FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: JASON PHILIP POWELL, 

Debtor, 

------------------------------

TICO CONSTRUCTION COMPANY 

INC., 

Appellant, 

 v. 

WILLIAM ALBERT VAN METER, 

Chapter 13 Trustee; MELISSA 

HOOVEN, FKA Melissa Powell; 

JASON PHILIP POWELL, 

Appellees.

No.22-60052 

BAP No.

22-1014 

OPINION

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Faris, Lafferty III, and Brand, Bankruptcy Judges, 

Presiding

Argued and Submitted December 8, 2023

San Francisco, California
2 IN RE: POWELL V. VAN METER

Filed October 1, 2024

Before: Daniel P. Collins, Danielle J. Forrest, and Jennifer 

Sung, Circuit Judges.

Opinion by Judge Sung;

Dissent by Judge Collins

SUMMARY*

Bankruptcy

The panel affirmed the Bankruptcy Appellate Panel’s 

opinion affirming the bankruptcy court’s order granting 

Jason Powell’s motion to voluntarily dismiss his Chapter 13 

case under 11 U.S.C. § 1307(b). 

TICO Construction Company, Inc., a creditor, opposed 

dismissal and moved to convert Powell’s case and compel 

him to proceed under a different chapter of the Bankruptcy 

Code. TICO asserted that Powell was not actually eligible 

for Chapter 13 relief when he filed his petition and that, as a 

result, he had no right to dismiss his case under § 1307(b). 

The bankruptcy court declined to resolve TICO’s challenge 

to Powell’s Chapter 13 eligibility and granted Powell’s 

motion to dismiss. 

The panel held that, considering only the plain text of 

§ 1307(b), all that is required for voluntary dismissal is (1) a 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
IN RE: POWELL V. VAN METER 3

request, (2) by a debtor, (3) who has a Chapter 13 case, (4) 

that has not been converted to another enumerated chapter 

under Title 11. The panel held that under Nichols v. Marana 

Stockyard & Lovestock Mkt., Inc. (In re Nichols), 10 F.4th 

956 (9th Cir. 2021), § 1307(b) gives a debtor an absolute 

right to dismiss a Chapter 13 case, even if the debtor filed a 

Chapter 13 petition in bad faith. 

TICO argued that the term “debtor” in § 1307(b) 

includes only a debtor who meets the Chapter 13 eligibility 

requirements. The panel held that, even assuming TICO’s 

interpretation of “debtor” was correct, which the panel 

doubted, the bankruptcy court was not required to 

conclusively determine Powell’s eligibility for Chapter 13 

relief before granting his request for voluntary dismissal. 

The panel held that when a debtor files a Chapter 13 

bankruptcy petition pursuant to 11 U.S.C. § 301(a) and 

certifies that they meet the chapter-specific eligibility 

requirements, the debtor is presumably a debtor under 

Chapter 13. The panel explained that § 301(a) does not 

expressly require that the filing party must “actually” be a 

debtor or must be a “bona fide” debtor or that the bankruptcy 

court must verify the debtor’s eligibility. The panel wrote 

that the Bankruptcy Code’s repeated reference to cases 

commencing with the filing of a petition, not with an 

eligibility determination, further supported the panel’s 

holding, as did the fact that when it is determined that a 

debtor is not eligible for relief under the chapter they 

designated in their petition, the Bankruptcy Code does not 

require the bankruptcy court to deem the commencement of 

their case invalid. 

Dissenting, Judge Collins wrote that, under the language 

of 11 U.S.C. §§ 103(j) and 1307(b), the various rights and 

procedures specified in Chapter 13, including the absolute 
4 IN RE: POWELL V. VAN METER

right of voluntary dismissal under § 1307(b), apply only in a 

case that is properly under that chapter. Thus, Judge Collins 

would hold that TICO could oppose Powell’s invocation of 

the right of voluntary dismissal on the ground that the case 

was not properly filed under Chapter 13, and should be 

converted to a proceeding under another chapter, because 

Powell was ineligible to proceed under Chapter 13.

COUNSEL

Patrick S. O’Rourke (argued) and Louis E. Humphrey III, 

Humphrey O’Rourke PLLC, Reno, Nevada, for Appellant.

Michael G. Millward (argued), Millward Law Ltd., Minden, 

Nevada; William A. Van Meter, Chapter 13 Trustee, Reno, 

Nevada; Melissa Hooven, Pro Se, Minden, Nevada; for 

Appellees.

Christina L. Henry, Henry & DeGraaff PS, Seattle, 

Washington, for Amicus Curiae National Consumer 

Bankruptcy Rights Center.
IN RE: POWELL V. VAN METER 5

OPINION

SUNG, Circuit Judge:

Jason Powell filed a petition under Chapter 13 of the 

Bankruptcy Code. After several months of proceedings, 

Powell moved to voluntarily dismiss his case under 11 

U.S.C. § 1307(b). Powell’s former employer and a creditor 

in the proceedings—TICO Construction Company, Inc.—

opposed dismissal and moved to convert Powell’s case and 

compel him to proceed under a different chapter of the 

Bankruptcy Code. TICO asserted that Powell was not 

actually eligible for Chapter 13 relief when he filed his 

petition and that, as a result, Powell had no right to dismiss 

his case under § 1307(b). The bankruptcy court declined to 

resolve TICO’s challenge to Powell’s Chapter 13 eligibility 

and granted Powell’s motion to dismiss. TICO appealed to 

the Ninth Circuit Bankruptcy Appellate Panel (“BAP”), and 

the BAP affirmed.

