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FILED

OCT 05 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP Nos. CC-15-1032-KuKiTa 

 ) CC-15-1353-KuKiTa

RUBEN GONZALEZ CUEVAS, )

 ) Bk. No. 2:14-bk-32359-NB

Debtor. )

_______________________________)

 )

RUBEN GONZALEZ CUEVAS )

 )

Appellant. ) MEMORANDUM*

_______________________________)

 )

RUBEN GONZALEZ CUEVAS; PHILIP )

E. KOEBEL, )

 )

Appellants, )

 )

v. )

 )

STEVAN CHANDLER, Trustee of the)

Juliana Cuevas Living Trust; )

HEIDE KURTZ, Chapter 7 Trustee,)

 )

Appellees. )

_______________________________)

Argued and Submitted on September 22, 2016

at Pasadena, California

Filed – October 5, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Neil W. Bason, Bankruptcy Judge, Presiding

 

*This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.
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Appearances: Philip E. Koebel argued for appellants.**

 

Before: KURTZ, KIRSCHER and TAYLOR, Bankruptcy Judges.

INTRODUCTION

Former chapter 131 debtor Ruben Gonzalez Cuevas appeals from

the dismissal of his chapter 13 case based on the bankruptcy

court’s finding of bad faith. Cuevas and his counsel, Philip E.

Koebel, also appeal from sanctions orders entered against Koebel

under Rule 9011 and under the bankruptcy court’s inherent

authority. None of Cuevas’ arguments challenging the dismissal

order justify reversal. In addition, appellants failed to set

forth in their second amended joint appeal brief any arguments

specifically and distinctly challenging the sanctions orders.

Accordingly, we AFFIRM.

FACTS

Cuevas is more than 70 years old and survives on a small

military pension and Social Security benefits totaling, in

aggregate, roughly $1,070 per month. For many years, Cuevas 

lived in a house on Mariposa Street in Altadena, California. 

Title to the house was held by the Juliana Cuevas Living Trust. 

**Chandler and Kurtz only are appellees in the appeal from

the sanctions orders. As stated in this Panel’s order entered

June 2, 2015, there is no appellee in the appeal from the

bankruptcy court’s dismissal order. Neither appellee actively

participated in the sanctions appeal.

1Unless specified otherwise, all chapter and section

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

all "Rule" references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. All "Civil Rule" references are to

the Federal Rules of Civil Procedure.

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Juliana was Cuevas’ mother. The house is the trust’s only

significant asset, and Cuevas’ sister Grace Dibble was named in

the trust to serve as the trustee. Upon Juliana’s death in 2005,

the trust provided for the division of the trust’s beneficial

interest into three equal shares, with Cuevas, Dibble and Cuevas’

brother Daniel each to receive one share.

In 2006, Dibble obtained an order from the probate court

confirming the trust’s ownership of the house, and in 2007 Dibble

obtained an order from the Los Angeles County Superior Court

entitling Dibble to recover possession of the house. However,

two days before the scheduled eviction, Cuevas filed his

chapter 7 bankruptcy case, which has been pending since

October 2, 2007. Almost immediately, Dibble sought and obtained

relief from the automatic stay; the order permitted her to

proceed with the state court litigation over ownership of the

house but did not permit her to evict Cuevas absent further order

of court.

At first, the chapter 7 trustee seemed content to rely upon

Dibble’s efforts to evict Cuevas and sell the house. By the end

of 2009, however, the chapter 7 trustee had lost confidence in

Dibble’s efforts, so he moved the probate court to remove her and

to appoint a successor probate trustee. Even though it was later

discovered that Dibble (apparently without notice or probate

court approval) had transferred title to the house from the

probate trust to a trust in her own name, it took the chapter 7

trustee until December 2012 to obtain a probate court order

permanently removing Dibble and appointing a successor probate

trustee – Stevan Chandler.

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Dibble and Cuevas resisted Chandler’s efforts to,

respectively, return title to the probate trust and to evict

Cuevas and liquidate the house. Meanwhile, after several years

as a chapter 7 debtor, Cuevas filed a series of motions – all

unsuccessful – seeking either to dismiss his chapter 7 case or to

convert it to chapter 13. He also sought to claim a homestead

exemption in the house, but the bankruptcy court overruled

Cuevas’ homestead exemption claim. Because the house was owned

by the probate trust and not by Cuevas, the court explained, he

did not have any interest in the house to exempt.

