In re: Victor Orlando Rivera

FILED SEP 29 2014 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-14-1035-KuDaKi ) 6 VICTOR ORLANDO RIVERA, ) Bk. No. 13-14646-VZ ) 7 Debtor. ) ______________________________) 8 ) VICTOR ORLANDO RIVERA, ) 9 ) Appellant, ) 10 ) MEMORANDUM* v. ) 11 ) NANCY K. CURRY, Chapter 13 ) 12 Trustee, ) ) 13 Appellee. ) ______________________________) [14] Submitted Without Oral Argument 15 on September 18, 2014 16 Filed – September 29, 2014 17 Appeal from the United States Bankruptcy Court for the Central District of California [18] Honorable Vincent Zurzolo, Bankruptcy Judge, Presiding [19] 20 Appearances: Victor Orlando Rivera, pro se, on brief. [21] Before: KURTZ, DAVIS** and KIRSCHER, Bankruptcy Judges. [24] * This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may 26 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. [27] ** The Honorable Laurel E. Davis, Bankruptcy Judge for the 28 District of Nevada, sitting by designation. [1] 1 INTRODUCTION 2 Debtor Victor Orlando Rivera appeals from an order 3 dismissing his chapter 131 bankruptcy case. At the time the 4 bankruptcy court orally ruled that the case should be dismissed, 5 the bankruptcy court had nothing before it from Rivera opposing 6 the case dismissal. Nor did Rivera appear at the hearing during 7 which the court made its case dismissal ruling. But within a few 8 hours of the court’s oral dismissal ruling, Rivera filed a notice 9 pursuant to § 1307(a) converting his case from chapter 13 to 10 chapter 7. 11 When the bankruptcy court entered its case dismissal order 12 several days later, as a matter of law, the case it dismissed no 13 longer was a chapter 13 case as a result of Rivera’s conversion 14 notice. Because the grounds for dismissal all related to the 15 case’s former status as a chapter 13 case, and because the 16 dismissal order did not take into account the conversion of the 17 case to chapter 7, the dismissal order may have been erroneous. 18 Nonetheless, Rivera should have done something to bring the 19 conversion to the attention of the bankruptcy court. Instead, 20 Rivera ignored the bankruptcy court proceedings and chose to 21 oppose the dismissal for the first time by filing a notice of 22 appeal. 23 Because Rivera did not raise any objection to dismissal in 24 the bankruptcy court or take any action to bring the conversion [25] 26 1 Unless specified otherwise, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532 , and all "Rule" references are to the Federal Rules of Bankruptcy 28 Procedure, Rules 1001-9037. All “Civil Rule” references are to the Federal Rules of Civil Procedure. [2] 1 to the court’s attention, we will DISMISS this appeal. However, 2 our dismissal of this appeal is without prejudice to any motion 3 that Rivera might file in the bankruptcy court under Rule 9024 4 seeking relief from the bankruptcy court’s case dismissal based 5 on the conversion of the case from chapter 13 to chapter 7. 6 FACTS 7 Rivera filed his chapter 13 bankruptcy case in February 8 2013.2 In August 2013, the chapter 13 trustee filed an objection 9 to Rivera’s proposed chapter 13 plan. The trustee’s objection 10 warned Rivera that, if he failed to adequately address the issues 11 raised in the objection, his chapter 13 case might be dismissed 12 or converted. The objection raised a number of serious issues. 13 For instance, under § 109(e), Rivera appeared ineligible to be a 14 debtor in a chapter 13 case because his secured debt appeared to 15 exceed the debt limit set forth in the statute. Moreover, 16 according to the trustee, Rivera was in default on his plan 17 payments, had not disclosed a prior bankruptcy filing, had not 18 disclosed all of his debts, had not moved forward with the plan 19 confirmation process, and had not proposed a feasible plan. The 20 trustee noticed the matter for hearing in January 2014. 