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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 8013-1.

2

 Although named as an appellee by appellant, the U.S.

Trustee did not appear in the bankruptcy court or in this appeal.

3 Although the Panel advised appellant that oral argument

would not be held unless she requested it, appellant, in a letter

on June 5, 2012, made a request for argument. Despite this,

appellant did not appear at the scheduled argument.

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UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-11-1482-PaKiRn

)

PAULA MARIE OLIVER, ) Bankr. No. 11-13132-MT

)

Debtor. )

___________________________________)

)

PAULA MARIE OLIVER, )

)

Appellant, )

)

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

)

UNITED STATES TRUSTEE,2 )

)

Appellee. )

___________________________________)

 Submitted Without Oral Argument

on September 20, 20123

Filed - October 23, 2012

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Maureen Tighe, Bankruptcy Judge, Presiding 

Appearances: Appellant Paula Marie Oliver pro se on brief. 

FILED

OCT 23 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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4 The Honorable Thomas M. Renn, United States Bankruptcy

Judge for the District of Oregon, sitting by designation.

5 Unless otherwise indicated, all chapter, section and rule

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

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

6

 Debtor is a pro se appellant who provided few excerpts of

record and whose brief is difficult to understand. We have

exercised our discretion to consult the bankruptcy court’s docket

in Debtor's bankruptcy case to assist us in ascertaining the

relevant facts. O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,

Inc.), 887 F.2d 955, 958 (9th Cir. 1989).

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Before: PAPPAS, KIRSCHER and RENN,4 Bankruptcy Judges.

Appellant Paula Marie Oliver (“Debtor”) appeals the order of

the bankruptcy court dismissing her chapter 135 bankruptcy case. 

We AFFIRM.

FACTS6

This appeal arises out of a chapter 13 case commenced by

Debtor on March 14, 2011. Bankr. Case No. 11-13132. However, on

January 5, 2010, she had filed an earlier chapter 13 petition,

Bankr. Case No. 10-10098 (the “First Bankruptcy”). In the

Schedule A filed in the First Bankruptcy, Debtor claimed to be the

owner of property in Tarzana, California (the “Property”). The

First Bankruptcy was dismissed on February 15, 2010, for Debtor’s

failure to make required plan payments. Debtor did not appeal

that dismissal.

On April 15, 2010, the Property was sold at a foreclosure

sale to Bank of New York as Trustee for the Certificateholders

CWALT, Inc. Alternative Loan Trust 2006-OA11 Mortgage Pass-through

Certificates, Series 2006-OA11 (“BONY”). A trustee’s deed upon

sale conveying title to the Property to BONY was recorded on
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April 26, 2010, in the Official Records of Los Angeles County.

BONY commenced an unlawful detainer action against Debtor and

others on August 17, 2010, seeking, among other things, Debtor’s

eviction from the Property. Bank of New York v. Oliver, et al.,

Case no. 10B05053 (Superior Court, Los Angeles County, August 17,

2010) (the “State Court Proceedings”).

As noted above, Debtor filed the chapter 13 petition

initiating the bankruptcy case in this appeal on March 14, 2011

(the “Bankruptcy on Appeal”). Bankr. Case No. 11-13132. Again,

on her Schedule A she claimed ownership of the Property. Debtor

filed a chapter 13 plan on March 29, 2011, in which she proposed

to make sixty payments of $3,000 per month. 

BONY objected to confirmation of the plan on April 19, 2011,

and moved to dismiss the bankruptcy case, because Debtor no longer

owned the Property.

There were a number of deficiencies in Debtor’s bankruptcy

petition and schedules and, on April 26, 2011, the bankruptcy

court set a hearing for May 5, 2011, to allow Debtor to explain

her position.

In addition, the original § 341(a) meeting of creditors in

this case was scheduled to occur on April 20, 2011 (the “First

§ 341(a) Meeting”). On April 22, 2011, Debtor wrote a letter to

the bankruptcy court stating that she was unaware of the

creditors’ meeting date and requesting that the § 341(a) meeting

be rescheduled. Following the hearing on May 5, 2011, the court

granted Debtor’s request and rescheduled the § 341(a) meeting for

June 15, 2011 (the “Second § 341(a) Meeting”).

Despite having rescheduled it, on May 12, 2011, the
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bankruptcy court improvidently entered an order dismissing the

case for Debtor’s failure to attend the First § 341(a) Meeting. 

Debtor moved to vacate the dismissal. The bankruptcy court

vacated the dismissal by order entered June 7, 2011, and again

reset the § 341(a) meeting, this time for July 13, 2011 (the

“Third § 341(a) Meeting”).

