*1 charge for which knowing it was for In re Lee and Patricia Jim WIERSMA

had never been billed. Wiersma, Darlene Debtors. I not think it matters to the outcome do find, complaint whether I could Wiersma; Jim Lee Patricia Darlene find, might Wiersma, another Lundeen Appellants and $1,500.00 actually owed the for the Cross-Appellees, previous might work on the home. It be v. seductive to ask whether someone can de- Milling, O.H. Kruse Grain and nka by lying get fraud someone to them to Grain, Appellee Ferndale something actually to which he is entitled. Cross-Appellant, I question. decline to ask that Mrs. $1,500.00 Young disputes charge. v. presented Lundeen never an invoice for Bank, nka Bank United California previous might work. The debt have West, Appellee. disputed pre- been at the time Lundeen Wiersma; Jim Lee Patricia Darlene request repayment

sented his for the Wiersma, Appellants, Indeed, siding. Lundeen testified that he thought Youngs might pay. He v. $1,500.00 should not have hidden the Trustee; United States O.H. Kruse charge siding Youngs bill. had a Milling, Grain and nka Ferndale right commercially appropriate pro- to a Grain; Bank, United California nka dealing charges cess in with the for the West, Appellees. Bank of the stairs firewall. Lundeen subverted process giving Youngs no opportunity Milling, O.H. Kruse Grain and nka $1,500.00 dispute or question the Grain, Appellant, Ferndale charges. He did so fraud. v. I Jeffrey conclude that Lundeen ob- Wiersma; Lee Jim Patricia Darlene Wi money Youngs by repre-

tained from false ersma; Bank, United California nka Youngs’ against sentation and that claim West; Bank of the United States Lundeen, $1,500.00, to the extent of Trustee, Appellees. excepted from discharge Lundeen’s ID-02-1523-MAPB, BAP Nos. ID-02- 528(a)(2)(A). II Judgment U.S.C. shall 1541-MAPB, ID-03-1215-MAPB, accordingly. entered ID-03-1224-MAPB.

Bankruptcy No. 01-41874. Bankruptcy Appellate States United Panel of the Ninth Circuit. Argued July and Submitted 2004. Filed Feb.

Debtors’ subjected cows had been to elec- trical shocks from faulty wiring and had been culled until the herd completely liquidated. Debtors sued the electrical and, contractor upon settlement of the state court lawsuit for million cash (“Settlement Proceeds”), pro- posed to use the Settlement Proceeds to purchase begin cows and in Georgia. anew They proposed give major secured creditor, Bank, United California nka (“Bank”), Bank of the West a replacement cows, lien objected. new but Bank already court had deter- mined creditor, that Bank and another Robinson, Brent T. Ling, Nielsen & O.H. Kruse Grain Milling, nka Fern- Robinson, ID, Rupert, for Jim and Patricia (“Ferndale”) dale Grain had secured inter- Wiersma. ests in the Settlement Proceeds. Hollifield, Bevan, William R. Hollifield & confirmation, At plan the bankruptcy P.A., Falls, ID, Twin for O.H. Kruse Grain court held that new cows were not the Milling nka Ferndale Grain. equivalent” cash, “indubitable and fur- Kelly McConnell, Greene Pursley Givens ther found that was not feas- LLP, Boise, ID, for United California and, ible. It denied confirmation giv- after Bank nka Bank of the West. ing Debtors the chance to file a Third Plan, dismissed MARLAR, Before: PERRIS and case. BRANDT, Bankruptcy Judges. appeals These and cross-appeals OPINION (1) concern three orders: September

MARLAR, Bankruptcy Judge. 2002, order determining the secured inter ests of the Bank and Ferndale in the Set INTRODUCTION (“Order tlement Proceeds Re Secured Sta dairy tus”) Idaho (BAP farmers Jim and Patricia (2) 02-1541); Nos. 02-1523 and (“Debtors”) Wiersma filed a chapter 11, 111 February 2003, a denying order confir petition and proposed plan a to relocate mation of Debtors’ Second Amended Plan dairy failed Georgia. business to and approving settle;2 Debtors’ motion to indicated, 1. 661, Unless "chapter” (9th otherwise and Cir.1997) 118 F.3d 662 (citing Ni "section” Bankruptcy references are to the (In Johnny Nicholes), choles v. Appleseed re Code, 101-1330; §§ 11 U.S.C. rule references 82, 1995)). 184 B.R. 86 Cir. BAP It are to the Bankruptcy Federal Rules of Proce- merged into the final dismissing order ("Fed. Bankr.P.”), 1001-9036, dure R. Rules S.B.A., 1361, case. See v. 644 F.2d Munoz incorporate certain Federal Rules of (9th Cir.1981). contrast, 1364 portion In ("Fed. Civ.P.”). Civil Procedure R. of the approved order which the settlement may have been a final order. We do not 11, appeal Debtors did February not finality question reach the because we dismiss denying order. An order confirmation appeal of the settlement order as moot. chapter of a interlocutory. See Discussion below. Lievsay W. v. Fin. Sav. Lievsay), Bank re brought both tort (3) Lawsuit was order zen an dismissal April and 03-1224). theories. (BAP and breach contract 08-1215 and Nos. Idaho’s these we construe appeals, In largest cred- Bank was Debtors’ secured Commer- Article 9 of the Uniform cows, revised its Following liquidation itor. (“UCC”),3 whether and decide cial Code million. was approximately $2.2 claim damage to of a lawsuit for cash settlement security perfected held a Bank valid proceeds either collateral constitutes and, dairy in herd interest5 Debtors’ or an after-ac- Bank’s livestock collateral in “In- among things, other all Debtors’ “payment intangible” collateral. quired ventory Rights ... and Contract Accounts ... ... Intangibles ... General Livestock or- AFFIRM the court’s We Monies, ... Quota Products [and] Milk ap- Ferndale’s exceptions. with two ders Ag- in Possession.” Deposits Accounts Re Status of the Secured peal Order 4, Section Agreement, p. ricultural Credit its interest in the Settle- granting secured III, (July D of Facts Stipulation Exh. order appeal and the of the ment Proceeds 2002). addition, a securi- had are both DIS- approving the settlement ty after-acquired property, MISSED moot. collat- proceeds products in “all to, pro- limited including, eral but FACTS4 any Id. insurance thereon.” ceeds Idaho operated an Debtors owned 2,000 dairy of two facilities with consisting $550,000 to owed about Debtors also They chapter petition cows. filed feed. This debt was Ferndale livestock 1, 2001. October by note and an promissory evidenced security assignment (“Assignment”) problems stemmed Debtors’ financial title, right, and interest Debtors’ faulty work performed from electrical from Lawsuit. Fern- proceeds the Geitzen expansion dairy of their Geitzen by fil- security interest perfected dale its (“Geitzen”). result, Electric, Inc. As Financing Statement as ing a UCC-1 subjected to dairy cows were and all Debt- “[a]ny proceeds received degrees of electrical shocks which varying Financial from ....”. ors the lawsuit milk, be- produce less caused cows Statement, Facts Stipulation exh. J sick or die. The entire herd come 2002). (July eventually lost. Additionally, approxi- owed against Geit- Debtors initiated a lawsuit (“Geitzen Lawsuit”) $125,000 in taxes and they mately priority in which zen claims. Debtors’ damages. The Geit- million unsecured million in sought $6 *8 pre- undisputed underlying facts bankruptcy that re- 4. The 3.The court determined applied Stipulation UCC because Facts and parties' vised Article 9 of the in the sented bankruptcy revi- petition was filed after the bankruptcy court's decisions. ruling July This sion took effect on 2001. challenged appeal. Revised has been challenged validity one 5. No 9, and the official comments UCC Article thereto, claim, pre- bankruptcy court secured and legisla- the Idaho were enacted perfected. In re was See it valid and sumed Transactions, Code, Secured ture. Idaho Wiersma, 298 n. B.R. provides §§ 28-9-101 to 28-9-709. It 2002). (Bankr.D.Idaho lien with- applies "this act to a transaction or scope, lien if the in its even transaction this act entered into or created before was 28-9-702(a). takes effect.” Idaho Code Next, eventually dairies were foreclosed and court examined dairy operation their was terminated. Debtors’ transaction Ferndale. It concluded that note Assignment and Special their Debtors and Coun- security agreement constituted a written sel reached a settlement with Geitzen and gave rights Ferndale the Settle- its pay insurer to Debtors million. $2.5 ment Proceeds. approximately estate stood to receive The Order Re Status Secured was en- million of the Settlement $1.6 Proceeds tered on September Debtors upon approval bankruptcy court of the set- timely (ID-02-1523), appealed and Fern- However, tlement. Bank claimed the en- (ID-02-1541). timely dale cross-appealed collateral, tire as its estate’s interest cash They challenged both Bank’s secured in- and against Ferndale also claimed the Set- Proceeds, terest in the Settlement and tlement pursuant security Proceeds to its Debtors also disputed Ferndale’s secured agreement Assignment. interest, theory. under the same tort Motion to Secured Determine Interests Reorganization Plan of 506(a) Motion to Settle

