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FILED

AUG 02 2017

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NOT FOR PUBLICATION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 No. CC-16-1390-KuLTa

)

CAROLYN LUCILLE DAVIS, ) Bk. No. 9:16-bk-11100-PC

)

Debtor. )

______________________________)

)

CAROLYN LUCILLE DAVIS, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

U.S. BANK NA; WESLEY H. AVERY,)

Chapter 12 Trustee, )

)

Appellees. )

______________________________)

Argued and Submitted on June 22, 2017

at Pasadena, California

Filed – August 2, 2017

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Peter H. Carroll, Bankruptcy Judge, Presiding

 

Appearances: Appellant Carolyn Lucille Davis argued pro se.**

 

Before: KURTZ, LAFFERTY and TAYLOR, 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.

**None of the named appellees have actively participated in

this appeal.
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INTRODUCTION

Chapter 121 debtor Carolyn Lucille Davis appeals from an

order denying her second motion for an extension of time to file

her chapter 12 plan and from an order dismissing her chapter 12

case for not timely filing her plan.

Because it is impossible to tell what legal standard the

bankruptcy court applied when it denied the second extension

motion and because the bankruptcy court did not make any findings

supporting its denial, the order denying the second extension

motion must be VACATED. The dismissal of the bankruptcy case

hinged on the denial of the second extension motion, so we also

must VACATE the order dismissing the bankruptcy case. Thus, both

rulings shall be VACATED, and this matter shall be REMANDED for

further proceedings.

FACTS

Davis identifies herself as the latest in a long line of

family farmers, who have been farming in the Paso Robles area

since the 1800's. Of late, however, Davis’ farming activities

have been subject to considerable financial setbacks. Indeed,

this is Davis’ third bankruptcy filing in the last seven years. 

She filed a chapter 7 bankruptcy case in 2010, in which she was

granted a discharge, and a prior chapter 12 case in 2011, which

was dismissed based on eligibility issues. See Davis v. U.S.

Bank, N.A. (In re Davis), 778 F.3d 809, 811 (9th Cir. 2015).

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.

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On June 13, 2016, Davis commenced, pro se, her latest

chapter 12 bankruptcy case. She filed her bankruptcy schedules

and statement of financial affairs two weeks later, on June 27,

2016. Other than the § 341(a) meeting of creditors held on

July 14, 2016, nothing much of note occurred in the case until

Davis filed on September 9, 2016 a motion to extend the deadline

for filing her chapter 12 plan, from September 12, 2016 to

October 12, 2016.

In the declaration attached to her extension motion, Davis

explained that, as a result of California’s severe multi-year

drought, two days prior, the wells she relied upon to irrigate

her crops had all run dry. She further explained that a well

drilling company already had visited her farm that day, so that

she and that company could assess what options she might have in

terms of obtaining more well water from her property. While she

did not specify how long that process would take, her comments

indicate that it would be a multi-week process.

Davis described her farming facility as a “pumpkin patch and

fresh produce seasonal event u pick facility” known as “Granny’s

Gardens.” According to Davis, between her wells running dry and

the fact that every day in October is the harvest season for her

facility, she faced a very hectic time over the next thirty days. 

In a one-sentence order entered the same day as the motion

was filed, the bankruptcy court granted the motion, stating as

follows:

Debtor having filed an ex parte motion requesting

an extension of time to file a chapter 12 plan, and the

court having considered the motion and taken judicial

notice of the proceedings since the commencement of the

case, and having found cause for an extension of time,

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it is

ORDERED that Debtor’s motion is granted and that a

chapter 12 plan must be filed with the court not later

than 4:00 p.m. on October 12, 2016. 

Order Granting Motion for Extension of Time (Sept. 9, 2016).

On October 12, 2016 – the same day her chapter 12 plan was

due – Davis filed her second motion to extend the time to file

her chapter 12 plan. Davis asserted that her second extension

motion was necessitated by a family medical emergency. Davis’

accompanying declaration stated that the day before her

chapter 12 plan was due her son was admitted to the hospital with

severe abdominal pain and internal bleeding and scheduled for a

surgical procedure.

That same day, and again in a one sentence order, the

bankruptcy court denied Davis’ second extension motion, stating

as follows:

Debtor having filed an ex parte motion requesting an

extension of time to file a chapter 12 plan, and the 

court having considered the motion and taken judicial 

notice of the proceedings since commencement of the

case, it is

ORDERED that the Debtor’s motion is denied.

Order Denying Motion for Extension of Time (Oct. 12, 2016).

