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* 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 8013-1.

** This case was submitted without oral argument pursuant to

a stipulation by the parties.

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UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NV-11-1124-JuPaD

)

PATRICIA NIETO, ) Bk. No. 09-26688

)

Debtor. )

______________________________)

BAC HOME LOANS SERVICING, LP )

f/k/a COUNTRYWIDE HOME LOANS )

SERVICING, LP, )

) 

Appellant, )

)

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

)

PATRICIA NIETO, )

)

Appellee. )

______________________________)

Submitted Without Oral Argument

on November 15, 2012**

Filed - November 28, 2012

Appeal from the United States Bankruptcy Court

for the District of Nevada

Honorable Bruce A. Markell, Bankruptcy Judge, Presiding _________________________

Appearances: Ariel Edward Stern, Esq. and Heidi Parry Stern,

Esq. of Akerman Senterfitt LLP on brief for

appellant BAC Home Loans Servicing; David M.

Crosby, Esq. and Troy S. Fox, Esq. of Crosby &

Associates on brief for appellee Patricia Nieto. _________________________

FILED

NOV 28 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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1 Unless otherwise indicated, all chapter and section 

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

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Before: JURY, PAPPAS, and DUNN Bankruptcy Judges.

BAC Home Loans Servicing, LP (“BAC”) appeals the bankruptcy

court’s determination of Debtor Patricia Nieto’s (“debtor”)

principal residence pursuant to 11 U.S.C. § 1322(b)(2)1, arguing

that the pertinent date for determining principal residence is

the loan origination date. The bankruptcy court held that plan

confirmation was the proper date for determination of a debtor’s

principal residence. While this appeal was pending, this Panel

decided that the petition date was the correct date for

determination of a debtor’s principal residence. Benafel v. One

West Bank, FSB (In re Benafel), 461 B.R. 581 (9th Cir. BAP

2011). While the bankruptcy court applied an incorrect legal

rule to resolve the issues in this appeal, because we agree with

the outcome, we AFFIRM.

I. FACTS

Debtor’s ex-husband purchased the residence at 816 Orr

Avenue, North Las Vegas, Nevada in February 1990. Debtor began

to occupy the residence at that time. In June 2000, as a result

of her divorce, debtor’s ex-husband transferred title of the

residence to debtor as her sole and separate property. In April

2006, debtor refinanced the residence with SFG Mortgage. BAC is

successor in interest to SFG Mortgage. 

On June 1, 2006, debtor purchased a second residence at

5308 Coleman Street, North Las Vegas, Nevada (“Coleman
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Property”). Shortly thereafter, debtor moved into the Coleman

Property and began to rent out the residence. On September 6,

2009, debtor filed for bankruptcy. On the petition date, debtor

resided in the Coleman Property.

On September 9, 2009, debtor filed her Chapter 13 plan. 

BAC objected to debtor’s plan on grounds that the value of the

residence stated in the plan was too low and that the plan

failed to provide any evidence of value. On December 31, 2009,

debtor filed a Motion to Value Collateral for the residence. 

Debtor sought to reduce BAC’s secured claim to the appraised

value of the residence. BAC opposed the motion, contending the

residence was debtor’s principal residence exempt from

modification pursuant to § 1322(b)(5). BAC argued that a

debtor’s principal residence is determined on the date the

creditor takes an interest in the property, and because debtor

listed the residence as her principal residence when she filled

out her loan application in 2006, BAC’s contractual rights were

exempt from modification pursuant to § 1322(b)(5).

On October 25, 2010, the bankruptcy court granted debtor’s

Motion to Value Collateral, holding the critical date for

determining a debtor’s principal residence under § 1322(b)(5) is

the plan confirmation date. On March 1, 2011, the bankruptcy

court issued an order confirming debtor’s Chapter 13 plan, which

relied in part on the valuation order. BAC timely appealed the

bankruptcy court’s confirmation order.

After BAC and debtor submitted their briefs on appeal, this

Panel held in a different appeal that the petition date was the

correct date for determination of a debtor’s principal
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residence. Benafel, 461 B.R. 581. BAC and debtor were asked to

supplement their briefs in light of Benafel.

II. JURISDICTION

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

§§ 1334 and 157(b)(1). This Panel has jurisdiction under

28 U.S.C. § 158.

III. ISSUE

Whether the bankruptcy court erred in permitting debtor to

modify BAC’s rights in the residence.

IV. STANDARD OF REVIEW

We review the bankruptcy court’s construction of the

Bankruptcy Code de novo. Educ. Credit Mgmt. Corp. v. Mason

(In re Mason), 464 F.3d 878, 881 (9th Cir. 2006). We may

consider any issue evident on the record and may affirm on any

basis supported by the record. O’Rourke v. Seaboard Sur. Co.

(In re E.R. Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989). 

We do not reverse for errors not affecting substantial rights of

the parties, and as noted, may affirm for any reason supported

by the record. Williams v. Levi (In re Williams), 323 B.R. 691,

696 (9th Cir. BAP 2005).

V. DISCUSSION

In Benafel, this Panel answered the legal question

presented in this appeal, deciding that the proper date for

determination of a debtor’s principal residence is the petition

date. 461 B.R. 581. The only question remaining then is

whether the bankruptcy court’s decision that the proper date is

the plan confirmation date constitutes reversible error. 

On October 25, 2010, the bankruptcy court issued a
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memorandum of decision. Therein, the bankruptcy court found,

“[w]hen she filed for bankruptcy, debtor was living in the

Coleman [Property] . . . .” BAC’s opening brief also

acknowledges debtor resided in the Coleman Property on the

petition date. For example, BAC states, “[o]n June 1, 2006,

Debtor purchased a second residence . . . . Debtor apparently

moved to the Coleman property and began to rent out the

[residence] around this time.” Given these statements, and with

no evidence to the contrary, the record supports a determination

that debtor did not reside in the residence on the petition

date. As a consequence, Benafel controls the outcome of this

appeal. 

VI. CONCLUSION

While the bankruptcy court applied an incorrect legal rule,

because debtor did not reside in the residence on the petition

date, the bankruptcy court’s decision does not constitute

reversible error. We AFFIRM.