After recovering title to the house on behalf of the probate

trust in 2014, Chandler commenced an unlawful detainer action

against Cuevas, which was scheduled for trial in January 2015. 

Even though Cuevas’ 2007 chapter 7 bankruptcy case was still

pending, Cuevas filed his chapter 13 petition in December 2014,

which effectively stayed the unlawful detainer trial.

Soon thereafter, the bankruptcy court sua sponte entered an

order to show cause why the new chapter 13 case should not be

dismissed. In response, Cuevas argued that there was no per se

rule against him filing a chapter 13 case after receiving his

chapter 7 discharge but before his chapter 7 case had been fully

administered and closed. Cuevas further argued that his

chapter 13 case had been filed in good faith and for a legitimate

purpose, but the bankruptcy court disagreed. The bankruptcy

court explained that there was little or no post-chapter 7 debt

to deal with in the chapter 13 case, no prospect of Cuevas

receiving a discharge and no real source of income or assets

available permitting Cuevas to pay any debts, so there was no

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legitimate bankruptcy purpose behind the filing of Cuevas’

chapter 13 case. The court further noted that the assumptions

underlying Cuevas’ chapter 13 plan ignored the reality of the

bankruptcy court’s relief from stay and homestead exemption

rulings in Cuevas’ chapter 7 case. Based thereon, the bankruptcy

court concluded that the chapter 13 case should be dismissed and

the debtor should be barred for a period of two years from filing

a new bankruptcy case.

On the same day the bankruptcy court entered its chapter 13

case dismissal order (January 16, 2015), the court also issued an

order to show cause why Cuevas’ counsel Koebel should not be

sanctioned “under . . . §§ 105(a) or 329, Fed. R. Bankr. P. 9011,

L.B.R. 2090-1 and 2090-2, this court’s General Order 96-05, this

court’s inherent sanctioning authority, or any other applicable

law or rule.” According to the court, Koebel’s filing of Cuevas’

chapter 13 petition and the positions Koebel took in attempting

to prevent dismissal of the chapter 13 case tended to demonstrate

that sanctions against Koebel were warranted.

Both Koebel and Chandler filed responses to the sanctions

show cause order. In addition, the court permitted Chandler an

opportunity to file his own motion under Rule 9011 seeking

attorney’s fees awards against Koebel and in favor of Chandler

and the chapter 7 trustee. The court also convened multiple

hearings and permitted supplemental briefing by both sides. 

Cuevas also filed a motion to “correct” the bankruptcy

court’s chapter 13 case dismissal order and a notice of appeal

from that order. While Cuevas cited Civil Rule 60(a) as the

basis for his motion to correct, many of the issues raised in the

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motion actually sought supplemental, clarifying, and amended

findings of fact and conclusions of law.

Ultimately, the bankruptcy court issued a detailed and

thorough memorandum decision disposing of Cuevas’ motion to

correct as well as all outstanding sanctions issues. The

bankruptcy court granted in part Cuevas’ motion to correct. The

bankruptcy court agreed that a couple of inadvertent errors and

omissions in the dismissal order needed to be corrected. The

bankruptcy court’s memorandum decision also elaborated on the

findings and reasoning supporting dismissal of Cuevas’ chapter 13

case. In summary, the court explained, Cuevas only filed his

chapter 13 case to delay his eviction and to increase the

litigation costs of Chandler and the chapter 7 trustee. The

court described as “nonsense” Cuevas’ various assertions as to

why he needed to pursue chapter 13 relief. According to the

court, Cuevas’ claim that he needed to address in chapter 13 debt

that arose after the filing of his chapter 7 petition was a sham. 

The court similarly characterized as shams Cuevas’ alternate

theories about how he could fund his chapter 13 plan – either

from non-existent disposable income or from a wholly-speculative

and overly-optimistic expectation of a distribution from his

chapter 7 case.

The court denied all other relief requested in Cuevas’

motion to correct.

With respect to sanctions, the bankruptcy court ordered the

following sanctions against Koebel: (1) a sanctions award of

$15,346.30 in fees and costs to be paid to Chandler; (2) a

sanctions award of $2,110.60 in fees and costs to be paid to the

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chapter 7 trustee; and (3) a referral to the Central District of

California disciplinary panel, with a recommendation that Koebel

be referred to the California state bar, be suspended from

practice for a period of no less than six months and be subject

to a probationary period of practice of four and one-half years.

