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FILED

AUG 31 2017

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NOT FOR PUBLICATION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. SC-16-1350-BJuF

)

ENRIQUE V. GREENBERG, ) Bk. No. 3:15-bk-06578-MM

)

Debtor. )

 )

)

ENRIQUE V. GREENBERG, )

)

Appellant, )

)

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

)

UNITED STATES TRUSTEE, )

)

Appellee. )

______________________________)

Submitted Without Oral Argument on July 27, 2017

Filed - August 31, 2017

Appeal from the United States Bankruptcy Court

for the Southern District of California 

Honorable Margaret M. Mann, Bankruptcy Judge, Presiding

 

Appearances: Appellant Enrique V. Greenberg, pro se, on brief;

Ramona D. Elliott, P. Matthew Sutko and John

Postulka of the Executive Office for United States

Trustee and Tiffany Carroll and Terri H. Didion of

Office of the United States Trustee on brief for

appellee United States Trustee.

 

Before: BRAND, JURY and FARIS, Bankruptcy Judges.

1 This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have, it has no precedential value. See 9th Cir. BAP Rule 8024-1.
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Chapter 112 debtor Enrique Greenberg ("Debtor") appeals an

order dismissing his bankruptcy case under § 1112(b)(1) for bad

faith. The bankruptcy court determined that Debtor had filed his

case and plan solely with a litigation objective and not to

reorganize. We AFFIRM.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

A. Events prior to the instant bankruptcy case

Debtor's mother owned real property in Temecula, California

("Property"). In 2008, she entered into a reverse mortgage loan

agreement with Countrywide Bank and executed deeds of trust in

favor of Countrywide and the U.S. Department of Housing and Urban

Development that purported to encumber the Property. The deeds of

trust, however, inaccurately described the Property; the legal

description misidentified the Property as Lot 35 instead of

Lot 36.

Debtor inherited the Property (subject to the debt) after his

mother's death in 2010.3 Debtor does not live, and has never

lived, in the Property. After Debtor failed to make the required

payments on the loan, which then totaled approximately $220,000,

foreclosure proceedings were commenced on the Property. In

response, Debtor filed a wrongful foreclosure action. When that

2 Unless specified otherwise, all chapter, code and rule

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

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

3 In April 1999, Debtor's mother executed a grant deed for

the Property in favor of Debtor, but for reasons unknown it was

not recorded until September 2011.

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failed, he filed his first bankruptcy case under chapter 13.4

That case was dismissed less than two months after it was filed. 

A week after the chapter 13 case was dismissed, Debtor filed

a second bankruptcy case under chapter 7. The case was assigned

to Judge Mann. Debtor received a chapter 7 discharge on May 13,

2014.5

In the second bankruptcy case, the chapter 7 trustee

discovered the defective deeds of trust and filed an adversary

proceeding against U.S. Bank to avoid the liens. The trustee

alleged that the defective trust deeds were ineffective to

encumber the Property. After a hotly contested proceeding and

substantial negotiation, the chapter 7 trustee and U.S. Bank

agreed to settle the dispute. The trustee paid U.S. Bank $58,000. 

In exchange, the trust deeds would be reformed to perfect a lien

on the Property. The parties also exchanged mutual releases,

eliminating any claims against the chapter 7 estate, and the

chapter 7 trustee agreed to dismiss the adversary proceeding with

prejudice and abandon the estate's interest in the Property. 

Debtor opposed the settlement, contending that the lien should be

voided, resulting in the debt owed to U.S. Bank being unsecured. 

The bankruptcy court approved the settlement; Debtor did not

4 Debtor filed his first bankruptcy case in the Central

District of California. His subsequent three cases were filed in

the Southern District of California.

5 During the state court litigation and Debtor's first two

bankruptcy filings, Bank of America acquired Countrywide and

became the successor-in-interest to the deed of trust. Bank of

America later assigned its interest in the Property to Champion

Mortgage Company; Champion subsequently assigned its interest to

U.S. Bank. For ease of reference, we refer to these four parties

collectively as U.S. Bank.

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appeal the order. 

Less than one week after the settlement between the chapter 7

trustee and U.S. Bank, Debtor filed a third bankruptcy case, this

time under chapter 11. This case was also assigned to Judge Mann. 

