NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

RONALD MARTINEZ,

Debtor.

RONALD MARTINEZ,

Appellant,

v.

WELLS FARGO BANK, N.A.,

Appellee.

BAP No. CC-19-1037-FSTa

Bk. No. 2:17-bk-24424-NB

MEMORANDUM*

Submitted Without Argument on September 26, 2019

Filed – October 8, 2019

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Neil W. Bason, Bankruptcy Judge, Presiding

 

FILED

OCT 8 2019

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.
Appearances: Moises A. Aviles of Aviles & Associates on the brief for

appellant Ronald Martinez.

 

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

INTRODUCTION

Chapter 131 debtor Ronald Martinez fell behind on postpetition

payments to appellee Wells Fargo Bank, N.A. (“Wells Fargo”), and the

bankruptcy court required him to cure the postpetition default. On appeal,

Mr. Martinez argues that Wells Fargo was barred from complaining about

his missed payments because it did not object to plan confirmation. He also

argues that he was current with payments because Wells Fargo misapplied

certain of them.

Mr. Martinez’s arguments are meritless. Accordingly, we AFFIRM.

FACTUAL BACKGROUND2

A. Mr. Martinez’s chapter 13 petition and plan

Mr. Martinez filed a chapter 13 petition. He scheduled residential real

property in Pomona, California (the “Property”). He valued the Property at

1

 Unless specified otherwise, 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, and all “Civil Rule” references are to the Federal Rules of

Civil Procedure.

2

 We exercise our discretion to review the bankruptcy court’s docket, as

appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2

(9th Cir. BAP 2008).

2
$265,000 and scheduled three debts secured by the Property: (1) a first

mortgage (“First Lien”) in favor of Wells Fargo Home Mortgage totaling

$89,545.97, (2) a home equity line of credit (the “Second Lien”) in favor of

Wells Fargo totaling $69,157.55, and (3) a lien (“Third Lien”) in favor of the

City of Pomona, Housing Division totaling $48,714.13.

Wells Fargo filed a timely proof of claim for $66,689.47 pertaining to

the Second Lien. It represented that, as of the petition date, Mr. Martinez

was $8,307.90 in arrears and had not made any payment since June 2016.

Mr. Martinez filed a series of chapter 13 plans. The plan that is at

issue in this appeal dealt solely with the arrears under the Second Lien.

That plan (the “Plan”) proposed “cure and maintenance” of the Second

Lien. He proposed to make his regular monthly contractual payments (the

“maintenance payments”) directly to Wells Fargo and to make sixty

monthly payments of $138.47 (the “cure payments”) to cure the $8,307.90 in

prepetition arrears. Wells Fargo did not object to the Plan.

The bankruptcy court entered an order confirming the Plan

(“Confirmation Order”). The Confirmation Order required Mr. Martinez to

pay: $176.84 per month from the first through the fourth months; $153.70 in

the fifth month; $154.70 in the sixth and seventh months; and $154.00 per

month for the remainder of the Plan term. As is noted above, the Plan also

required Mr. Martinez to make his maintenance payments.

Wells Fargo did not appeal the Confirmation Order.

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B. Wells Fargo’s motion for relief from stay

Two months later, Wells Fargo filed a motion for relief from the

automatic stay (“Stay Relief Motion”). It argued that its interest in the

Property was not adequately protected under § 362(d)(1) because

Mr. Martinez had failed to make the required maintenance payments. It

identified a total postpetition delinquency of $3,485.61. It represented that

it received Mr. Martinez’s last payment on July 31, 2018 and applied it

toward his January 2018 payment:

Due date Amount due Payment date Payment amount

12/15/17 $470.08 6/27/18 $512.81

1/15/18 $494.85 7/31/18 $508.84

2/15/18 $505.63

3/15/18 $486.55

4/15/18 $489.87

5/15/18 $501.10

6/15/18 $512.81

7/15/18 $508.84

8/15/18 $537.43

Total $4,507.26 $1,021.65 $3,485.61

In response, Mr. Martinez represented that he was current on his

First Lien, his Plan payments, and his maintenance payments. He alleged

that a Wells Fargo employee told him that some of the maintenance

payments went to the First Lien instead of the Second Lien. He also stated

4
that when he attempted to make the August 2018 maintenance payment on

October 1, 2018, a Wells Fargo employee told him that Wells Fargo had

closed the account for the Second Lien. He argued that it was not his fault if

Wells Fargo misapplied his payments.

