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NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-16-1149-FPaKi

)

THE DISCIPLINARY PROCEEDING ) Bk. No. 2:15-mp-00111-ES

OF PHILIP E. KOEBEL. )

)

______________________________)

)

PHILIP E. KOEBEL, ) MEMORANDUM*

)

Appellant. )

______________________________)

Argued and Submitted on November 17, 2016

at Pasadena, California

Filed – December 2, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Erithe Smith, Richard Neiter, and Julia Brand, 

Bankruptcy Judges, Presiding

 

Appearances: Appellant Philip E. Koebel argued pro se.

 

Before: FARIS, PAPPAS,** and KIRSCHER, Bankruptcy Judges.

FILED

DEC 02 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

* 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.

** The Honorable Jim D. Pappas, United States Bankruptcy

Judge for the District of Idaho, sitting by designation.

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INTRODUCTION

Appellant Philip E. Koebel appeals from a bankruptcy

disciplinary panel’s decision to discipline him for his conduct

while representing his client in concurrent chapter 71 and 13

cases and proceedings. Mr. Koebel presents us with a deficient

appellate brief that completely fails to address the disciplinary

panel’s ruling. Rather, he focuses on issues that the BAP

already decided against him in a prior appeal. Accordingly, we

AFFIRM.

FACTUAL BACKGROUND2

A. The chapter 7 case

Mr. Koebel is an attorney who represented debtor Ruben

Gonzalez Cuevas in a chapter 7 case (the “Chapter 7 Case”) filed

in 2007. Mr. Cuevas resided with his mother at property located

in Altadena, California (the “Property”). Mr. Cuevas’ sister,

Graciela Dibble, was appointed trustee of the Juliana Cuevas

Living Trust (the “Mother’s Trust”) upon their mother’s death in

2005. She pursued a number of actions in California state court

to establish that the Mother’s Trust was the legal owner of the

Property and to evict Mr. Cuevas from the Property. The superior

court issued a writ of possession with an eviction date of

1 Unless 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.

2 We have exercised our discretion to review the bankruptcy

court’s dockets in the chapter 7 case, chapter 13 case, and

disciplinary proceeding, as appropriate. See Woods & Erickson,

LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir.

BAP 2008).

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October 4, 2007.

Two days before the eviction date, Mr. Cuevas filed his

chapter 7 petition to stay the eviction while he sought to vacate

the state court orders. Ms. Dibble obtained relief from the

automatic stay to continue litigating against Mr. Cuevas.

Initially, the chapter 7 trustee deferred to Ms. Dibble’s

efforts to liquidate the Property. But when Ms. Dibble failed to

evict Mr. Cuevas from the Property, collect rent, or liquidate

the Property, the chapter 7 trustee successfully moved the

probate court to remove Ms. Dibble and appoint Stevan Chandler as

trustee of the Mother’s Trust.

Meanwhile, Mr. Cuevas was busy initiating litigation in his

bankruptcy case. He filed three motions to dismiss the Chapter 7

Case, a motion to convert, an objection to a claim by the

Franchise Tax Board, and an adversary proceeding against the

chapter 7 trustee seeking a declaration that Mr. Cuevas’ interest

in the Mother’s Trust was not the property of the bankruptcy

estate; all were unsuccessful.

The chapter 7 trustee objected to Mr. Cuevas’ claimed

homestead exemption. He argued that Mr. Cuevas only had an

interest in the Mother’s Trust – not the Property itself - and

could not claim a homestead exemption in the Property. The court

sustained the objection and disallowed the homestead exemption.

The probate trustee succeeded in transferring title to the

Property into the Mother’s Trust. He initiated an unlawful

detainer action against Mr. Cuevas, with trial set for January

2015.

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B. The chapter 13 case

While the Chapter 7 Case was pending, Mr. Cuevas filed a

chapter 13 petition on December 1, 2014 (the “Chapter 13 Case”),

which stayed the unlawful detainer action.3 On his schedules, he

claimed a homestead exemption in the Property in the amount of

$175,000 despite the bankruptcy court’s order sustaining the

chapter 7 trustee’s objection to exemption in the Chapter 7 Case. 

He listed his debts as $21,334.40, his monthly income as

$1,074.01, and monthly expenses as $975. Additionally, he stated

that the Property was protected by the court’s order in the

Chapter 7 Case that precluded Ms. Dibble from evicting or

ejecting Mr. Cuevas absent further order from the court granting

relief from stay.

