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FILED

APR 11 2017

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-16-1228-LKuF

) BAP No. CC-16-1244-LKuF

ALELI A. HERNANDEZ, ) (consolidated appeals)

)

Debtor. ) Bk. No. 8:15-bk-10563-TA

______________________________)

)

ASSET MANAGEMENT HOLDINGS, )

LLC, )

)

 Appellant, )

)

v. ) M E M O R A N D U M*

)

ALELI A. HERNANDEZ, )

)

Appellee. )

______________________________)

Argued and Submitted on March 23, 2017

at Pasadena, California 

Filed - April 11, 2017

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Theodor C. Albert, Bankruptcy Judge, Presiding

_________________________

Appearances: Vanessa M. Haberbush of Haberbush & Associates LLP

argued for Appellant Asset Management Holdings,

LLC; Gregory M. Salvato of Salvato Law Offices

argued for Appellee Aleli A. Hernandez. 

_________________________

Before: LAFFERTY, KURTZ, and FARIS, Bankruptcy Judges.

* 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.
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INTRODUCTION

Debtor filed a chapter 72 case in 2010 and obtained a

discharge, including a discharge of her personal liability on two

debts secured by deeds of trust against her residence. More than

four years later, Debtor filed a subsequent chapter 13 case. On

her schedules, Debtor listed her residence and the two debts

secured by that residence. Because the amount of the senior lien

exceeded the value of the residence, Debtor indicated her intent

to avoid the junior lien held by Appellant’s predecessor-ininterest pursuant to § 506(a). She listed the debt to the junior

lienholder on Schedule D as a secured debt of $0, and again on

Schedule F as an unsecured debt of $278,396.71.

Appellant Asset Management Holdings, LLC (“AMH”) objected to

confirmation for lack of good faith and moved to dismiss the

chapter 13 case on eligibility grounds. The bankruptcy court

ruled that Debtor’s debts did not place her over the eligibility

limits because the debt to AMH did not need to be included in the

eligibility calculation. The court found that the debt should

not be treated as secured because the lien was avoidable under

§ 506(a), nor should it be treated as unsecured because Debtor’s

personal liability on the debt had been discharged in her prior

chapter 7 case. The bankruptcy court also found that the plan

was filed in good faith. Accordingly, the court denied the

motion to dismiss and confirmed the plan, and AMH appealed.

We AFFIRM.

2 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 

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FACTS

Aleli Hernandez obtained a discharge in an individual

chapter 7 case filed in April 2010. Among the debts listed in

the chapter 7 case were two debts secured by deeds of trust

against Debtor’s residence in Mission Viejo, California (the

“Mission Viejo Property”). 

Nearly five years later, on February 5, 2015, Debtor filed

the instant chapter 13 case. On Schedule A, Debtor listed the

Mission Viejo Property with a value of $950,000; on Schedule D,

she again listed two deeds of trust against the residence, a

first deed of trust in favor of “Chase” in the amount of

$1,036,490.00 and a second deed of trust in favor of SW Linear

Investment Group, LLC (“SW Linear”) in the amount of $0, with the

notation “Motion to Avoid Lien to be filed.” Debtor also listed

SW Linear on Schedule F with an unsecured debt of $278,396.71,

again with the notation “Motion to Avoid Lien to be filed.” 

Debtor filed a proposed chapter 13 plan on February 19, 2015. 

AMH filed a proof of claim for $459,221.60 on June 15, 2015.

On May 22, 2015, Debtor filed a motion under § 506 to value

SW Linear’s lien at $0.3 On June 3, 2015, before the lien

valuation matter was heard, SW Linear and AMH4 filed a motion to

3 Debtor’s motion was entitled “Motion to Avoid Junior Lien

on Principal Residence [11 U.S.C. § 506(d)].” However, because

avoidance will not occur until Debtor completes her plan, we

refer to such a motion as a “motion to value lien at zero.”

4 According to pleadings filed in the bankruptcy court, AMH

is an “affiliate of and successor in interest to SW Linear

Investment Group, LLC.” Pleadings in the bankruptcy court were

initially filed jointly by SW Linear and AMH. Beginning in

(continued...)

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dismiss Debtor’s chapter 13 case on the ground that Debtor’s

debts exceeded the limits established by § 109(e). SW Linear/AMH

argued that if its lien were valued at zero, it would have an

unsecured claim of $459,221.60; thus, Debtor’s unsecured debts

would exceed the $383,175 limit under § 109(e). Alternatively,

SW Linear/AMH argued that if its lien were not valued at zero,

Debtor’s secured debts would total $1,494,734.97 ($1,035,513.37 +

$459,221.60), thus exceeding the secured debt limit of

$1,149,525.