He listed his purported maintenance payments between April 2018

and September 2018, which were applied to either the First Lien or the

Second Lien: 

Payment date Amount Paid to

4/30/18 $489.87 First Lien

5/30/18 $501.10 First Lien

6/27/18 $512.81 Second Lien

7/31/18 $508.84 Second Lien

8/xx/18 $537.43 First Lien

9/1/18 $508.51 First Lien

9/27/18 $486.55 Second Lien

He attached copies of the deposit receipts evidencing his payments.

At the hearing on the Stay Relief Motion, counsel for Wells Fargo

pointed out that, although Mr. Martinez claimed that he timely made all of

his maintenance payments, most of them were applied to his First Lien, as

noted in the opposition. Counsel for Wells Fargo stated that, if

Mr. Martinez intended to pay the Second Lien, Wells Fargo could redirect

the payments, but it would likely result in a default on the First Lien. He

5
suggested that the court continue the hearing for thirty days to allow the

attorneys to work out a solution. Mr. Martinez’s counsel agreed to the

continuance.

At the continued hearing, counsel for Wells Fargo said that

Mr. Martinez’s counsel had been unresponsive to his multiple

communications regarding the application of Mr. Martinez’s payments. He

also stated, “Perhaps, Judge, most troubling is since we have filed our

motion we have no payments for September, October and November and

that is troubling.” Counsel suggested that the court issue an adequate

protection order whereby Mr. Martinez would make an initial payment of

$1,500, followed by regular payments (in addition to his cure payments

and maintenance payments) to cure his postpetition default on the

maintenance payments.

Mr. Martinez’s counsel apparently3 said that Wells Fargo had

refunded Mr. Martinez approximately $1,500 for the funds that were

misapplied to the First Lien. He agreed to the terms of Wells Fargo’s

proposed adequate protection order.

The bankruptcy court explained to Mr. Martinez, “[Y]ou have the

ability to make a payment of $1500 on or before December 1. And then

starting December 14 you would not only be making your regular

3

 Mr. Martinez’s counsel appeared by telephone; the connection was bad, so both

the court and the transcriber had difficulty understanding him. 

6
payments on whatever date they’re regularly due, but you’d also be

catching up on the – on the payments for – that are still owed on this

matter.” Mr. Martinez indicated that he understood.

Counsel for Wells Fargo drafted a proposed stipulation and order for

adequate protection per the court’s direction, but Mr. Martinez’s counsel

refused to sign the stipulation and order. Wells Fargo filed an ex parte

application requesting that the court enter the order granting the Stay

Relief Motion and ordering adequate protection.

The bankruptcy court entered the order (“Stay Relief Order”), which

attached and incorporated an adequate protection order (“APO”).

The APO first provided that Mr. Martinez must continue making his

monthly maintenance payments toward the Second Lien and directed him

to “make regular monthly payments in the amount of $519.56 (variable)

commencing 12/15/2018.”

The APO additionally provided that Mr. Martinez must cure the

postpetition default on maintenance payments (totaling $4,569.37 through

November 2018) by: (1) paying $1,500 by December 1, 2018; and (2) paying

equal monthly installments of approximately $341.04 through September

2019, in addition to his regular monthly maintenance payments.

Finally, the APO provided that Mr. Martinez was entitled to a

maximum of three notices of default; thereafter, Wells Fargo would be

entitled to request termination of the automatic stay.

