This case is on appeal from the Tenth Circuit Bankruptcy Appellate Panel (“BAP”). We consider first whether the BAP erred in determining that a conversion from Chapter 7 to Chapter 13 — before a Chapter 13 plan was approved — was a final, immediately appealable order such that an appeal subsequent to approval of the Chapter 13 plan is untimely. Determining that the appeal is timely, we inquire into whether the bankruptcy court erred as a matter of law in allowing a conversion to Chapter 13 after discharge was obtained under Chaptеr 7, and whether the bankruptcy court erred in determining that the Chapter 13 plan at issue was proposed in good faith pursuant to 11 U.S.C. § 1325(a)(3). Exercising jurisdiction pursuant to 28 U.S.C. § 158(d), we affirm, but for different reasons than those articulated by the BAP.
I
The procedural background of this case before it reached the bankruptcy court is lengthy.
See Mason v. Oklahoma Tpk. Auth.
Pursuant to 11 U.S.C. §§ 1321 and 1322, Young filed a Chapter 13 plan with the bankruptcy court, providing for monthly payments of $818.60 for a term of thirty-six months, to be divided into monthly payments of $321.26 to a Cadillac dealer for finance payments on Young’s used Cadillac, with further amounts to be divided between Young’s attorney and other creditors among whom Mason was not in-eluded. Any remainder was then tо be divided among unsecured general creditors like Mason. Mason again objected, on the ground that the plan was proposed in bad faith. The bankruptcy court agreed. As evidence of Young’s bad faith, the court pointed to his proposal of a minimum thirty-six-month plan rather than a sixty-month plan, suggesting that Young’s plan made “no effort whatsoever to reduce [Young’s] only non-priority unsecured debt [to Mason], even though conceding that the debt would not be dischargeable in a Chapter 7 case.” In re Francis Arthur Young III, No. BK-97-13747-LN, at 12 (Bankr.W.D.Okla. Feb. 18, 1998) (Order).
In February 1998, Young filed an amended Chapter 13 plаn, providing for a sixty-month duration and otherwise resembling his earlier plan. After a hearing, the court considered his amended plan, concluding as follows:
It appears to this court that debtor’s prospective ability to pay the amount of [the punitive damage] awards [against Young] ... with post-judgment interest ... is virtually nil. If during the five-year term of debtor’s [current] plan, debtor’s employment or compensation fortunes significantly brighten, modification of his plan may result in a greater percentage of the obligation to Mason being paid than is presently proposed. Mason shоuld be advised, however, that a debtor who has sought the protections of bankruptcy, and who meets the obligations of [11 U.S.C.] § 1325(a) for confirmation of a plan over the maximum term permitted by law, need not be *1172 turned away and forced to sell apples on the streets in every case in order to satisfy an impossibly large unsecured obligation, however egregious may have been the conduct which gave rise to the obligation.
Debtor proposes to obligate himself to making Chapter 13 plan payments for the maximum period permitted by law, in an amount equal tо his total projected disposable income, based as it must be upon debtor’s current level of income and reasonably necessary expenses. While this is undoubtedly not enough for Mason, who apparently would not be satisfied with less than the infliction of constant pain and suffering on debtor forever, it is all that the legitimate policies of bankruptcy can, or should, demand in the circumstances presented here.
In re Francis Arthur Young III, No. BK-97-13747-LN, at 6-7 (Bankr.W.D.Okla. Apr. 28, 1998) (Order). The court confirmed the proposed plan. See id. at 7.
Mason thereupon appealed to the BAP. The BAP affirmed, holding that “[t]hе issue of whether a case is properly converted [from Chapter 7 to Chapter 13] should be appealed within ten days of the entry of a bankruptcy court’s order,” and therefore the appeal of that issue was untimely.
Mason v. Young (In re Young),
II
We rеview de novo the finality and timeliness determinations of the BAP as well as the bankruptcy court’s decision to allow, as a matter of law, the conversion to Chapter 13 proceedings after a Chapter 7 discharge, and review for clear error the bankruptcy court’s factual determination that Young’s Chapter 13 plan was proposed in good faith. See Phillips v. White (In re White), 25 F.3d 931, 933 (10th Cir. 1994).
A
Underlying the instant dispute is the fundamental difference between bankruptcy under Chapter 7 and Chapter 13. As a general matter, under Chapter 7, the debt- or’s assets are liquidated and the proceeds distributed among thе creditors. See 2 Epstein et al., Bankruptcy 278-80 (1992). Both parties agree that under Chapter 7, Young’s full debt to Mason would not have been discharged. Under Chapter 13, on the other hand, the debtor’s assets are not liquidated at all. Rather, the plan agreed to by the debtor and the court is paid over a period of years out of the debtor’s disposable income. See id. at 601-03.