Debtors then filed Motion to Determine Secured posi- Status. Debtors’ While the Geitzen Lawsuit was still tion was that Bank nor neither Ferndale pending, Debtors filed their first plan of had a secured Settlement reorganization statement, and disclosure Proceeds because the Geitzen Lawsuit thereafter, shortly their motion to set- tort, sounded and UCC Article 9 exclud- tle. “general ed tort claims from the intangi- stated, Although Debtors in their mo- bles” category. tion, damages believed their million, were at argued they agreed least Settlement Pro- $6 accept a ceeds were either “total value” million “general intangibles” or from $2.5 Geitzen, proceeds. purchase livestock Ferndale to be used “the pri- claimed ority dairy benefit, it, over Bank cows for and maintained that to be uti- alone, lized reorganizing Debtors in entitled to Settlement Pro- dairy operation.” ceeds. Motion for Ap- Order (June 26, proving 2002), Settlement at 3. Following hearing, the bankruptcy planned use the pur- funds to published opinion rendered a on the cows, in chase about 800 Georgia, which Wiersma, In re matter. 283 B.R. 294 they valued at million. $1.4 (Bankr.D.Idaho 2002). First, the bank- Bank and Ferndale filed conditional ob- ruptcy court the Geitzen classified Lawsuit jections They to the settlement. did not and, therefore, as a contract action held amount, oppose the object- million but give Article 9 applied Bank a se- ed money to use of to purchase new cured interest in the Settlement Proceeds dairy cows. “general intangibles” either or “ac- Alternatively, counts.” Debtors filed a Second Amended Disclo- court held that the Settlement sure Plan, Proceeds Statement First *9 of proceeds constituted in they livestock which their discussed “cows-for- collateral. objected. plan.6 eows” 6. Debtors’ Second agreement Amended Disclosure State- Debtors have an reached with stated, part: (its pertinent ment in company), Geitzen Electric insurance Plan, settle, to use the Amended to desire motion to considering the purchase to cows. agreement on the cash unanimous court noted over the dispute of but amount settlement had been Amended Plan The Second interests, cash and as well secured 22, 2002, be- a month filed on November for Special Counsel components. non-cash exe- Agreement was fore the Settlement had the court that she Debtors informed It that would proposed cuted. Debtors settlement, an whereas negotiated all-cash Georgia, in where new cows purchase that the set- attorney countered and a new operate would move Debtors purchase was instead to be the tlement lease dairy, facility they which would new However, herd. because replacement $10,000 to They proposed per for month. agreement had actual settlement milk plan product from the sale of fund filed, or been executed Florida, they they determined in where hearing. court continued price. The allowed get could the best Bank and Ferndale secured claims of both thereafter, filed Shortly Special Counsel by in the new to be secured liens (1) Approving Settle- a Motion for Order in milk proceeds and the milk and cows (2) ment; proposed itemization dairy.8 claim was Bank’s secured the new Proceeds, Settlement disbursements inter- to the value Debtors’ estimated be that, fees paying attorney’s showing after mil- in the est Settlement Proceeds — $801,609.21,7 about totaling and costs lion, proposed pay and to Debtors a net would receive settlement Debtors monthly payments in of between amount (3) million; and a “Release and about $1.6 $16,000 $23,000, pay- with a balloon (“Settlement Indemnity Agreement” years. at the ment end of seven signed had Agreement”), which been December, in 2002. Geitzen Debtors claim, as other as well Bank’s unsecured claims, from the paid would be unsecured Agreement stated The Settlement basis, Proceeds, pro rata Settlement against their claims Debtors would release $600,000, $7,000 per or about total sum in exchange “payment Geitzen month. ($2,500,000.00),Two Mil- total sum of over proposed pay to Debtors also Five Hundred Thousand DOLLARS lion in $125,000 they which owed Insur- taxes paid to be Continental Western Electric, at a years, over monthly payments five Company and Geitzen ance (Dec. 20, $2,500 They also per of about month. Agreement rate Inc.” Settlement oth- 2002), Thus, payments to make to various proposed at 1. con- apparently Debtors $5,000 per The month. settle for cash. er creditors almost ceded would Still, payments proposed of Debtors’ clung, their Second sum (its agreed fees Special its provides in- 7. Counsel reduce that Geitzen Electric 33-1/3%, 40%, $961,831.05, purchase or company) cows surance shall or from $160,321.84 $801,609.21. the debtors on behalf of the debtors. It is The additional whereby propose intent [sic] in their to use would be available Debtors Florida, a state purchased will be cows plan. Florida, operate a where the debtors will near Florida dairy. will be sold on the milk provision was not the Second This from derived market the funds are Plan, an oral but made dairy operation be to fund shall used hearing. amendment at the plan. debtors' (July Disclosure Statement Second Amended 2002), at 23. *10 Florida, for milk product the Second Amended Plan exceeded well market it $40,000per over month. found that a “startup” nonetheless such country, in a enterprise, part new of the objected plans Bank to these amended any period could not withstand of underac- alia, contending, they inter that were nei- of capital hievement without an influx or equitable ther fair and nor feasible. (Feb. 11, service. Dec. lower debt Mem. 2003), at 54. The court Plan, Bankruptcy Court Denies that the Amended concluded Second Plan Approves Settlement was not feasible. Rather than dismiss the hearings Plan confirmation the con- case, gave days court Debtors to file hearing tinued on the settle motion to plan negotiate a amended con- and/or days. over conducted three sensual Bank. first The court addressed the continued settle, noting motion to situa- the unusual Third Plan and Dismissal tion where Debtors demanded a settle- cows, Special ment for while their Counsel to prone giving up, Not Debtors then Agreement, and the Settlement which was timely filed a Plan. They Third Amended Debtors, signed by clearly stated to proposed reduce the Bank’s estimated settlement was million cash.9 The $2.5 (based million secured claim on the court, the terms finding of the Settlement cows) (1) by: possi- valuation the new a reasonable, Agreement be fair ap- to (2) surcharge $178,000;11 ble of about proved it.10 payment equity cash from a home loan of (3) Plan, (from $50,000; As for the Second Amended payment cash fees) court objections: focused on two of Special reduction of Counsel’s $160,000. failure it provide They to with the pay “indubitable would Bank the bal- (in- equivalent” claim, $1,055,955.64 value for its and lack ance of at 1% 6%) feasibility. against court monthly ruled from payments, .The creased issues, Debtors on both explaining payment with a balloon at the end of three Bank exposed greater years Moreover, would be years. much instead of seven plan’s provision risk under the purchase approximate highest anticipated cows, by segregating pay- payment rather than monthly to Bank would be re- ing $18,000 $23,000. Bank’s cash collateral to it. While duced to instead of Final- feasibility ly, said that a “close proposed give Bank a lien call,” due to Debtors’ evidence of projected the new cows and “all replace- livestock explained they 9.Debtors to avoid wanted Debtors then moved for reconsideration of negative consequences tax de- and therefore approving Agree- the order the Settlement approval given only manded that be for the ment. reconsideration motion was de- purchase of cows. The court was not con- separate nied in did order. Debtors attorney vinced Debtors or their tax appeal either order at that time. We do not reality consequences, tax such problem, need to address timeliness how- could not be offset losses. Re Con- Order ever, appeal on based the dismissal Later, (Feb. 2003), firmation at 35-36. grounds. this order mootness See Discus- proceedings, attorney the dismissal sion below. testified that there was new evidence of $281,000 liability tax if the Pro- Settlement 506(c) 11. Debtors had since filed a motion ceeds went to instead of invested in 552(b) surcharge and a motion to reduce (March 20, 2003), Proceedings cows. Tr. of equitable Bank's secured claim for reasons. at 17.