7
C. The motion for reconsideration

Shortly thereafter, Mr. Martinez filed a motion to alter or amend the

Stay Relief Order under Rule 9023 (“Reconsideration Motion”). He argued

that Wells Fargo did not have the right to seek “modifications” to the Plan

in the guise of adequate protection. He requested that the bankruptcy court

vacate the Stay Relief Order.

The bankruptcy court entered an order (“Reconsideration Order”)

denying the Reconsideration Motion on February 7, 2019. It noted that the

Reconsideration Motion was rife with procedural defects. As to the merits

of the motion, the court stated that “[t]he Plan deals with prepetition debts.

The APO dealt with Debtor’s postpetition failure to pay ongoing monthly

obligations.” It noted that it had stated in the Confirmation Order that the

“confirmation of the Plan [was] without prejudice to the rights of secured

creditors with respect to post-petition defaults by the debtor(s).”

Alternatively, the court held that Mr. Martinez forfeited this

argument because he failed to raise it in opposition to the Stay Relief

Motion or at the hearing on that motion.

Finally, the court held that there was no equitable basis to grant

Mr. Martinez relief.

Mr. Martinez timely appealed from both the Stay Relief Order and

the Reconsideration Order.

8
JURISDICTION

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

and 157(b)(2)(G). We have jurisdiction under 28 U.S.C. § 158.

ISSUES

(1) Whether the bankruptcy court erred in granting the Stay Relief

Motion and ordering Mr. Martinez to make adequate protection payments.

(2) Whether the bankruptcy court erred in denying the

Reconsideration Motion.

STANDARD OF REVIEW

“A bankruptcy court’s determinations regarding stay relief are

reviewed for an abuse of discretion[.]” Veal v. Am. Home Mortg. Servicing,

Inc. (In re Veal), 450 B.R. 897, 915 (9th Cir. BAP 2011) (citing Kronemyer v.

Am. Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP

2009)). 

Similarly, we review for abuse of discretion a bankruptcy court’s

denial of a motion for reconsideration. See Ahanchian v. Xenon Pictures, Inc.,

624 F.3d 1253, 1258 (9th Cir. 2010); Tennant v. Rojas (In re Tennant), 318 B.R.

860, 866 (9th Cir. BAP 2004).

To determine whether the bankruptcy court has abused its discretion,

we conduct a two-step inquiry: (1) we review de novo whether the

bankruptcy court “identified the correct legal rule to apply to the relief

requested” and (2) if it did, whether the bankruptcy court’s application of

9
the legal standard was illogical, implausible, or without support in

inferences that may be drawn from the facts in the record. United States v.

Hinkson, 585 F.3d 1247, 1262-63 & n.21 (9th Cir. 2009) (en banc).

DISCUSSION

A. Mr. Martinez waived his argument that Wells Fargo was barred

from seeking adequate protection payments.

The bankruptcy court held that Mr. Martinez failed to raise his

argument concerning claim preclusion in connection with the Stay Relief

Motion, so he could not move for reconsideration on that basis. We agree.

Although the federal rules do not acknowledge a reconsideration

motion, “[a] ‘motion for reconsideration’ is treated as a motion to alter or

amend judgment under [Civil Rule] 59(e) if it is filed within [fourteen] days

of entry of judgment. Otherwise, it is treated as a [Civil] Rule 60(b) motion

for relief from a judgment or order.” See Am. Ironworks & Erectors, Inc. v. N.

Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (citation omitted).

The Ninth Circuit has instructed that a “[Civil] Rule 59(e) motion

may not be used to raise arguments or present evidence for the first time

when they could reasonably have been raised earlier in the litigation.” Kona

Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

The bankruptcy court correctly noted that Mr. Martinez failed to raise

the argument that Wells Fargo is precluded from seeking stay relief either

in his opposition to the Stay Relief Motion or at the hearing on that motion.

10
In fact, at the hearing, Mr. Martinez and his counsel did not even object to

the APO. He presented the bankruptcy court with no reason why it should

reconsider its earlier ruling. 

