1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILED

JUL 28 2015

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NOT FOR PUBLICATION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. NC-14-1352-PaJuKl

)

STEVEN PAUL WILDHABER, SR., ) Bankr. No. 14-10875

DBA Designs Luminaire, )

)

Debtor. )

___________________________________)

)

STEVEN PAUL WILDHABER, SR., )

)

Appellant, )

)

v. ) M E M O R A N D U M1

)

DAVID BURCHARD, Chapter 13 Trustee,)

)

Appellee. )

___________________________________)

Submitted Without Oral Argument2

on July 23, 2015

Filed - July 28, 2015

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable Alan Jaroslovsky, Bankruptcy Judge, Presiding

 

Appearances: Steven Paul Wildhaber, Sr. on brief pro se; Lilian

G. Tsang on brief for appellee David Burchard,

Chapter 13 Trustee.

 

FILED

JUL 28 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

1 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.

2 After reviewing the briefs and submissions of the parties,

in an order of June 3, 2015, the Panel determined that oral

argument is not required in this appeal.

-1-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Before: PAPPAS, JURY, and KLEIN,3 Bankruptcy Judges.

Steven Paul Wildhaber, Sr. (“Debtor”) appeals the order of

the bankruptcy court dismissing his chapter 134 case for failure

to file his chapter 13 plan timely. We AFFIRM.

I. FACTS

Debtor filed a chapter 13 petition on June 11, 2014, to

prevent a foreclosure on his residence by the Brookside of Napa

Homeowners Association (the “HOA”). That same day the bankruptcy

court entered and sent Debtor a copy of an “Order to File Required

Documents and Notice Regarding Automatic Dismissal” (the “Order”). 

The Order advised Debtor that he had failed to file certain

required documents with his petition, including a chapter 13 plan,

and advised him that the court might dismiss his case if he did

not file the documents within fourteen days of the petition. On

June 26, 2014, the bankruptcy court entered an Order of Dismissal

because Debtor had not filed the missing documents, as the Order

had warned. 

On July 9, 2014, Debtor filed a chapter 13 plan, twenty-eight

days after the petition date. Also on July 9, Debtor filed a

timely notice of appeal of the Order of Dismissal. In his

statement of issues on appeal, Debtor alleged that he sent all the

required documents, except the chapter 13 plan, via overnight mail

3 The Honorable Christopher M. Klein, Chief Judge of the

United States Bankruptcy Court for the Eastern District of

California, sitting by designation.

4 Unless otherwise indicated, all chapter and section

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

Rule references are to the Federal Rules of Bankruptcy Procedure,

Rules 1001–9037, and all Civil Rule references are to the Federal

Rules of Civil Procedure 1–86.

-2-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to the bankruptcy court on June 24, 2014. With respect to the

plan, Debtor candidly admitted that he had intentionally withheld

filing it because, in his words:

As I prepared the documents required by the

Order to File, I could not see how the Plan

could be reliable or predictive, without first

knowing the Court’s determination of the

Brookside HOA Claim. On June 24, 2014 I

shipped all but the Ch[apter] 13 Plan to the

Bankruptcy Court building . . . . 

Debtor explained that the documents he did send to the bankruptcy

court had been delivered on June 25, 2014, but not to the correct

address. Rather, Debtor noted, the documents had been sent to a

different location in the building housing the court and had not

been delivered appropriately to the clerk of the bankruptcy court

until June 30, 2014. 

On August 8, 2014, Debtor filed an informal request that this

Panel remand the appeal to the bankruptcy court so it could

consider a motion for reconsideration of the Order of Dismissal. 

On August 11, 2014, the Panel granted a limited remand to allow

the bankruptcy court to decide Debtor’s reconsideration motion. 

Debtor then filed a “motion to reopen” his case on August 13,

2014, in the bankruptcy court. Debtor stated in the motion that

he had sent “all required documents, except the Chapter 13 Plan”

within fourteen days of the filing of his petition but, as

described above, the documents were delivered to the wrong office

at the courthouse. As to his chapter 13 plan, Debtor explained

“[a]s a first-time bankruptcy petitioner, lacking experience with

the filing process, I was challenged to assemble and structure a

reliable projection for a Ch[apter] 13 Plan at that preliminary

date.”

-3-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The ‘motion to reopen’ the case, which had not been closed,

was treated as a motion seeking relief from the dismissal order. 