In this appeal, TICO argues that the bankruptcy court 

abused its discretion by declining to resolve TICO’s 

challenge to Powell’s eligibility before granting his 

§ 1307(b) motion to dismiss. For the reasons explained 

below, we conclude that the bankruptcy court did not err, and 

we affirm.

BACKGROUND

In 2000, TICO sued Powell—its former employee—in 

Nevada state court. After years of litigation, the state court 

entered a judgment against Powell for over $200,000. For 

over a decade, TICO unsuccessfully attempted to collect this 

judgment from Powell. 
6 IN RE: POWELL V. VAN METER

Powell filed a petition under Chapter 13 of the 

Bankruptcy Code in 2021. A Chapter 13 proceeding allows 

individuals who have incurred debts under certain limits to 

retain assets and propose a reorganization plan to repay their 

debts over a three-to-five-year period. See Castleman v. 

Burman (In re Castleman), 75 F.4th 1052, 1055 (9th Cir. 

2023). The filing of a Chapter 13 petition creates an estate 

and triggers an automatic stay, which “prohibit[s] all entities 

from making collection efforts against the debtor or the 

property of the debtor’s estate.” HSBC Bank USA, N.A. v. 

Blendheim (In re Blendheim), 803 F.3d 477, 484 (9th Cir. 

2015) (citing 11 U.S.C. § 362).

The eligibility requirements for Chapter 13 relief are 

specified in 11 U.S.C. § 109(e). During the relevant period,1

§ 109(e) provided that:

Only an individual with regular income that 

owes, on the date of the filing of the petition, 

noncontingent, liquidated, unsecured debts of 

less than [$419,275] and noncontingent, 

liquidated, secured debts of less than 

[$1,257,850] or an individual with regular 

income and such individual’s spouse, except 

a stockbroker or a commodity broker, that 

owe, on the date of the filing of the petition, 

noncontingent, liquidated, unsecured debts 

1 Every three years the dollar amounts in § 109(e) are adjusted to reflect 

certain changes in the Consumer Price Index. 11 U.S.C. § 104(a). The 

numbers cited above reflect the figures as of Powell’s 2021 filing date. 

See 84 Fed. Reg. 3488. This is the 2019 version of this statute, which 

was most recently amended in 2022. See Bankruptcy Threshold 

Adjustment and Technical Corrections Act, Pub. L. 117-151, 136 Stat. 

1298 (2022). 
IN RE: POWELL V. VAN METER 7

that aggregate less than [$419,275] and 

noncontingent, liquidated, secured debts of 

less than [$1,257,850] may be a debtor under 

chapter 13 of this title.

Powell’s petition and related filings stated that he met the 

Chapter 13 eligibility requirements, including that his debts 

were below the statutory thresholds. Powell also declared 

under penalty of perjury that he had examined his petition 

before filing and that the information provided in the petition 

was true and correct. Powell’s attorney likewise certified 

that he had informed Powell about the eligibility 

requirements and available relief for each chapter, and that 

he had notified Powell of the consequences of “knowingly 

and fraudulently conceal[ing] assets or mak[ing] a false oath 

or statement under penalty of perjury in connection with a 

case” under Title 11.

TICO objected to the discharge of Powell’s debt relating 

to its uncollected state court judgment. TICO asserted that 

this debt was nondischargeable because Powell had 

defrauded TICO, embezzled funds from TICO, and 

committed common larceny of certain confidential 

information. See 11 U.S.C. § 523(a)(4) (making 

nondischargeable certain debts “for fraud or defalcation 

while acting in a fiduciary capacity, embezzlement, or 

larceny”). TICO also argued that this debt was not 

dischargeable under 11 U.S.C. § 523(a)(6), which exempts 

from discharge certain debts “for willful and malicious 

injury by the debtor to another entity or to the property of 

another entity.” 

Some months later, Powell moved to voluntarily dismiss 

his Chapter 13 case under § 1307(b). TICO opposed 

dismissal, moved to convert Powell’s Chapter 13 case to a 
8 IN RE: POWELL V. VAN METER

Chapter 7 or Chapter 11 case,2 and sought sanctions. TICO 

asserted that Powell had never met the Chapter 13 eligibility 

requirements and that he filed his petition in bad faith. TICO 

further argued that, because Powell was ineligible for 

Chapter 13 relief under § 109(e), the bankruptcy court had 

no authority to dismiss his case under § 1307(b), and that it 

should convert Powell’s case to Chapter 7 or 11 proceedings 

instead. Alternatively, TICO asked the bankruptcy court to 

sanction Powell and place conditions on dismissal. 

The bankruptcy court dismissed Powell’s petition, 

reasoning that § 1307(b), as interpreted by Nichols v. 