Additionally, Mr. Martinez merely repeats on appeal the arguments

raised in the Reconsideration Motion. He does not address the bankruptcy

court’s holding that his argument was untimely. He thus waived any

challenge to the court’s determination that he failed to timely raise this

argument. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th

Cir. 2003) (“[W]e will not consider any claims that were not actually argued

in appellant’s opening brief. Rather, we ‘review only issues which are

argued specifically and distinctly in a party’s opening brief.” (citations

omitted)).

Furthermore, even if the bankruptcy court were required to consider

his arguments raised in connection with the Reconsideration Motion, they

are meritless. For the reasons stated below, the bankruptcy court did not

abuse its discretion in issuing the APO and requiring Mr. Martinez to cure

his failure to make postpetition maintenance payments.

B. Wells Fargo was not precluded from seeking adequate protection

payments postconfirmation.

Mr. Martinez argues that the bankruptcy court erred by granting the

Stay Relief Motion and requiring him to comply with the APO, because

Wells Fargo did not object to or appeal from the plan confirmation. His

11
arguments are meritless.

As a general rule, “[w]hen the bankruptcy court confirms a plan, its

terms become binding on debtor and creditor alike. Confirmation has

preclusive effect, foreclosing relitigation of ‘any issue actually litigated by

the parties and any issue necessarily determined by the confirmation

order.’” Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015) (citations

omitted). Put another way, we recently stated that “[a] plan is a contract

between the debtor and the debtor’s creditors. The order confirming a

chapter 13 plan, upon becoming final, represents a binding determination

of the rights and liabilities of the parties as specified by the plan.” DerhamBurk v. Mrdutt (In re Mrdutt), 600 B.R. 72, 76-77 (9th Cir. BAP 2019) (citing

Max Recovery, Inc. v. Than (In re Than), 215 B.R. 430, 435 (9th Cir. BAP 1997);

8 Collier on Bankruptcy ¶ 1327.02 (Richard Levin & Henry J. Sommer eds.

16th ed. 2019)).

But the confirmation order does not preclude litigation about the

debtor’s post-confirmation defaults. The plan and confirmation order

determine what the debtor must do; they do not decide whether the debtor

has done those things. We have held that “[p]ost-confirmation defaults

would not be considered at the confirmation hearing and are therefore not

subject to res judicata flowing from the order.” Ellis v. Parr (In re Ellis), 60

B.R. 432, 434 (9th Cir. BAP 1985). We noted that “[f]ailure to make

post-confirmation payments can constitute cause for lifting the stay.” Id. at

12
435.

Mr. Martinez’s basic argument is that Wells Fargo cannot seek to

force him to increase his payments, because the payment terms in the Plan

cannot be contested after confirmation. He contends that, after the

bankruptcy court confirmed the Plan, Wells Fargo had no “right to make

modifications through an insistence of an ‘adequate protection plan’ [sic].”

Mr. Martinez’s argument borders on frivolous. The bankruptcy court

did not require him to pay more than the Plan provided. The problem

arose because Mr. Martinez had paid less than the Plan required. The court

simply gave him a chance to catch up on his postpetition maintenance

payments. 

As the bankruptcy court correctly explained, “[t]he Plan deals with

prepetition debts. The APO dealt with the Debtor’s postpetition failure to

pay ongoing monthly obligations.” Importantly, the Confirmation Order

provided that “[c]onfirmation of the Plan is without prejudice to the rights

of secured creditors with respect to post-petition defaults by the

debtor(s).” (Emphasis added.) In other words, the Plan required

Mr. Martinez to make his regular postpetition maintenance payments to

Wells Fargo, and Wells Fargo was entitled to seek a remedy when

Mr. Martinez breached his Plan. See Watson v. Ditech Fin. LLC (In re Watson),

BAP No. HI-17-1012-TaLB, 2017 WL 5196710, at *3 (9th Cir. BAP Nov. 9,

2017), aff’d, 754 F. App’x 599 (9th Cir. 2019) (rejecting the debtor’s argument

13
that stay relief was improper for his failure to make postconfirmation

payments “because [creditor] failed to object to his chapter 13 plan, which

was confirmed, final under § 1327, and thus res judicata as to all issues that

could have been raised”).