Preliminary to reaching the merits of whether the conversion in this case was proper, we must ask whether the conversion to Chapter 13 (before a Chapter 13 plan was approved) was a final, immediately appealablе order rendering untimely Mason’s appeal subsequent to approval of the Chapter 13 plan. This Circuit’s broad rule of finality in bankruptcy actions was enunciated in
Magic Circle Energy
1981—
A Drilling Program v. Lindsey (In re Magic Circle Energy Corp.),
B
This brings us to the issue of whether the bankruptcy court erred in allowing Young to convert to Chapter 13 after he obtained discharge of his debt under Chapter 7. While courts may disallow specific “Chapter 20” conversions under the peculiar circumstances of a given case, as a general matter the Bankruptcy Code and most courts are clear regarding the permissibility of such conversions: “The debt- or may convert a case under [chapter 7] to a case under chapter ... 13 of this title at any time.” 11 U.S.C. § 706(a);
see also In re Mosby,
Congress has expressly prohibited various forms of serial filings. See, e.g., 11 U.S.C. § 109(g) (no filings within 180 days of dismissal); § 727(a)(8) (no Chapter 7 filing within six years of a Chapter 7 or Chapter 11 filing); § 727(a)(9) (limitation on Chapter 7 filing within six years of Chapter 12 or Chapter 13 filing). The absence of a like prohibition on serial filings of Chapter 7 and Chapter 13 petitions, combined with the evident care with which Congress fashioned these express prohibitions, convinces us that Congress did not intend categorically to foreclose the benefit of Chapter 13 reorganization to a debtor who previously has filed for Chapter 7 relief. Cf. United States v. Smith,499 U.S. 160 , 167,111 S.Ct. 1180 ,113 L.Ed.2d 134 (1991) (expressly enumerated exceptions presumed to be exclusive).
Although there is always the potential for abuse of the bankruptcy process in such a conversion,
the court is not without the means to deal with such attempts on a case by *1174 case basis. First, in every chapter 13 case there is a requirement of good faith and fair dealing for confirmation of a plan.... Additionally, a chapter 13 plan must provide creditors with at least as much as they would receive in a chapter 7 liquidation.
In re Mosby,
The Bank’s contention [that a Chapter 20 conversion should not be allowed to proceed] also fails to apprehend the significance of the full range of Code provisions designed to protect Chapter 13 creditors. A bankruptcy court is authorized to confirm a plan only if the court finds, inter aha, that “the plan has been proposed in good faith,” § 1325(а)(3); that the plan assures unsecured creditors a recovery as adequate as “if the estate of the debtor were liquidated under chapter 7,” § 1325(a)(4); that secured creditors either have “accepted the plan,” obtained the property securing their claims, or “retain[ed] the[ir] lien[s]” where “the value ... of property to be distributed under the plan ... is not less than the allowed amount of such claimfs],” § 1325(a)(5); and that “the debtor will be able to make all payments under the plan and to comply with the plan,” § 1325(a)(6). In addition, the bankruptcy court retains its broad equitablе power to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Code.]” § 105(a). Any or all of these provisions may be implicated when a debtor files serially under Chapter 7 and Chapter 13.
In short, it is our considered judgment that a so-called “Chapter 20” conversion is both permissible under the Code and— given the requisite scrutiny by the bankruptcy courts — entirely proper. 5
C
Be that as it may, Mason’s third claim — that the bankruptcy court erred in determining Young’s Chapter 13 plan was proposed in good faith as required by 11 U.S.C. § 1325(a)(3) — рresents a closer question. As a general matter, a determination of good faith must be made on a case by case basis, looking at the totality of the circumstances.
See Pioneer Bank v. Rasmussen (In re Rasmussen),
(1) the amount of proposed payments and the amount of the debtor’s surplus; (2) the debtor’s employment history, ability to earn and likelihood of future increases in income; (3) the probable or expected duration of the plan; (4) the аccuracy of the plan’s statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court; (5) the extent of preferential treatment between classes of creditors; (6) the extent to which secured claims are modified; (7) the type of debt sought to be discharged and whether any such debt is non-discharge-able in Chapter 7; (8) the existence of special circumstances such as inordinate medical expenses; (9) the frequency with which the debtor hаs sought relief under the Bankruptcy Reform Act; (10) *1175 the motivation and sincerity of the debt- or in seeking Chapter 13 relief; and (11) the burden which the plan’s administration would place upon the trustee.