21 During the next four months, Rivera did nothing to respond 22 to the issues raised in the trustee’s plan objection. Nor did he 23 appear at the hearing on the objection held on January 13, 2014. [2] The facts recited in this decision are based on the papers 26 filed in Rivera’s bankruptcy case. We can and do take judicial notice of these papers. See O'Rourke v. Seaboard Sur. Co. [27] (In re E.R. Fegert, Inc.), 887 F.2d 955 , 957–58 (9th Cir. 1989) 28 (holding that the Panel can take judicial notice of contents of the bankruptcy court record). [3] 1 At the hearing, based on the trustee’s objection and Rivera’s 2 failure to respond or appear, the bankruptcy court ruled that the 3 case would be dismissed. 4 Later that same day, Rivera filed in the bankruptcy court a 5 notice pursuant to § 1307(a) converting his case from chapter 13 6 to chapter 7. But Rivera did nothing to bring the conversion to 7 the court’s attention. Apparently unaware of the conversion, the 8 bankruptcy court a few days later entered an order dismissing the 9 case in accordance with its January 13, 2014 oral ruling. 10 When Rivera learned of the dismissal order, he could have 11 filed a motion pursuant to Rule 9024 seeking relief from the 12 dismissal order based on the conversion of the case, but he 13 instead opted to file a notice of appeal. Rivera thereby 14 completely bypassed the proceedings in the bankruptcy court that 15 led to the dismissal of his chapter 13 bankruptcy case. 16 JURISDICTION 17 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 18 §§ 1334 and 157(b)(2)(A) and (L), and we have jurisdiction under [19] 28 U.S.C. § 158 . 20 ISSUE 21 Should the Panel consider Rivera’s appeal even though Rivera 22 did not participate in the proceedings leading up to the 23 dismissal of his bankruptcy case and even though he did not ask 24 the bankruptcy court for relief from the dismissal order after it 25 was entered? 26 STANDARD OF REVIEW 27 We ordinarily review the dismissal of a chapter 13 28 bankruptcy case for an abuse of discretion. See Ellsworth v. [4] 1 Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904 , 914 2 (9th Cir. BAP 2011). 3 When we are confronted with questions regarding the 4 appellant’s failure to participate in the proceedings below and 5 failure to present matters to the bankruptcy court in the first 6 instance, we consider those questions de novo. See, e.g., 7 Consorzio Del Prosciutto di Parma v. Domain Name Clearing Co., 8 LLC, 346 F.3d 1193, 1195 (9th Cir. 2003); Kirschner v. Uniden 9 Corp. of Am., 842 F.2d 1074 , 1077–78 (9th Cir. 1988). 10 DISCUSSION 11 To voluntarily convert a case from chapter 13 to chapter 7, 12 a debtor only needs to file a notice of conversion. Nady v. 13 DeFrantz (In re DeFrantz), 454 B.R. 108, 114 (9th Cir. BAP 2011) 14 (citing § 1307(a) and Rule 1017(f)(3)). The debtor’s right to 15 convert a pending chapter 13 case to chapter 7 by filing a notice 16 of conversion is considered absolute. Id. at 113-14; see also 17 Keith M. Lundin & William H. Brown, CHAPTER 13 BANKRUPTCY § 311.1, 18 at ¶¶ [1], [4] (4th Ed. June 17, 2004). Furthermore, the 19 conversion is automatic and immediately effective upon the filing 20 of the conversion notice. Id.; see also Advisory Committee Notes 21 Accompanying 1987 Amendments to Rule 1017 (“Conversion of a 22 chapter 13 case to a chapter 7 case as authorized by § 1307(a) is 23 accomplished by the filing of a notice of conversion. . . . 24 Conversion occurs on the filing of the notice. No court order is 25 required.”). The pendency of a motion to dismiss under § 1307(c) 26 does not make a notice of conversion any less effective. See 27 In re DeFrantz, 454 B.R. at 114 . 