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NOTFOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-17-1127-TaBS

)

KIRTIKUMAR MENON, ) Bk. No. 17-40855

)

Debtor. )

______________________________)

)

KIRTIKUMAR MENON, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

ELBERT BRANSCOMB, )

)

Appellee. )

______________________________)

Argued and Submitted on January 25, 2018

at San Francisco, California

Filed – February 13, 2018

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable William J. Lafferty III, Bankruptcy Judge, Presiding

 

Appearances: Kirtikumar Menon argued pro se.

 

Before: TAYLOR, BRAND, and SPRAKER, Bankruptcy Judges.

FILED

FEB 13 2018

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(c)(2).
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INTRODUCTION

Kirtikumar Menon filed a chapter 111 petition. He argued

persuasively at oral argument on appeal that he filed all of the

related initial filing documents over the counter; indeed, he

asserted believably that he filed some of them twice. But the

bankruptcy court’s docket does not reflect that he filed a

Schedule C or a statement of financial affairs. And as a result

of the state of the docket, the bankruptcy court dismissed his

case. As an appellate court, we cannot conduct independent fact

finding; we are as bound by the state of the docket as was the

bankruptcy court. As a result, while we sympathize with

Debtor’s alleged plight, an appeal is not the proper method for

relief. Accordingly, we AFFIRM the bankruptcy court. 

FACTS2

Debtor filed his chapter 11 petition in March 2017; the

bankruptcy court’s docket evidences that he filed most of his

case initiation documents on the petition date. But two

critical documents were entirely missing, Official Form 106C

(schedule C) and Official Form 107 (the statement of financial

1 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. All Civil Rule references are to the Federal Rules

of Civil Procedure. And all “LBR” or “local rules” references

are to the local rules for the United States Bankruptcy Court

for the Northern District of California.

2 We exercise our discretion to take judicial notice of

documents electronically filed in the underlying bankruptcy

case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

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affairs)(“SOFA”). Five days post-petition, the bankruptcy court

entered a document providing notice of status conference and

notice of deficiency and ordering the filing of further,

required documents (the “Deficiency Order”). It informed Debtor

that he had not filed Schedule C and the SOFA. It also noted

that he had not filed an application for retention of counsel. 

The Deficiency Order further notified Debtor that he must file

these documents or a motion to extend time to file these

documents within 14 days and that failure to take timely action

was a basis for case dismissal without further notice.

Debtor argues that he subsequently re-filed schedule C and

his SOFA over the counter; he asserts that an unknown error by

court employees caused a failure to properly docket the

documents.

On April 19, 2017, 16 days after entry of the Deficiency

Order and 21 days after the petition date, the bankruptcy court

entered an order dismissing the case (the “Dismissal Order”)

based on Debtor’s failure to comply with the Deficiency Order.

Debtor timely appealed. 

JURISDICTION

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

§§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUES

Whether the bankruptcy court erred or abused its discretion

when it dismissed Debtor’s chapter 11 petition.

STANDARDS OF REVIEW

“We review de novo whether the cause for dismissal of a

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Chapter 11 case under 11 U.S.C. § 1112(b) is within the

contemplation of that section of the Code.” Marsch v. Marsch

(In re Marsch), 36 F.3d 825, 828 (9th Cir. 1994). We otherwise

review the bankruptcy court’s decision to dismiss a case under

an abuse of discretion standard. Sullivan v. Harnisch (In re

Sullivan), 522 B.R. 604, 611 (9th Cir. BAP 2014). We apply a

two-step test to determine whether the bankruptcy court abused

its discretion. Id. (citing United States v. Hinkson, 585 F.3d

1247, 1261-62 (9th Cir. 2009) (en banc)). First, we consider de

novo whether the bankruptcy court applied the correct legal

standard to the relief requested. Id. Then we review for clear

error the bankruptcy court’s factual findings. Id. (citing

cases). “We must affirm the bankruptcy court’s fact findings

unless we conclude that they are illogical, implausible, or

without support in the record.” Id. A factual determination is

clearly erroneous “if it was without adequate evidentiary

support or was induced by an erroneous view of the law.” Id.

DISCUSSION

Section 1112(b)(1) provides that “the court shall convert a

case under this chapter to a case under chapter 7 or dismiss a

case under this chapter, whichever is in the best interests of

creditors and the estate, for cause . . . .” 11 U.S.C.

§ 1112(b)(1). If cause is established, the decision to convert

or dismiss the case falls within the bankruptcy court’s

discretion. In re Sullivan, 522 B.R. at 612.3

3 If a bankruptcy court determines that there is cause to

convert or dismiss, it must also: (1) decide whether dismissal,

(continued...)

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Cause for dismissal under § 1112(b) existed under the facts

as known to the bankruptcy court.

The Dismissal Order notes that Debtor failed to comply with

the Deficiency Order. And “failure to comply with an order of

the court” is cause for dismissal. 11 U.S.C. § 1112(b)(4)(E). 

The Deficiency Order also identified three unfiled

documents: Schedule C; the SOFA; and an “Application for

Retention of Counsel for Debtor(s) in Possession.” And

§ 1112(b) defines cause to include “unexcused failure to satisfy

timely any filing or reporting requirement established by this

title or by any rule applicable to a case under this chapter 

. . . .” 11 U.S.C. § 1112(b)(4)(F).

We conclude that the Deficiency Order rightly noted that

Debtor was required to file his Schedule C and SOFA.4 

3(...continued)

conversion, or the appointment of a trustee or examiner is in

the best interests of creditors and the estate; and (2) identify

whether there are unusual circumstances that establish that

dismissal or conversion is not in the best interests of

creditors and the estate. 11 U.S.C. § 1112(b)(1)&(2); In re

Sullivan, 522 B.R. at 612. Here the basis for the court’s

choice of dismissal over conversion to chapter 7 is not express,

but we discern no error. A case in chapter 7 cannot proceed

where the debtor fails to file critical case initiation

documents. 