103 ISSUES ments,” pro- in milk and milk well as as ceeds. subject panel the has mat- 1. Whether $60,000 a loan Debtors also obtained of jurisdiction appeal ter over the reduced startup capital, used be as the Re Secured Status. Order to other creditors their debt service bankruptcy 2. Whether the court erred budget $2,600. They revised their about determining in Bank Fern- flow, and cash to indicate an increased security perfected dale had valid and of em- one their a letter from presented in Pro- interests the Settlement South, had ployees, experience who ceeds. stating he would assist Debtors. of appeal the set- 8. Whether Debtors’ Bank hearing, confirmation At the next approval is tlement order moot. objection proposed to the maintained its bankruptcy 4. Whether the court erred new, argued approxi- that the plan. Bank denying plan confirmation based $200,000 cash “equity mate cushion” provide failure to Debtors’ for an estimated protection insufficient equivalent” of the “indubitable debt, and that Debtors million secured claim and lack of value its had no reserves. cash feasibility. court, ruling, in an bankruptcy The oral court bankruptcy Whether that, pro- the changes concluded even with dismissing its discretion abused Debtors, original concerns posed its case based on inabili- feasi- equivalent” to the “indubitable ty propose plan, a confirmable Third bility been had not rectified evidentiary conducting without Plan, a nor could Debtors reach Amended Third hearing on their estimated, It without consensus with Bank. Plan. (because ruling the motions were not be- it), pending fore that Debtors’ motion not warrant a reduction

surcharge would STANDARD OF REVIEW more a few in Bank’s secured claim of than findings review factual We dollars, $178,000 thousand instead error and its bankruptcy court clear contemplated by Nor did Debtors. de v. conclusions of law novo. See Anastas equitable expect court it would find (In Anastas), 94 F.3d Am. Sav. Bank re claim under reasons to reduce Bank’s (9th Cir.1996). 1280, 1283 findings Factual 552(b) pending motion. only be should could concluded that Debtors court thus if a review the record leaves disturbed plan, grant- propose a confirmable mis firm conviction that a “definite and Trustee’s motion ed United States has committed.” United States take been the case. dismiss Co., 333 U.S. Gypsum v. United States timely order appealed (1948). L.Ed. 746 68 S.Ct. dismissal, therein the 2002 which included re questions of law and fact are Mixed Status, and the order Re Secured Order Pac. Ven viewed de novo. See Wattson confirmation of the Second which denied Valley Fed. & Loan re v. Sav. tures settle- approved Amended Plan and Trust), Self-Storage F.3d Safeguard ap- ment. then filed notice Ferndale (9th Cir.1993). Status, Re peal as to the Order Secured which, assumed, reorganization merged into the Whether it had fact, question while feasible is final dismissal order. *12 BAP plan of whether a A provides panel determination motions then deter secured with the “indubitable that the creditor mined Order Re Secured Status question all, equivalent” interlocutory, of its claim is a mixed was not after but had order, always of law See Moun been a and fact. Woods v. Pine final a conclusion tain, (In Ltd.), Mountain, re Pine agree.12 panel Ltd. 80 with which we The motions 171, 172(9th 1987). B.R. Cir. BAP previous then vacated the dismissal orders appeals, original and reinstated the rea denying The order confirmation of soning that it the appellants. had misled cause, dismissing case 1112(b), question panel’s juris- now Appellees § is reviewed for an abuse id.; diction, both in previously Liquidat reinstating of discretion. See Pioneer (In appeals ing considering dismissed Corp. v. United States re Trustee Entities, appeals. 2003 Consolidated Pioneer Mortgage (9th Cir.2001)(con Inc.), 803, 264 F.3d 808 authority We have inherent 1112(b)).