 On June 29, 2011, the bankruptcy court again improvidently

entered an order dismissing the case for Debtor’s failure to

attend the Second § 341(a) Meeting. The clerk closed the case on

June 30, 2011. Later that same day the bankruptcy court set aside

the clerk’s order and reopened the case for further

administration. On July 7, 2011, the clerk issued a Notice

Vacating the Dismissal Order and once again reset the § 341(a)

meeting for July 27, 2011 (the “Fourth § 341(a) Meeting”). The

docket reflects that Debtor was notified of the date for the

Fourth § 341(a) Meeting by mail on July 8, 2011.

According to a letter sent by Debtor to the bankruptcy court

on August 4, 2011, she had contacted the chapter 13 trustee on

July 26, 2011, the day before the scheduled Fourth § 341(a)

Meeting, and requested that it be postponed because she had

another court appearance on that date. Apparently anticipating

dismissal, Debtor prematurely moved to vacate the dismissal.

By order entered August 8, 2011, the bankruptcy court

dismissed the bankruptcy case for Debtor’s failure to attend the

Fourth § 341(a) Meeting and/or failure to make post-petition

payments to the chapter 13 trustee. The bankruptcy court denied

the premature motion to vacate dismissal on August 12, 2011.

Debtor filed a timely appeal of the dismissal order on
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August 22, 2011.

Events Subsequent to the Appeal

Although an appellate court does not ordinarily consider

events in the bankruptcy court after the appeal is filed, it may

do so when “extraordinary circumstances” occur that affect the

relief that may be offered. Brown & Cole Stores, LLC v.

Associated Grocers, Inc. (In re Brown & Cole Stores, LLC),

375 B.R. 873, 877 (9th Cir. BAP 2007)(quoting Frankfurth v.

Cummins (In re Cummins), 20 B.R. 652, 653 (9th Cir. BAP 1982)

(taking judicial notice of post-appeal voluntary dismissal of a

case)); accord Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d

1066, 1071 (9th Cir. 2006) (taking judicial notice of a settlement

agreement reached in a case after the appeal was filed). Because

we believe this case presents good cause to do so, the Panel takes

judicial notice of the following post-appeal events as shown on

the docket of the bankruptcy court.

Even though the dismissal order was not stayed, BONY filed a

motion for relief from stay to proceed to evict Debtor on

April 13, 2012. The bankruptcy court granted relief from stay to

proceed with eviction by order entered May 29, 2012. Debtor did

not appeal the May 29 order granting stay relief. Instead, she

filed yet a third chapter 13 petition on June 4, 2012. Bankr.

Case No. 12-15188 (the “New Bankruptcy”). BONY again moved for

relief from stay. The court granted the stay relief motion on

August 8, 2012, and, further, granted authority to the sheriff or

marshal to carry out an eviction regardless of any future

bankruptcy filing by Debtor for 180 days. Debtor’s motion to

vacate the order on August 10, 2012, was denied by the court the
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same day. The time to appeal the relief from stay and

reconsideration/vacatur has expired. There is no indication in

the docket of the New Bankruptcy that Debtor attended the § 341(a)

meeting or made any payments to the trustee, although it remains

open at this time.

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.

ISSUE

Whether the bankruptcy court abused its discretion in

dismissing Debtor’s bankruptcy case for failure to attend the

§ 341(a) meeting of creditors and/or to make payments to the

chapter 13 trustee.

STANDARD OF REVIEW

The bankruptcy court’s decision to dismiss a chapter 13 case

is reviewed for abuse of discretion. Ellsworth v. Lifescape Med.

Assocs., PC (In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP

2011).

DISCUSSION

Debtor presumably sought relief in this appeal so that she

may reorganize her debts, prevent eviction from her home and

prevent wage garnishment. But as discussed above, events during

the pendency of this appeal render the Panel’s ability to grant

Debtor that relief unnecessary or futile.

Debtor’s New Bankruptcy remains open. If possible, she may

propose to reorganize her debts in that case. Debtor has also had

a full and fair opportunity in the New Bankruptcy to prevent

eviction from her home. The bankruptcy court in the New
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Bankruptcy granted relief to BONY to proceed with Debtor’s

eviction, and prohibited Debtor from interfering with that

eviction for 180 days. Debtor did not appeal that final order.

Although, in theory, the Panel might overturn the bankruptcy

court’s dismissal of the Bankruptcy on Appeal, clearly, the relief

Debtor seeks in the Bankruptcy on Appeal, because of subsequent

events, is now of no consequence. However, while we could

possibly dismiss this appeal as moot, we elect instead to dispose

of this appeal on the merits.

Debtor objects to the dismissal of the Bankruptcy on Appeal

based on the numerous clerical errors made in the bankruptcy

court. Although it is clear that the first two dismissals of the

case were improvident, they were properly and promptly corrected

by the bankruptcy court. However, there were no clerical errors

made in connection with the order dismissing the bankruptcy case

for a third time on August 8, 2011, the order that is the subject

of this appeal. The bankruptcy court did not abuse its discretion

in entering that dismissal.