Marana Stockyard and Livestock Mkt., Inc. (In re Nichols), 

10 F.4th 956 (9th Cir. 2021), gave Powell “an absolute right 

to voluntarily dismiss his Chapter 13 bankruptcy case.” The 

bankruptcy court “further decline[d] TICO’s request for an 

award of attorney’s fees and sanctions.” TICO appealed that 

decision, and the BAP affirmed. Tico Constr. Co. v. Van 

Meter (In re Powell) 644 B.R 181, 187 (9th Cir. BAP 2022). 

The BAP agreed that Powell had an absolute right to dismiss. 

Id. at 186. It also rejected TICO’s contention that Powell was 

not entitled to voluntary dismissal because he acted in bad 

faith, explaining “that the bankruptcy court has other tools 

to address such abuse,” including, for example, imposing a 

bar on refiling or other conditions under 11 U.S.C. § 105. Id. 

at 187 (citing Nichols, 10 F.4th at 964).

2

In Chapter 7 proceedings, unlike Chapter 13 proceedings, “a 

bankruptcy trustee immediately gathers up and sells all of a debtor’s 

nonexempt assets in the estate, using the proceeds to repay creditors in 

the order of the priority of their claims.” Blendheim, 803 F.3d at 485 

(citing 11 U.S.C. §§ 704(a)(1), 726). Chapter 11 proceedings allow 

certain business entities to reorganize their debt. See Zachary v. 

California Bank & Tr., 811 F.3d 1191, 1193–94 (9th Cir. 2016) 

(discussing Chapter 7, 11, and 13 proceedings).
IN RE: POWELL V. VAN METER 9

TICO timely appealed the BAP’s decision to this court.

STANDARDS OF REVIEW

“Decisions of the BAP are reviewed de novo. We 

independently review a bankruptcy court’s ruling on appeal 

from the BAP. We review the bankruptcy court’s 

conclusions of law de novo and its factual findings for clear 

error.” Aspen Skiing Co. v. Cherrett (In re Cherrett), 873 

F.3d 1060, 1064 (9th Cir. 2017) (citations and quotations 

omitted). 

ANALYSIS

TICO argues that the bankruptcy court lacked authority 

under 11 U.S.C. § 1307(b) to dismiss Powell’s Chapter 13 

case on his request. Section 1307(b) provides: 

On request of the debtor at any time, if the 

case has not been converted under section 

706 [Chapter 7], 1112 [Chapter 11], or 1208 

[Chapter 12] of this title, the court shall 

dismiss a case under this chapter. 

Considering only the plain text of § 1307(b), all that is 

required for voluntary dismissal is (1) a request, (2) by a 

debtor, (3) who has a Chapter 13 case, (4) that has not been 

converted to another enumerated chapter under Title 11. 

Here, TICO does not dispute that (1) Powell requested 

dismissal under § 1307(b), (2) Powell is a debtor under Title 

11, (3) Powell filed a Chapter 13 petition that the bankruptcy 

court treated as commencing a Chapter 13 case, and (4) the 

bankruptcy court had not converted Powell’s case under 

Chapters 7, 11, or 12. TICO also acknowledges, as it must, 

that we have previously held that § 1307(b) gives a debtor 

an “absolute right to dismiss” a Chapter 13 case, even if the 
10 IN RE: POWELL V. VAN METER

debtor filed a Chapter 13 petition in bad faith. Nichols, 10 

F.4th at 963. 

Still, TICO argues that the bankruptcy court erred in 

granting Powell’s request for voluntary dismissal under 

§ 1307(b). According to TICO’s interpretation of § 1307(b), 

only a debtor who meets the eligibility requirements for 

Chapter 13 relief under § 109(e) has an “absolute right” to 

voluntarily dismiss their case. TICO reasons that because 

only Chapter 13-eligible debtors have that right, the 

bankruptcy court cannot grant a debtor’s voluntary dismissal 

request without first determining that they meet the Chapter 

13 eligibility requirements. And, when making that 

determination, the bankruptcy court cannot rely solely on the 

debtor’s petition, even though the debtor must certify in the 

petition that they meet the eligibility requirements. Instead, 

the court must resolve any factual or legal questions 

regarding the debtor’s Chapter 13 eligibility. If the court 

determines that the debtor is not actually eligible for Chapter 

13 relief, then it cannot dismiss the case unless doing so is in 

the best interests of the estate and creditors. 

TICO’s position requires us to make two interpretive 

leaps. First, we must agree with TICO’s contention that the 

term “debtor,” for the specific purpose of § 1307(b), is 

different from the definition Congress provided for this term 

for Title 11 generally. See 11 U.S.C. § 101(13). Instead, 

TICO contends that for purposes of § 1307(b) “debtor” 

refers only to someone who meets Chapter 13’s eligibility 

requirements. Second, we must agree that § 1307(b) 

impliedly requires the bankruptcy court to conclusively 

determine a debtor’s Chapter 13 eligibility—including by 

resolving any eligibility disputes raised after the debtor 

requested dismissal—before granting the request. As 

explained below, we seriously doubt that “debtor” should be 
IN RE: POWELL V. VAN METER 11

interpreted as TICO suggests. But even assuming TICO’s 

interpretation of “debtor” is correct, we conclude that the 

bankruptcy court is not required to conclusively determine a 

debtor’s eligibility for Chapter 13 relief before granting a 

request for voluntary dismissal under § 1307(b).

