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FILED

JUL 02 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EC-13-1378-JuTaKu

)

KHAMLA SIHABOUTH and ) Bk. No. 10-52564

MANYSAY SIHABOUTH, )

) Adv. No. 13-02016

Debtors. )

______________________________)

)

KHAMLA SIHABOUTH; )

MANYSAY SIHABOUTH, )

)

Appellants, )

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

)

THE BANK OF NEW YORK MELON, )

)

Appellee. )

______________________________)

Argued and Submitted on May 15, 2014

at Sacramento, California 

Filed - July 2, 2014

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Michael S. McManus, Bankruptcy Judge, Presiding

_________________________

Appearances: Clark Dwayne Nicholas, Esq. argued for appellants

Khamla and Manysay Sihabouth; Bernard Kornberg,

Esq., of Severson & Werson, argued for appellee

The Bank of New York Mellon.

________________________

Before: JURY, TAYLOR, and KURTZ, 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 8013-1.

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Chapter 131 debtors Khamla and Manysay Sihabouth appeal

from the bankruptcy court’s order dismissing their adversary

proceeding in favor of appellee, the Bank of New York Mellon

(BONY). We AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

Debtors obtained two loans from Decision One Mortgage

Company, LLC. The first loan for $164,000 was secured by a

first deed of trust encumbering debtor’s property on Blue View

Street in Redding, California. The deed of trust named Mortgage

Electronic Registration Systems, Inc. (MERS) as beneficiary,

solely as nominee for Decision One and its successors and

assigns. Decision One later assigned its interest in debtors’

loan and deed of trust to BONY, but debtors contend the

assignment was invalid. The other loan was for $41,000 and was

secured by a second deed of trust against debtor’s property on

Blue View. Decision One evidently assigned this loan to Saxon

Mortgage Services, Inc. Only the first loan is at issue in this

appeal.

A. Debtors’ Bankruptcy And Confirmation Of Their Plan

Debtors filed their chapter 13 petition on December 13,

2010. In Schedule A, they listed their real property on Blue

View Street. In Schedule F, they listed the $164,000 loan owed

to Decision One as unsecured and disputed. The claims bar date

was April 13, 2011.

1 Unless otherwise indicated, all chapter and section

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

“Rule” references are to the Federal Rules of Bankruptcy

Procedure and “Civil Rule” references are to the Federal Rules of

Civil Procedure.

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Debtors’ chapter 13 plan filed with their petition did not

mention or provide for BONY’s secured claim. BONY objected to

confirmation of the plan on the grounds that it did not provide

for $19,640.99 in arrearages owed to BONY, was infeasible, and

was not filed in good faith. Attached to the objection was a

copy of the note for the $41,000 loan. On February 14, 2011,

the court denied confirmation of debtors’ plan and a few days

later dismissed BONY’s objection as moot. 

Debtors filed a first amended plan (FAP) on February 21,

2011, which again did not provide for BONY’s secured claim. 

Regardless of whether BONY had a valid lien against debtors’

property, neither of debtors’ plans provided for payment of

arrearages on the loan secured by the first deed of trust. 

Moreover, at the hearing on this matter, debtors’ counsel 

acknowledged that they were not making any payments on the loan. 

In connection with their FAP, debtors filed a motion to modify

their plan and have it confirmed. The chapter 13 trustee

objected to confirmation because the FAP did not provide for the

secured proof of claim (POC) filed by Saxon in the amount of

$45,718.66. The trustee acknowledged that debtors had objected

to Saxon’s POC and that the hearing on the objection was

scheduled for the same day as plan confirmation. 

BONY objected to confirmation of the FAP on the same

grounds as its first objection. In the objection, BONY states: 

“As set forth in Creditor’s Proof of Claim, the pre-petition

arrears due total $19,640.99,” although BONY had not yet filed a

formal POC. Attached to the objection was the note related to

the $41,000 loan and the adjustable rate note and deed of trust

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relating to the $164,000 loan.

On April 5, 2011, the day of the confirmation hearing, the

bankruptcy court issued a civil minute order in connection with

BONY’s objection which stated: “The matter was improperly

calendared as a stand-alone objection to plan confirmation, and

is therefore dropped from calendar. The court will consider the

merits elsewhere on this calendar.” At the confirmation hearing

the court continued the matter to September. 