Over the next year, beginning on June 17, 2015, the

bankruptcy court held five hearings on plan confirmation and the

motion to dismiss. During that time the parties submitted two

more rounds of briefs on the eligibility issue. In the meantime,

at the July 8, 2015 hearing, the bankruptcy court granted

Debtor’s motion to value her residence for purposes of valuing SW

Linear’s junior lien at zero. 

 On August 18, 2015, AMH filed a Second Amended Objection to

Confirmation, arguing that Debtor’s plan was not filed in good

faith because it was filed primarily to avoid AMH’s lien and

prevent foreclosure. AMH also asserted that Debtor and her

husband had “engaged in a lengthy 5 year succession of serial and

individual filings to prevent foreclosure of the [Mission Viejo

Property],” citing Debtor’s 2010 chapter 7 filing, her husband’s

2012 chapter 7 filing, and the instant chapter 13. 

4(...continued)

August 2015, AMH began filing pleadings solely in its own name.

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At the final hearing on confirmation and on the motion to

dismiss held June 15, 2016, the bankruptcy court denied AMH’s

motion to dismiss, overruled AMH’s objection to confirmation, and

confirmed Debtor’s plan. AMH timely appealed both orders.5

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.

ISSUES

Did the bankruptcy court err in denying AMH’s motion to

dismiss Debtor’s chapter 13 case on eligibility grounds?

Did the bankruptcy court err in overruling AMH’s objection

to confirmation?

STANDARDS OF REVIEW

Eligibility determinations under § 109 involve issues of

statutory construction and conclusions of law, including

interpretation of the Bankruptcy Code, which we review de novo. 

Smith v. Rojas (In re Smith), 435 B.R. 637, 642 (9th Cir. BAP

2010).

The bankruptcy court’s determination regarding a debtor's

good faith in proposing a chapter 13 plan for confirmation is a

factual finding that we review for clear error. Meyer v. Lepe

(In re Lepe), 470 B.R. 851, 855 (9th Cir. BAP 2012).

5 The appeals were consolidated by order of a BAP motions

judge on September 19, 2016.

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DISCUSSION

A. The bankruptcy court did not err in denying AMH’s motion to

dismiss on eligibility grounds.

Under the version of § 109(e) in effect when Debtor filed

her chapter 13 petition, eligibility for chapter 13 was limited

to individuals with regular income who owed, as of the petition

date, “noncontingent, liquidated, unsecured debts of less than

$383,175 and noncontingent, liquidated, secured debts of less

than $1,149,525.” Eligibility debt limits are strictly

construed. Soderlund v. Cohen (In re Soderlund), 236 B.R. 271,

274 (9th Cir. BAP 1999).

Eligibility is ordinarily determined by examining the

debtor’s originally filed schedules, checking only to see if

those schedules were made in good faith. Henrichsen v. Scovis

(In re Scovis), 249 F.3d 975, 982 (9th Cir. 2001). At the same

time, the bankruptcy court need not take a mechanical approach to

determining eligibility by ignoring readily ascertainable

circumstances, such as where a lien is clearly undersecured. 

See id. at 983 (“By merely looking at the value of Debtors’

residence, the first deed [of] trust, and the judgment lien, it

is clear that [creditor’s] judgment lien is undersecured to a

significant extent.”). The unsecured portion of undersecured

debt is ordinarily counted as unsecured for § 109(e) eligibility

purposes. Id.; In re Smith, 435 B.R. at 647-48.

The question presented in this appeal is whether the debt

owed to AMH should be counted at all in determining Debtor’s

eligibility for chapter 13. The bankruptcy court concluded that

it should not. The court ruled that the debt should not be

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counted as a secured debt because AMH’s lien was wholly unsecured

on the petition date and thus was subject to being valued at zero

pursuant to § 506(b); and the debt should not be counted as an

unsecured debt because Debtor’s personal liability for the debt

had been discharged in her prior chapter 7 case. On appeal, AMH

contends that this conclusion was error because Debtor’s

discharge did not affect its lien and thus on the petition date,

AMH had an in rem (secured) claim against the estate. 

Alternatively, AMH contends that the debt should have been

included in the unsecured debt calculation as a claim against the

estate, relying on Ninth Circuit chapter 12 eligibility cases and

bankruptcy court chapter 13 cases. However, controlling

authority does not support AMH’s position.