We begin with the meaning of “debtor.” Section 1307(b) 

does not define the term, so we turn to 11 U.S.C. § 101, 

which defines terms for the purposes of Title 11. Section 

101(13) defines “debtor” as a “person or municipality 

concerning which a case under this title has been 

commenced.” This provision does not expressly define 

“debtor” as a person who meets chapter-specific eligibility 

requirements. To the contrary, § 101(13) refers only to 

commencing “a case under this title.” The use of the term 

“title” instead of “chapter” weighs against TICO’s 

contention that this “debtor” imports chapter-specific 

eligibility requirements. 

In support of its interpretation, TICO relies on 

§ 101(13)’s use of the term “commenced.” Section 101 does 

not define “commenced.” But TICO contends that this term 

refers to 11 U.S.C. § 301(a), which states: 

A voluntary case under a chapter of this title 

is commenced by the filing with the 

bankruptcy court of a petition under such 

chapter by an entity that may be a debtor 

under such chapter. 

Next, TICO argues that the phrase “may be a debtor” refers 

to 11 U.S.C. § 109(e), which uses the same phrase when 

specifying the Chapter 13 eligibility requirements. Section 

109(e) states that “[o]nly an individual [meeting statutory 

income and debt criteria] may be a debtor under chapter 13 
12 IN RE: POWELL V. VAN METER

of this title.” Based on this text, TICO makes the following 

assertions: A Chapter 13 case is not commenced by the filing 

of a Chapter 13 petition unless the debtor meets the Chapter 

13 eligibility requirements. If the debtor does not actually 

meet those requirements, then the filing of the petition does 

not actually commence a Chapter 13 case under § 301(a). If 

a Chapter 13 case has not actually commenced, then there is 

no Chapter 13 case to dismiss under § 1307(b). And, 

therefore, a court cannot dismiss a Chapter 13 case under 

§ 1307(b) unless it first determines that the debtor meets the 

Chapter 13 eligibility requirements. 

In our view, TICO puts too much weight on § 101(13)’s 

reference to “commenced.” That reference, by itself, does 

not lead us to conclude that Congress intended “debtor” to 

mean “a person who meets Chapter 13’s eligibility 

requirements”—especially when that interpretation is in 

tension with § 101(13)’s explicit reference to “title” instead 

of “chapter.” 

But we do not need to resolve that interpretive issue.

Even if a Chapter 13 case cannot be “commenced by the 

filing . . . of a petition” pursuant to § 301(a) unless the 

petition was filed by a debtor who meets Chapter 13’s 

eligibility requirements, that does not mean that the court 

must definitively determine that the debtor meets those 

requirements before allowing a dismissal under § 1307(b). 

For the reasons explained below, we conclude that, when 

a debtor files a bankruptcy petition under Chapter 13 and 

certifies that they meet the chapter-specific eligibility 

requirements, the debtor is presumptively a debtor under 

Chapter 13—and the petition filing is enough to commence 

a Chapter 13 case under § 301(a). And once a Chapter 13 

case has been commenced under § 301(a), the debtor has an 
IN RE: POWELL V. VAN METER 13

absolute right to voluntarily dismiss that case under 

§ 1307(b), and the bankruptcy court is not required to 

conclusively resolve any disputes about the debtor’s Chapter 

13 eligibility before granting a dismissal request.

Section 301(a) plainly states that a case is commenced 

by the filing of a petition—not an eligibility determination 

by the bankruptcy court. Even though § 301(a) also requires 

that the filing be done “by an entity that may be a debtor” 

under the designated chapter, the filing entity’s certification 

of eligibility presumptively establishes that the filing entity 

“may be a debtor” under the designated chapter.3 See Scovis 

v. Henrichsen (In re Scovis), 249 F.3d 975, 982 (9th Cir. 

2001) (holding that debtor’s Chapter 13 “eligibility should 

normally be determined by the debtor’s originally filed 

schedules”) (citing Comprehensive Accounting Corporation 

v. Pearson (Matter of Pearson), 773 F.2d 751, 756-57 (6th 

Cir. 1985)).4 TICO asserts that a filing entity cannot 

3 Perhaps this presumption would not apply where a party seeking 

Chapter 13 bankruptcy protection is facially ineligible for such relief. 

For example, if a party’s total unsecured debt is more than the statutory 

maximum, they are facially ineligible for relief. Santos v. Dockery (In re 

Santos), 540 F.Appx. 662, 623 (9th Cir. 2013). For another example, 

only “individuals” are eligible for Chapter 13 relief. 11 U.S.C. § 109(e). 

Thus, if an entity filed for Chapter 13 protection, its ineligibility would 

be obvious on the face of its petition. But here, Powell’s ineligibility is 

not facially obvious, thus we need not decide this issue. 