Mr. Cuevas’ chapter 13 plan proposed monthly payments of $99

for sixty months. The plan “assume[d] $195,000 from distribution

of [the Mother’s Trust]/[Chapter 7 Case] less $175,000

homestead.” Mr. Cuevas stated elsewhere in the plan that the

calculations assumed a $195,000 distribution from the Chapter 7

Case. These assertions were disingenuous at best; as we note

above, Mr. Cuevas was vigorously attempting to thwart the

Chapter 7 Case. He also filed a motion to continue the automatic

stay and asserted that he was entitled to a homestead exemption

in the Property.

C. The orders to show cause and sanctions

On December 23, 2014, the court in the Chapter 13 Case sua

3 Mr. Cuevas had received a discharge in the Chapter 7 Case

on May 30, 2014, but the case remained open.

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sponte issued an order to show cause that directed Mr. Cuevas to

show cause why the Chapter 13 Case should not be dismissed

because he was already a debtor in the concurrent Chapter 7 Case. 

Mr. Cuevas responded that successive bankruptcy cases were

permissible and that he had filed the Chapter 13 Case in good

faith. He withdrew his motion to continue the automatic stay.

The bankruptcy court disagreed with Mr. Cuevas, saying that

there was little or no post-chapter-7 debt to deal with in the

Chapter 13 Case, no prospect of Mr. Cuevas receiving a discharge,

and no real source of income or assets available to permit

Mr. Cuevas to pay any debts. As such, there was no legitimate

bankruptcy purpose behind the filing of the Chapter 13 Case. The

court stated that the assumptions underlying the chapter 13 plan

ignored the bankruptcy court’s rulings regarding the relief from

stay and homestead exemption in the Chapter 7 Case. The court

dismissed the Chapter 13 Case and barred Mr. Cuevas from filing a

new bankruptcy case for a period of two years.

On January 16, 2015, the bankruptcy court issued an order

directing Mr. Koebel to appear and show cause why he should not

be sanctioned (“Sanctions OSC”). It said that Mr. Koebel’s

filing of Mr. Cuevas’ chapter 13 petition and the various

positions Mr. Koebel took in the Chapter 13 Case tended to

demonstrate that sanctions were warranted.

Additionally, the probate trustee filed a motion for

attorneys’ fees against Mr. Koebel under Rule 9011.

In the meantime, Mr. Cuevas and Mr. Koebel appealed the

dismissal order and the Sanctions OSC to the BAP. The BAP

dismissed the appeal of the Sanctions OSC as interlocutory. It

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also granted Mr. Cuevas a limited remand of the appeal of the

dismissal order to seek relief from the bankruptcy court. 

On remand, Mr. Cuevas filed a motion to “correct” the

dismissal order. The bankruptcy court issued a detailed

memorandum decision disposing of the motion to correct, the

Sanctions OSC, and the probate trustee’s motion for fees. The

court determined that Mr. Cuevas only filed the Chapter 13 Case

to delay his eviction and increase the costs of litigation. The

court described as “nonsense” Mr. Cuevas’ explanations as to why

he needed to pursue chapter 13 relief. The court said that his

theories about his ability to fund his chapter 13 plan were

shams.

Regarding the Sanctions OSC, the bankruptcy court sanctioned

Mr. Koebel under its inherent powers and Rule 9011. It said: 

There is clear and convincing evidence that

Mr. Koebel did in fact operate in bad faith, and

additionally and alternatively engaged in willful

misconduct, by filing this chapter 13 case for the

purpose of delaying and obstructing the Probate Trustee

and the Chapter 7 Trustee, including staying the

unlawful detainer trial and needlessly increasing the

costs of litigation. The debtor had no genuine need,

let alone any ability, to reorganize his finances in

chapter 13. Moreover, after filing the petition

Mr. Koebel continued to engage in further bad faith and

willful misconduct as described above, including false

and misleading representations to this court, and

frivolous and wasteful litigation.

