NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

In re : DANA HOLLISTER,

Debtor,

______________________________ DANA HOLLISTER,

Petitioner

- Appellant,

v. BOBS, LLC; SELECT PORTFOLIO SERVICING, INC.,

Respondents

- Appellees. No. 21

- 55380
D.C. No. 2:18

- bk

- 12429

- NB

MEMORANDUM *

Appeal from the United States Bankruptcy Court for the Central District of California Neil W. Bason, Bankruptcy Judge, Presiding Argued and Submitted November 18, 2021

Pasadena, California Before: LINN, * * BYBEE, and BENNETT, Circuit Judges. Appellant Dana Hollister filed a financing motion seeking the bankruptcy

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. 

# FILED

DEC 28 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

court’s approval of a $7 million priming loan secured by real property , a unique

estate called the Paramour

. The loan would have subordinated the interests of certain
lienholders wit h secured interest s in the real property. Hollister needed to show that
each such lienholder was adequately protected through a cash payment (which some were to receive) , an additional or replacement lien, or other relief that would have
resulted in the “realization by [each] such [lienholder] of the indubitable equivalent
of such [lienholder’s] interest in [the real] property .” 11 U.S.C. § § 361, 364(d)

. The court rejected Hollister ’s motion because it found the proposed priming loan did not provide Appellee Bobs , LLC (Bobs) with the “indubitable equivalent” of Bobs’s interest in her property

. The court also rejected Hollister’s request for an evidentiary hearing. Hollister argues the court abused its discretion both in rejecting the priming
loan and in refusing to conduct an evidentiary hearing. The court certified this appeal for our consideration

. We authorize th e direct appeal and affirm. 1 28 U.S.C. § 158(d)(2)(A). “The bankruptcy court’s conclusions of law, including its interpretation of the

1 Bobs’s argument that we lack jurisdiction because the court did not issue a final order is meritless, as o ur jurisdicti on arise s under 28 U.S.C. § 158(d)( 2 ) (A)

. We also find that the case is not moot

. Although “the SGLC, Inc. financing offer has expired,” Hollister attested that “a loan remains available today.” If “a court can fashion some form of meaningful relief,” even if it “may not be able to return the parties to the status quo ante ,” then the case is p revented “from being moot.” Church of Scientology v. United States , 506 U.S. 9, 12

– 1 3 (1992). T he certified legal question remains ripe for review : “Whether the ‘too evident to be doubted’ standard warrants denial of a proposed priming loan without any e videntiary hearing.”3

Bankruptcy Code, are reviewed de novo and its factual findings are reviewed for
clear error.” In re Int’l Fibercom, Inc. , 503 F.3d 933, 940 (9th Cir. 2007). “We review for an abuse of discretion the bankruptcy court’s decision not to conduct an
evidentia ry hearing.” In re Caviata Attached Homes, LLC , 481 B.R. 34, 43 (B.A.P. 9th Cir. 2012). Hollister first argues that the court abused its discretion by applying the definition of “indubitable equivalent” from the reorganization context of the Bankruptcy Co de , 11 U.S.C. § 1129(b)(2)(A)(iii) , to the same phrase in 11 U.S.C. §
361

. Section 361 is the definitions section for § 364(d) , which govern s financing
motions li ke the one here

. Our court has h eld that Congress adopted “indubitable equivalen t ” in § 361 to include “language representing a strict approach to adequate protection” as it did when it adopted that language in § 1129. In re Am. Mariner Indus., Inc. , 734 F.2d 426, 434 (9th Cir. 1984)

. In In re Arnold & Baker Farms , we
defined “indubi table” to mean “too evident to be doubted.” 85 F.3d 1415, 1421 (9th Cir. 1996). This plain reading of the phrase extend s to “its use elsewhere in the Bankruptcy Code.” Am. Mariner , 734 F.2d at 432. Thus, the court correctly applied
the definition of “i ndubitable equivalent” from the § 1129 context to § 361(3). 2

2 Hollister’s argument that the court should have adhered to the “standard” set for th in In re Mellor , 734 F.2d 1396 (9th Cir. 1984 ) , is unavailing. Mellor did not set a standard, but merely illustrate d one type of “relief that provides the indubitable equivalent”

— an equity cushion. I d. at 1400

– 01.4

Hollister argues that the court should have afforded her an evidentiary hearing to resolve the material disputed facts related to adequate protection , and that the

court “failed to perform its duty ” to set the value of the Paramour with the aid of expert witness testimony