The chapter 7 trustee from the prior case, which was still

pending, moved to dismiss the third case, arguing that the filing

was an attempt to circumvent the settlement and therefore was an

abuse of the bankruptcy process. The bankruptcy court granted the

motion and dismissed the case without prejudice, finding that any

attempt to restructure the secured debt in the chapter 11 case was

futile until the settlement closed and the Property was abandoned

back to Debtor subject to the secured claims. The court declined

to find that Debtor had filed the case in bad faith. 

B. Debtor's instant bankruptcy case

After the chapter 7 trustee abandoned the estate's interest

in the Property in the second bankruptcy case, Debtor filed the

instant chapter 11 case, his fourth bankruptcy case in two years. 

This case was also assigned to Judge Mann. Debtor listed the

Property in his Schedule A, valuing it at $445,100 and contending

it was not subject to any secured claims. Debtor listed U.S. Bank

in his Schedule D, but indicated its claim against the Property

was wholly unsecured. Debtor listed no unsecured debt in his

Schedule F. Debtor later filed an amended Schedule D, asserting

that U.S. Bank held a secured claim against the Property for

$1.00. 

Debtor then filed a proof of claim on behalf of U.S. Bank and

proceeded to file his objection to the claim. Debtor argued that

U.S. Bank had failed to establish that it had standing to file the

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proof of claim based on its party-in-interest or ownership status

in the mortgage note. U.S. Bank moved to withdraw the claim and

indicated its desire to litigate any disputes over the claim in

state court. Ultimately, the bankruptcy court deemed the claim

withdrawn without prejudice.

1. U.S. Bank's motion for relief from stay

U.S. Bank moved for relief from the automatic stay in order

to file an action in state court to reform the trust deeds to

identify the correct legal description for the Property. In

support of the motion, U.S. Bank included a declaration from

Jeffrey Jefferson, an employee of Champion, the servicer of the

loan. Jefferson stated that the mortgage note was being held by

Recon Trust Company as Custodian of Records for Champion. 

Attached to the Jefferson declaration were copies of: (1) the

mortgage note executed by Debtor's mother for the reverse mortgage

loan; (2) the assignment of the deed of trust from Bank of America

to Champion; (3) the assignment of the deed of trust from Champion

to U.S. Bank; and (4) the 1999 grant deed from Debtor's mother to

Debtor.

Debtor opposed the stay relief motion, contesting U.S. Bank's

standing to enforce the note or foreclose on the Property. In

short, Debtor contended that U.S. Bank had not sufficiently

established that it possessed the mortgage note. 

In its tentative ruling, the bankruptcy court noted that

Debtor had yet to file a chapter 11 plan and that the exclusivity

period had expired long ago. In addition, the only claims filed

by the deadline were one for Debtor's car loan, which was current,

and the one he filed for U.S. Bank and then objected to. Although

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Debtor still had time to file his plan, the court questioned the

legitimacy of his case; U.S. Bank was the only creditor, and

Debtor did not seek to reorganize its claim but merely eliminate

it through a claim objection. Furthermore, U.S. Bank did not wish

to assert any claim in Debtor's case and wanted to resolve the

parties' lien dispute in state court. 

Overruling Debtor's standing argument and tentatively

granting U.S. Bank's motion, the bankruptcy court opined that

Debtor was not using the case to accomplish any legitimate

bankruptcy purpose to restructure his debts, but instead sought

merely to eliminate U.S. Bank's claims against the Property which

were settled, at least in part, during his prior chapter 7 case. 

In short, Debtor's goal was not a proper bankruptcy goal.

 At the hearing, after considering the parties' arguments, the

bankruptcy court sustained its tentative ruling granting stay

relief to U.S. Bank. The court noted that it was not deciding

whether the endorsement on the mortgage note was proper or whether

the loan was properly securitized; that was for the state court to

decide.

Notably, the court again expressed its concerns about the

legitimacy of Debtor's case; all he wished to do was litigate

U.S. Bank's claim, not reorganize it. Specifically, the court

opined that the case should be dismissed as premature. Until the

parties' claims in state court had been decided, it was unknown

whether the debt to U.S. Bank, if any, needed to be restructured. 

Without a claim from U.S. Bank, which had yet to be determined,

the court told Debtor that he had no possibility of confirming a

plan. Although Debtor's case appeared to have no bankruptcy

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purpose, the court again declined to find that it had been filed

in bad faith. 