Notwithstanding this denial, Davis filed her chapter 12 plan

on October 17, 2016, which proposed to pay her secured creditors

interest only payments on an annual basis in an aggregate amount

of roughly $50,000 per year for the next five years. Davis

further disclosed in her plan that her payment proposals assumed

her receipt of disaster relief funds or agricultural loan

proceeds that would enable her to install new well pumping

equipment necessary in order to restore her ability to irrigate

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her farm with well water.

The bankruptcy court did not consider Davis’ plan other than

to note that it was untimely filed. On October 24, 2016, without

advance notice or a hearing, the Clerk of Court entered a form

order and notice of dismissal based on Davis’ failure to timely

file a chapter 12 plan. Davis timely filed her notice of appeal

on November 3, 2016.

JURISDICTION

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

§§ 1334 and 157(b)(2)(A), and we have jurisdiction under

28 U.S.C. § 158.

ISSUES

1. Did the bankruptcy court commit reversible error when it

denied Davis’ second extension motion?

2. Did the bankruptcy court commit reversible error when it 

dismissed Davis’ bankruptcy case because her chapter 12 plan

was untimely filed?

STANDARDS OF REVIEW

Generally speaking, a bankruptcy court’s denial of an

extension motion is reviewed for an abuse of discretion. See

Mahakian v. William Maxwell Invs., LLC (In re Mahakian), 529 B.R.

268, 274 (9th Cir. BAP 2015).

The abuse of discretion standard also applies to a

bankruptcy court’s decision to dismiss a bankruptcy case under

§ 1208(c). Rice v. Dunbar (In re Rice), 357 B.R. 514, 517 (8th

Cir. BAP 2006), aff'd, 271 F. App'x 538 (8th Cir. 2008).

When we apply the abuse of discretion standard, we review

de novo whether the bankruptcy court identified and applied the

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correct legal standard, and we review factual findings under the

clearly erroneous standard. United States v. Hinkson, 585 F.3d

1247, 1261–62 (9th Cir. 2009) (en banc). 

Interpreting the statutory constraints on the court’s

authority to grant an extension of time is a question of law we

review de novo. See generally In re Mahakian, 529 B.R. at 274;

Mendez v. Salven (In re Mendez), 367 B.R. 109, 113 (9th Cir. BAP

2007).

DISCUSSION

Section 1221 provides that “the debtor shall file a plan not

later than 90 days after the order for relief under this chapter,

except that the court may extend such period if the need for an

extension is attributable to circumstances for which the debtor

should not justly be held accountable.” The standard set forth

in § 1221 is more stringent than the ordinary “for cause shown”

standard set forth in Rule 9006(b). It effectively requires the

bankruptcy court, before granting an extension request, to find

that the delay necessitating the extension was caused by

“circumstances beyond the debtor’s control.” First Sec. Bank &

Trust Co. v. Vegt, 511 B.R. 567, 585 (N.D. Iowa 2014). 

One leading treatise explains the rationale behind this

requirement:

[T]he 90-day limitation was probably included in

chapter 12 for the benefit of creditors rather than for

the benefit of the debtor. Because chapter 12 lacks

the safeguards for creditors that are provided in

chapter 11, the 90-day limitation . . . is [one of] the

primary protection[s] for creditors against a debtor’s

languishing in chapter 12 without confirming a plan.

Thus, it is appropriate that the debtor should be

required to meet a stringent burden if the debtor seeks

an extension of the 90-day period.

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8 Collier on Bankruptcy ¶ 1221.01[2] (Alan N. Resnick & Henry

J. Sommer, eds., 16th ed. 2017).

In the appeal before us, we do not know what legal standard

the bankruptcy court applied when it denied Davis’ second

extension motion. When it granted her first extension motion,

the court specifically based its grant on a finding of “cause”

shown. This was not the correct standard.

Arguably, we could assume that the bankruptcy court, when it

denied the second extension motion, applied the same “for cause”

standard it applied to the first extension motion but found

Davis’ reason for the delay not credible, insufficient grounds,

or both. We arguably could speculate that, if the bankruptcy

court found Davis’ second extension motion lacking under the “for

cause” standard, it doubtlessly would have denied her second

motion under § 1221's more stringent “circumstances for which the

debtor should not justly be held accountable” standard.

But this line of reasoning does not persuade us that

affirmance is appropriate. It is not just the relative

stringency of the two standards that is different; the focus of

the two standards is different. The focus of § 1221

is the cause for the delay and whether the debtor reasonably and

justly could have been expected to have prevented it. 