verting case cause under rectify misapprehension an inadvertent facts an actual and correct order to DISCUSSION reflect the court’s intentions. See Cisne I. BAP Jurisdiction: Order (In Cisneros), ros v. States re United 994 Re Secured Status (9th Cir.1993) 1462, F.2d 1466 (affirming (BAP 02-1541, 02-1523, Nos. court in sponte vacating sua 03-1224)

03-1215 & order); discharge mistaken Ford v. Ford (In Ford), (Bankr. 590, re 159 B.R. Both Bank and the United States Trus- D.Or.1993) (reading Cisneros “as a reaffir panel subject tee contend that lacks power mation of a court’s inherent to cor jurisdiction matter over errors”). rect its own clerical Compare Ferndale’s appeals the Order Re Se- 60(a) Federal Rule of Civil Procedure cured Status. (“Clerical mistakes in judgments, orders or 2002, In Debtors and Ferndale filed parts other of the record and errors there timely of appeal notices of the Order Re arising from oversight may or omission Secured panel mistakenly Status. The be- by be corrected the court at time of its interlocutory, lieved the orders ”). own initiative .... R. Fed. BankrP. when appellants failed to to a respond 60(a). R. Civ. P. We also have 9024/Fed. jurisdictional notice deficiency, it dis- power “rescind, reconsider, inherent missed appeals both for lack of prosecu- modify interlocutory order.” See City tion. Angeles, Los v. Harbor Div. Santa Mo In the bankruptcy after case was (9th nica Baykeeper, 254 F.3d 886-87 dismissed, Debtors and renewed Ferndale Cir.2001); 105(a). 11 U.S.C. appeals the Order Secured Re Status, dismiss and Bank moved to those We believe appeals that the 2002 appeals untimely. as mistakenly See Fed. R. BankrP. were dismissed for lack of 8002(a) (a appeal notice of be prosecution must filed when our orders were intend ed, within days entry although, so, ten after of the order incorrectly to dismiss the appealed). appeals interlocutory. (9th 1988) (citing We are bound the actions of the Cir. BAP Brady v. An panel. (In motions Bentley v. Coro re Corp.), drew Commercial W. Fin. 1985)). Crystal 84 B.R. F.2d 1332 n. 6 Props.), nado re Sands Cir. final order proceed would once requested appeal retrospect, the order finality issue was mislead- was entered. on the

briefing stated, pertinent part: ing and Furthermore, the doctrine screening jurisdictional routine excuses untimeliness unique circumstances BAP suggests

conducted *13 upon the the have relied appellants when concerning the may be an issue there v. McAuley In re panel’s action. See appeal.... on finality of the order (In re Orange & Loan Ass’n Coast Thrift will affect the proceedings If further 696, Cir. BAP McAuley), B.R. 700 66 appeal, on the order scope of the order 1986). year than a and for more 2002 is final.... not thereafter, led be appellants the were to herein appeal apparent- on The order inter original appeals that were lieve their secured status ly determined the (March Proceedings locutory. Tr. of in a and O.H. Kruse Bank of the West (counsel 2003), informing at 43-44 case, prior 11 chapter appeals had bankruptcy court that the ap- the on confirmation. order While order.) lack a final dismissed for been that not on its face indicate peal does dismissed, Then, case after the had been future any reserved for there are issues appeals were told that those appellants the indi- disposition, docket interlocutory, all. Due to were not after proceedings that confirmation cates confusion, had cover appellants both Bank of pending are and that opposing appeals Kruse file in 2003. West and O.H. are all their bases and new faith, unclear plan. relied, good It is whether in Debtors and Ferndale affect proceedings might confirmation renewing judicial action panel’s on the appeal. of the on scope order Therefore, in 2003. both appeals timely as appeals stand will appeal have Any party this shall (14) the file- DAYS from filed. FOURTEEN of this order to file