The August 8 dismissal was entered because Debtor had not

attended the Fourth § 341(a) Meeting and/or had not made the

payments to the chapter 13 trustee required by § 1326(a)(1). 

Because we conclude that the bankruptcy court did not abuse its

discretion in dismissing the bankruptcy case for failure to attend

the Fourth § 341(a) Meeting, we do not reach the question whether

the court should have dismissed the case for failure to make the
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7 Because of an inadequate record, we are unable to

determine if a party in interest had moved for dismissal and if

Debtor had notice of possible dismissal for failure to make the

payments, which are requirements for dismissal under § 1307(c)(4)

(“failure to commence making timely payments under section 1326 of

this title”). However, there are adequate grounds for dismissal

for failure to attend the Fourth § 341(a) Meeting. We may affirm

the bankruptcy court on any basis supported in the record. United

States v. Hemmen, 51 F.3d 883, 891 (9th Cir. 1995); Leavitt v.

Soto (In re Leavitt), 209 B.R. 935, 940 (9th Cir. BAP 1997).

-8-

payments required by § 1326(a)(1).7

A chapter 13 debtor “must appear and submit to examination

under oath at a meeting of creditors under section 341(a) of this

title.” § 343. A bankruptcy court may dismiss a petition for the

unexcused failure by the debtor to attend the § 341(a) meeting of

creditors. Bernard v. Coyne (In re Bernard), 40 F.3d 1028, 1030

(9th Cir. 1994); In re Burgos, 476 B.R. 107, 113 (Bankr. S.D.N.Y.,

2012) (chapter 13 debtor’s unexcused failure to attend § 341(a)

meeting is grounds for dismissal); In re Yensen, 187 B.R. 676,

677-78 (Bankr. D. Idaho 1995) (chapter 13 debtor’s willful failure

to attend § 341(a) meeting was grounds for dismissal). 

Debtor missed the First § 341(a) Meeting on April 20, 2011. 

Two days later, she requested that the bankruptcy court reschedule

the meeting which, after a hearing on May 5, 2011, the court reset

for June 15, 2011. The Second § 341(a) Meeting and Third § 341(a)

Meeting were cancelled as a result of the clerical errors

discussed above. However, on July 8, 2011, Debtor was notified of

the new date for the Fourth § 341(a) Meeting. She apparently

waited until the day before the scheduled hearing to request the

chapter 13 trustee to reschedule that meeting because of a

conflict with other court proceedings. The trustee’s office

declined to do so and directed Debtor to attend the meeting. 
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Debtor elected not to attend the § 341(a) meeting and waited until

August 4, 2011, to explain to the bankruptcy court the reasons for

her absence. Under the facts of this case, the bankruptcy court’s

denial of Debtor’s request for yet another § 341(a) meeting and

dismissal of her bankruptcy case, in part for failure to attend

the Fourth § 341(a) Meeting, was not an abuse of discretion.

Debtor’s sole defense to the dismissal for failing to attend

the Fourth § 341(a) Meeting was that she was not given a hearing

before the bankruptcy court so she could explain her actions. 

However, Debtor was notified at the beginning of the case of the

consequences of failing to attend the § 341(a) meeting. In

particular, the Notice of Chapter 13 Bankruptcy Case Meeting to

Creditors & Deadlines sent to Debtor on March 13, 2011, cautioned

that:

Appearance by debtor(s) and the attorney for the

debtor(s) is required at both the Section 341(a) meeting

and the confirmation hearing. Unexcused failure by the

debtor(s) to appear at either the Section 341(a) meeting

and/or the confirmation hearing may result in dismissal

of the case.

Despite this notice, Debtor failed to attend the First § 341(a)

Meeting. Even so, Debtor was given an opportunity at the May 5,

2011, hearing to explain her failure to attend the First Meeting,

and the court in the exercise of its discretion granted her a new

hearing date for the creditors’ meeting. The subsequent clerical

errors in dismissing the case and resetting the hearing dates were

regrettable, but should have impressed on Debtor the importance of

attending the § 341(a) meeting and that dismissal would follow for

failure to attend. She was notified of the Fourth § 341(a)

Meeting date in sufficient time to ask to continue it, but delayed
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contacting the chapter 13 trustee until the day before the

meeting. Debtor did not attend the meeting in direct violation of

instructions to do so, and then delayed reporting her unexcused

absence to the bankruptcy court for another week. Debtor

explained her reasons for the absence in a letter to the

bankruptcy court anticipating that her case would be dismissed,

but the court apparently found those reasons unpersuasive. Under

these facts and circumstances, we do not see how she was

prejudiced by the lack of a hearing on dismissal.

Simply put, the bankruptcy court did not abuse its discretion

in dismissing Debtor’s chapter 13 case for her failure to attend

the Fourth § 341(a) Meeting.

CONCLUSION

We AFFIRM the order of the bankruptcy court dismissing the

Bankruptcy on Appeal.