Therefore, Wells Fargo’s failure to object to plan confirmation did not

prevent it from seeking relief from stay or adequate protection when

Mr. Martinez defaulted under the Plan.

C. Mr. Martinez’s argument that Wells Fargo schemed to “create” his

default is meritless.

Mr. Martinez contends that the bankruptcy court should not have

ordered him to make adequate protection payments, because he was not in

default. We reject this argument. 

Section 362(d)(1) permits the bankruptcy court to grant relief from

the automatic stay for cause, “including the lack of adequate protection.”

The decision whether to grant or deny relief from the automatic stay is

determined on a case-by-case basis and “is committed to the sound

discretion of the bankruptcy court.” Benedor Corp. v. Conejo Enters., Inc. (In

re Conejo Enters., Inc.), 96 F.3d 346, 351 (9th Cir. 1996).

We have previously instructed that “the bankruptcy court must have

discretion to fix any initial lump sum amount [of adequate protection

payments], the amount payable periodically, the frequency of payments,

and the beginning date, all as dictated by the circumstances of the case and

14
the sound exercise of that discretion.” Paccom Leasing Corp. v. Deico Elecs.,

Inc. (In re Deico Elecs., Inc.), 139 B.R. 945, 947 (9th Cir. BAP 1992). Section

361 “sets forth three non-exclusive examples of what may constitute

adequate protection: 1) periodic cash payments equivalent to decrease in

value, 2) an additional or replacement lien on other property, or 3) other

relief that provides the indubitable equivalent.” Pistole v. Mellor (In re

Mellor), 734 F.2d 1396, 1400 (9th Cir. 1984) (citation omitted). 

Mr. Martinez argues that Wells Faro purposefully engineered his

default under the Second Lien. He contends that Wells Fargo failed to

properly apply payments to his account and “tampered with” his account

numbers to cause him to default on the Second Lien.

These arguments are patently untenable. First, Wells Fargo refunded

the allegedly misapplied funds for Mr. Martinez to use as payment toward

the Second Lien. It is unclear why Mr. Martinez is now unwilling to pay

amounts that he was earlier willing to pay.4

Second, there is no question that Mr. Martinez was in default on the

maintenance payments. Wells Fargo’s counsel represented to the court, and

Mr. Martinez did not deny, that Mr. Martinez had not made the September,

4

 Mr. Martinez apparently tried to pay the Second Lien with the check that he

received from Wells Fargo for the misapplied funds, but he failed to properly endorse

it. The record is unclear as to the status of that payment.

15
October, or November 2018 maintenance payments.5

 Additionally,

although Mr. Martinez asserts that he made the April through August 2018

maintenance payments (some of which were misapplied), he does not

account for the overdue payments between December 2017 and March

2018. There is no genuine dispute that he is in default.

Third, even if Wells Fargo “tampered” with his account number, this

allegedly occurred after the court issued the APO, and it did not cause the

default, as Mr. Martinez alleges. Furthermore, even if Wells Fargo changed

the account number associated with the Second Lien, making it difficult to

make payments at a branch, the APO provided that Mr. Martinez would

send his payments to a P.O. Box address and not make them at a branch.

Therefore, the bankruptcy court did not err when it rejected

Mr. Martinez’s arguments that Wells Fargo “created” a default.

CONCLUSION

The bankruptcy court did not err in granting the Stay Relief Motion,

issuing the APO, or denying the Reconsideration Motion. We AFFIRM.

5

 There is some evidence in the record that Mr. Martinez at least attempted to

make the January 2019 payment, albeit at a branch location, rather than at the address

directed by the APO.

16