The order granting U.S. Bank's stay relief motion provided

that the automatic stay was terminated "to allow litigation to

proceed in state court against Debtor or any other party to

determine U.S. Bank's rights in the [Property]" and that "absent

further order of this Court, U.S. Bank may not proceed to execute

any judgment obtained in state court regarding any interest

U.S. Bank may have in the Property." Thereafter, Debtor filed a

motion for reconsideration of the stay relief order, which the

bankruptcy court denied.

Ultimately, Debtor's appeal of the stay relief order was

dismissed as moot on January 31, 2017, because his underlying

bankruptcy case had been dismissed. Debtor's appeal of the

Panel's dismissal to the Ninth Circuit Court of Appeals was

dismissed for failure to pay the filing fee.

2. Debtor's chapter 11 plan 

Meanwhile, Debtor filed his proposed chapter 11 plan and

disclosure statement, which purported to pay U.S. Bank $1.00 for

its (alleged) secured claim of approximately $235,829.87. 

Prior to the plan hearing, the bankruptcy court issued a

tentative ruling disapproving the plan because it failed to pay

anything to creditors in violation of § 1123(a)(3). The court

also found that Debtor's bankruptcy case had only a litigation

objective and a desire to retain his property; therefore, Debtor's

plan had not been filed in good faith. 

No party presented argument at the plan hearing. The

bankruptcy court sustained its tentative ruling and disapproved

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Debtor's chapter 11 plan. The U.S. Trustee ("UST") announced it

was moving to dismiss Debtor's case and set a hearing date. The

court informed Debtor that he could file another chapter 11 plan

in response to the UST's motion to dismiss. No additional plans

were filed. 

3. UST's motion to dismiss 

In its motion to dismiss Debtor's case under § 1112(b)(1),

the UST contended that "cause" existed to dismiss because the

court had disapproved Debtor's plan, finding that it had not been

filed in good faith, and had found that Debtor filed his case

solely with a litigation objective and not to repay creditors. 

The UST contended that conversion was not appropriate because

Debtor's schedules listed no unsecured debt and he was ineligible

to receive a chapter 7 discharge, having received one less than

three years earlier. 

Debtor opposed the motion to dismiss, arguing that his case

had been filed in good faith. Debtor stated that his "intent in

filing his first proposed plan payment of $1.00 should be

construed as an effort to move creditors to providing evidence as

to the validity and extent of their lien, and the exact amount." 

Debtor also disputed the Jefferson declaration offered in support

of U.S. Bank's stay relief motion. Debtor argued that "without

adjudication of his appeal (of the stay relief order) pending on

the question of standing and claims objections, dismissal of his

bankruptcy case would be both premature and a manifest injustice." 

Finally, Debtor argued that he still had time to file another

plan, so no "cause" existed to dismiss his case. 

Prior to the hearing, the bankruptcy court issued a tentative

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ruling granting the UST's motion, finding that "cause" existed to

dismiss Debtor's case. First, the court found that Debtor's

chapter 11 plan lacked any repayment for his creditors, offering

only a nominal $1.00 to U.S. Bank, and was not a good faith plan. 

Second, Debtor admitted that his intent behind proposing a $1.00

payment was to motivate his creditors to furnish more evidence as

to the validity of the loan, which evidenced that Debtor's case

was filed with an improper litigation objective. Therefore, based

on the totality of the circumstances, the court found that

Debtor's case had not been filed in good faith and should be

dismissed. 

 At the dismissal hearing, the bankruptcy court sustained its 

tentative ruling and reiterated that it was finding bad faith as

to Debtor's chapter 11 plan and to his case filing. These bad

faith findings were both independent grounds for the court's

ruling to dismiss for cause. The court further noted that

dismissal was the proper outcome, because there were no creditors

to pay in a converted case. This timely appeal followed. 

II. 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.

III. ISSUE

Did the bankruptcy court abuse its discretion in dismissing

Debtor's chapter 11 case for bad faith?

IV. STANDARDS OF REVIEW

"We review for abuse of discretion the bankruptcy court’s

decision to dismiss a case as a 'bad faith' filing. We review the

finding of 'bad faith' for clear error." Marsch v. Marsch

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

v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167, 170 (9th

Cir. BAP 1988)). A bankruptcy court abuses its discretion if it

applied the wrong legal standard or its findings were illogical,

implausible, or without support in the record. TrafficSchool.com,

Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).

V. DISCUSSION

A. The bankruptcy court did not abuse its discretion in

dismissing Debtor's chapter 11 case for bad faith. 