The bankruptcy court sanctioned Mr. Koebel as follows:

(1) an award of $15,346.30 in attorneys’ fees and costs paid to

the probate trustee; (2) an award of $2,110.60 in attorneys’ fees

and costs paid to the chapter 7 trustee; and (3) referral to the

Central District of California bankruptcy disciplinary panel,

with a recommendation to refer Mr. Koebel to the California state

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bar, suspend him from practice for six months or longer, and

subject him to a probationary period of practice for four and a

half years. The court reasoned that Mr. Koebel’s subjective bad

faith and objectively unreasonable conduct concerning the

chapter 13 petition and the opposition to the dismissal of the

Chapter 13 Case constituted ample ground for the imposition of

sanctions under Rule 9011 and the court’s inherent powers. 

Mr. Cuevas and Mr. Koebel appealed the bankruptcy court’s

dismissal order and the sanctions order against Mr. Koebel, BAP

nos. CC-15-1032-KuKiTa and CC-15-1353-KuKiTa (the “Related

Appeals”). On October 5, 2016, while the present appeal was

pending, the BAP affirmed the bankruptcy court in the Related

Appeals, holding that the appellants did not offer any argument

justifying reversal of the dismissal order and did not

specifically and distinctly challenge the sanctions order.

On November 3, 2016, Mr. Koebel and Mr. Cuevas appealed the

judgment in the Related Appeals to the Ninth Circuit Court of

Appeals.

D. The disciplinary proceeding

Following Mr. Koebel’s referral to the disciplinary panel,

Mr. Koebel argued that sanctions were not warranted because:

(1) he filed the Chapter 13 Case in good faith; (2) additional

funds from the Chapter 7 Case may be used to increase the

percentage distribution to creditors; (3) the claimed homestead

exemption was proper; (4) Mr. Cuevas was the future beneficiary

of the Mother’s Trust and was entitled to the homestead

exemption; (5) the Chapter 13 Case was not filed in bad faith

when it followed the Chapter 7 Case; (6) the proposed chapter 13

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plan and the need for discharge were not shams; and

(7) Mr. Koebel’s positions were meritorious and he did not make

any false or misleading statements.

On January 20, 2016, a three-judge panel of bankruptcy

judges from the Central District of California held a hearing

regarding the suggested disciplinary action against Mr. Koebel. 

See United States Bankruptcy Court for the Central District of

California Fourth Amended General Order 96-05. By order

(“Disciplinary Order”) entered May 17, 2016, the disciplinary

panel held that: (1) Mr. Koebel shall be suspended from filing

any new case or proceeding before the United States Bankruptcy

Court for the Central District of California for a period of

180 days from the entry of the order, followed by a probation

period of four and a half years; (2) as a condition to filing any

new case following the suspension period, Mr. Koebel shall file a

declaration confirming that he has paid the outstanding sanctions

against him; (3) if the court sanctions Mr. Koebel in an amount

of $1,000 or greater during the suspension or probation periods,

Mr. Koebel shall be suspended from all practice before the

bankruptcy court for the remainder of the suspension and

probation periods; (4) the Office of the United States Trustee

shall monitor Mr. Koebel’s compliance; and (5) Mr. Koebel shall

complete four hours of legal ethics training. 

Mr. Koebel timely appealed the Disciplinary Order.

JURISDICTION

The bankruptcy disciplinary panel had jurisdiction pursuant

to 28 U.S.C. §§ 1334 and 157(b)(1) and (2)(A). See

In re Brooks-Hamilton, 400 B.R. 238, 244-45 (9th Cir. BAP 2009). 

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We have jurisdiction under 28 U.S.C. § 158. See

In re Disciplinary Proceeding of Greenfield, BAP

No. CC–13–1006–KiTaKu, 2013 WL 5525738, at *7 (9th Cir. BAP

Oct. 1, 2013); In re Brooks-Hamilton, 400 B.R. at 245. 

ISSUE

Whether the bankruptcy disciplinary panel erred in

disciplining Mr. Koebel by suspending him for 180 days and

placing him on probation for four and a half years.

STANDARD OF REVIEW

We review sanctions and the terms of a disciplinary order

for abuse of discretion. Similarly, the bankruptcy court’s

choice of sanction is reviewed for abuse of discretion. 

In re Nguyen, 447 B.R. 268, 276 (9th Cir. BAP 2011) (citations

omitted). Accordingly, we reverse only where the bankruptcy

court applied an incorrect legal rule or where its application of

the law to the facts was illogical, implausible, or without

support in inferences that may be drawn from the record. United

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

DISCUSSION

A. Mr. Koebel’s brief on appeal is woefully deficient and fails

to comply with the applicable rules.