The bankruptcy court reasoned that Koebel’s subjective bad

faith and objectively unreasonable conduct in filing Cuevas’

chapter 13 petition and in opposing dismissal of the case (as

identified in its original January 2015 dismissal order and as

elaborated on in the memorandum decision) constituted ample

grounds for the imposition of sanctions under Rule 9011 and under

the court’s inherent powers.

The bankruptcy court entered its amended order dismissing

Cuevas’ chapter 13 case on September 30, 2015, and its sanctions

orders on October 28, 2015, and Cuevas and Koebel timely

appealed.

JURISDICTION

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

§§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUES

1. Has Cuevas raised any meritorious arguments for reversal of

the chapter 13 case dismissal order?

2. Has Koebel raised any meritorious arguments for reversal of

the sanctions orders?

STANDARDS OF REVIEW

While a bankruptcy court’s finding of bad faith is reviewed

under the clearly erroneous standard, the dismissal of a

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bankruptcy case for cause based on a finding of bad faith is

reviewed for an abuse of discretion. Leavitt v. Soto (In re

Leavitt), 171 F.3d 1219, 1222-23 (9th Cir. 1999).

We also review for an abuse of discretion all aspects of the

bankruptcy court’s imposition of sanctions under both Rule 9011

and under its inherent sanctioning authority. Price v. Lehtinen

(In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009); Shalaby v.

Mansdorf (In re Nakhuda), 544 B.R. 886, 898 (9th Cir. BAP 2016);

DeLuca v. Seare (In re Seare), 515 B.R. 599, 614 (9th Cir. BAP

2014).

The bankruptcy court abuses its discretion if it applies an

incorrect legal rule or its factual findings are illogical,

implausible or without support in the record. See U.S. v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

We review de novo whether an appellant’s due process rights

have been violated. In re Seare, 515 B.R. 615. 

DISCUSSION

Under § 1307(c), the bankruptcy court may dismiss a

chapter 13 bankruptcy case “for cause”. Bad faith of the debtor

in filing his or her bankruptcy petition is one type of cause for

dismissal. In re Leavitt, 171 F.3d at 1224. The bankruptcy

court, here, articulated and applied the correct legal standard 

– the totality of the circumstances. Additionally, the

bankruptcy court either explicitly or implicitly considered the

four factors set forth in In re Leavitt that bankruptcy courts

are supposed to consider before dismissing a case based on bad

faith. The four Leavitt factors are: 

(1) whether the debtor misrepresented facts in his

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petition or plan, unfairly manipulated the Code, or

otherwise filed his petition or plan in an 

inequitable manner; (2) the debtor's history of filings

and dismissals; (3) whether the debtor intended to

defeat state court litigation; and (4) whether

egregious behavior is present.

Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth),

455 B.R. 904, 917–18 (9th Cir. BAP 2011) (quoting In re Leavitt,

171 F.3d at 1224). These same four factors can be critical when

the bankruptcy court is considering imposing restrictions on the

debtor’s future bankruptcy filings. See In re Leavitt, 171 F.3d

at 1224 (“a finding of bad faith based on egregious behavior can

justify dismissal with prejudice”); see also In re Ellsworth,

455 B.R. at 922 (instructing courts to consider alternatives to

dismissal with prejudice, including “barring the debtor from

refiling for 180 days pursuant to § 109(g), or for some other

length of time.”).

Cuevas contends that the bankruptcy court did not consider

the totality of the circumstances and ignored evidence that,

according to Cuevas, tends to show his good faith in filing the

petition. Cuevas claims that the contents of his chapter 13

schedules and his plan demonstrate good faith, but the bankruptcy

court found otherwise. After reviewing (among other things)

Cuevas’ schedules, his plan and the orders issued by the

bankruptcy court in Cuevas’ chapter 7 case, the bankruptcy court

found that Cuevas did not have any genuine prospect of addressing

(or any genuine need to address) any post-chapter 7 indebtedness

at the time he filed his chapter 13 petition. The bankruptcy

court further found that Cuevas actually filed his chapter 13

petition for the improper purpose of impeding Chandler’s upcoming

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unlawful detainer trial and to increase the expense and delay

associated with Chandler’s actions on behalf of the probate trust

and the chapter 7 trustee’s actions on behalf of the chapter 7

bankruptcy estate.

