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FILED

AUG 09 2016

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NOT FOR PUBLICATION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-15-1175-TaJuKi

)

RODOLFO VELASQUEZ, ) Bk. No. 3:14-bk-30344

)

Debtor. )

______________________________)

)

RODOLFO VELASQUEZ, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

DAVID BURCHARD, Chapter 13 )

Trustee, )

)

Appellee. )

______________________________)

Argued and Submitted on July 28, 2016

at San Francisco, California

Filed – August 9, 2016

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable Dennis Montali, Bankruptcy Judge, Presiding

 

Appearances: Rodolfo Velasquez argued pro se; Brisa C. Ramirez

argued for appellee.

 

Before: TAYLOR, JURY, and KIRSCHER, Bankruptcy Judges.

FILED

AUG 09 2016

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

Chapter 131 debtor Rodolfo Velasquez appeals from an order

dismissing his chapter 13 case. We AFFIRM. 

FACTS

The Debtor, pro se, filed a chapter 13 case in March 2014. 

He scheduled ownership of real property located in San

Francisco, California (the “Property”). The record shows

that the Debtor essentially had two creditors: Bank of America

N.A. and JPMorgan Chase Bank. Bank of America holds a note

secured by a deed of trust against the Property. The Debtor's

schedules also showed ownership of limited personal property

assets and that the Debtor had no unsecured creditors. His

second amended chapter 13 plan provided for de minimus payments

to the taxing authorities. This was not an obviously

complicated chapter 13 case.

The Debtor was not punctilious in performing his duties as

a chapter 13 debtor. He failed to attend a continued § 341(a)

meeting of creditors, and he eventually stopped making plan

payments.

He also struggled to propose a viable chapter 13 plan. He

filed several but received objections from both Bank of America

and Chase.2 Rather than concentrate on his chapter 13 debtor

obligations, the Debtor focused his energy on insisting that

Chase modify its loan and leveling accusations of fraud against

1 Unless otherwise indicated, all chapter and section

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

2 Bank of America subsequently withdrew its objection to

the last in-time proposed plan.

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Bank of America. The Debtor asserted, in particular, that Bank

of America fraudulently claimed that he owed $35,732.30 in

arrearages on the debt secured by the Property.

After months of the Debtor filing unconfirmable plans and

following a payment default and a failure to appear at a

continued § 341(a) meeting, the Trustee moved to dismiss the

chapter 13 case. He asserted that cause to dismiss existed

based on unreasonable delay that was prejudicial to creditors

under §§ 1307(c)(1) and 1307(c)(4).3

The Debtor opposed, but his argument reflected his

inappropriate focus on his perceived injury at the hands of Bank

of America. He, thus, renewed his claim that Bank of America

was committing fraud against him and now asserted that the

Trustee was derelict in an alleged duty to prosecute Bank of

America for fraud. He more relevantly contested that he was in

default of plan payments and less helpfully maintained that he

would not attend another § 341(a) meeting until the issues

relating to Bank of America were resolved.

At the hearing, the Trustee informed the bankruptcy court

that the Debtor had not made any payments to the Trustee for

nearly five months. In ruling, the court relied on this factor;

it also emphasized that the Debtor insisted on repeating

nonavailing arguments regarding the alleged fraud by Bank of

America and his desire for a loan modification from Chase Bank

3 The Trustee also sought case dismissal based on the

Debtor’s failure to turn over his income tax return for the

prior tax year pursuant to § 521(e)(2)(A)(I) and (B). 

Apparently, the Debtor responded by providing those documents to

the Trustee.

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and failed to cooperate appropriately in a mediated resolution

of his disputes with Bank of America. The bankruptcy court,

thus, acknowledged the total lack of case progress and the

negative impact of the Debtor's action and inaction and

dismissed the case. 

Following the bankruptcy court’s entry of an order

dismissing the case, the Debtor timely appealed.

JURISDICTION

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

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

§ 158.

ISSUE4

Whether the bankruptcy court abused its discretion in

dismissing the Debtor’s bankruptcy case.