stamped date finality paper addressing the serve a Re II. Merits of Order Secured Status issue.... (Decem- (a) Finality Re Security Issue Interest Clerk’s Order 2002). ber rul- challenge the Debtors and Ferndale ac- apparently and Ferndale perfected that Bank has valid ing analysis that the order cepted the Clerk’s Pro- security the Settlement interest interlocutory and did appeal on Debtors con- page supra. ceeds. See ap- respond, resulting in dismissal of was a com- Lawsuit tend that the Geitzen Unfortunately, the dismissal was peal. therefore, and, tort action mercial rather than prosecution of lack of the basis inapplicable. Article 9 was UCC R. Fed. jurisdictional basis. See on the (invol- 41(b) P. R. Civ. Bankr.P. 7041/Fed. have that Bank would undisputed It was jurisdiction is dismissal for lack untary Pro- security interest the Settlement merits). not on the a con- if were the Geitzen Lawsuit ceeds that, undisputed It was tract action. also been appeals should not have Since the action, it a tort Lawsuit were if the Geitzen dismissed, agree with we therefore so meaning of a “com- fall would within re- as appeals, reinstatement in re- is used tort” as term mercial panel’s real intentions flecting security 9.13 vised Article had a in the after-ac- quired Lawsuit if it Geitzen itself were Debtors, Ferndale, and the bank determined to be a tort commercial claim. ruptcy painstakingly analyzed whether the Geitzen Lawsuit was a breach responds such anal action, of contract or a tort commercial irrelevant, ysis plainly is because the UCC because, situations, a commercial some provides that the Settlement Proceeds tort from excluded Article such as “proceeds.” provides Article 9 two of “general intangi the definitions ways capture settlement proceeds of a “after-acquired” bles” and property. involving damage lawsuit to collateral. First, if a perfected security there is inter “general intangible” Article 9 defines in after-acquired “general est intangibles,” *14 follows: then lawsuit money, once the is settled for intangible” any per- “General means right payment the debtor’s to becomes property, things sonal including ac- a “payment intangible” transformed into to tion, accounts, than paper, other chattel which simply the tort exclusion does not claims, deposit commercial tort ac- Second, apply. lawsuit settlement funds counts, documents, instruments, goods, stemming from of destruction collateral property, investment of letter credit proceeds are to be of origi considered credit, rights, money, oil, of letters and nal, Therefore, damaged collateral. we gas, or other minerals before extraction. agree with Bank that the Settlement Pro payment intangibles The term includes “proceeds” ceeds its based on the and software. following analysis. 28-9-102(a)(42). § Idaho Code “Commercial tort claims” are consid- (I) Payment Intangible because, ered to “general intangibles” be Revised Article 9 created a new 9, they under the revised Article are a new subcategory “general intangible” of called category of collateral unto themselves. “payment intangible,” defined as 9—102(a)(13); § See § Idaho Code 28- 28— “a general intangible under which the ac 9-109(d)(12) (excluding assignment “an obligation count debtor’s principal is a tort, arising claim other than a com- monetary obligation.” § Idaho Code 28- claim”). mercial tort 9-102(a)(61). The authorities hold that it addition, In an after-acquired is irrelevant payment intangi whether the property clause cannot reach lawsuit, future com ble is based a tort because the § mercial tort claim, claims. See Idaho Code 28- collateral does not consist 9-204(b)(2). but, For a security rather, interest in a right the contractual to pay attach, tort claim to the claim must be in ment in any evident involving settlement agreement existence the security when Addressing is destruction of collateral. Therefore, created. scope § could not have provides Article 28-9-109 (B) presumed The that the the claimant is an individual 13. tort special category counts came within the claim: tort,” of a agree. "commercial we (i) See arose in course of claimant’s Wiersma, Idaho, B.R. at it is profession; business or defined as follows: (ii) arising damages does not include out personal injury "Commercial tort to claim” means a claim or the death of an arising respect in tort with to which: individual. (A) organization; 28-9-102(a)(13). the claimant is an § or Idaho Code of payment of Article “because streams that, apply it does not although “[a]n tort, assigned from settlements are structured arising in other assignment of a claim zillions outright pledged as collateral in claim,” yet “sec- tort than commercial country.” transactions around apply with and 28-9-322 tions 28-9-315 Clark, & Law Barkley Barbara The Clark priorities pro- respect proceeds Secured Transactions Under the Uni- Idaho 28-9- Code ceeds.” Code, vol. Commercial 109(d)(12). form (2004). 1.08[11][B],p. 1-270.4 to this section The Official Comment of Appeals Ninth Circuit Court The provides: dicta, conclusion, in came to the same (d)(12) nar- Tort Claims. Subsection Partners, L.P. RMA v. Pac./ Fifteenth exclusion of rows somewhat broad Group, re West Inc. Communications under former of tort claims transfers Inc.), Group, Communications Pac./West 9-104(k). ap- Article This now Section (9th Cir.2002) (examining 301 F.3d tort assignments of “commercial plies provisions). identical California UCC 9-102) (defined in claims” Section “a with a issue there was whether creditor security in tort interests well as security personal in another’s proceeds claims that constitute other *15 intangibles, property, including general (e.g., right payment a to collateral thereof, can attach its proceeds all in- negligent destruction of the debtor’s the proceeds [arbitration interest to ventory). claim aris- Note once a ” .... a tort claim of commercial award] ing in has been and reduced tort settled added). (alteration at Id. 1151 obligation pay, a to the to contractual § applied the former 9- The court UCC payment a right payment becomes 104(k), prohibited as collateral “[a] which intangible be a claim aris- and ceases to any of claim part in whole or transfer ing in tort. tort,” and held that the out of arising added). Id., (emphasis cmt. 15 the could not attach to security interest words, Article 9 In other revised Id. at 1152-54. The court proceeds. of payment intangibles considers either the would have been opined that outcome actions commercial tort to be consumer or 9-109, § the UCC under revised different intangibles. payment the general Once security to be which allows a interest “now existence, into in this intangible comes a proceeds the of tort claim.” attached to after-acquired fund case as an settlement (emphasis original). Id. at 1152 automatically it is with general intangible, summary, argument In part the scope in the of Article 9 as of are excluded Proceeds Settlement creditor’s collateral. secured interest is security from Bank’s based plain language The case law. purpose pre-revision and effect of “The that Bank provides of current statutes certainty are to so these revisions enhance in the security has interest Settlement provide more a willing that lenders will be after-acquired as characterized types per Proceeds credit on the basis these affirm bank therefore provided are collateral. We property when sonal Lander, on this other ruptcy court’s conclusion David “Under collateral.” A. Pre Bankruptcy Petition ground. In re Scope of Revised standing Expanded BAP UCC,” B.R. 140 Cir. parers, Bankr.L. Article 9 9 Norton 2004) (a any (2000). reviewing may affirm on court It sense that the Adviser 1 makes record). basis scope supported fund should be within settlement (ii) Stone), (Bankr. Livestock Collateral Proceeds re B.R. W.D.Ky.1985)). The nature of Bank’s Alternatively, de- transaction Debtors was extensive monetary that a termined settlement complete dairy opera and related work, claim defective electrical which tion. “Proceeds” under such a scenario destroyed harmed the livestock collat- must in a apply broad sense in order to eral, “proceeds” constituted under Idaho compensate the secured creditor. 28-9-102(a)(64).14 Code Since security interest perfect- the cows was analogous Washington case from ed, too proceeds so was the interest in the (under 9) state, it was held former Article 28-9-315(a)(2), providing that “[a] of a “proceeds” dairy logically herd security interest identifi- attaches to encompassed government payments pursu- proceeds able of collateral”. dairy ant to a federal program termination required slaughter export however, maintains, Ferndale the cattle. The state Supreme Court the Settlement Proceeds emanated from opined: coverage wrong the insurance of Geitzen’s acts,

ful not damage to cows. This granting security of a argument unpersuasive. is herd, dairy together product with the thereof, proceeds obviously contem-