Cuevas insists that there were post-chapter 7 tax debts that

needed to be addressed. Even if we were to assume that this is

true, Cuevas has not pointed us to anything in the record which

persuades us that the bankruptcy court committed clear error when

it determined that, at the time Cuevas filed his chapter 13

petition, he had no genuine ability to address (pay) any portion

of these debts by way of a chapter 13 plan.

Cuevas’ claim that he potentially will obtain in the future

an (exemptible) ownership interest in the house currently owned

by the trust is an example of the dubious nature of Cuevas’

claims regarding plan funding. Cuevas does not dispute that the

trust owns the house and that Chandler, as trustee, has been

attempting for years to sell the house pursuant to the trust’s

terms so that the sale proceeds can be used to pay the costs of

trust administration and so that any remaining proceeds can be

distributed to the trust’s beneficiaries. Cuevas also has

conceded that the bankruptcy court in the chapter 7 case entered

a final and non-appealable order disallowing Cuevas’ homestead

exemption claim because the trust – not Cuevas – owned the house. 

Cf. In re Barnes, 275 B.R. 889, 896-97 (Bankr. E.D. Cal. 2002)

(debtor/beneficiary of self-settled irrevocable trust was not

owner of trust assets and hence could not exempt trust assets). 

And yet Cuevas argued in his chapter 13 case that he somehow

still could end up with an ownership interest in the house that

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could be exempted. Cuevas, himself, admitted in his opening

appeal brief that the only way this homestead exemption could

arise was “in the unlikely event that the Chapter 7 trustee

administers the Chapter 7 bankruptcy estate by awarding the

Debtor his home.” Aplt. Opn Br. (April 18, 2016) at pp. 24-25. 

Furthermore, Cuevas has not explained how, if this unlikely event

(home ownership) were to occur in the future, it would have

affected his exemption rights in bankruptcy, when such rights

ordinarily are fixed on the date the petition is filed. See

Wolfe v. Jacobson (In re Jacobson), 676 F.3d 1193, 1199 (9th Cir.

2012).

Cuevas’ alternate plan funding claim that he can expect

close to a $200,000 distribution from the trust is even more

doubtful. The projected $200,000 payout is based on Cuevas’

belief that he will receive one-third of the fair market value of

the house, which he alleges to be $600,000. Cuevas’ calculation

did not account for any costs of sale or for Chandler’s

reasonable expenses in administering the probate trust, which

have ballooned as a result of the actions taken by Cuevas and his

sister Dibble in the state court and in the bankruptcy court over

the course of the last decade. Nor did Cuevas’ calculation

account for the fact that any net distribution Cuevas otherwise

might be entitled to receive from the probate trust presumably

will be property of his chapter 7 bankruptcy estate and that the

allowed claims of his chapter 7 creditors and the allowed

administrative claims of the chapter 7 trustee presumably will

need to be paid in full before Cuevas can receive any payout as

the chapter 7 debtor. See § 726.

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After considering these facts and all of the other relevant

circumstances, the bankruptcy court found that, by filing his

chapter 13 petition, Cuevas improperly and in bad faith sought to

obstruct Chandler’s pending unlawful detainer proceedings and to

cause Chandler and the chapter 7 trustee to incur additional

expense and delay in carrying out their duties. Had the members

of this panel presided over Cuevas’ chapter 13 case, it is

possible that one or more of us might have made a different

finding. Even so, on this record, we cannot say that the

bankruptcy court’s bad faith finding was illogical, implausible

or not supported by the record. See Retz v. Samson (In re Retz),

606 F.3d 1189, 1196 (9th Cir. 2010) (“A bankruptcy court's

factual determination is clearly erroneous if it is illogical,

implausible, or without support in the record.”).

On appeal, Cuevas raised six other issues that also lack

merit. According to Cuevas, the bankruptcy court lacked

authority to dismiss the chapter 13 bankruptcy case on its own

motion. This is simply wrong. Section 105(a) explicitly

provides the bankruptcy court with this authority. In relevant

part, § 105(a) states: “No provision of this title providing for

the raising of an issue by a party in interest shall be construed

to preclude the court from, sua sponte, taking any action or

making any determination necessary or appropriate to enforce or

implement court orders or rules, or to prevent an abuse of

process.” See also Tennant v. Rojas (In re Tennant), 318 B.R.

