature and scope of the communications at issue:
 7        In advance of his [scheduled] Deposition, Rabkin and
          [his counsel] met with [Lakeridge’s counsel at their
 8        office] to discuss in general terms the types of
          questions to expect at the deposition. The meeting
 9        lasted for 40 minutes and Rabkin anticipated that the
          discussions were being held in confidence. Later, at
10        the deposition, counsel for lender [USB] asked deponent
          Rabkin what had been discussed at the meeting []. Smith
11        and Hartman each asserted the common interest privilege
          and Hartman directed Rabkin not to answer any questions
12        relating to the meeting at [Lakeridge Counsel’s Office].
13        Lakeridge and Rabkin shared a common interest in that they
14   both wanted to obtain confirmation of the plan of reorganization,
15   Lakeridge as the debtor and plan proponent, and Rabkin for his
16   financial interests.   As a result, while they had separate
17   counsel, they were engaged in furtherance of a common legal
18   enterprise.   Gonzales, 669 F.3d at 981 (“In the context of the
19   joint defense privilege, only communications made in course of
20   ongoing common enterprise and intended to further that enterprise
21   are protected.”).   Rabkin believed that his communications with
22   Lakeridge’s attorney were protected as confidential, and asserted
23   the common interest privilege before the bankruptcy court.
24   Gonzalez, 669 F.3d at 981 (“The common interest rule requires
25   communication to be given in confidence and that the client
26   reasonably understood it to be so given.”).
27        The bankruptcy court noted that “I believe there is a Common
28   Interest Privilege.    I believe the Ninth Circuit has defined

                                      -26-
 1   it. . .    So your motion is denied.”    Hr’g Tr. 9:7-11, June 21,
 2   2012.
 3           However, because the bankruptcy court was not aware of the
 4   newer, Pac. Pictures opinion, it did not make the necessary
 5   finding that, in addition to all the factors discussed above, it
 6   was necessary to determine if there was an express or implied
 7   agreement between the parties to pursue a joint strategy:
 8           Rather than a separate privilege, the "common interest"
             or "joint defense" rule is an exception to ordinary
 9           waiver rules designed to allow attorneys for different
             clients pursuing a common legal strategy to communicate
10           with each other. See Hunydee v. United States, 355 F.2d
             183, 185 (9th Cir. 1965); see also In re Grand Jury
11           Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990) (collecting
             cases). However, a shared desire to see the same
12           outcome in a legal matter is insufficient to bring a
             communication between two parties within this exception.
13           Id. Instead, the parties must make the communication in
             pursuit of a joint strategy in accordance with some form
14           of agreement — whether written or unwritten. Cf.
             Continental Oil Co. v. United States, 330 F.2d 347, 350
15           (9th Cir. 1964).
16   Pac. Pictures Corp., 679 F.3d at 1130 (emphasis added).
17           Because the bankruptcy court did not make the necessary
18   finding that, in addition to sharing a common interest in the
19   outcome of the litigation, an express or implied agreement existed
20   between Rabkin and Lakeridge to pursue a joint strategy, we must
21   VACATE that portion of the order denying the Discovery Requests
22   relating to the common interest privilege.
23                                  CONCLUSION
24           We AFFIRM that part of the bankruptcy court’s order denying
25   the Discovery Requests that Bartlett need not submit to a second
26   deposition.    We VACATE the part of that order that the common
27   interest privilege applied to Rabkin’s discussions with
28   Lakeridge's attorney.

                                       -27-
 1        As to the Designation Order, we AFFIRM the bankruptcy court’s
 2   decision that Rabkin is not a non-statutory insider, and AFFIRM
 3   its decision declining to designate that Rabkin's acceptance of
 4   the plan was not in good faith for purposes of § 1126(e).   We
 5   REVERSE the bankruptcy court’s decision that Rabkin is a statutory
 6   insider, and REVERSE the decision excluding Rabkin’s vote to
 7   accept the plan.   We VACATE that part of the order deciding that
 8   the Debtor does not have an impaired, assenting class of claims
 9   necessary to confirm the plan, and the decision denying
10   confirmation of the Lakeridge plan of reorganization.   We REMAND
11   these matters to the bankruptcy court for further proceedings
12   consistent with this decision.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

                                      -28-