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 . . . ." § 1112(b)(1). The

Ninth Circuit has held that a lack of good faith in filing a

chapter 11 petition establishes "cause" for dismissal under 

§ 1112(b). In re Marsch, 36 F.3d at 828. "'The existence of good

faith depends on an amalgam of factors and not upon a specific

fact.'" Id. (quoting Idaho Dep't of Lands v. Arnold

(In re Arnold), 806 F.2d 937, 939 (9th Cir. 1986)). 

On a motion to dismiss under § 1112(b), the debtor bears the

burden to prove the chapter 11 petition was filed in good faith. 

Marshall v. Marshall (In re Marshall), 721 F.3d 1032, 1048 (9th

Cir. 2013) (citing Soto v. Leavitt (In re Leavitt), 209 B.R. 935,

940 (9th Cir. BAP 1997)). In seeking to determine whether the

petition was filed in good faith, the debtor's "subjective intent"

is not determinative. In re Marsch, 36 F.3d at 828. Rather, the

good faith inquiry focuses on the manifest purpose of the petition

filing and whether the debtor is seeking to achieve thereby

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"objectives outside the legitimate scope of the bankruptcy laws." 

Id. Put another way, the good faith standard requires the

bankruptcy court to ascertain "whether [the] debtor is attempting

to unreasonably deter and harass creditors or attempting to effect

a speedy, efficient reorganization on a feasible basis." Id.

(citing In re Arnold, 806 F.2d at 939). 

We have long said that the bankruptcy court must consider the

totality of the circumstances when determining whether the debtor

acted in bad faith. Meadowbrook Inv'rs Grp. v. Thirtieth Place,

Inc. (In re Thirtieth Place, Inc.), 30 B.R. 503, 505 (9th Cir. BAP

1983) (finding of bad faith "require[s] an examination of all the

particular facts and circumstances in each case"). Debtor

contends the court erred by dismissing his case based on only one

factor — that his proposed chapter 11 plan offered to pay

U.S. Bank $1.00.6

Courts have developed helpful lists of circumstantial factors

that might indicate bad faith. The bankruptcy court does not need

to consider all of the factors, nor does it have to weigh them

equally. A bankruptcy court may find one factor dispositive or

may find bad faith even if none of the factors are present. 

Mahmood v. Khatib (In re Mahmood), CC–16–1210–TaFC, 2017 WL

1032569, at *4 (9th Cir. BAP Mar. 17, 2017). 

In St. Paul Self Storage Ltd. Partnership v. Port Authority

of St. Paul (In re St. Paul Self Storage Ltd. Partnership),

6 Debtor contends that his $1.00 payment offer was

reasonable given that U.S. Bank failed to establish that it held

the mortgage note or the amount owed. U.S. Bank's standing was

the subject of the order granting stay relief and a prior appeal,

which has since been dismissed. Therefore, this issue is not

properly before us and we do not consider it.

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185 B.R. 580, 582-83 (9th Cir. BAP 1995), we set forth a list of

factors that might indicate whether a chapter 11 case has been

filed in bad faith for purposes of dismissal under § 1112(b):

1. the debtor has only one asset;

2. the debtor has an ongoing business to reorganize; 

3. there are any unsecured creditors;

4. the debtor has any cash flow or sources of income to

sustain a plan of reorganization or to make adequate

protection payments; and 

5. the case is essentially a two-party dispute capable of

prompt adjudication in state court. 

We have also utilized a more expansive list of factors. See,

e.g., In re Stolrow's, Inc., 84 B.R. at 171 (considering eight

factors, including the factor that debtor has only one asset and

that the secured creditor's lien encumbers that asset). 

Although the bankruptcy court did not cite a list of factors

it considered in finding that Debtor's case had been filed in bad

faith, we disagree with Debtor's contention that the $1.00 plan

payment offer was the only factor the court considered and relied

upon for its bad faith finding. However, it would not be

reversible error if that was all the court had considered. See

In re Mahmood, CC–16–1210–TaFC, 2017 WL 1032569, at *4. The court

also found bad faith because Debtor's proposed plan had only a

litigation objective, not one to reorganize, and the automatic

stay had already been terminated to allow the parties' lien

dispute to be resolved by the state court. 

A petition in bankruptcy arising out of a two-party dispute

does not per se constitute a bad-faith filing by the debtor. Id. 

