In re: Conchita C. Ang
CC-16-1377-LTaKu
| 9th Cir. BAP | Aug 10, 2017Background
- Debtor Conchita C. Ang filed a skeletal Chapter 13 petition on July 18, 2016 and timely filed required schedules and a plan after a denied extension; plan proposed $99/month for 60 months but Schedules I & J showed negative disposable income.
- This was Ang’s eighth bankruptcy since 2009; most prior cases were dismissed for failure to file required documents or failure to appear, and one dismissal invoked § 109(g).
- U.S. Trustee (UST) moved to dismiss under 11 U.S.C. § 1307(c) for cause, arguing the filing was in bad faith and seeking up to a two-year bar to refiling.
- Ang asserted she filed to stop an imminent non-judicial foreclosure, disputed Wells Fargo’s standing on the mortgage, alleged prior loan modifications, and promised an adversary proceeding to challenge the creditor.
- Bankruptcy court issued a tentative ruling granting dismissal for bad faith, citing repeated unprosecuted filings, lack of disposable income to fund a plan, failure to pursue an adversary suit against Wells Fargo, and lack of admissible supporting evidence; court entered dismissal with a 180-day bar.
- BAP affirmed, granting the UST’s motion to strike extra-record amended schedules and finding no abuse of discretion in dismissal; the refiling bar issue was moot (expired).
Issues
| Issue | Ang's Argument | UST/Wells Fargo's Argument | Held |
|---|---|---|---|
| Whether the bankruptcy court abused its discretion in dismissing the Chapter 13 case for bad faith under § 1307(c) | Ang: she filed in good faith to stop foreclosure, timely filed required documents in this case, prior dismissals resulted from bad legal advice, and she disputes Wells Fargo’s standing; submitted amended schedules showing positive income (not before the court) | UST/Wells: Ang’s pattern of multiple skeletal filings and dismissals, lack of disposable income to fund a plan, failure to prosecute claims against Wells Fargo, and absence of admissible supporting evidence show bad faith | Affirmed — no abuse of discretion; dismissal for bad faith was supported by totality of circumstances |
Key Cases Cited
- Ellsworth v. Lifescape Med. Assoc., P.C. (In re Ellsworth), 455 B.R. 904 (9th Cir. BAP 2011) (standard of review for Chapter 13 dismissal appeals)
- Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir. 1999) (bad faith is "cause" to dismiss under § 1307(c) and totality-of-circumstances factors)
- Eisen v. Curry (In re Eisen), 14 F.3d 469 (9th Cir. 1994) (bad faith dismissal precedent)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (abuse-of-discretion review framework)
- TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) (appellate review principles)
- Graves v. Myrvang (In re Myrvang), 232 F.3d 1116 (9th Cir. 2000) (cannot consider papers not presented to the bankruptcy court)