28 Of course, if the chapter 13 case already has been [5] 1 dismissed, there is no case to convert to chapter 7. See 2 In re Garcia, 434 B.R. 638, 643-44 (Bankr. D. N.M. 2010). In 3 other words, as soon as the dismissal order is entered, the 4 debtor no longer can invoke his or her right to convert under 5 § 1307(a). Id. 6 Here, at the time Rivera filed his conversion notice, the 7 bankruptcy court had not yet entered its dismissal order. While 8 the bankruptcy court already had orally ruled that the case would 9 be dismissed, the court’s ruling was not final and effective 10 until the entry of its dismissal order. Rule 9021; see also 11 Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478 , 481 n.4 (9th 12 Cir. 1989). Accordingly, when Rivera filed his conversion 13 notice, the notice automatically and immediately converted his 14 case from chapter 13 to chapter 7. In turn, when the bankruptcy 15 court entered its case dismissal order a few days later, the 16 court dismissed Rivera’s chapter 7 case based on problems that 17 arose in Rivera’s chapter 13 case – problems that were mostly 18 irrelevant post conversion. 19 Even so, even if we assume that the bankruptcy court erred 20 when it dismissed Rivera’s chapter 7 case based on pre-conversion 21 problems, an erroneous ruling by the bankruptcy court does not 22 mean that the ruling automatically was void or invalid. See 23 United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 , 270-71 24 (2010). Rather, it was incumbent upon Rivera to seek appropriate 25 relief from the erroneous dismissal order. See generally id. at 26 275. 27 At the time the bankruptcy court orally ruled that the case 28 would be dismissed, Rivera had not yet filed his conversion [6] 1 notice. Nor had Rivera filed a response to the trustee’s plan 2 objection, appeared at the plan objection hearing or taken any 3 other overt action before the hearing to address the issues 4 raised in the trustee’s plan objection. On this record, at a 5 minimum, Rivera should have filed a motion under Civil Rule 60(b) 6 (made applicable in bankruptcy cases by Rule 9024) asking the 7 bankruptcy court for relief from its dismissal ruling in light of 8 the conversion of the case to chapter 7. 9 When, as here, the appellant did not participate in the 10 proceedings leading up to the adverse decision, the appellate 11 court ordinarily will not entertain an appeal from that decision 12 unless the appellant availed himself or herself of the 13 opportunity to seek relief under Civil Rule 60(b). See 14 Consorzio Del Prosciutto di Parma, 346 F.3d at 1195 (citing 15 Rohauer v. Friedman, 306 F.2d 933, 937 (9th Cir. 1962)); 16 Investors Thrift v. Lam (In re Lam), 192 F.3d 1309, 1311 (9th 17 Cir. 1999). 18 This refusal to entertain such appeals is consistent with a 19 number of Ninth Circuit decisions holding that appellate courts 20 ordinarily will not consider on appeal issues and facts not 21 presented to the trial court in the first instance. See, e.g., 22 Smith v. U.S. Customs & Border Prot., 741 F.3d 1016 , 1020 n.2 23 (9th Cir. 2014); Padgett v. Wright, 587 F.3d 983 , 985 n.2 (9th 24 Cir. 2009); Oyama v. Sheehan (In re Sheehan), 253 F.3d 507 , 512 25 n.5 (9th Cir. 2001). 26 In short, having not participated in the proceedings leading 27 up to the dismissal of his case and having filed the conversion 28 notice after the court orally ruled that the case would be [7] 1 dismissed, Rivera should have filed a motion under Civil 2 Rule 60(b) seeking relief from the dismissal order and should 3 have raised therein the issue of his conversion notice. 4 Even pro se litigants, like Rivera, cannot completely bypass 5 the bankruptcy court and hope to prevail on appeal from a 6 bankruptcy court order. In the Ninth Circuit, pro se litigants 7 must comply with controlling procedural rules. See Clinton v. 8 Deutsche Bank Nat'l Trust Co. (In re Clinton), 449 B.R. 79 , 83 9 (9th Cir. BAP 2011); see also Briones v. Riviera Hotel & Casino, [10] 116 F.3d 379, 382 (9th Cir. 1997) (stating that "pro se litigants 11 are not excused from following court rules."). Civil Rule 60(b) 12 afforded Rivera with a simple means of challenging the bankruptcy 13 court’s dismissal and raising the issue regarding his conversion 14 notice. His failure to do so is fatal to this appeal. 15 CONCLUSION 16 For the reasons set forth above, this appeal shall be 17 DISMISSED. We express no opinion regarding how the bankruptcy 18 court should address any motion that Rivera might file in the 19 future seeking relief under Rule 9024 from the bankruptcy court’s 20 case dismissal order.