The bankruptcy court granted debtor’s motion to modify and

confirmed their FAP on September 9, 2011. The court overruled

the trustee’s objection on the ground that Saxon had voluntarily

withdrawn its POC on August 5, 2011. BONY’s objection to plan

confirmation was never addressed.

Almost a year after confirmation, on September 4, 2012,

BONY, through its servicer Bank of America, N.A., filed a formal

POC. The POC listed the amount of the secured claim as

$183,287.66 and showed arrearages of $19,826.99. The POC

attached supporting documents including the note relating to the

$164,000 loan, the deed of trust showing MERS as beneficiary,

and the assignment of deed of trust. The trustee objected to

the POC asserting that it was untimely. In response, BONY

argued that the POC was a timely amendment of its informal POC

that arose when it objected to confirmation of debtors’ plans

prior to the bar date. The bankruptcy court agreed with BONY,

finding that its objections to confirmation of debtors’ plan

constituted informal proofs of claim filed before the bar date

and thus the formal POC related back. The court thus overruled

the trustee’s objection based on untimeliness.

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Although they were not a party to trustee’s objection,

debtors moved for reconsideration of the court’s ruling. The

court denied the motion, finding that the issues raised by

debtors could be raised in an independent objection to the POC,

but could not be considered in the context of a motion for

reconsideration.

Debtors then filed an objection to the claim alleging BONY

did not have standing to enforce the note, the assignment was

invalid, and that BONY’s objections to confirmation of debtors’

plan should not be considered as an informal POC. Debtors

requested the court to disallow the claim. The bankruptcy court

issued a civil minute order denying the objection without

prejudice. In its findings of fact and conclusions of law

(FFCL), the court observed that the confirmed plan revested

debtors’ home in debtors and thus it was no longer property of

the bankruptcy estate. Because BONY’s claim was not being paid

by the plan and the security for the claim was no longer

property of the bankruptcy estate, the bankruptcy court

concluded that if there were some dispute regarding the validity

of the claim, it would have to be resolved in a nonbankruptcy

forum. The court entered the order overruling the objection

without prejudice on January 14, 2013.

B. The Adversary Proceeding

Four days before the bankruptcy court’s ruling on debtors’

objection to BONY’s POC, debtors filed an adversary complaint to

determine the nature and extent of BONY’s lien and to object to

BONY’s POC. Debtors’ complaint essentially alleged that BONY

lacked standing to enforce the note or deed of trust because it

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offered no proof of its ownership of the debt.

BONY moved to dismiss the complaint for failure to state a

claim or, alternatively, requested the bankruptcy court to

abstain as the complaint raised only state law claims. BONY

requested that the bankruptcy court take judicial notice of,

among other things, the docket report for debtors’ chapter 13

case, its POC, and the docket report for debtors’ adversary

proceeding.

After hearing, the bankruptcy court issued civil minutes

setting forth its reasoning. In its ruling, the court

considered its post-confirmation jurisdiction under the “close

nexus” test set forth in Montana v. Goldin (In re Pegasus Gold

Corp.), 394 F.3d 1189, 1193 (9th Cir. 2005). In applying the

standards set forth in that case, the bankruptcy court found no

“close nexus” between the claims asserted in the adversary

proceeding and the plan or bankruptcy proceeding for essentially

the same reasons that it had denied debtors’ objection to BONY’s

POC. Accordingly, the court concluded it did not have

post-confirmation subject matter jurisdiction over the complaint

challenging BONY’s interest in the note and its collateral. The

court also found it did not have subject matter jurisdiction

when upon confirmation, all estate property, including the

property purportedly securing the promissory note, revested in

debtors. See 28 U.S.C. § 1334; Black v. United States Postal

Serv. (In re Heath), 115 F.3d 521, 524 (9th Cir. 1997)

(bankruptcy court is without jurisdiction to control disposition

of chapter 13 debtor’s property that is not property of the

bankruptcy estate unless the property is related to the

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bankruptcy proceedings of the Code); see also Cal. Franchise Tax

Bd. v. Jones (In re Jones), 420, 506, 514-15 (9th Cir. 2009)

(confirmation of chapter 13 plan changes estate property to

property of the debtor unless the plan or confirmation order

specifically states otherwise). The bankruptcy court entered

the order dismissing the adversary proceeding on July 24, 2013. 