STANDARD OF REVIEW

 We review the bankruptcy court’s dismissal of a chapter 13

bankruptcy case pursuant to § 1307(c) for an abuse of

discretion. Schlegel v. Billingslea (In re Schlegel), 526 B.R.

333, 338 (9th Cir. BAP 2015). A bankruptcy court abuses its

discretion if it applies the wrong legal standard, misapplies

the correct legal standard, or if its factual findings are

illogical, implausible, or without support in inferences that

may be drawn from the facts in the record. See

TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832

(9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247,

4 The Debtor identifies six issues on appeal. The

majority of these are nonsensical, irrelevant, or beyond the

scope of this appeal.

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1262 (9th Cir. 2009) (en banc)).

We may affirm the decision of the bankruptcy court on any

basis supported by the record. See Hooks v. Kitsap Tenant

Support Servs., Inc., 816 F.3d 550, 554 (9th Cir. 2016).

DISCUSSION5

Section 1307(c)(1) permits the bankruptcy court to dismiss

a chapter 13 case based on unreasonable delay by the debtor that

is prejudicial to creditors. Here, the bankruptcy court found

dismissal appropriate.

At the time of dismissal, the chapter 13 case had been

actively pending for nearly 14 months and a confirmable plan was

not in sight. The Debtor’s second amended plan – the fourth

proposed plan overall - was facially problematic. First, it

continued to require a loan modification by Chase that was

opposed. In addition, it potentially required monthly payments

by the Trustee to Bank of America in excess of the amount of 

the Debtor’s monthly plan contribution.

The Debtor remained distracted by the alleged Bank of

America fraud, and these disputes were not anywhere near

resolution.6 At the bankruptcy court’s suggestion, the Debtor

5 The Trustee did not request conversion as an alternative

under § 1307(c). Thus, the bankruptcy court did not err in

dismissing the case without discussing whether conversion was

appropriate.

6 The Debtor, in fact, argues that the Trustee was

derelict in his duties to the estate in neglecting to pursue

Bank of America for fraud. This argument is without merit. 

Aside from the fact that this goes beyond the scope of this

appeal, nothing in this record suggests that the Trustee was

(continued...)

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agreed to participate in a mediation with Bank of America. The

bankruptcy court also instructed the Debtor to supply Bank of

America with his documentation of payments on the loan within

the two-week period after the hearing on the Debtor’s objection

to the bank’s proof of claim. He did neither.

And while Debtor continued in a non-productive and

inadequately supported attack on Bank of America, he neglected

the most basic of chapter 13 debtor duties. There is no dispute

that at the time of case dismissal, the Debtor had not made any

payments to the Trustee for nearly five months. At oral

argument, he initially contested that he had defaulted on plan

payments. On rebuttal and following confirmation of payment

default by the Trustee,7 the Debtor admitted that he had stopped

making plan payments but argued that he had a discussion with

the Trustee advising him of the payment cessation pending

resolution of the alleged fraud of Bank of America. What the

Debtor fails to appreciate is that he proposed the monthly plan

payment; as a chapter 13 debtor he could not unilaterally decide

to cease the plan payments provided for in the plan he proposed.

The Debtor also refused to continue and complete the

§ 341(a) meeting process. The Trustee could not administer the

case appropriately until the § 341(a) process was concluded.

On this record, the bankruptcy court did not abuse its

6(...continued)

derelict in his duties to the estate.

7 The Trustee confirmed at oral argument that the last

payment received was on December 23, 2014, in the amount of

$175.

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discretion in determining that cause existed to dismiss the

chapter 13 case for unreasonable delay detrimental to creditors. 

The Debtor was not funding his chapter 13 case, the Debtor was

not proposing viable plans, and the Debtor was not making

progress in clearing the confirmation road blocks. After

14 months, and on this record, none of these causes of delay

were reasonable, and the detriment to creditors was clear.8

CONCLUSION

Based on the foregoing, we AFFIRM.

8 At oral argument, the Debtor requested that to the

extent the Panel affirmed the case dismissal, that it be done

without prejudice. The bankruptcy court, however, did not

dismiss the case with prejudice. Thus, we disregard the

Debtor's request.

7