The salient facts and eligibility issues presented in this

appeal are virtually identical to those presented in this Panel’s

recent decision in Free v. Malaier (In re Free), 542 B.R. 492

(9th Cir. BAP 2015), which controls the outcome here. See

People’s Capital and Leasing Corp. v. Big3D, Inc. (In re Big3D,

Inc.), 438 B.R. 214, 226 (9th Cir. BAP 2010) (noting that this

Panel regards “precedents established in its prior published

decisions as binding on the Panel absent changes in the

Bankruptcy Code or controlling decisions by the Ninth Circuit

Court of Appeals or United States Supreme Court”).

In Free, this Panel held, as a matter of first impression,

that debtors who had previously obtained a chapter 7 discharge of

their personal liability for wholly unsecured junior liens

against their residence were not required to include that debt as

an unsecured debt for purposes of the chapter 13 eligibility

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calculation. The Panel agreed with the analysis of In re Shenas,

No. 11-41332 EDJ, 2011 WL 3236182 (Bankr. N.D. Cal. July 28,

2011). There, the bankruptcy court ruled, under similar facts,

that because the unsecured portion of the debt was no longer

enforceable against the debtor, it was not allowable as an

unsecured claim in the chapter 13 case. As such, debtors did not

owe any unsecured debt to the creditor for purposes of the

unsecured debt limitation of § 109(e). In re Free, 542 B.R. at

496 (citing In re Shenas, 2011 WL 3236182, at *1).

The Panel in Free reasoned that its holding was not in

conflict with Johnson v. Home State Bank, 501 U.S. 78 (1991), a

case that has been cited in other eligibility cases to support

the inclusion of wholly unsecured discharged debts in the

eligibility calculation. See, e.g., In re Scotto-DiClemente, 463

B.R. 308 (Bankr. D.N.J. 2012), aff’d sub nom., In re DiClemente,

2012 WL 3314840 (D.N.J. Aug. 13, 2012). In Johnson, the Supreme

Court held that a mortgage lien that secured an obligation for

which a debtor’s personal liability has been discharged in a

chapter 7 liquidation was a claim subject to inclusion in an

approved Chapter 13 reorganization plan. The Supreme Court

observed that the term “debt” is defined as “liability on a

claim” and is thus coextensive with the term “claim.” Therefore,

the Court concluded that the mortgage lien was a claim within the

terms of § 101(5) because the mortgage lien holder retained a

“right to payment” in the form of its right to the proceeds from

the sale of the debtor’s property. 501 U.S. at 84. Observing

that “a bankruptcy discharge extinguishes only one mode of

enforcing a claim--namely, an action against the debtor in

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personam--while leaving intact another--namely, an action against

the debtor in rem[,]” id., the Court held that the bankruptcy

court must allow a claim “if it is enforceable against either the

debtor or his property[,]” id. at 85 (emphasis in original). 

Johnson was not an eligibility case, and the Panel in Free

interpreted Johnson as deciding only whether an in rem claim for

which personal liability has been discharged could properly be

addressed in a chapter 13 plan, not whether such a claim needed

to be included in the eligibility calculation. See In re Free,

542 B.R. at 497.

The Free Panel concluded:

[W]e do not see how the purposes of a chapter 13

reorganization are met by counting the discharged

unsecured obligations of the chapter 20 debtor in the

eligibility calculation. Assuming the case is filed in

good faith and proper chapter 13 purposes—such as

curing an arrearage on a first mortgage or paying

priority tax debt—are present, it makes no sense to

include in the debt limit calculation a claim for which

the right to payment has been discharged. Neither the

Code nor case law compels inclusion of the discharged

in personam liability in such calculation.

Id. at 501.

AMH acknowledges the holding of Free but argues that the

debt must be included as a secured debt, an issue that Free did

not analyze. Alternatively, AMH urges this Panel to disregard

Free and hold that AMH’s claim should be counted as unsecured.

1. The AMH debt should not be included in the eligibility

calculation as a secured debt.

AMH argues that when the in rem liability of a secured

claim remains after the in personam liability is extinguished,

the debt must be considered when evaluating the debt limitation

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eligibility requirements under chapter 13, citing the chapter 12

eligibility cases of Quintana v. Internal Revenue Serv. (In re

Quintana) (Quintana I), 107 B.R. 234 (9th Cir. BAP 1989), aff’d

sub nom., Quintana v. Commissioner (In re Quintana) (Quintana

II), 915 F.2d 513 (9th Cir. 1990); and Davis v. Bank of America

(In re Davis) (Davis I), Nos. CC–11–1692–MkDKi, ND 11–10994–RR,

2012 WL 3205431 (9th Cir. BAP Aug. 3, 2012), aff’d sub nom.,

Davis v. U.S. Bank, N.A. (In re Davis) (Davis II), 778 F.3d 809

(9th Cir. 2015). 