860, 869 (9th Cir. BAP 2004) (holding that bankruptcy court may

sua sponte dismiss a chapter 13 case under §§ 1307 and 105(a)).

Cuevas further argued that the bankruptcy court adopted a

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per se rule against commencing a chapter 13 case after the debtor

has received his discharge but before full administration of the

debtor’s pending chapter 7 case. But the bankruptcy court did

not adopt any per se rule. The bankruptcy court looked at the

history of Cuevas’ chapter 7 case, and the commencement of the

chapter 13 case while the chapter 7 case was still pending, as

one of the many circumstances that ultimately led the bankruptcy

court to conclude that the chapter 13 case had been filed in bad

faith. It was appropriate for the bankruptcy court to consider

the history, the status and the interrelationship of the two

cases in rendering its bad faith determination. In re Ellsworth,

455 B.R. at 917-18 (identifying “the debtor's history of

bankruptcy filings” as one of the factors the bankruptcy court

should consider in determining bad faith).

Cuevas next claimed that the bankruptcy court erroneously

imposed the burden of proof to establish good faith on the

debtor. The bankruptcy court’s memorandum decision establishes

that this claim is false. The bankruptcy court, in essence,

stated that there were sufficient undisputed facts regarding

Cuevas’ conduct to establish a prima facie case that the

chapter 13 petition was filed in bad faith and that Cuevas did

not present evidence sufficient to rebut this prima facie case. 

See Memorandum Decision (Sept. 30, 2015) at 6:4-10.

Cuevas additionally asserted that he was denied due process. 

Cuevas’ due process argument was two-fold. Cuevas first argued

on appeal that he did not know that the court’s order to show

cause re dismissal raised the issue of bad faith. Cuevas

alternately argued on appeal that he was denied due process

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because the bankruptcy court considered Chandler’s response to

the order to show cause, and Cuevas had no time or opportunity to

respond to the factual contentions and legal arguments set forth

in Chandler’s response, because Chandler’s response was filed a

couple of days before the hearing on the order to show cause. We

are perplexed by Cuevas’ claim that he was surprised by the bad

faith issue. The case cited in the dismissal order to show cause

– Grimes v. United States (In re Grimes), 117 B.R. 531 (9th Cir.

BAP 1990) – references and discusses bad faith as a pertinent

issue and so did Cuevas’ response to the order to show cause. 

Thus, we don’t understand how Cuevas can claim he did not know

that his alleged bad faith was at issue. As for Chandler’s

response, while Cuevas complained at the January 2015 dismissal

hearing about needing more time because he was surprised about

the bad faith issue, he did not argue that he needed more time

because of the response that Chandler filed. Indeed, before the

hearing occurred, Cuevas did file papers addressing some of the

points that Chandler argued, and the bankruptcy court considered

those papers.

In any event, even if we were to assume that there were some

sort of deficiency in the notice and opportunity to be heard

initially provided to Cuevas, the record does not reveal any

prejudice to Cuevas as a result of any such deficiency. We have

reviewed the entire record of the months of proceedings that took

place in the bankruptcy court in association with both the

dismissal of the case and the sanctions order to show cause. 

These proceedings included, in relevant part, a limited remand

granted by this Panel to permit Cuevas the opportunity to file

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whatever motion he deemed necessary to address any defects in the

bankruptcy court’s initial dismissal order or in the proceedings

leading up to that dismissal, and Cuevas thereafter did file a

motion to “correct” the dismissal order. In its September 30,

2015 memorandum decision, the bankruptcy court carefully and

thoroughly addressed all of the points Cuevas raised in his

motion to correct. At no time during these supplemental

proceedings did Cuevas attempt to reference any new or different

facts that reasonably could have countered the bankruptcy court’s

bad faith finding. Nor are any such facts evident in Cuevas’

appeal brief. Under these circumstances, we can and will reject

Cuevas’ due process arguments because of the absence of

prejudice. See Rosson v. Fitzgerald (In re Rosson), 545 F.3d

764, 776 (9th Cir. 2008).