Flygare,
In the bankruptcy court and BAP below and before us on appeal, Mason argues, in support of his good faith claim and in loose reliance on
Flygare,
that Young manipulated his income and expenses in such fashion as to avoid fully funding the Chapter 13 plan with “all of the debtor’s projected disposable income” in violation of 11 U.S.C. § 1325(b). Mason raises a number of facts that, he asserts, demonstrate Young’s effort to hide his true disposable income. If proven, that would be an obvious
Flygare
violation of the “accuracy of the plan’s statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court.”
Fly-gare,
1. The Cadillac
Young purchased a 1992 Cadillac from his brother-in-law, and his Chapter 13 plan calls for monthly payments of $321.26 to pay for that car. Mason argues that “Young’s post-petition decision to purchase a Cadillac, rather than leasing an automobile or purchasing a less expensive one, and his consequent inflation of his expenses to reduce the disposable income available for funding his plan, is indicative of a lack of good faith.” (Appellant’s Br. at 18.) The bankruptcy court rejected Masоn’s argument in this regard, stating that
Mason makes much of debtor’s purchase of a Cadillac automobile from his brother-in-law. ... Mason offers no evidence that debtor paid more than the vehicle was worth, that the payments are excessive for the amount financed, or that the transaction was anything other than arm’s-length. This court can not find that the purchase of a five-year-old automobile, albeit a Cadillac, with monthly payments of $321.26, represents an attempt by debtor to “manipulate” his expenses.
In re Francis Arthur Young III,
No. BK-97-13747-LN, at 9 (Bankr.W.D.Okla. Feb. 18, 1998) (Order). The BAP affirmed that determination.
See In re Young,
2. Rental properties
Claiming that Young misrepresented to the bankruptcy court that he had surrendered his interests in various rental properties to other creditors when in fact he had transferred those interests to his erstwhile wife in 1995, Mason argues that that constitutes a bad faith misrepresentation to the court and that the transfer itself was intended to avoid satisfying the *1176 judgment against him. In this regard, the bankruptcy court, in its order confirming Young’s Chapter 13 plan, held as follows:
Mason asks the court to reconsider its dеtermination that debtor did not state his debts inaccurately in an attempt to mislead the court. He refers to certain parcels of real property which debtor transferred to his then wife, from whom he has since been divorced, in 1995. Mason asserts that debtor misrepresented the facts with regard to those properties, and appears to believe that debt- or should still have income from those properties with which to service his debts. Debtor responds that he has never denied transferring ownership of those properties, that he is still liable on the indebtеdness against them, and that it is necessary for him to “surrender” his interest in them in order to discharge his personal liability upon that indebtedness at the successful conclusion of his plan.... [T]he court does not believe that reconsideration is necessary or that, if reconsidered, the result would change.
In re Francis Arthur Young III,
No. BK-97-13747-LN, at 3-4 (Bankr.W.D.Okla. Apr. 28, 1998) (Order). Mason challenges the court’s finding, arguing that the transfer itself occurred soon after the jury rendered its verdict against Young, indicating Young’s intention to escape his debt to Mason. However, that is a credibility determination that is properly the province оf the trier of fact — in this case the bankruptcy court — , and we may not disturb that trier of fact’s credibility determinations on appeal.
See Anderson v. City of Bessemer City,
Mason also states that Young’s representations were false, as evidenced by the fact that “[a]n investigator working for Mason’s counsel determined from a search of the land records that, in fact, Young had not transferred, and could not transfer, any interest in the properties to the mortgage holders because he had previously transferred his interest in the properties to his wife, who continues to own the properties.” (Appellant’s Br. at 23.) Young responds that he “still remains liable as a a joint mortgager on these properties.” (Appellee’s Br. at 16.) However, we need not resolve that dispute today. Mason’s portentous reference to a hired investigator is wholly unsupported by citation to the record; the precise nature of the investigator’s findings therefore remain, for our purposes, shrouded in an appellate fog. It is likewise unclear from appellant’s brief whether he presented the mysterious investigator’s findings to the bankruptcy court below. Thus, Mason has waived this argument.
See Valley Improvement Ass’n v. United States Fid. & Guar. Corp.,
3. Probable or expected duration of the plan
Citing Young’s initial proposed thirty-six-month plan — rejected by the court — , Mason argues that the proposal and subsequent amendment to sixty months comprises “yet further еvidence of Young’s lack of good faith.” (Appellant’s Br. at 26.) We disagree.
As noted, Young’s initial Chapter 13 plan was rejected by the court on the ground that it did not represent his best efforts to satisfy his creditors, especially Mason. Young thereupon extended the plan period to sixty months, and the court confirmed that amended plan as having-been proposed in good faith. Thus, the court properly scrutinized and rejected the first plan, which may well have been made in bad faith as the court found.