This appeal followed.

II. JURISDICTION

As discussed below, the bankruptcy court did not have

subject matter jurisdiction over debtors’ adversary proceeding

under 28 U.S.C. § 1334. However, we have jurisdiction to review

the court’s dismissal order under 28 U.S.C. § 158. 

III. ISSUE

Whether the bankruptcy court erred by dismissing debtors’

adversary proceeding for lack of subject matter jurisdiction.2

IV. STANDARDS OF REVIEW

We review de novo questions of subject matter jurisdiction.

In re Pegasus Gold Corp., 394 F.3d at 1193; Davis v. Courington

(In re Davis), 177 B.R. 907, 910 (9th Cir. BAP 1995) (dismissal

of a complaint for lack of subject matter jurisdiction). 

We also review de novo dismissal of a complaint for failure

to state a claim under Civil Rule 12(b)(6). Ta Chong Bank Ltd.

v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th Cir.

2 The orders upholding BONY’s POC as an amendment to a

timely filed informal POC were not referenced in debtors’ notice

of appeal. Whether the bankruptcy court erred in ruling that

BONY’s objections to confirmation of debtors’ plan constituted an

informal POC is not properly before us and, therefore, we do not

address debtors’ arguments on this issue.

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2010).

V. DISCUSSION

A. Standards Applicable to Motions to Dismiss

In considering a motion to dismiss for failure to state a

claim under Civil Rule 12(b)(6), incorporated by Rule 7012, the

court generally accepts as true the allegations in the

complaint, construes the pleading in the light most favorable to

the party opposing the motion, and resolves all doubts in the

pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,

588 (9th Cir. 2008). “On a motion to dismiss . . ., a court may

take judicial notice of facts outside the pleadings.” Mack v.

S. Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). 

“Consideration of a motion for abstention3 is akin to a

motion to dismiss for lack of subject matter jurisdiction [under

Civil Rule 12(b)(1)], in which the court may review affidavits

and other evidence to resolve factual disputes concerning its

jurisdiction to hear the action.” DeLoreto v. Ment, 944 F.Supp.

1023, 1028–29 (D. Conn. 1996); see also McCarthy v. United

States, 850 F.2d 558, 560 (9th Cir. 1988). The burden of

establishing subject matter jurisdiction rests on the party

asserting that the court has jurisdiction. McNutt v. GM

Acceptance Corp., 298 U.S. 178, 182–83 (1936); Luckett v. Bure,

290 F.3d 493, 497 (2d Cir. 2002). 

3 “Abstention can exist only where there is a parallel

proceeding in state court.” Sec. Farms v. Int’l Bhd. of

Teamsters, Chauffers, Warehousemen & Helpers, 124 F.3d 999, 1009

(9th Cir. 1997). Here, there was no state court action pending.

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B. Overview of the Bankruptcy Court’s Jurisdiction

Because subject matter jurisdiction goes to the power of

the court to hear a case, it is a threshold issue and may be

raised at any time and by any party. See Civil Rule 12(b)(1),

incorporated by Rule 7012. Even if the parties do not address

the question of subject matter jurisdiction, bankruptcy courts

still have a duty to satisfy jurisdictional questions. United

Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960,

967 (9th Cir. 2004)([bankruptcy] court’s duty to establish

subject matter jurisdiction is not contingent upon the parties’

arguments). 

The bankruptcy court’s subject matter jurisdiction is

defined by statute. Under 28 U.S.C. § 1334(b), a bankruptcy

court has jurisdiction over “all civil proceedings arising under

title 11, or arising in or related to cases under title 11.” 

“Arising under title 11” describes those proceedings that

involve a cause of action created or determined by a statutory

provision in the bankruptcy code. Harris v. Wittman (In re

Harris), 590 F.3d 730, 737 (9th Cir. 2009). “Proceedings

‘arising in’ a bankruptcy are generally referred to as ‘core’

proceedings, and essentially are proceedings that would not

exist outside of bankruptcy. . . .” In re Pegasus Gold Corp.,

394 F.3d at 1193.

The bankruptcy court also has jurisdiction over “those

proceedings that are ‘related to’ a bankruptcy case.” Id. 