In the Quintana cases, a judgment creditor had agreed to

waive any right to a deficiency judgment against the debtors

after sale of the real property subject to its judgment lien.

Debtors asserted that the creditor’s waiver made the judgment a

nonrecourse obligation and thus only the secured value of the

judgment lien needed to be included toward the aggregate debt

limit for a family farmer. The bankruptcy court disagreed; on

appeal, this Panel held that because the term “aggregate debts”

includes “all types of debts,” and because the creditor retained

a right to payment against the real property, the entire amount

needed to be included in the eligibility calculation. Quintana

I, 107 B.R. at 237. The Ninth Circuit Court of Appeals affirmed

on somewhat narrower grounds, holding that because the property

had not yet been sold, the waiver had no relevance to the

calculation. Quintana II, 915 F.2d at 517.

In the Davis cases, the debtor had discharged her personal

liability in a chapter 7 case. Although her secured debts

exceeded the chapter 12 eligibility limit, the debtor argued that

because her personal liability had been discharged, only the

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aggregate debt secured by her real property had to be counted. 

The bankruptcy court disagreed. On appeal, the BAP, citing

Quintana I and Quintana II, reasoned that the entire amount of

the debt should be included because the full amount continued to

be a claim against the collateral. On further appeal to the

Ninth Circuit, that court held that the term “aggregate debts” in

§ 101(18)(A) included “the unsecured portion of a creditor’s

claim from which the debtor has been discharged in an earlier

chapter 7 bankruptcy proceeding.” Davis II, 778 F.3d at

812.

AMH interprets Davis II’s holding that aggregate debts

include the unsecured portion of a creditor’s claim from which

the debtor has been discharged in an earlier chapter 7 to mean

that undersecured but discharged claims against property of the

debtor must count towards the chapter 13 debt limits as a secured

debt. 

However, the Panel in Free expressly rejected reliance on

these chapter 12 eligibility cases, finding that they were not

controlling because they considered only the aggregate debt

limit, and none of them addressed revival of discharged in

personam liability. In re Free, 542 B.R. at 499.

AMH acknowledges that a debtor may avoid a partially or

wholly unsecured lien in a chapter 13 but argues that § 109(e)

limits the eligibility analysis to the petition date and that

even if a debtor may be able to avoid an unsecured lien, the

avoidance does not become final until the debtor receives a

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discharge.6 However, this argument ignores Ninth Circuit

authority that in making the eligibility determination, the court

need not ignore circumstances that will permit the court to

easily ascertain whether a debt should be classified as secured

or unsecured, see In re Scovis, 249 F.3d at 983, and that the

unsecured portion of undersecured debt is counted as unsecured

for § 109(e) eligibility purposes, id.; In re Smith, 435 B.R. at

647-48. As such, we see no basis for AMH’s argument that its

claim should be classified as secured for eligibility purposes,

and AMH has cited no authority supporting such a conclusion.

2. The AMH debt should not be included in the eligibility

calculation as an unsecured debt.

Alternatively, AMH contends that the unsecured portion of

its claim should be included as an unsecured debt in the

eligibility calculation. AMH asks this Panel to ignore Free and

follow the holdings of In re Scotto-DiClemente, 463 B.R. 308; and

In re Wimmer, 512 B.R. 498 (Bankr. S.D.N.Y. 2014). In both of

those cases, the bankruptcy courts applied the reasoning of

Johnson (i.e., that if a claim is enforceable against either

6 In HSBC Bank USA, N.A. v. Blendheim (In re Blendheim),

803 F.3d 477, 497 (9th Cir. 2015), a case decided while this

matter was pending in the bankruptcy court, the Ninth Circuit

Court of Appeals held that a chapter 13 debtor may avoid the

unsecured portion of a lien upon successful completion of a

chapter 13 plan even if the debtor is not eligible for a

discharge. 

In footnote 9 of its opening brief, AMH acknowledges that

the Ninth Circuit BAP has so held, citing Boukatch v. MidFirst

Bank (In re Boukatch), 533 B.R. 292, 301 (9th Cir. BAP 2015). In

light of Blendheim and Boukatch, we construe AMH’s argument to be

that a lien avoidance is not final until the debtor successfully

completes her plan. 