. The Bankruptcy Code provides that the “ [ bankruptcy ] court, after notice and a hearing, may authorize the obtaining of credit.” 11 U.S.C. § 364(d)(1). “The phrase ‘notice and a hearing’

. . . does not mean that a hearing must be granted.” In re Blumer , 66 B.R. 109, 113 (B.A.P. 9th Cir. 1986). Rather, “after notice and a hearing ” means “ after such notice as is appropriate in the particular circumstanc es, and such opportunity for a hearing as is appropriate in the particular circumstances.” 11 U.S.C. § 102(1)(A). “The bankruptcy judge has considerable, albeit not unlimited, discretion in determining if the notice and a hearing requirement has been sat isfied.” In re Nicholson , 435 B.R. 622, 635 ( B.A.P. 9th Cir. 2010) (quoting In re Gonzalez

- Ruiz , 341 B.R. 371, 381 (B.A.P. 1st Cir. 2006)).
The court did not abuse its discretion in not conducting a hearing , as it
reasonabl y determined that it had sufficient evidence to decide the priming motion.
See Blumer , 66 B.R. at 113. Hollister’s appraisals and calculations provided the court with “sufficient undisputed evidence . . . to issue its ruling without any further
evidentiar y hearing.” Caviata , 481 B.R. at 46. Hollister had “the burden of proof on the issue of adequate protection.” 11 U.S.C. § 364(d)( 2 ).5

The court did not err in finding that Hollister did not meet her burden to prove she had adequately protected Bobs’s int erest. The court did not need to set a n exact value for this unique property to reach this conclusio n because , among other reasons,
Hollister’s equity cushion calculations were erroneous. In Mellor , the equity cushion percentage was calculated by dividing the equity cushion by the value of the
residence. 734 F.2d at 1401. Hollister correctly stated that Bobs’s equity cushion “is equal to the fair market value of the Paramour less $22.35 million (t he sum of $4.35 million, $7 million and $11 million [the superior lienholders’ interests] ).” But
she did not calculate Bobs’s equity cushion percentage

. Hollister tried to show the proposed adequate protection to Bobs with four hypothetical valu ations in a table in her financing motion

. One row of the table lists : $40 million value finding by the

court ; $19,338,400 equity above all liens and encumbrances ; 175.80% adequate protection. Hollister’s math is not immediately apparent. 3
This presentation of the adequate protection percentage is misleading and

erroneous. Hollister committed the very error this court examined in Mellor , in which “the bankruptcy erroneously included the junior lien” by “equating debtors’ ‘equity’ with ‘adequate protection’ for the sellers.” 734 F.2d at 1400; see also id. at

3 We believe Hollister’s calculations were: ($40 million value finding)

– ($20,661,600 “secured debt burden,” or the total debt owed to all secured lienholders) = $19, 338,400 equity above all liens and encumbrances. ($19,338,400) / ($11 million Bobs lien) = 175.80% adequate protection for Bobs.6

n.2 (“‘Equity,’ as opposed to ‘equity cushion,’ is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit
of the unsecur ed creditors .”). The “equity above all liens and encumbrances” should have no part in the calculation of an equity cushion calculation. And Hollister erred by divid ing the equity by Bobs’s claim instead of by the value of the property

. In short, Hollist er presented a n incorrect equity percentage , not Bobs’s equity cushion
percentage

. Hollister thus failed to present Bobs’s adequate protection.
The court correctly found that Hollister “failed to ‘do the math’” because she simply did not submit an equity cushion calculation for Bob s
. The court thus correctly entered judgment as a matter of law because Hollister did not meet her burden under § 364(d)(2). F urther more , the court’s “hypothetical” calculations persuade us that this financing motion c ould not adequately protect Bobs. 4 We therefore affirm the court’s decision not to grant Hollister an evidentiary hearing before determining that she did not prov ide adequate protection to Bobs. 5

4 We agree with the court that Hollister’s “failure to do the math is fatal to the Financing Motion.” The court also conducte d “hypothetical” calculations of the equity cushion “to illustrate the sorts of calculations that the Debtor has not shown, and to illustrate that Bobs easily could be adversely affected if the Financing Motion were granted.” We reviewed the court’s “illu strative” calculations and found the m beneficial to our understanding of Ms. Hollister’s errors. We see no abuse of discretion in the court’s use of hypothetical equity cushion calculations. 5 Hollister asks us to remand to a different bankruptcy judge , because of alleged bias

. We reject her re quest as frivolous, as nothing in the record supports our removing the bankruptcy judge from this case.7

AFFIRMED.