Under the Pacor test, a bankruptcy court has “related to”

jurisdiction over a matter if:

the outcome of the proceeding could conceivably have

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any effect on the estate being administered in

bankruptcy. Thus, the proceeding need not necessarily

be against the debtor or against the debtor's

property. An action is related to bankruptcy if the

outcome could alter the debtor’s rights, liabilities,

options, or freedom of action (either positively or

negatively) and which in any way impacts upon the

handling and administration of the bankrupt estate.

Fietz v. Great W. Savings (In re Fietz), 852 F.2d 455, 457 (9th

Cir. 1988) (citing Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d

Cir. 1984). The United States Supreme Court endorsed Pacor’s

conceivability standard with the caveats that “related to”

jurisdiction “cannot be limitless,” and that the critical

component of the Pacor test is that “bankruptcy courts have no

jurisdiction over proceedings that have no effect on the estate

of the debtor.” Celotex Corp. v. Edwards, 514 U.S. 300, 308 &

n.6 (1995). 

Since Fietz, the Ninth Circuit decided that the bankruptcy

court’s post-confirmation “related to” jurisdiction is not as

broad as the Pacor standards. In re Pegasus Gold Corp.,

394 F.3d at 1194. Instead, the court adopted the “close nexus”

test for “related to” post-confirmation jurisdiction because

that test more closely aligned with the limited nature of

post-confirmation jurisdiction and, at the same time, retained a

certain flexibility. Under the “close nexus” test, the

essential inquiry is whether “there is a close nexus to the

bankruptcy plan or proceeding sufficient to uphold bankruptcy

jurisdiction over the matter.” Id. “[M]atters affecting ‘the

interpretation, implementation, consummation, execution, or

administration of the confirmed plan will typically have the

requisite close nexus.’” Id.

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The Ninth Circuit later warned against any mechanical

application of the test, noting that “[t]he Pegasus Gold ‘close

nexus’ test requires particularized consideration of the facts

and posture of each case, as the test contemplates a broad set

of sufficient conditions and ‘retains a certain flexibility.’” 

Wilshire Courtyard v. Cal. Franchise Tax Bd. (In re Wilshire

Courtyard), 729 F.3d 1279, 1289 (9th Cir. 2013). “Such a test

can only be properly applied by looking at the whole picture.” 

Id. Bankruptcy courts have applied the “close nexus” test to

post-confirmation matters in the context of chapter 13. See 

Uber v. Nelnet, Inc. (In re Uber), 443 B.R. 500, 507 (Bankr.

S.D. Ohio 2011); In re Janssen, 396 B.R. 624, 632-33 (Bankr.

E.D. Pa. 2008).

Finally, besides defining the bankruptcy court’s

jurisdiction over civil proceedings, 28 U.S.C. § 1334 further

expands bankruptcy jurisdiction by granting exclusive

jurisdiction “of all the property, wherever located, of the

debtor as of the commencement of such case, and of property of

the estate” in subsection (e)(1). The bankruptcy court’s

jurisdiction over property, however, is temporal. When property

is no longer “property of the estate” the court’s jurisdiction

ends. Gardner v. United States (In re Gardner), 913 F.2d 1515,

1518 (10th Cir. 1990). 

[T]here are two dimensions on which to assess ‘related

to’ jurisdiction: substantive and temporal. A matter

may be unrelated to a bankruptcy estate because it

substantively has no impact on that estate, or it may

be unrelated because the estate does not exist

anymore. Either way, if a given dispute is unrelated

to a bankruptcy estate, a bankruptcy court . . . has

no subject-matter jurisdiction over that dispute.

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United States v. Fleet Nat’l Bank (In re Calore Express Co.,

Inc.), 288 B.R. 167, 169–70 (D. Mass. 2002). 

C. Analysis

There is no doubt that the allegations in debtors’

adversary complaint are intertwined with the claims allowance

and disallowance process. Generally, bankruptcy courts have

jurisdiction over the allowance or disallowance of claims

against the estate under 28 U.S.C. § 1334(b) because such

matters are core proceedings under 28 U.S.C. § 157(b)(1)(B). 

However, the jurisdictional analysis shifts where, as here, 

debtors initiated the civil proceeding after confirmation of

their bankruptcy plan.