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debtor or debtor’s property it may be provided for in a chapter

13 plan) to conclude that the unsecured portion of an in rem

claim must be included in the chapter 13 eligibility calculation

despite a prior chapter 7 discharge. In re Scotto-DiClemente,

463 B.R. at 311-14; In re Wimmer, 512 B.R. at 510-12. 

AMH also cites various California bankruptcy court cases

ruling that a chapter 20 debtor may not eliminate the unsecured

portion of a lien-stripped claim for plan purposes. In re Hill,

440 B.R. 176, 178-84 (Bankr. S.D. Cal. 2010); In re Akram, 259

B.R. 371 (Bankr. C.D. Cal. 2001); In re Gounder, 266 B.R. 879

(Bankr. E.D. Cal. 2001). However, in addition to the fact that

these authorities are not binding on this Panel, none of them

involve eligibility determinations, and to apply their reasoning

here would require us to ignore Free. We decline to do so.

Apparently recognizing that the relevant authorities are not

in its favor, AMH argues that as a matter of policy, not

including the discharged unsecured portion of a secured claim in

a chapter 13 filed subsequent to a chapter 7 would destroy the

rights of creditors holding undersecured claims and cause

unnecessary litigation in chapter 7 bankruptcies: AMH contends

that if creditors risk losing both their secured and unsecured

claims by debtors who first file a chapter 7 to wipe out their in

personam liability (while intending to then file a chapter 13 to

wipe out the in rem liability), creditors will bring objections

in every chapter 7 bankruptcy where their claim is undersecured

in the form of an objection to the discharge of the in personam

liability or a motion to dismiss the chapter 7 as a bad faith

filing. At the same time, AMH argues, debtors would not be

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seriously harmed because if their debts are over the chapter 13

eligibility limits they may file chapter 11 instead.

To be blunt, this argument is nonsensical. A secured

creditor could not prevail on an objection to discharge or a

motion to dismiss for bad faith in a chapter 7 case on grounds

that a debtor intended to file a subsequent chapter 13 to

eliminate the creditor’s lien. AMH (and undoubtedly every other

undersecured lien creditor) is unhappy that its entire claim may

be eliminated through serial chapter 7 and chapter 13 filings,

but binding precedent holds that in the absence of bad faith,

there is no prohibition on doing so.

In sum, AMH has not presented any argument or authority that

would warrant departure from our holding in Free. The bankruptcy

court did not err in ruling that AMH’s claim did not need to be

included as either a secured or unsecured debt in calculating

chapter 13 eligibility in this case.

B. The bankruptcy court did not err in overruling AMH’s bad

faith objection to confirmation.

AMH argues that Debtor’s bankruptcy petition was not filed

in good faith because its sole purpose was to strip AMH’s lien,

pointing out that Debtor does not have significant unsecured

claims or other issues that need to be dealt with in the chapter

13. AMH contends that permitting Debtor’s case to proceed would

permit her to improperly circumvent the rule that a lien may not

be stripped in a chapter 7. Dewsnup v. Timm, 502 U.S. 410, 417

(1992). 

To determine whether a chapter 13 case was filed in bad

faith, the bankruptcy court should consider:

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(1) whether the debtor misrepresented facts in his petition

or plan, unfairly manipulated the Bankruptcy Code, or otherwise

filed his chapter 13 petition or plan in an inequitable manner;

(2) the debtor’s history of filings and dismissals;

(3) whether the debtor only intended to defeat state court

litigation; and

(4) whether egregious behavior is present. Leavitt v. Soto

(In re Leavitt), 171 F.3d 1219, 1224 (9th Cir. 1999).

The bankruptcy court declined to dismiss the case on bad

faith grounds because controlling case law did not support the

conclusion that a chapter 20 filing is per se bad faith. This

observation is correct. See Johnson, 501 U.S. at 87; In re

Blendheim, 803 F.3d at 500; In re Free, 542 B.R. at 501. AMH

argues that the bankruptcy court failed to take into account the

totality of the circumstances, but the record does not support

this conclusion. And AMH points to nothing in the record to

indicate that Debtor misrepresented facts, unfairly manipulated

the Bankruptcy Code, filed her chapter 13 petition or plan in an

inequitable manner, had a history of multiple bankruptcy filings,

was attempting to defeat state court litigation, or exhibited

egregious behavior. Therefore, we cannot conclude that the

bankruptcy court erred in finding that Debtor’s petition and plan

were filed in good faith.

CONCLUSION

For the reasons explained above, the bankruptcy court did

not err in denying AMH’s motion to dismiss on eligibility

grounds, nor did it err in overruling AMH’s objection to

confirmation. Accordingly, we AFFIRM. 

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