4

In Pearson, the Sixth Circuit held that a bankruptcy court should 

determine a debtor’s eligibility based on the originally filed schedules—

not “after a hearing on the merits of the claims.” Pearson, 773 F.2d at 

756. In so holding, our sister circuit persuasively explained: “[I]t is 

necessary that the procedures for determining initial [bankruptcy court] 

jurisdiction cannot be allowed to dominate the proceedings themselves 

nor to delay them unduly. . . . [T]he means of determining eligibility 
14 IN RE: POWELL V. VAN METER

establish Chapter 13 eligibility by “merely checking the box 

for Chapter 13” in the petition. But § 301(a) does not 

preclude the bankruptcy court from relying on a presumption 

of eligibility established by the debtor’s certification to 

determine that the petition filing has commenced a case. Nor 

does § 301(a) expressly require that the filing party must 

“actually” be a debtor or must be a “bona fide” debtor or that 

the court must verify the debtor’s eligibility. TICO simply 

does not identify any statutory text that requires or even 

suggests that the court must verify the debtor’s eligibility 

before a dismissal can be granted under § 1307(b).5

The Bankruptcy Code’s repeated reference to cases as 

commencing with the filing of a petition—not with an 

eligibility determination—adds further support for our 

holding. For example, the Code defines the term “petition” 

as “petition filed under section 301 . . . commencing a case 

under this title.” 11 U.S.C. § 101(42) (footnote omitted); see 

also, e.g., 11 U.S.C. § 302 (“A joint case under a chapter of 

this title is commenced by the filing with the bankruptcy 

must be efficient and inexpensive. To allow an extensive inquiry in each 

case would do much toward defeating the very object of the statute.” Id 

at 757.

5 TICO argues that the bankruptcy court must conclusively determine a 

debtor’s Chapter 13 eligibility before dismissing a case under § 1307(b), 

without explicitly arguing that the court must do so when a debtor first 

files a Chapter 13 petition. But that is the implication of TICO’s textual 

argument. TICO argues that a court cannot dismiss a case under 

§ 1307(b) unless a case has “actually been commenced” under § 301(a). 

And TICO argues that a Chapter 13 case is not actually commenced 

under § 301(a) unless the debtor is eligible for Chapter 13 relief at the 

time the petition is filed. If TICO’s interpretation of § 301(a) is correct, 

then the bankruptcy court would need to conclusively determine the 

debtor’s eligibility when they first file their petition—before the court, 

debtor, trustee, and other parties could proceed. 
IN RE: POWELL V. VAN METER 15

court of a single petition under such chapter by an individual 

that may be a debtor under such chapter and such 

individual’s spouse.”); id. § 303(b) (“An involuntary case 

against a person is commenced by the filing with the 

bankruptcy court of a petition under chapter 7 or 11 of this 

title[.]”); id. § 303(k)(1) (protecting “information relating to 

such petition or to the case commenced by the filing of such 

petition”).

Finally, when it is determined that a debtor is not eligible 

for relief under the chapter they designated in their petition, 

the Code does not require the bankruptcy court to deem the 

commencement of their case invalid and void all 

proceedings that occurred up to that point. Instead, the 

bankruptcy court may consider a motion to convert or 

dismiss based on the debtor’s ineligibility. See, e.g., Adams 

v. Zarnel (In re Zarnel), 619 F.3d 156, 171–72 (2d Cir. 2010) 

(holding bankruptcy court was not required to strike 

petitions filed by ineligible debtors and could instead grant 

trustee’s motions to dismiss);6 Fountain v. Deutsche Bank 

6 Our interpretation of §§ 301(a) and 1307(b) is consistent with Second 

Circuit’s interpretation of § 301(a) in Zarnel. There, the court considered 

several cases in which debtors filed petitions without satisfying the 

credit-counseling requirement codified at 11 U.S.C. § 109(h). 619 F.3d 

at 158–59. The bankruptcy court concluded that the debtors’ failure to 

satisfy that requirement before filing their petitions meant they were 

ineligible for relief at the time they filed and consequently, their petitions 

had not “commen[ced]” cases pursuant to § 301. Id. at 159–60. The 

Second Circuit reversed and remanded, concluding that, “although an 

individual may be ineligible to be a debtor under the Bankruptcy Code 

for failure to satisfy the strictures of § 109(h), the language of § 301 does 

not bar that debtor from commencing a case by filing a petition; it only 

bars the case from being maintained as a proper voluntary case under the 

chapter specified in the petition.” Id. at 166–67. In reaching that 
16 IN RE: POWELL V. VAN METER

Nat’l Trust Co. (In re Fountain), 612 B.R. 743, 747 (9th Cir. 

BAP 2020) (creditor moved to dismiss, arguing debtors 

exceeded the § 109(e) statutory debt limits); Smith v. Rojas 

(In re Smith), 435 B.R. 637, 640 (9th Cir. BAP 2010) (trustee 

moved to dismiss or convert based on § 109(e) ineligibility); 

Slack v. Wilshire Ins. Co. (In re Slack), 187 F.3d 1070, 1071 

(9th Cir. 1999), as amended (Sept. 9, 1999) (creditor moved 

to dismiss, arguing same).7 A party in interest or trustee also 

conclusion, the court rejected the textual argument that TICO makes here 

regarding the terms “commenced” and “may be a debtor.” Id. at 165–66.