In response to Debtor’s motion to reopen, in a memorandum and

order entered on August 24, 2014, the bankruptcy court wrote:

The debtor appears to believe that his

Chapter 13 case was dismissed because his

schedules were a day late due to being sent to

the wrong address. However, the case was

dismissed only because he failed to file a

Chapter 13 plan. Rule 3015(b) of the Federal

Rules of Bankruptcy Procedure requires that a

Chapter 13 plan be filed within 14 days of the

petition and does not permit extensions except

after proper notice and a showing of good

cause. The debtor did not file his plan until

28 days after the petition, the same day he

filed his notice of appeal. The court will

hear the debtor’s motion to reopen his case on

September 10, 2014, at 1:30 P.M., provided

that he immediately serve his motion, all

related papers, and this order on all of his

creditors and file a certificate thereof.

Notice of the September 10, 2014 hearing was sent to all

parties in interest in the bankruptcy case by the clerk. On

September 8, 2014, the HOA filed an opposition to Debtor’s motion,

arguing that dismissal of the case was appropriate due to Debtor’s

failure to file the chapter 13 plan timely, and that it would be

prejudiced by further delays in the foreclosure proceeding. 

The bankruptcy court heard Debtor’s motion on September 10,

2014; Debtor appeared pro se and the HOA was represented by

counsel.5 On the same day, the court entered an Order Denying

Motion, which provided, in full,

To the extent that the Debtor’s bankruptcy

papers may have been slightly late due to his

delivery of them to the wrong part of the

5 The Panel was not provided a transcript of the

September 10, 2014 hearing.

-4-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

building, the neglect was slight and

excusable. However, the Debtor’s Chapter 13

plan was not among those papers. The Debtor

has not shown any excusable neglect for his

violation of Rule 3015(b) of the Federal Rules

of Bankruptcy Procedure. Accordingly, his

motion for reinstatement of his case is

denied.

Debtor did not file an amended notice of appeal seeking

review of the bankruptcy court’s September 10, 2014 order. 

However, on September 12, 2014, Debtor filed with the Panel a

“Status Report” addressing the outcome of the limited remand. In

it, Debtor alleged he was treated inappropriately by the

bankruptcy court in resolving his motion, something he insisted

would be apparent if the Panel would review a transcript of the

hearing. However, Debtor did not provide a transcript. Finally,

Debtor stated “I hope [the Panel] will act on this.”

II. JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334

and 157(b)(A). We have jurisdiction under 28 U.S.C. § 158.

III. ISSUES

Whether the bankruptcy court erred in dismissing Debtor’s

case for failure to file a chapter 13 plan timely.

Whether the bankruptcy court erred in denying Debtor’s motion

for relief from the dismissal order.

IV. STANDARDS OF REVIEW

The bankruptcy court's dismissal of a chapter 13 case is

reviewed for an abuse of discretion. Leavitt v. Soto

(In re Leavitt), 171 F.3d 1219, 1223 (9th Cir. 1999); Ellsworth v.

Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914

(9th Cir. BAP 2011). Under this standard, we first “determine de

-5-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

novo whether the court identified the correct legal rule to apply

to the relief requested.” United States v. Hinkson, 585 F.3d

1247, 1261-62 (9th Cir. 2009) (en banc). If the bankruptcy court

applied the correct legal rule, we then determine whether the

court’s “application of the correct legal standard was:

‘(1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts in the record.’” 

United States v. Aguilar, 782 F.3d 1101, 1105 (9th Cir. 2015)

(quoting Hinkson, 585 F.3d at 1261-62) (internal quotation marks

omitted).

The bankruptcy court’s denial of a motion for relief from an

order is reviewed for an abuse of discretion. Bateman v. United

States Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000).

V. DISCUSSION

A. The bankruptcy court did not err in dismissing Debtor’s case

for failure to file a chapter 13 plan timely.

Debtor argues that the bankruptcy court erred by its

“premature dismissal” of the chapter 13 case based upon his

failure to file a plan timely because such omission is not “good

cause” for a dismissal. Appellant’s Op. Br. at 12. We disagree.

Section 1307(c) provides a non-exhaustive list of what

constitutes “cause” to convert or dismiss a chapter 13 case. 