The bankruptcy court did not have jurisdiction over the

claim-objection adversary proceeding under 28 U.S.C. §§ 157(b)

or (c) (establishing core and non-core bankruptcy court

jurisdiction) because debtors’ challenge to BONY’s ownership of

the debt came after confirmation of their FAP. At that point,

pursuant to the terms of their confirmed plan, the real property 

allegedly subject to BONY’s lien revested in debtors. The

bankruptcy court’s exclusive jurisdiction over a debtor’s

property under 28 U.S.C. § 1334(e)(1) is for a limited period of

time — until confirmation and the property vests in the debtor. 

See § 1327(b) (“Except as otherwise provided in the [chapter 13]

plan or the order confirming the plan, the confirmation of a

plan vests all of the property of the estate in the debtor.”). 

Therefore, unless the plan provides otherwise, upon

confirmation, all property of the estate revests in the debtor

and the estate is terminated. In re Jones, 420 B.R. 506 (9th

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Cir. BAP 2009), aff’d, 657 F.3d 921 (9th Cir. 2011). Because

debtors elected to have the property revest, BONY’s claim was

not against the bankruptcy estate, and thus the claim-objection

adversary proceeding did not involve a right created by

bankruptcy law or arising only in bankruptcy.

“Related to” jurisdiction also does not exist for

essentially the same reasons. At the time debtors objected to

BONY’s POC there was no longer a plan to be confirmed, the

underlying property subject to BONY’s alleged lien was not

property of the estate, and BONY’s lien passed through the

bankruptcy unaffected. Therefore, whether or not the bankruptcy

court allowed or disallowed BONY’s POC based on the claims

asserted in the adversary, the outcome could not conceivably

have had an affect on debtors’ estate. In short, there was no

administrative bankruptcy purpose to be served by adjudicating

the claims.

Debtors fare no better upon application of the “close

nexus” test. The state law claims raised in debtors’ adversary

proceeding did not involve matters affecting the interpretation,

implementation, consummation, execution, or administration of

debtors’ confirmed plan because debtors did not “provide for”

BONY’s claim in their confirmed FAP. Contrary to debtors’

assertion, their attempt to turn BONY’s secured claim into an

unsecured claim by scheduling it as unsecured and disputed was

ineffective. Merely scheduling the claim as unsecured did not

avoid or in any way impact BONY’s lien. See Schnall v.

Fitzgerald (In re Schnall), 2012 WL 1888144, at *5 (9th Cir. BAP

2012). Therefore, BONY’s secured claim was not “provided for”

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in debtors’ FAP along with the other unsecured claims as debtors

contend. 

If a debtor’s plan does not provide for a secured

creditor’s lien, the creditor may look to the lien for

satisfaction of the debt, including arrearages. Brawders v.

Cnty. of Ventura (In re Brawders), 503 F.3d 856, 872 (9th Cir.

2007). Secured liens pass through bankruptcy unaffected,

regardless whether the creditor holding that lien ignores the

bankruptcy case, or files an unsecured claim when it meant to

file a secured claim, or files an untimely claim after the bar

date has passed. See Bisch v. United States (In re Bisch),

159 B.R. 546, 550 (9th Cir. BAP 1993) (“there is no duty on the

part of the secured party to object to the confirmation of the

[Chapter 13] plan, and failure to do so does not somehow

constitute a waiver of the party’s secured claim”). Thus,

BONY’s lien — to the extent it exists — survives the bankruptcy

discharge of debtors. Accordingly, debtors’ adversary

proceeding cannot possibly affect the consummation of their FAP. 

For all these reasons, the standards under the “close nexus”

have not been satisfied. In sum, debtors did not meet their

burden of establishing subject matter jurisdiction in the

bankruptcy court.

On appeal debtors expressed concern that the bankruptcy

court’s ruling would have a preclusive effect on litigation over

the validity of BONY’s secured claim in the state court. Based

on Ninth Circuit authority, generally “a claim is not barred by

res judicata [claim preclusion] if the forum in which the first

action was brought lacked subject matter jurisdiction to

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adjudicate that claim.’” Clark v. Bear Stearns & Co., 966 F.2d

1318, 1320-21 (9th Cir. 1992). Indeed, the bankruptcy court

found that it lacked subject matter jurisdiction because no

bankruptcy purpose would be served by a ruling that either

allowed or disallowed BONY’s POC.4

VI. CONCLUSION

For the reasons stated, we discern no error with the

dismissal order and AFFIRM.