7 The dissent cites Wenberg v. FDIC (In re Wenberg), 94 B.R. 631, 636 

(9th Cir. BAP 1988), aff’d 902 F.2d 768 (9th Cir. 1990), but the holding 

and reasoning of that case support our conclusion. In that case, the 

debtors filed a Chapter 13 petition, and a creditor challenged their 

eligibility, contending that their unsecured debts exceeded the statutory 

limitation set forth in § 109(e). In re Wenberg, 94 B.R. at 632. The 

bankruptcy court determined that the debtors were ineligible for Chapter 

13 relief and that, consequently, it lacked jurisdiction to issue a 

conversion order. Id at 635. The BAP remanded, holding “that § 109(e) 

eligibility is not jurisdictional” for several reasons, including the 

statutory text. Id at 636-37. Specifically, the BAP noted that § 109 

concerns only the “eligibility of debtors for relief,” and § 101(12) 

“defines a ‘debtor’ as a ‘person or municipality concerning which a case 

under this title has been commenced.” Id at 637 (alteration in original) 

(quoting 11 U.S.C. § 101(12)). Moreover, the BAP held that the 

bankruptcy court, on remand, should allow the Chapter 13-ineligible 

debtors to file a motion to convert their case under § 1307(a). Id. If a 

Chapter 13-ineligible debtor may convert their Chapter 13 case under 

§ 1307(a) (as the dissent impliedly acknowledges), then a Chapter 13-

ineligible debtor also may voluntarily dismiss their Chapter 13 case 

under § 1307(b). There is no significant textual distinction between 

§ 1307(a) and § 1307(b) that would justify treating ineligible debtors 

differently. Compare § 1307(a) (providing that “the debtor may convert 

a case under this chapter to a case under chapter 7”) with § 1307(b) 

(providing that “on request of the debtor . . . the court shall dismiss a 

case under this chapter”).
IN RE: POWELL V. VAN METER 17

may move to dismiss or to convert a Chapter 13 case if they 

believe that the debtor certified their Chapter 13 eligibility 

in bad faith.8 See 11 U.S.C. § 1307(c) (authorizing dismissal 

or conversion “for cause”); Marrama v. Citizens Bank of 

Massachusetts, 549 U.S. 365, 373 (2007) (“Bankruptcy 

courts . . . routinely treat dismissal for prepetition bad-faith 

conduct as implicitly authorized by the words ‘for cause.’”).9

***

It is undisputed that Powell filed a Chapter 13 petition 

and certified that he met the eligibility criteria listed in 

§ 109(e). For several months, the bankruptcy court treated 

his petition as one that commenced a Chapter 13 case. 

Powell then moved to voluntarily dismiss his Chapter 13 

case under § 1307(b). 

Although TICO asserts that Powell has conceded his 

§ 109(e) ineligibility, Powell disputes this. But Powell’s 

ultimate eligibility for relief under § 109(e) is not 

dispositive. Even assuming Powell is actually ineligible for 

Chapter 13 relief, and that he either made a mistake or acted 

in bad faith when he certified his eligibility in his petition, 

his petition presumptively established that he “may be a 

8 As we held in Nichols, however, a § 1307(c) motion does not “foreclose 

dismissal under § 1307(b).” 10 F.4th at 964. 

9 We make no comment on whether, under such circumstances, the 

bankruptcy court would also have the option to strike the petition. In 

Zarnel, our sister circuit remanded three cases consolidated on appeal for 

the bankruptcy court to determine whether striking or dismissing these 

cases was appropriate in the first instance. 619 F.3d at 171–72. In all 

three cases, the bankruptcy court dismissed the petitions. See In re 

Zarnel, No. 06-35189-CGM, ECF No. 47 at 1 (Bankr. S.D.N.Y. October 

5, 2010); In re Elmendorf, No. 05-55048-CGM, ECF No. 29 at 1 (Bankr. 

S.D.N.Y. October 5, 2010); In re Finlay, No. 06-35274-CGM, ECF No. 

34 at 1 (Bankr. S.D.N.Y. October 5, 2010).
18 IN RE: POWELL V. VAN METER

debtor” under Chapter 13, such that his filing caused a case 

to be commenced under Chapter 13, pursuant to § 301(a).10

Under these circumstances, the bankruptcy court correctly 

concluded that, under § 1307(b), it was required to dismiss 

Powell’s Chapter 13 case without further inquiry. Nichols, 

10 F.4th at 964.11 

AFFIRMED.

10 Under Scovis, when a Chapter 13 petition is filed, the bankruptcy court 

must determine the debtor’s eligibility “by the debtor’s originally filed 

schedules, checking only to see if the schedules were made in good 

faith.” Scovis, 249 F.3d at 982. TICO does not argue that the bankruptcy 

court erred when it checked Powell’s originally filed schedules.

11 The dissent implies that this decision effectively requires the 

bankruptcy court to “ignore the falsity and bad faith of the debtor’s initial 

schedules.” Dissent at 23. We disagree. As noted above, TICO does not 

argue that the bankruptcy court erred in its initial review of Powell’s 

petition. Further, we do not decide whether a bankruptcy court has 

discretion to address bad faith by means other than denying a request for 

voluntary dismissal under § 1307(b). Although TICO argues that the 

bankruptcy court abused its discretion by dismissing Powell’s case 

without conducting an evidentiary hearing regarding whether Powell’s 

conduct warranted sanctions or conditions on the dismissal, we do not 

address that issue because TICO did not make that argument to the BAP,

and it does not explain its failure or suggest that there are exceptional 

circumstances that justify our consideration of these issues. See Burnett 

v. Resurgent Capital Servs. (In re Burnett), 435 F.3d 971, 975–76 (9th 

Cir. 2006) (“Absent exceptional circumstances, issues not raised before 

the BAP are waived.”). TICO therefore forfeited the issue, and we 

decline to address it. See Kekauoha-Alisa v. Ameriquest Mortg. Co. (In 

re Kekauoha-Alisa), 674 F.3d 1083, 1092 n.2 (9th Cir. 2012) (declining 

to consider argument that “was not made before the BAP and was 

therefore forfeited” (citation omitted)).
IN RE: POWELL V. VAN METER 19

COLLINS, Circuit Judge, dissenting:

In various “chapters” of the Bankruptcy Code, Congress 

has established distinct sets of rules for filing and conducting 

bankruptcy proceedings, and it has prescribed the conditions 

under which each of these various options may be invoked. 

Here, the option that the debtor—Jason Philip Powell—

invoked was “Chapter 13.” That chapter confers a number 

of distinct rights on debtors proceeding under it, and the one 

that is relevant here is the debtor’s express statutory right, 

upon request, to have the case dismissed “at any time.” 11 

U.S.C. § 1307(b). The majority today holds that, so long as 

the debtor’s petition initiating the Chapter 13 proceeding 

facially supports the view that the debtor was eligible to 

proceed under Chapter 13, the debtor may later invoke

§ 1307(b)’s absolute right of dismissal even if the debtor was 

not in fact ever eligible to proceed under Chapter 13, even if 

the debtor certified his schedules in bad faith, and even if a 

creditor has first sought to convert the proceeding to one 

under another chapter. Because I think the majority’s 

conclusion is clearly incorrect, I respectfully dissent.

In relevant part, § 1307(b) provides that “[o]n request of 

the debtor at any time, if the case has not been converted 

under section 706, 1112, or 1208 of this title, the court shall 

dismiss a case under this chapter.” 11 U.S.C. § 1307(b). We 

have held that this “confers upon the debtor an absolute right 

to dismiss a Chapter 13 bankruptcy case, subject to the single 

exception noted in the statute itself.” Nichols v. Marana 

Stockyard & Livestock Mkt., Inc. (In re Nichols), 10 F.4th 

956, 964 (9th Cir. 2021). That exception is that the case must 

not have been converted, under one of the three referenced 

sections, to a proceeding under a different chapter. Nichols

held that a bankruptcy court may not invoke its equitable 
20 IN RE: POWELL V. VAN METER

powers to create additional exceptions to this absolute 

statutory right. Id. at 961–64.

In describing who is eligible to invoke Chapter 13 and 

the various rights it confers, Congress has specified that 

“[o]nly an individual with regular income that owes, on the 

date of the filing of the petition,” total secured debts and total 

unsecured debts that are below certain maximum limits 

“may be a debtor under chapter 13 of this title.” 11 U.S.C. 

§ 109(e); see also id. § 104(a) (providing for periodic 

adjustment of these limits). In filing his petition, which was 

signed under penalty of perjury, Powell stated that he 

satisfied these limits and was eligible to proceed under 

Chapter 13. When Powell later sought to dismiss his petition 

under § 1307(b), one of Powell’s creditors, TICO 

Construction Co. (“TICO”), opposed the dismissal and 

sought to convert Powell’s case to one under Chapter 7 or 

Chapter 11. In support of the motion, TICO asserted that, 

acting in bad faith, Powell had not correctly identified his 

unsecured debts in his petition and accompanying schedules 

and that, in fact, Powell’s total unsecured debts were well in 

excess of what would allow him to proceed under Chapter 

13 in the first place. The bankruptcy court denied TICO’s 

motion and granted Powell’s request for dismissal under 

§ 1307(b). The Bankruptcy Appellate Panel (“BAP”) 

affirmed, and TICO timely appealed.

Section 103(j) of the Code states that “Chapter 13 of this 

title applies only in a case under such chapter.” 11 U.S.C. 

§ 103(j). (The other subsections of § 103 similarly specify 

when the various other chapters of the Code apply.) Here, 

the particular right conferred by § 1307(b) also specifically 

applies only when a “debtor” requests dismissal of “a case 

under this chapter.” Id. § 1307(b). It seems to me implicit 

in the language of § 103(j) and § 1307(b) that the various 
IN RE: POWELL V. VAN METER 21

rights and procedures specified in Chapter 13, including the 

absolute right of voluntary dismissal under § 1307(b), apply 

only in a case that is properly “under such chapter.” That 

common-sense conclusion is reinforced by the fact that, 

under § 301(a), a “voluntary case” under a given chapter of 

the Bankruptcy Code is only authorized to be filed in the first 

place by “an entity that may be a debtor under such chapter.” 

Id. § 301(a) (emphasis added). It makes no sense to say that, 

having specified various eligibility conditions for even 

proceeding under a particular chapter, the Code nonetheless 

allows the various rights contained within a given chapter to 

be invoked by an entity that is ineligible to proceed under 

that chapter. Accordingly, I would hold that the various 

rights conferred under Chapter 13, including the right of 

dismissal under § 1307(b), are available only to a debtor who 

meets the conditions that § 109(e) specifies must be satisfied 

before that person “may be a debtor under chapter 13.” Id. 