4 We assume the bankruptcy court mistakenly checked the

“Application for Retention of Counsel for Debtor(s)in

possession” box on the notice of deficiency. Debtor was a

natural person and could appear pro se. Local Rule 9010-1(b),

on which we assume that particular deficiency checkbox is based

and which provides for dismissal, conversion, or appointment of

a trustee if counsel is not approved, governs corporations,

partnerships, or “any entity other than a natural person

(continued...)

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Section 521 and Rule 1007 act in concert and require a

debtor to file various case initiation documents, including a

schedule of assets and liabilities and a SOFA. 11 U.S.C.

§ 521(a)(1)(B)(i)&(iii); Fed. R. Bankr. P. 1007(b)(1)(A)&(D). 

And Rule 1007(c) sets the appropriate time limits relevant here:

“In a voluntary case, the schedules, statements, and other

documents required by [Rule 1007](b)(1) . . . shall be filed

with the petition or within 14 days thereafter . . . .” Fed. R.

Bankr. P. 1007(c). Accordingly, the SOFA was due within 14 days

of the petition. 

But § 521 and Rule 1007 do not expressly require a debtor

to file a “schedule of exemptions.” Exemptions are governed by

§ 522 which allows, but does not require, an individual debtor

to claim exemptions in his assets. 11 U.S.C. § 522(b)(1). 

Section 522(l) then states that the “debtor shall file a list of

property that the debtor claims as exempt under subsection (b)

of this section.” 11 U.S.C. § 522(l) (emphasis added). Rule

4003 implements § 522; Rule 4003(a) provides: “A debtor shall

list the property claimed as exempt under § 522 of the Code on

the schedule of assets required to be filed by Rule 1007.” Fed.

R. Bankr. P. 4003(a) (emphasis added). Accordingly, Rule

4003(a) resolves any ambiguity; Schedule C is a part of the

required “schedule of assets” and must be filed in some form

alongside Schedule A/B and within Rule 1007’s 14-day timeline. 

4(...continued)

. . . .” LBR 9010-1(b). Any error in dismissing the case for

this reason, however, was harmless; other bases for dismissal

existed.

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The debtor is not required to claim exemptions, but he must file

Schedule C so his initial intentions are known.

As a result, Debtor’s failure to file his SOFA and

Schedule C justifies dismissal under § 1112(b)(4)(F).

The bankruptcy court did not abuse its discretion in

dismissing the case. 

On appeal, Debtor argues that he filed the required

documents twice: with the initial chapter 11 petition and with a 

response to the Deficiency Order on April 10, 2017. He submits

a payment receipt from his initial chapter 11 filing and

provides copies of the allegedly filed documents. At oral

argument, Debtor clarified his argument; he filed the documents,

but they must have been misplaced because they do not appear on

the docket.

And we found Debtor’s statements believable and compelling. 

But, sitting as an appellate court, we do not find facts,

evaluate credibility, or receive testimony under oath. Our

review of this appeal is confined to the record and the

bankruptcy court’s docket.

And our review of both establishes that the bankruptcy

court did not err. Debtor’s appellate arguments to the contrary

are not sufficient. First, Debtor’s payment receipt is for his

filing of a chapter 11 petition on the petition date. The

receipt, however, does not say what Debtor filed – more

particularly, it does not say that Debtor filed a schedule C or

a SOFA on that date. Second, Debtor’s statement that he refiled documents on April 10, 2017 is an insufficient basis for

reversal. The bankruptcy court’s docket does not show that

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Debtor filed anything on April 10, 2017 — or, for that matter,

anything between the entry of the Deficiency Order and the

dismissal of the bankruptcy case. Third, none of Debtor’s

copies of the “filed” documents include the bankruptcy court’s

file-stamp in the upper-right hand corner of the front page of

the documents. Fourth, although we construe Debtor’s arguments

on appeal as an offer of proof, Debtor only presented these

assertions to the bankruptcy court in the context of a motion

for stay pending appeal; the bankruptcy court could not have

erred by not considering evidence or arguments that were not

before it at the time of decision.

Debtor also emphasizes that the bankruptcy court erred in

the timing of the dismissal; he had until 14 days before the

status conference to file his status conference statement. But

the status report was not the issue; the Deficiency Order also

directed filing of Debtor’s Schedule C and SOFA within 14 days. 

The bankruptcy court dismissed Debtor’s case for failure to file

these documents.

In sum, based on the record available to it, the bankruptcy

court did not clearly err when it found that the documents were

not filed. As a result, the bankruptcy court appropriately

dismissed Debtor’s case. We must affirm.5

5 We pause to discuss a line in Debtor’s informal brief. 

Debtor explains that he “was told that [he] could not ask the

bankruptcy [c]ourt to do anything; and that filing an appeal was

the only course of action open to [him].” This was not correct. 

Before he appealed, Debtor could have filed a reconsideration

motion under Rule 9023, which applies Civil Rule 59 in

bankruptcy proceedings. And even after the time for appeal, if

an appeal was not filed, Debtor could have sought relief from

(continued...)

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CONCLUSION

Based on the foregoing, we AFFIRM.

5(...continued)

the bankruptcy court under Civil Rule 60(b), applied in

bankruptcy proceedings by Rule 9024. 

 Once this appeal is completed, we leave to Debtor’s

discretion whether he can or should file such a motion, and we

leave the decision whether it can or should be granted to the

bankruptcy court.

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