Concurring decision begins on next page.

4 At oral argument, BONY’s counsel conceded that the

bankruptcy court’s dismissal order would have no preclusive

effect on litigation between the parties in the state court.

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Taylor, Bankruptcy Judge, concurring:

I concur in the result reached by the Panel and also agree

with its § 1334 analysis. I write separately in order also to

evaluate whether ancillary jurisdiction existed as a result of

the bankruptcy court's orders overruling the Trustee's objection

to BONY's late filed claim (the "Relation Back Order") and

denying the Debtors' motion requesting reconsideration of that

order (the "Reconsideration Order"). As discussed below, I

conclude that it does not.

A bankruptcy court has “jurisdiction to interpret and

enforce its own prior orders.” See Travelers Indem. Co. v.

Bailey, 557 U.S. 137, 151 (2009); see also Battle Ground Plaza,

LLC v. Ray (In re Ray), 624 F.3d 1124, 1130 (9th Cir. 2010)

(bankruptcy court has ancillary jurisdiction to vindicate its

authority and effectuate its decrees). Here, as a result of the

Relation Back Order, and as confirmed by the Reconsideration

Order, the bankruptcy court determined that BONY's late filed

claim ("Claim") was "deemed timely."

In Siegel v. Fed. Home Loan Mortgage Corp., 143 F. 3d 525

(9th Cir. 1998), the Ninth Circuit held that a proof of claim

can have claim preclusive effect where a proof of claim is

"deemed allowed." Deemed allowance occurs when a claim is

entitled to prima facie validity and in the absence of party in

interest objection. Id. at 530-31. 

The Debtors' adversary proceeding complaint includes an

objection to the Claim. As the Debtors explain on appeal, they

initiated the adversary proceeding not only to obtain

substantive relief, but also to avoid any Siegel based claim

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preclusive effect of the Relation Back Order. The adversary

proceeding, thus, could be deemed to request, albeit obliquely,

that the bankruptcy court interpret the Relation Back Order or

effectuate the Relation Back Order to the extent it opened the

door to an objection to the Claim, as it might if it otherwise

gave the Claim "deemed allowed" status.

Here, however, ancillary jurisdiction also fails. I

question whether the bankruptcy court had jurisdiction to enter

the Relation Back Order, but need not decide this question.1 I

further question the applicability of Siegel based on the

procedural history and facts of this case, but similarly need

not make any determination in this regard.2 Instead, I conclude

that the Relation Back Order, as clarified by the

Reconsideration Order, did not require interpretation or

additional action to effectuate its intent, vindicate its

1 Generally, a bankruptcy court has jurisdiction in a

chapter 13 case to consider a post-confirmation claim objection

and to make determinations regarding late filed claims. Here,

however, the § 1334 analysis, which clearly demonstrates a lack

of § 1334 jurisdiction over the Debtors' adversary proceeding,

also raises questions as to the bankruptcy court’s jurisdiction

to enter the Relation Back Order. Jurisdictional issues may be

raised at any point in time and in front of any court. Attys.

Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 595 (9th

Cir. 1996).

At the time of the claim objection that led to the Relation

Back Order, the bar date had passed and the Claim was untimely,

the Claim was filed as fully secured, the real property at issue

was no longer an asset of the chapter 13 estate, and the Debtors'

plan did not provide for the Claim in any respect.

2 Siegel appears factually distinguishable in many respects. 

Most significantly, it involved timely claims and a complete

failure of any attempt at objection.

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directives, or in order to make clear that it is not entitled to

claim preclusive effect. 

The bankruptcy court clearly stated that its Relation Back

Order was without prejudice to further consideration of the

merits of the Debtors' objection to the Claim. Thus, it decided

that the Claim was timely, but expressly left any decision on

the merits for another day and, as appropriately decided by the

bankruptcy court and the Panel, another court. Having reached

this conclusion I find no basis for ancillary jurisdiction.3

3 Consistent with this view is the fact that BONY admitted

in argument before the Panel that claim preclusion was not

available based on the Relation Back Order.

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