Davis’ two extension motions set forth grounds that, on

their face, seem fairly compelling: her wells ran dry during a

severe drought and her son needed emergency medical treatment in

the midst of her harvest season – perhaps the most critical time

of year for her “u pick” produce farming facility. These

asserted grounds reasonably might lead a court to find that the

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filing delay resulting therefrom was caused by “circumstances for

which the debtor should not justly be held accountable.” But

they also reasonably could lead to a contrary finding – that the

delay was within Davis’ control. After all, neither of Davis’

extension motions offered any explanation why she needed to set

aside for the last possible moment (day 90 and day 120) the

filing of her chapter 12 plan.2

At bottom, the problem confronting us here is that the

bankruptcy court made no findings at all – either way. Our role

as an appellate court is inherently limited. Mirner v. First

Republic Bank (In re Mirner), 2011 WL 3300102, at *2 (Mem. Dec.)

(9th Cir. BAP May 24, 2011). We review bankruptcy court

decisions – their findings of fact and conclusions of law. See

28 U.S.C. § 158; see, e.g., Bronitsky v. Bea (In re Bea),

533 B.R. 283, 285 (9th Cir. BAP 2015); Pemstein v. Pemstein

(In re Pemstein), 492 B.R. 274, 280 (9th Cir. BAP 2013). We do

not ordinarily render factual findings in the first instance. 

Calderon v. Lang (In re Calderon), 507 B.R. 724, 733 (9th Cir.

BAP 2014); In re Mirner, 2011 WL 3300102, at *2. Simply put, the

bankruptcy court has not provided us with what we need to conduct

our appellate review.

2Most of the exigencies and crises Davis has faced are not

that markedly different from those faced by other farmers.

Droughts, floods, frosts, crop failures, and pest problems are

all too common events. Nonetheless, Congress imposed exacting

time limits on family farmers to avail themselves of chapter 12

relief. We must abide by the plain language of the statute, and

the legal standards it imposes. Lamie v. U.S. Tr., 540 U.S. 526,

534 (2004). We cannot create equitable exceptions to the

statutory standards. Law v. Siegel, 134 S. Ct. 1188, 1194–95

(2014).

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Accordingly, we conclude that we must VACATE the bankruptcy

court’s denial of the second extension motion, and we must REMAND

so that the bankruptcy court can apply the correct legal standard

and make all necessary factual findings.3

Failure to timely file a plan under § 1221 is grounds for

dismissal. See § 1208(c)(3). Here, the bankruptcy court

dismissed Davis’ chapter 12 case on this basis. In light of our

vacating the order denying Davis’ second extension motion, it no

longer is clear that Davis’ chapter 12 plan – filed on

October 17, 2016 – was untimely. Consequently, the bankruptcy

court’s case dismissal order also must be VACATED, pending the

bankruptcy court’s consideration on remand of Davis’ second

extension motion.

It also is worth noting that, under the plain language of

§ 1208(c)(3), dismissal based on the debtor’s failure to file a

timely chapter 12 plan is discretionary rather than mandatory. 

Furthermore, § 1208(c) requires, before dismissal, “notice and a

hearing” (as that phrase is defined in § 102(1)). Yet the

dismissal here appeared to reflexively follow the denial of

Davis’ second extension motion. This procedural history troubles

us because it is not entirely clear whether Davis was afforded

due process before her case was dismissed. See Mullane v. Cent.

3We note that neither of Davis’ extension motions were

served on any other parties to the bankruptcy case. Because this

notice issue was not addressed in the first instance by the

bankruptcy court, and is beyond the scope of this appeal, we

decline to address it. But the bankruptcy court, on remand,

should decide wether any parties in interest are entitled to

notice of the second extension motion and whether Davis should

now be given an opportunity to serve them.

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Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (generally

explaining procedural due process requirements); but see also

Tennant v. Rojas (In re Tennant), 318 B.R. 860, 870-71 (9th Cir.

BAP 2004) (“a procedure is ‘perfectly appropriate’ that notifies

the debtor of the deficiencies of his petition and dismisses the

case sua sponte without further notice and a hearing when the

debtor fails to file the required forms within a deadline.”). 

Even so, in light of our analysis and resolution of this appeal,

it is unnecessary for us to further address this issue.4

CONCLUSION

For the reasons set forth above, both the bankruptcy court’s

denial of the second extension motion and its dismissal of the

bankruptcy case are VACATED, and this matter is REMANDED for

further proceedings consistent with this decision.

4We also are troubled that, according to Davis, the

bankruptcy court routinely imposes an "unwritten rule"

prohibiting more than one extension of time to file chapter 12

and/or chapter 13 plans. However, like the § 1208(c) issue, we

need not further address the bankruptcy court’s unwritten rule

prohibiting more than one time extension.

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