It is clear that rights arising from security in plates more than the individ- damage loss or are “pro collateral ual cows. The herd represents con- ceeds,” whether or not insurance covers tinuing production source of resulting in the loss: repetitive security income flow. This (D) to the extent of the value collater- quite different security from a in a al, loss, claims arising out *16 sold, single crop to be harvested or and nonconformity, or with interference cattle which are only slaugh- raised for of, the use infringement defects or ter for meat. It was type this of collat- rights in, to, of or damage the col- eral which debtors have destroyed and lateral; removed from security Bank’s interest 28-9-102(a)(64)(D). § Code Idaho More- over, in this provides case the insurance Bachmann, Rainier Nat’l Bank v. only funds, the source of the settlement 298, 302, Wash.2d 757 P.2d 981-82 and, itself, in replacement is not collateral. (1988). Ninth The Circuit legisla- has held that intent give tive was to “proceeds” Also, “the was in Stone cited the approvingly ” possible ‘broadest definition.’ analysis Ninth Circuit’s of the current Pac./West Group, Communications at 301 F.3d 1153 UCC in Communications Pac./West Nolin (quoting Prod. Credit Ass’n v. Stone Group, 301 F.3d at 1154. Stone concerned following of, 14. "Proceeds” are defined formity, as the or interference with the use property: in, infringement defects or rights of or to, collateral; (A) sale, damage acquired the upon Whatever is the or lease, license, (E)to exchange dispo- the extent of the other value of collateral or collateral; payable sition and the extent to the debtor (B) on, party, payable whatever is collected distributed or the secured or insurance of, collateral; on account nonconformity reason of the loss or (C) collateral; of, rights in, arising infringement rights out of defects or (D) collateral, to, to the extent damage of the value of the collateral. loss, arising claims 28-9-102(a)(64). out of the noncon- Idaho Code the a bred farm and lender retained secu- negligence action for tort a debtor’s veterinarian, clinic, rity animal in the The stock value a an interest stock. against laboratory, years of 300 cattle. the plummeted purchase, the loss two after and court, there, applied a also managers, The and the farm the investor sued that proceeds definition of held broad lender. the appraiser the When the damage settlement monies for the managers appraiser settled Stone, 52 B.R. proceeds. cattle were investor, security the lender asserted a funds, at 308. contend- in the settlement money stock. ing “proceeds” was Proceeds, therefore, The are Settlement McGonigle, 968 F.2d at in- security covered Bank’s “proceeds” agreed, holding that “[t]he Ninth Circuit terest, only but to the extent value stock, locus loss was the secured collateral. Idaho original Code security is Bank as holder Central 28-9-102(a)(64)(D). point, this we On pay- its lien the settlement entitled to reject contention that the dam- Ferndale’s compensate ments that were intended than ages associated with the cows less Id. at 828. The same value.” lost million net Proceeds. Settlement applies the instant case. rationale losses as fol- Debtors summarized lows: A bank- few calculations reinforce $2,289,473.00 Milk herd loss—cows ruptcy court’s determination the Set- 1,036,225.00 Excess Replacements “proceeds.” Proceeds tlement 613,232.00 Quality loss For court deter- example, 393,925.00 herd size Diminished 217,935.00 Miscellaneous costs commercially mined reasonable 1,200,000.00 Future losses liquidated by price for 480 cows that were 71,100.00 Labor (Feb. $650,000. See Mem. Dec. $5,821,890.00 TOTAL 11, 2003), figure, at 24-27. Based on that 30, 2002), (July Facts Exh. Stipulation of approxi- each was worth cows G-2. $1,354. If mately we divide net Settle- provided description further ($1,698,391) by ment remain- Proceeds category. The “milk of the losses each (from 2000), ing 1,520 cows herd loss,” replacements,” “quality loss” *17 “excess $1,117 The per value of cow. result is a damages and “diminished herd size” obvi- Proceeds, therefore, ap- net Settlement ously damages to the Those relate cows. the of the lost cows proximate value million, inter- exceed whereas $3 ($1,354 $1,117). compared to mil- est the Settlement Proceeds $1.6 addition, bankruptcy In the court found Moreover, the lion. a review of “miscella- healthy would good in a market a cow losses,” costs,” neous “future “labor” id. at $2,000 head. $1,600 bring per to categories these losses are reveals 1,520 the Dividing gross cows into set- expenses caused the also related yields fair of million tlement amount $2.5 injury to All Debtors’ claims the cows. Thus, $1,645 the per cow. market value of, against arose out of the loss Geitzen with, are consistent Settlement Proceeds to, damage cows the because cows to, equivalent roughly the value of that [and measure] “the locus damaged collateral. herd Combs, v. McGonigle 968 loss.” F.2d (9th Cir.1992) (alteration added). bankruptcy In court cor- summary, Bank a valid had McGonigle, rectly an investor borrowed determined security interest in the Set- money thorough- perfected in a purchase stock “proceeds” tlement noticed properly Proceeds as UCC of its motion. The Furthermore, contend, motion, original proposed lost collateral. based on its claim, remaining million secured use the Proceeds to purchase Settlement $2.2 cows, final, signed agreement while the Bank’s interest would encumber the entire Proceeds, approved and order settlement for million net cash. Settlement $1.6 entirely would come ahead of Ferndale’s responds appeal that the junior interest. is moot. agree. settlement order We An appeal is moot if events have occurred (b) Ferndale’s Secured Interest entry being after the order appealed object to Debtors also Ferndale’s securi- that prevent panel from granting effec ty solely grounds: on the same tive relief. See id. security that it could not take interest in Here, following the bankruptcy a tort action. bankruptcy The court deter- settlement, approving court’s order mined that had a security Ferndale valid parties claims, fully their released dis interest in the Settlement Proceeds. prejudice, missed the claims with and Geit undisputed appeal facts this show zen paid and its over insurer the settle approximate- that Bank’s secured claim ment jointly funds to Debtors and Bank. ly million encumbers the entire $2.2 Responsive (May 2004), See Bank Brief Therefore, million Settlement Proceeds. 32; at 14-15 & n. Geitzen longer is no Bank, junior because Ferndale is it has before bankruptcy panel. or this no secured interest in the Settlement Pro- Moreover, bankruptcy case has been entirely ceeds and is unsecured. dismissed, and we herein affirm the dis Therefore, missal. we dismiss Debtors’ jurisdic We examine our own appeal approving as to the order the set tion de novo. & v. Young Ernst Matsu tlement as moot. (In Inc.), Mgmt., moto re Ins. United (9th Cir.1994). F.3d Ferndale’s IV. Denial of Plan Conñrmation appeal of the Re Order Secured Status (BAP 03-1215) presents No. no or controversy. live case Moreover, light inability of our to effec timely appealed Ferndale, tuate relief meaningful as to court’s order denying confirmation of their its appeal is also moot. See Varela v. Plan, Second which interlocutory Brokers, Dynamic Dynamic Inc. re merged order final into the order dismiss- Brokers, Inc.), 293 B.R. 493-94 ing They case. challenge 2003). Cir. BAP must We therefore dis following grounds two for denial. miss appeal Ferndale’s moot.