In re Ellsworth, 455 B.R. at 914. As relevant here, § 1307(c)(3)

specifies that cause to convert or dismiss a case exists if there

is a “failure to file a plan timely under section 1321 of this

title[.]” Section 1321, in turn, provides that “[t]he debtor

shall file a plan,” and Rule 3015(b) establishes the deadline for

timely doing so: 

-6-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Chapter 13 Plan. The debtor may file a

chapter 13 plan with the petition. If a plan

is not filed with the petition, it shall be

filed within 14 days thereafter, and such time

may not be further extended except for cause

shown and on notice as the court may direct

. . . .

Here, there is no dispute that Debtor did not file a plan

with his chapter 13 petition on June 11, 2014, or within fourteen

days thereafter. Debtor also did not seek nor obtain bankruptcy

court approval for an extension of time to file his plan.6

Debtor’s failure to comply with the deadline also contravened the

bankruptcy court’s Order which expressly advised Debtor that his

case could be dismissed if he failed to file required documents,

including the chapter 13 plan, within fourteen days of the

petition. 

Debtor concedes he made a deliberate, albeit perhaps

misinformed decision, to delay filing his chapter 13 plan, despite

the warning in the Order. A debtor’s failure to file the plan

within fourteen days of the petition, or to obtain an extension of

time from the bankruptcy court to do so, violated Rule 3015(b) and

the Order. This constituted adequate cause for the bankruptcy

court to dismiss Debtor’s case under § 1307(c)(3). See Tennant v.

Rojas (In re Tennant), 318 B.R. 860, 870-71 (9th Cir. BAP 2004)

(explaining that “if a case involves only very narrow procedural

aspects, a court can dismiss a Chapter 13 case without further

notice and a hearing if the debtor was provided with notice of the

requirements to be met . . . . [A] procedure is perfectly

appropriate that notifies the debtor of the deficiencies of his

6 A motion for an extension of time to file a chapter 13

plan is governed by Rule 9006(b).

-7-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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.”) (internal quotation marks and citations

omitted). Because the bankruptcy court identified the correct

legal rule in deciding whether to dismiss Debtor’s case, it did

not abuse its discretion in concluding that, based upon these

undisputed facts, the case should be dismissed.

B. We summarily affirm the bankruptcy court’s order denying

Debtor’s motion for relief from the order on limited remand.

The Panel granted Debtor’s request for a limited remand to

the bankruptcy court so it could consider Debtor’s motion for

relief from the dismissal order. While Debtor’s motion in the

bankruptcy court did not cite any particular authority for the

relief he requested, it was clear that he was asking the court to

reconsider its decision to dismiss the case. Debtor generally

argued, as he does in this appeal, that he did not file his

chapter 13 plan timely because he believed, at such an early point

in the case, a plan would not represent what he called a “reliable

projection” of his situation due to the unsettled issues existing

with the HOA’s claim. 

On September 10, 2014, the bankruptcy court conducted a

hearing on Debtor’s motion and, apparently, announced its

decision. The bankruptcy court then entered an order stating, in

relevant part, that “Debtor has not shown any excusable neglect

for his violation of Rule 3015(b) of the Federal Rules of

Bankruptcy Procedure. Accordingly, his motion for reinstatement

of his case is denied.” After the bankruptcy court denied

Debtor’s motion, Debtor sent the “Status Report” to the Panel

-8-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

advising of the bankruptcy court’s ruling, suggesting that we

review a transcript of the hearing and requesting that the Panel

“act on” the bankruptcy court’s order. However, Debtor failed to

provide a transcript of the hearing.7 

Although Debtor did not file an amended notice of appeal to

include the bankruptcy court’s order on limited remand, we review

that order by construing Debtor’s “Status Report” as an amended

notice of appeal. See Smith v. Barry, 502 U.S. 244, 248-50 (1992)

(construing pro se’s appellate brief as a potential notice of

appeal); Brannan v. United States, 993 F.2d 709, 710 (9th Cir.

1993) (construing a letter from a pro se appellant as a notice of

appeal). However, based upon Debtor’s failure to provide a

transcript, we must summarily affirm the order on limited remand.

While the relief requested in his motion in the bankruptcy

court was imprecise and lacked citation to any authorities, we

construe it to be a motion for relief from the dismissal order

under Civil Rule 60(b)(1),8 as incorporated by Rule 9024. This

7 Our review of the bankruptcy court’s docket shows a

transcript of the hearing was neither requested by Debtor nor

prepared.