There are only two other arguments Cuevas raised on appeal

that we need to address. Cuevas argues on appeal that the

bankruptcy court erred because it did not consider the effect of

Law v. Siegel, 134 S.Ct. 1188 (2014) on Ceuvas’ homestead

exemption rights before dismissing his chapter 13 case for bad

faith. Cuevas similarly argues that the bankruptcy court should

have considered the effect of Frealy v. Reynolds, 779 F.3d 1028

(9th Cir. 2015) and Neuton v. Dannig (In re Neuton), 922 F.2d

1379 (9th Cir. 1990), both of which deal with the treatment in

bankruptcy of a debtor-beneficiary’s interest in a spendthrift

trust. Cuevas did not raise Law, Frealy or Reynolds at any point

during the chapter 13 dismissal proceedings. Moreover, the

exemption arguments that Cuevas seeks to introduce by reference

to these three decisions in large part constitute an

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impermissible collateral attack on the bankruptcy court’s final

and non-appealable orders entered in Cuevas’ chapter 7 case. The

bankruptcy court’s December 21, 2012 order denying Cuevas’

homestead exemption claim and its March 9, 2012 summary judgment

explicitly rejecting Cuevas’ spendthrift trust claims effectively

preclude Cuevas from raising the issues addressed in Law, Frealy

and Reynolds in the current appeals from unrelated orders. See

Valley Nat'l Bank of Ariz. v. Needler (In re Grantham Bros.),

922 F.2d 1438, 1442 (9th Cir. 1991) (rejecting as frivolous

appellant’s attempted collateral attack on bankruptcy court’s

final, non-appealable sale order).

Cuevas and Koebel did not include in their appeal brief any

arguments specifically and distinctly addressing the bankruptcy

court’s sanctions rulings. As a result, they forfeited their

right to raise these arguments on appeal. See Christian Legal

Soc'y v. Wu, 626 F.3d 483, 487–88 (9th Cir. 2010); Brownfield v.

City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010) (citing

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)). 

Appellants might consider it unjust for this Panel to deem

any arguments challenging the sanctions orders forfeited. Given

the procedural history of the appellants’ appeals, we disagree. 

In the appeal from the sanctions orders (CC-15-1353), this Panel

originally set a deadline of November 30, 2015 for appellants’

opening brief. That deadline passed without Cuevas and Koebel

filing their opening brief. On February 29, 2016, this Panel

issued an order denying Cuevas’ and Koebel’s request to

consolidate the dismissal appeal and the sanctions appeal. In

that order, the Panel noted that the appellants’ appeal brief for

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the sanctions appeal was past due and granted appellants one

final chance to file their opening appeal brief for the sanctions

appeal. The order set a final due date of 28 days from the date

of the order (March 28, 2016) and specified that “[n]o further

extensions of time will be granted.” 

Instead of filing the opening brief for the sanctions appeal

or seeking prompt reconsideration of the scheduling aspects of

the Panel’s February 29, 2016 order, appellants waited until

March 28, 2016 – the date the brief was due – and filed an

“emergency motion” to suspend the briefing schedule or in the

alternative for an additional thirty-day extension. Furthermore,

the contents of the so-called emergency motion indicate that all

of the factual allegations on which the motion was based were

known to appellant Koebel at the time the Panel entered its

February 29, 2016 order.

Then, on April 18, 2016, appellants filed what they

suggested was a second amended joint brief for both the dismissal

appeal and the sanctions appeal; but this brief still did not

include any arguments specifically and distinctly challenging the

sanctions orders. Instead, as part of their filing of this

brief, the appellants included a “preamble” renewing appellants’

request for suspension or extension of the briefing schedule for

the sanctions appeal and indicating that, if those requests

ultimately were denied, appellants anticipated filing a request

to supplement their second amended joint brief.

Finally, on May 25, 2016, the Panel issued an order in the

sanctions appeal denying suspension of briefing and stating that

“[a]ppellants must rest on the brief they have filed in this

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appeal.”

By (not) prosecuting the sanctions appeal in this fashion,

appellants sought to substitute their judgment in place of the

Panel’s regarding when the sanctions appeal should be briefed. 

They further attempted to undermine the Panel’s authority to

control its docket and the course of proceedings. See generally

Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998)

(acknowledging such authority); United States v. Oregon, 913 F.2d

576, 589 (9th Cir. 1990) (same). Consequently, it is not unjust

to deem all of appellants’ sanctions-related arguments forfeited

under Wu and Brownfield.

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy

court’s dismissal of Cuevas’ chapter 7 bankruptcy case and its

imposition of sanctions.

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