§ 109(e).

This reasoning does not mean that these threshold 

eligibility requirements have jurisdictional significance, 

such that a case must be dismissed (and all actions taken in 

that case rendered void) if a debtor files a petition under a 

chapter that the debtor is not actually eligible to invoke. We 

so held in Wenberg v. FDIC (In re Wenberg), 902 F.2d 768, 

768 (9th Cir. 1990), when we expressly adopted the 

reasoning of the opinion of the BAP in that case, which had 

squarely held “that § 109 eligibility is not jurisdictional,” 94 

B.R. 631, 637 (9th Cir. BAP 1988). The correctness of 

Wenberg’s holding on that point is further amply confirmed 

by the Supreme Court’s more recent caselaw underscoring 

that a statutory requirement is “jurisdictional only if 

Congress clearly states that it is.” Santos-Zacaria v. 

Garland, 598 U.S. 411, 416 (2023) (simplified).
22 IN RE: POWELL V. VAN METER

But this reasoning does mean that, if a debtor who is only 

eligible to proceed under a given chapter attempts to invoke 

a particular right that is specific to that chapter, a creditor 

may oppose that invocation on the ground that the case was 

not properly filed under that chapter (because the debtor is 

ineligible to proceed under it) and that the case should be 

converted to a proceeding under another chapter.1 That is 

exactly what TICO did here. TICO supported its argument 

with a substantial showing that Powell’s initial schedules 

accompanying his petition were incorrect and had been 

submitted in bad faith and that, under the correct facts, 

Powell’s unsecured debt far exceeded § 109(e)’s limits. 

TICO therefore argued that Powell had never been eligible 

to proceed under Chapter 13; that he therefore was ineligible 

to invoke § 1307(b)’s absolute right of dismissal; and that his 

case should be converted to a case under Chapter 7 or 

Chapter 11. The bankruptcy court and the BAP declined to 

determine whether TICO was factually correct in claiming 

that Powell was ineligible under § 109(e) to proceed under 

Chapter 13, because they held that the point was irrelevant 

and that, even if he was ineligible under § 109(e), Powell 

could go ahead anyway and exercise the right of voluntary 

1 That distinguishes this situation from one in which a debtor ineligible 

to proceed under Chapter 13 moves to convert the case to one under the 

correct chapter. Cf. Opin. at 16 n.7 (citing 11 U.S.C. § 1307(a)). Such 

a conversion out of the wrong chapter to a valid one improperly 

prejudices no one. Indeed, the various statutory rights to convert cases 

between chapters are undoubtedly intended to cover, not just decisions 

to switch between valid chapters, but also cases mistakenly filed under 

the wrong chapter. There is thus no reason to conclude that the ability 

to convert a case to a correct chapter depends upon having filed under 

the correct chapter in the first place. The same cannot be said of special 

procedural rights under a chapter that an ineligible debtor attempts to 

invoke to the prejudice of an opposing creditor.
IN RE: POWELL V. VAN METER 23

dismissal under § 1307(b). For the reasons I have explained, 

that holding was in my view clearly incorrect. 

In support of its contrary conclusion, the majority notes 

that, in Scovis v. Henrichsen (In re Scovis), 249 F.3d 975 (9th 

Cir. 2001), we held that, in “determining Chapter 13 

eligibility under § 109(e),” a debtor’s “eligibility should 

normally be determined by the debtor’s originally filed 

schedules, checking only to see if the schedules were made 

in good faith.” Id. at 982 (emphasis added); see Opin. at 13–

14. By its terms, Scovis’s holding has no application here, 

given that TICO has asserted that Powell’s initial schedules 

were made in bad faith.2 

The majority further holds, however, that under Nichols, 

it is irrelevant whether Powell “acted in bad faith when he 

certified his eligibility in his petition.” See Opin. at 17. This 

is a deeply troubling misreading of Nichols. Our decision 

there held only that bankruptcy courts may not invoke their 

equitable powers under the Code to add new non-statutory 

exceptions that limit the express language of § 1307(b). 

Nichols, 10 F.4th at 963–64. Nichols did not hold that, when 

a court is examining whether the statutory eligibility 

requirements are met—a task that involves applying, not 

adding to, the statutory text contained in § 109(e)—the court 

is somehow required to ignore the falsity and bad faith of the 

debtor’s initial schedules. Under the majority’s opinion, a 

Chapter-13-ineligible debtor who brazenly falsifies his 

schedules, so that the debtor at least looks “facially” eligible 

2 Moreover, the distinctive circumstances presented here—in which a 

debtor assertedly ineligible to proceed under Chapter 13 has sought to 

invoke Chapter 13’s dismissal right, all to the prejudice of a creditor and 

to thwart a conversion of the case—may well call for an exception to the 

“normal[]” rule announced in Scovis.
24 IN RE: POWELL V. VAN METER

to proceed under Chapter 13, can then later invoke Chapter 

13’s absolute right of dismissal when a creditor calls out his 

false statements and seeks to convert the proceedings to 

another chapter. See Opin. at 13 n.3. That cannot be correct.

I would reverse and remand to the BAP with instructions 

to remand to the bankruptcy court for further proceedings 

consistent with these views. I respectfully dissent from the 

majority’s contrary holding.