Mr. Koebel’s opening brief is facially deficient and flouts

even the most basic rules for appellate briefs. 

It does not contain a statement of issues on appeal, table

of contents, table of authorities, jurisdictional statement,

factual background, or even a discussion of the disciplinary

board’s asserted errors. See Rule 8014(a). Instead of actually

bothering to state any relevant argument on appeal, Mr. Koebel

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directs us to review dozens of documents in his excerpts of

record with the cavalier claim that he incorporates them all by

reference. He even purports to incorporate by reference over

twenty documents (and the entire excerpt of record filed in the

Related Appeals) and “any and all arguments already raised and

those not yet raised.” (Emphasis added.)

Such a deficient brief – particularly when submitted by a

licensed attorney - demonstrates a lack of respect for the

judicial process and carelessness or indifference toward the

preparation of this appeal. We could strike the opening brief

and dismiss the appeal or summarily affirm. See Morrissey v.

Stuteville (In re Morrissey), 349 F.3d 1187, 1190 (9th Cir. 2003)

(holding that the BAP did not abuse its discretion in employing

summary affirmance as a sanction for appellant’s failure to

include a statement of appellate jurisdiction, an intelligible

statement of the issues presented, a statement of the case, and

citations to the authorities, statutes, and parts of the record

relied upon); N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145,

1146 (9th Cir. 1997) (dismissing the appeal for failure to

include a statement of the standard of review and citations to

the record and for exceeding the page and word limit).

As discussed below, even considering the scant arguments

raised in the opening brief, we do not find any merit in

Mr. Koebel’s appeal.

B. Mr. Koebel fails to identify or establish any error in the

Disciplinary Order.

Our attempt to review the merits of Mr. Koebel’s appeal of

the disciplinary panel’s decision is futile, not only for the

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reasons stated above, but because Mr. Koebel neglects to actually

argue any error. 

Normally, “[i]n reviewing attorney disciplinary sanctions we

determine whether (1) the disciplinary proceeding is fair,

(2) the evidence supports the findings, and (3) the penalty

imposed was reasonable.” In re Nguyen, 447 B.R. at 276. 

Mr. Koebel does not address the Disciplinary Order in any

meaningful way, but instead focuses almost exclusively on why the

bankruptcy court should not have dismissed the Chapter 13 Case or

sanctioned him. However, the Panel has already decided those

issues in the Related Appeals when it affirmed the bankruptcy

court’s dismissal order and sanctions order. See Leslie Salt Co.

v. United States, 55 F.3d 1388, 1392 (9th Cir. 1995) (“Under law

of the case doctrine, however, one panel of an appellate court

will not reconsider matters resolved in a prior appeal to another

panel in the same case.”).

Mr. Koebel conceded at oral argument that his arguments in

this appeal were the same as those that the Panel rejected in the

Related Appeals and that the October 5 decision is binding in

this appeal. He admitted that he left himself “defenseless” by

neglecting to address the Disciplinary Order against him and

instead only focusing on the dismissal of the Chapter 13 Case.4

4 Mr. Koebel implied at oral argument that he already knew

that the members of this Panel would rule against him because one

of the panel members was on the BAP panel that considered the

Related Appeals. As a member of this Panel informed Mr. Koebel,

the panel members consider each appeal on its own merits and

without any preconceived bias. But because Mr. Koebel chose to

leave himself “defenseless” and not address the Disciplinary

(continued...)

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Mr. Koebel only refers to the disciplinary panel in one

sentence at the end of his opening brief. He does not point to

any error or offer any legal analysis of the Disciplinary Order. 

We will not review arguments on appeal that are not distinctly

argued or supported by the record, nor will we comb through the

dozens of documents “incorporated by reference” to make

Mr. Koebel’s arguments for him. See Christian Legal Soc. Chapter

of Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010) (an

appellate court “won’t consider matters on appeal that are not

specifically and distinctly argued in appellant’s opening

brief”).

If anything, Mr. Koebel’s cavalier approach to this appeal

confirms that the disciplinary panel was right.

CONCLUSION

For the reasons set forth above, we find no error with the

Disciplinary Order. Accordingly, we AFFIRM.

4(...continued)

Order, he virtually ensured that we would affirm the Disciplinary

Order.

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