8 The Civil Rule provides:

Grounds for Relief from a Final Judgment,

Order, or Proceeding. On motion and just

terms, the court may relieve a party or its

legal representative from a final judgment,

order, or proceeding for the following

reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect . . . .

Civil Rule 60(b)(1). When a party files a motion for

reconsideration within fourteen days after the entry of a

(continued...)

-9-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

rule allows the bankruptcy court to grant a party relief from a

final order or judgment for reasons including, “mistake,

inadvertence, surprise, or excusable neglect.” Civil

Rule 60(b)(1). The movant bears the burden of demonstrating one

of the grounds provided in the Civil Rule. Engleson v. Burlington

N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992). 

“[D]etermination of whether neglect is excusable [under Civil

Rule 60(b)(1)] is an equitable one that depends on at least four

factors: (1) the danger of prejudice to the opposing party;

(2) the length of the delay and its potential impact on the

proceedings; (3) the reason for delay; and (4) whether the movant

acted in good faith.” Bateman, 231 F.3d at 1223-24 (citing

Pioneer Inv. Servs. Co. v. Brunswich Assocs. Ltd. P’ship, 507 U.S.

380, 395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379,

381 (9th Cir. 1997)); see also Pincay v. Andrews, 389 F.3d 853,

855-56 (9th Cir. 2004) (en banc).

The Ninth Circuit has instructed that “courts should

explicitly use the Pioneer-Briones framework for analysis of

excusable neglect under [Civil] Rule 60(b)(1)[.]” Lemoge v.

United States, 587 F.3d 1188, 1192 (9th Cir. 2009). However, even

if the trial court fails to explicitly apply the Pioneer-Briones

test, reversal may not be required if the court engaged in the

8(...continued)

judgment, the motion is treated as one under Civil Rule 59(e),

incorporated to bankruptcy proceedings by Rule 9023. Am.

Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 249 F.3d 892,

898-99 (9th Cir. 2001). If it is beyond that period of time, the

motion is treated as a motion for relief from a judgment or order

under Civil Rule 60(b). Id. In this case, Debtor’s motion was

filed well beyond the fourteen day period after the dismissal

order, and it should be reviewed under Civil Rule 60(b).

-10-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

equitable analysis described in those cases. Id. at 1193;

Bateman, 231 F.3d 1224.

In this case, as reflected in its order denying Debtor’s

motion, the bankruptcy court decided Debtor had not demonstrated

that his failure to file a plan timely resulted from excusable

neglect. However, lacking a transcript of the motion hearing with

the bankruptcy court’s findings, conclusions, or comments, we are

unable to determine whether the court engaged in a Pioneer-Briones

excusable neglect analysis. 

Debtor was obliged to provide the Panel with a record of the

proceedings in the bankruptcy court adequate to allow us to review

the court’s order. Here, Debtor’s failure to provide a transcript

of the motion hearing is grounds to summarily affirm the

bankruptcy court’s decision. See Morrissey v. Stuteville

(In re Morrissey), 349 F.3d 1187, 1190-91 (9th Cir. 2003); Kyle v.

Dye (In re Kyle), 317 B.R. 390, 393 (9th Cir. BAP 2004). “When

findings of fact and conclusions of law are made orally on the

record, a transcript of those findings is mandatory for appellate

review.” Clinton v. Deutsche Bank Nat’l Trust Co.

(In re Clinton), 449 B.R. 79, 83 (9th Cir. BAP 2011) (citing

McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 417 (9th Cir.

BAP 1999)); Rule 8009; 9th Cir. BAP R. 8009-1. “Without a

transcript, it is impossible to determine why the bankruptcy court

ruled as it did.” In re Clinton, 449 B.R. at 83. That Debtor is

not represented by counsel in this appeal does not excuse him from

complying with these rules. Id. Because Debtor did not provide

the transcript the record provided is incomplete as a matter of

law. Id. (citing In re McCarthy), 230 B.R. at 417). We therefore

-11-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

summarily affirm the order of the bankruptcy court on limited

remand.

VI. CONCLUSION

We AFFIRM the order of the bankruptcy court dismissing

Debtor’s chapter 13 case and we AFFIRM the court’s denial of

Debtor’s motion for relief from the order.

-12-