But courts find bad faith based on two-party disputes where "'it

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is an apparent two-party dispute that can be resolved outside of

the Bankruptcy Court's jurisdiction.'" Sullivan v. Harnisch

(In re Sullivan), 522 B.R. 604, 616 (9th Cir. BAP 2014)

(quoting Oasis at Wild Horse Ranch, LLC v. Sholes (In re Oasis at

Wild Horse Ranch, LLC), 2011 WL 4502102, at *10 (9th Cir. BAP

Aug. 26, 2011) (citing N. Cent. Dev. Co. v. Landmark Capital Co.

(In re Landmark Capital Co.), 27 B.R. 273, 279 (Bankr. D. Ariz.

1983))). See also, In re Silberkraus, 253 B.R. 890, 902-03

(Bankr. C.D. Cal. 2000) (bad faith may be found under § 1112(b)

where the debtor has filed bankruptcy as a litigation tactic —

e.g., forum shopping). 

We see no clear error with the bankruptcy court's finding of

bad faith based on Debtor's apparent improper litigation objective

with his chapter 11 filing and proposed $1.00 plan. The record

clearly evidences Debtor's intent to forum shop by invoking the

automatic stay with the filing of his petition and attempting to

have the bankruptcy court, rather than the state court, determine

the extent and validity of U.S. Bank's lien. Those issues are

purely state law issues easily resolved by the state court. This

was Debtor's fourth successive bankruptcy filing in two years,

which, based on its timing, was likely filed to impede U.S. Bank's

settlement with the chapter 7 trustee and frustrate its efforts to

reform the deeds of trust. It is apparent that Debtor's case had

no reorganizational purpose. 

We reject Debtor's argument that the bankruptcy court erred

by citing to Chinichian v. Campolongo (In re Chinichian), 784 F.2d

1440, 1445-46 (9th Cir. 1986), for the proposition that a debtor's

plan is not filed in good faith if its purpose is to retain

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property or not pay creditors in pursuit of a litigation

objective. Debtor argues that because Chinichian involved a

chapter 13 case, not a chapter 11 case, it has no relevance. We

have observed that, because the provisions governing dismissal or

conversion of chapter 13 and chapter 11 cases are similar, cases

under one chapter often are helpful in resolving cases under the

other chapter. See Nelson v. Meyer (In re Nelson), 343 B.R. 671,

674-75 (9th Cir. BAP 2006). Thus, the court did not err by

relying on Chinichian. 

Other factors in the record further support the bankruptcy

court's finding of bad faith. Debtor was current on his auto loan

payments and had no unsecured debt due to his prior chapter 7

discharge. Debtor's proposed plan showed he had no interest in

reorganizing the debt owed to U.S. Bank; he sought only to

eliminate the bank's claim against the Property, which was the

only asset of the estate. Ultimately, as the bankruptcy court

repeatedly told Debtor, his current case served no legitimate

bankruptcy purpose. 

If a bankruptcy court determines that cause exists to convert

or dismiss, it must also (1) decide whether dismissal, 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 establishing that dismissal or

conversion is not in the best interests of creditors and the

estate. § 1112(b)(1), (b)(2); In re Sullivan, 522 B.R. at 612. 

The bankruptcy court determined that conversion served no

purpose as there were no creditors to pay. We find no error in

that determination. Debtor did not argue that any unusual

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circumstances existed for the court to consider or raise that

issue in his opening brief. Thus, he has waived that argument. 

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[A]n

appellate court will not consider issues not properly raised

before the [trial] court. Furthermore, on appeal, arguments not

raised by a party in his opening brief are deemed waived."). In

any event, none exist here. There is nothing unusual about a

debtor trying to get a free house. 

Finally, Debtor contends the bankruptcy court erred by

dismissing his case when his appeal of the stay relief order was

pending. This argument is now moot due to the dismissal of that

appeal. Nonetheless, there was nothing improper about the court's

decision to entertain a motion to dismiss while the appeal of the

stay relief order was pending.7

VI. CONCLUSION

We conclude that the bankruptcy court did not abuse its

discretion in dismissing Debtor's chapter 11 case as a bad faith

filing under § 1112(b). Accordingly, we AFFIRM. 

7 In conjunction with Debtor's opening brief, he filed a

"declaration" which objects to the evidence U.S. Bank filed in

support of its stay relief motion. We will not consider the

declaration for two reasons. First, it is essentially an

impermissible second opening brief, consisting almost entirely of

argument and citations to authority. Second, the arguments

pertain to issues involved in the dismissed appeal of the stay

relief order and thus are not relevant to the issue before us.

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