(a) Cows for Cash: Failure to Provide Approval Agreement III. of Settlement Bank with the “Indubitable

(BAP 03-1215) Equivalent” of its Claim No. Debtors contend that the bankruptcy attempted Debtors to cram down approving court’s order the the settlement Second Plan over Bank’s agreement objection. between Debtors and Geitzen Before the cramdown, They may should be reversed. maintain that a consider all of applica the copy of agreement 1129(a), § the was not ble requirements mailed to of excluding and, 1129(a)(8), § all parties creditors and interested must met. See 11 be U.S.C. result, 1129(b)(1). § the court’s order was inconsistent by of the most indu- unless a substitute challenge the equivalence. bitable plan purchase finding that their court’s the Pro- cows with Settlement replacement Id. at 942. equitable” “fair and

ceeds not was words, Hand’s Paraphrasing Judge 1129(b)(2)(A). provides three § The Code Nat’l Bank v. in Crocker Ninth Circuit of an treatment of nonconsensual examples (In Indus., Inc. re Am. Mar Am. Mariner The treat- Inc.), claim. third Indus., secured allowed 734 F.2d Cir. iner 1984),16 provides: facts.15 It to our stated: applies ment that Judge concluded credi- Hand (iii) holders realization such for the money or at right get tor’s “to his least equivalent of such of indubitable denied under a property” may be claims. if the only debtor reorganization 1129(b)(2)(A)(iii). 11 U.S.C. of most indu- provides “a substitute bitable Such substitute equivalence.” not define “indubitable does The Code clearly compensate pres- must both phrase The was coined equivalence.” safety of the ent and insure value Judge Metropolitan Learned Hand Life principal. (In Holding re Corp. Ins. Co. v. Murel Id. at 433. (2d Corp.), 75 F.2d 941 Holding Murel components, of com The two Cir.1935). rejecting Judge a plan, safety, require analysis pensation and Hand stated: of value alternative that focuses on the “adequate protection” plain It is of im comparison risks collateral and completely compensatory; must be “[Sjtrict creditor. cash posed years not ten hence is payment necessary. See Metro. equivalence” is not equivalent payment generally the of @ Voss, Felipe Ins. Ltd. Co. v. San Life indeed common Interest now. Ltd.), @ Voss, 115 B.R. Felipe re San difference, but creditor measure 530(S.D.Tex.1990) (exchange of real his will safety principal who fears equity with built-in property for stock that; he wishes scarcely be content margin equivalent). “[T]o was indubitable at money proper- his least the get seeks alter the the extent a debtor ty. suppose loan, no reason pro We see securing collateral a creditor’s him deprive equivalent’ requires intended to viding the statute was ‘indubitable not holders, collateral increase junior that the substitute in the interest of Indus., which held that the 16. Am. Mariner is that the secured first treatment property equivalent,” lien as used in the must retain its in the creditor term "indubitable payments 361(3), to- "deferred cash and also receive adequate protection provisions taling the allowed amount of such at least creditor entitled meant that an unsecured claim, date of the a value as of effective payments, lost-opportunity was ef to receive plan, value of holder's at least the such grounds fectively in United on other overruled proper- interest in the estate's in such Inwood Forest Tex.v. Timbers Sav. Assn 1129(b)(2)(A)(i). ty." § This treatment does Assocs., Ltd., 108 S.Ct. 484 U.S. facts, original apply since cows to our (1988); see also Cimar L.Ed.2d pertains to a gone. are The second treatment (In re Wyid Props. Cimarron ron Investors v. *19 collateral, inapplica- the also is sale of (9th 1988). Investors), Cir. 848 F.2d 1129(b)(2)(A)(ii); general- ble see here. See ¶ 1129.05[2][a]-[c], Bankruptcy ly 7 Collier on (Alan & N. Resnick at 1129-130.1 to eds., rev.2004). Henry 15th ed. J. Sommer exposure.” the creditor’s Arnold Bank’s cash risk & collateral million. $1.6 presented Baker Farms v. States re Ar Debtors United evidence the value Farms), purchased Georgia nold & Baker 85 F.3d the 800 cows to in be omitted). Cir.1996) (citation was approximately million. There- fore, collateral essentially Bank’s cash for Evaluating plan, debt” “dirt the would the up be used in initial livestock Circuit, Ninth in Arnold and Baker investment, bankruptcy in what the court Farms, held proposal that a debtor’s called capi- “a forced extension venture of a portion larger surrender a tract of tal startup to a concern.” Mem. Dec. land to full secured creditor satisfaction (Feb. 11, 2003), at And that extension equiva the lien was not the indubitable would be at a loan-to-value ratio of 100%. speculative lent because of highly the valu ation of the id. at land. See 1421-22. In though Even was to given Bank be case, bankruptcy another the court denied lien in milk milk products, such confirmation where plan debtor product depends on condition of the replace lien on planned livestock and required cows. Bank would be to assume crops with crops. a lien on future cows, all of the risk of to the including loss court found that the substitute lien created sickness, well-being, and death. too much risk for creditor. See In re they Debtors keep testified that would (Bankr.D.N.D. Hoff, 54 B.R. 753-54 number, new herd at the same but the 1985). Second did provide Amended Plan lien for Bank in after-acquired cows. We held that have indubitable Debtors’ ability purchase replacement (1) equivalence proposed exists when flow; cows on depend would their cash (“not plan wholly is feasible speculative”); $1,400 anywhere cows cost between (2) it unlikely is that the creditor’s claim $1,600 per head. Tr. of Proceedings “would ever partially become even unse (Dec. 31, 2002), Also, at 63-64. Debtors cured”; (3) “likely it is that the value argue did not that the court property will increase.” Pine they erred in finding very would have Mountain, 80 B.R. at 174-75. little, income, any, if or any surplus net for argument here boot emergencies problems. or unforeseen straps their appeal of the settlement or scenario, Given startup dairy, this der: maintain that the settlement for relocation part country to another (cows cows) cows would have been the before, where Debtors had not worked equivalent indubitable Bank’s secured their lack capital, court However, claim. ap the settlement was determining did not err in plan cash, than proved rather for cows. provide did not the indubitable present argument appeal little equivalent of its collateral. cash replacement that the cows are the indubi equivalent table of cash. As the Bank (b) Feasibility aptly recognized: king.” “[C]ash Debtors also bankrupt- contend 2004). Responsive (May Brief cy finding erred that the Second Moreover, considering the enormous Amended Plan was not feasible. cows, risk to Bank inherent new not in Idaho, operation but in a startup Geor- feasibility require Under the gia, hardly 1129(a)(ll), such a would settlement be the ment of Debtors must dem indubitable equivalent. The value of onstrate that “has a reasonable