See In re Pickering,
4. Type of debt sought to be discharged and whether any such debt is non-dischargeable in Chapter 7
Relying on our precedent in
Pioneer Bank,
By the same token, the instant case is distinguishable from
Gier v. Farmers State Bank of Lucas (In re Gier),
We are of course mindful of the Pioneer Bank court’s admonition that
[Although the discharge of an obligation which would be nondischargeable in Chapter 7 is not, standing alone, a sufficient basis on which to find bad faith or deny confirmation, it is a relevant factor to be considered in the § 1325(a)(3) good faith inquiry. Resort to the more liberal discharge provisions of Chapter 13, though lawful in itself, may well signal an “abuse of the provisions, purpose, or spirit” of the Act, especially where a major portion of the claims sought to be discharged arises out of prе-petition fraud or other wrongful conduct and the debtor proposes only minimal repayment of these claims under the plan.
*1178 5. Frequency with which the debtor has sought relief under the Bankruptcy Reform Act
In another variant of his argument that a Chapter 20 conversion constitutes bad faith, Mason arg-ues that the fact Young sought such a conversion is evidence of his intent to frequently abuse the Bankruptcy Reform .Act for the sole purpose of weaseling out of his debt to Mason. Although, as Mason and
Pioneer Bank
point out, Chapter 20 conversions may raise questions about the motives of the debtors seeking such conversions,
see
We emphasize the proper balance in this case between competing principles comprising the guiding spirit of federal bankruptcy law. The Supreme Court
has ... acknowledged that a central purpose of the [Bankruptcy] Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt,292 U.S. 234 , 244,54 S.Ct. 695 ,78 L.Ed. 1230 (1934). But in the same breath that we have invoked this “fresh start” policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the “honest but unfortunate debtor.” Id.
Grogan v. Garner,
Ill
The judgment of the BAP is AFFIRMED.
Notes
. The punitive damages awarded against Young consist of $150,000 for a violation of 42 U.S.C. § 1983 and $150,000 for a violation of Oklahoma public policy.
See Mason v. Oklahoma Tpk. Auth.,
No. CIV-93-1836-R, at 1 (W.D.Okla. Mar. 18, 1998) (Order). Although neither party has expressly raised the
*1171
issue on appeal, for jurisdictional purposes we note that at the time of filing, it appeared that Young owed Mason only $150,000 in punitive damages, thus meeting the requirements for filing under Chapter 13.
See
11 U.S.C. § 109(e);
Comprehensive Accounting Corp. v. Pearson (In re Pearson), 773
F.2d 751, 756 (6th Cir.1985) ("[Sjection 109(e) considers debts as they exist at the time of filing, not after a hearing.” (citing
In re King,
. Young did not dispute that the debt to Mason would not likely be dischargeable in a Chapter 7 case. We agree with the parties that a debt falling under 11 U.S.C. § 523(a)(6) and therefore non-dischargeable under Chapter 7 may nevertheless be dischargeable under Chapter 13, 11 U.S.C. § 1328(a).
See Graves v. Myivang,
. "Successive filing of a Chapter 7 bankruptcy and a Chapter 13 plan is often referred to as a ‘Chapter 20’ situation.”
Pioneer Bank of Longmont v. Rasmussen (In re Rasmussen),
. Because we so hold, we need not address Mason’s other arguments regarding the BAP’s decision not to entertain his appeal of the Chapter 20 conversion.
. To the extent
In re Jones,
. The bankruptcy court might conceivably have held that the purchase of even a used Cadillac constituted an unnecessarily lavish expense for an automobile, as the court held in the context of the purchase of a new Corvette in
In re Rogers,
. This is true as well of
In re Jacobs,
. Based on the foregoing analysis and our review of the record, we likewise reject Mason's contention that Young failеd to meet his burden of proof that he filed the plan in good faith.
. Mason argues that "Young has judicially admitted not simply that Mason’s claim would not be dischargeable under Chapter 7, but that the bankruptcy was converted by Young to Chapter 13
for the specific purpose
of permitting him to obtain the discharge of the debt.” (Appellant's Br. at 39 (citing Appellant's App. at 175-76).) While we agree with Mason that one purpose of the Chapter 20 conversion was to deal with Young’s non-dischargeable debt to Mason, we also agree with the Sixth Circuit that "[i]t is not conclusively bad faith for a debtor to seek to discharge a debt incurred through his own criminal or tortious conduct, but that factor may be considered.”
Hardin v. Caldwell (In re Caldwell),