113 Acequia, bankruptcy Inc. v. The court stated of success.” probability (In Inc.), a “close feasibility plan the of Debtors’ was re F.2d Acequia, 787 Clinton (Feb. 11, 2003), Cir.1986). call.” Dec. at 54. Mem. proposed 1364 It was the fol appropriately troubled visionary not be must a scheme plan (1) a lowing undisputed facts: relocation to can more than the debtor deliver. promises completely different climate and the effect Haw., Shakey’s, Inc. v. Inc. Pizza See of (2) business; dairy on the a new business Inc.), Haw., 761 re Pizza F.2d of environment, new employees new and (9th Cir.1985). 1382

market, accompanying personal and (fluid (3) are changes; product Several factors relevant a different milk “(1) plan including: product is feasible form Florida versus for cheese whether (2) (4) structure; Idaho); startup of with no capital the the business adequacy (5) (3) business; reserves; power capital high substantial level earning of the (6) (4) service; conditions; seven-year repay and ability of of debt economic (5) pay ment for Bank with a balloon management; probability of ment, the source of which was nebulous.17 management; continuation the same (6) any related matter which other testimony presented detailed Debtors prospects sufficiently of a determines they and documentation which showed operation performance successful to enable expenses would be able to meet their Sage provisions plan.” of the re However, beginning. in the debt service wood, P’ship, B.R. Manor Assocs. Ltd. many there uncertainties evident were (Bankr.D.Nev.1998). 756, 763 witness, testimony of from the Debtors’ for Although price Robert Matlick. the bankruptcy Debtors contend that South, higher milk in the Mr. might be by holding as a of law court erred matter production Matlick that milk testified startup not be dairy that a could feasible. humidity. partly lower due to heat and They dispute findings do not the court’s Debtors, who He testified that also facts, rather but the determination take over planned operation plan was feasible. Georgia, they existing dairy projected greater production, would have milk First, record and the income, cows by milking the therefore any decisions reflect court’s do not error Yet, day three instead of two. times law; applied the cor in the experience dairying had no determining feasibility rect standard for South, any realistic to conclude nor basis 1129(11). Whether determi aggressive milking that a schedule more question fact. nation was erroneous is milk more would either more produce at 1358. Under the Acequia, F.2d income. standard, give we clearly erroneous must projections for fu- optimistic Debtors’ regard to the court’s eval due dairy might have testimony ture in their new infer success uation witness possible, neither reli- See Air been but ences drawn the court. Beech States, convincing. per- was no v. able nor There Corp. United F.3d craft (9th Cir.1995). could main- suasive that Debtors evidence (March 2003), attorney Proceedings at 17. Such Additionally, had testi- consequences liability tax available fied that there would be reduce new tax would cash, estate, due to the settlement cash resources. $281,000. approximate Tr. amount of *21 114 seven-year payment plan

tain the or earn or a modification plan.” of a (b)(5). 1112(b)(2), enough § excess income to make the balloon U.S.C. These enu payment. no There was also evidence to merated causes are nonexclusive. St. they period show that could weather a of Paul Storage P’ship Ltd. v. Port Au Self any large-scale thority underachievement or prob- re St. Paul Storage Ltd. Self dairy, employees, P’ship), lems with the new new B.R. BAP Cir. 1995). or new cows. plan may While the not have been whol- proposed Debtors’ Third Amend ly speculative, that it was uncertain was ed Plan attempted to address the bank beyond Therefore, argument. our review ruptcy court’s concerns. example, For of the record does not leave us with a Debtors monthly reduced their debt ser “definite and firm conviction that a mis- $2,600, vice about and obtained a loan take has been committed.” United States $60,000 startup However, costs. Co., Gypsum 333 U.S. at 68 S.Ct. 525. these new insignificant monies were con

We conclude that court’s sidering proposed monthly total ex findings feasibility as to clearly were not penses addition, and debt service. In erroneous. proposed give Debtors Bank a total of $210,000 ($160,000 $50,000 plus cash from 1112(b) § V. Dismissal — loan). equity $210,000 A equity cash (BAP 03-1215) No. inadequate protection, cushion was howev er, considering that Bank assumed all of Finally, the bankruptcy gave court losing risks of its million $1.4 Debtors the opportunity to file a Third security. Plan, they indeed filed (apparently along with new documentary Debtors proposed also to enhance evidence). 506(c) § Debtors also filed a position Bank’s collateral by granting surcharge collateral, motion to as well Bank a lien the new cows and “all as equitable a motion for removal of replacements” livestock well as milk Bank’s lien after-acquired on the property proceeds. However, and milk Bank con- 552(b). § Although the bankruptcy object tinued to to its treatment under the court did not hear the merits of those Third Amended Plan plan’s and to the (and they motions are not included feasibility. record), excerpts nevertheless, Finally, Debtors have not challenged the bankruptcy court considered impact bankruptcy court’s observations that and that proposed Third Amended 506(c) 552(b) § estimated surcharge and Plan on ability reorganize. Debtors’ deductions from Bank’s claim likely would Debtors contend that the court abused far projections. short of Debtors’ its discretion dismissing the case with- summary, In proposals new holding out complete another confirmation were nothing more than “beating a dead hearing on their Third Amended Plan. (or cow), horse” here a dead and did not 1112(b),

Pursuant the bank remove the court’s substantial doubt as to ruptcy may dismiss a case for whether Bank was receiving its indubitable “cause” including “inability to equivalent, effectuate a nor did improve signifi- plan,” or “denial of confirmation every cantly the likelihood of success of the new proposed plan and denial request of a plan when it was reviewed in context. made for additional filing half, time for year another and a proposed had *22 panel’s real in- plans, but were unable to dismissals not reflect separate four unique tentions. The circumstances ex- achieve a consensual crammed- either because the respect ception prem- to their does not work down confirmation with ise, interlocutory, the order was largest Proceeding See Tr. creditor. (March Rather 2003), panel not a determination. it was 11:7-11. at Since appellants in essence a were query, disputed, facts were premise invited to show incorrect. deny- not abuse its discretion did prior respond, ap- When did not at ing another chance confir- peals were dismissed. properly dismissing finally mation and the case. appeals I would dismiss the Order CONCLUSION untimely. Re Secured Status as security interest extended in the Pro- Debtors’ interest Settlement

ceeds, is and the Order Re Secured Status as to Bank. Because no col-

AFFIRMED satisfy any part

lateral of Fern- exists interest, junior appeal

dale’s secured its is

hereby as moot. DISMISSED the order appeal approving

the settlement for cash also DIS- moot,

MISSED as as circumstances have changed radically prevent us from In so re Sandra and Samuel SAWYER, being grant any relief. Debtors. meaningful able to Debtors’ Second Plan satisfied Bankruptcy No. 04-01279-PHX-SSC. equitable” neither the “fair and rule Adversary No. 04-00838. 1129(b)(2)(A)(iii) feasibility nor the re- 1129(a)(ll), quirement court’s Court, Bankruptcy United States denial of confirmation is AF- therefore D. Arizona.

FIRMED. March plan, the absence of confirmable dismissing court’s order chapter 11 also AFFIRMED. case is

BRANDT, Judge, Bankruptcy

dissenting part. join foregoing I the balance of the

While I

opinion, respectfully part I dissent from discussion, jurisdic- respecting our prior

tion. I not see mistake in the do although the clerk’s notices

dismissals: premise on the incorrect based interlocutory, Debtors and order was asleep at the switch.

Ferndale were misap- was neither an inadvertent

There facts, nor initial

prehension of the did the