FILED
OCT 06 2011
1
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-11-1165-PaDKi
)
6 IK/S-BAR, LLC, ) Bk. No. LA 10-64247-VZ
Debtor. )
7 ________________________________)
)
8 IK/S-BAR, LLC, )
)
9 Appellant, )
)
10 v. ) M E M O R A N D U M*
)
11 DIRECT CAPITAL CORPORATION, )
)
12 Appellee. )
________________________________)
13
Argued and Submitted at Pasadena, California
14 on September 23, 2011
15 Filed – October 6, 2011
16 Appeal from the United States Bankruptcy Court
for the Central District of California
17
Honorable Vincent Zurzolo, Bankruptcy Judge, Presiding
18 ____________________________
19 Appearances: Michael Sanford Kogan Esq. of Ervin, Cohen &
Jessup LLP appeared for appellant IK/S-Bar, LLC.
20 No appearance for appellee Direct Capital
Corporation.
21 ____________________________
22 Before: PAPPAS, DUNN and KIRSCHER, Bankruptcy Judges.
23
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
1 Appellant, chapter 111 debtor in possession IK/S-Bar, LLC
2 (“IK/S”), appeals the bankruptcy court’s order granting the
3 motion of appellee Direct Capital Corporation (“Direct Capital”)
4 for relief from the automatic stay to enforce its rights under an
5 equipment lease. We AFFIRM.
6 FACTS
7 IK/S filed for protection under chapter 11 of the Bankruptcy
8 Code on December 21, 2010, and has, since then, continued to
9 operate its business as a debtor in possession.
10 IK/S is managed by its Managing Member, Ivan Kane (“Kane”),
11 an entrepreneur who is the principal of several other restaurant-
12 related corporations and businesses. In 2008, two of Kane’s
13 controlled corporations, Ivan Kane Enterprises, Inc. and The Gin
14 Joint, LLC (the “Original Lessees”), entered into an Equipment
15 Lease Agreement (the “Lease”) with Capital Network Leasing Corp.
16 (“Capital Network”) pertaining to certain audio and kitchen
17 equipment. Kane signed the Lease for both of the Original
18 Lessees as their President. The Lease required the Original
19 Lessees to make monthly lease payments, and took effect on May 1,
20 2008, with the signature of Capital Network’s authorized
21 representative. There is no reference in the Lease to IK/S.
22 The Lease contains several provisions relevant in this
23 dispute: Paragraphs 3 and 6 deal with choice of law, and provide
24 that the Lease shall be interpreted under the laws of the State
25
1
26 Unless specified otherwise, all chapter and section
references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532, and
27 all “Rule” references are to the Federal Rules of Bankruptcy
Procedure, Rules 1001-9037. All “Civil Rule” references are to
28 the Federal Rules of Civil Procedure.
2
1 of New Hampshire;2 Paragraph 4 prohibits assignment of the Lease
2 by the Original Lessees without first obtaining Capital Network’s
3 written consent; and Paragraph 24 prohibits waiver of any of
4 Capital Network’s rights under the Lease absent its prior written
5 consent.
6 Sometime in 2008, Kane purportedly assigned all rights and
7 obligations of the Original Lessees to IK/S with an effective
8 date of March 18, 2008. ER at 78-80. There is no evidence in
9 the record that IK/S, Kane or the Original Lessees ever notified
10 Capital Network of the purported assignment of the Lease to IK/S.
11 Capital Network assigned its rights as lessor under the
12 Lease to Direct Capital on May 1, 2008; this assignment was
13 acknowledged in writing by Kane. Direct Capital’s principal
14 place of business is 155 Commerce Way, Portsmouth, New Hampshire.
15 After IK/S’s bankruptcy filing, Direct Capital filed a
16 motion for relief from the automatic stay on February 3, 2011,
17 seeking an order authorizing it to enforce its rights under the
18 Lease and, presumably, to recover possession of the equipment
19 from IK/S. As grounds for relief under § 362(d)(1), Direct
20 Capital alleged that its interest in the equipment was not
21
22 2
Paragraph 3 states that the Lease is intended to be a
23 Statutory Finance Lease under the laws of New Hampshire.
Paragraph 6 states that the parties agree that the Lease should
24 be interpreted according to the laws of the state of the Lessor’s
principal place of business, or, if assigned, the Lessor’s
25 assignee’s principal place of business. Because the parties have
26 raised no such issue, we express no opinion concerning whether
the Lease, under applicable state law, is indeed a “true lease”
27 which must be assumed or rejected in the bankruptcy case by IK/S
under § 365, or whether the Lease may be treated as a financing
28 arrangement, and its terms restructured via a chapter 11 plan.
3
1 adequately protected, and that the fair market value of the
2 leased equipment was declining. Under § 362(d)(2)(A) and (B),
3 Direct Capital argued that IK/S had no interest in the leased
4 equipment, and that it was not necessary for an effective
5 reorganization. It appears undisputed that there had been no
6 payments made to Direct Capital on the Lease by any party in the
7 eight months before the filing of the stay relief motion. The
8 motion was supported by a declaration of Direct Capital’s
9 Collections Supervisor, Ryan Hodsdon.
10 IK/S filed an opposition to this motion on February 11,
11 2011. In its opposition, IK/S argued that the stay relief motion
12 should be denied because IK/S had equity in the equipment; the
13 equipment was critical to IK/S’s reorganization efforts; and
14 Direct Capital was seeking to place its interests ahead of other
15 secured creditors, and that the value of IK/S’s assets would be
16 enhanced by continuing as a going concern, something it could not
17 do without the equipment. The opposition was supported by the
18 declaration of Ivan Kane.
19 The bankruptcy court conducted a hearing on Direct Capital’s
20 motion for relief from stay on March 8, 20113 at which counsel
21 for IK/S and Direct Capital appeared. Direct Capital’s attorney
22 argued that the Lease was not an asset of the IK/S bankruptcy
23 estate, noting that it had not been signed by IK/S, and that the
24
3
IK/S provided the Panel with a partial transcript of the
25 March 8, 2010 hearing, including only the bankruptcy court’s oral
26 findings and decision announced at the end of the hearing. The
Panel has elected to review the full transcript of the hearing
27 found in the bankruptcy court’s docket. O’Rourke v. Seaboard
Sur. Co. (In re E.R. Fegert, Inc.),
887 F.2d 955, 958 (9th Cir.
28 1989).
4
1 Lease prohibited any assignment by the Original Lessees. Direct
2 Capital’s lawyer next noted that no payments had been made by any
3 party for the previous nine months.
4 IK/S’s attorney responded that all relevant issues had been
5 addressed in its opposition. Counsel’s sole comment concerning
6 Direct Capital’s argument that the Lease was not property of IK/S
7 was:
8 One other fact that — the issue that was raised a
number of times about [the equipment] not being
9 property of the estate, [§] 541 is very clear that this
is — that a lease is property of the estate. The
10 Debtor has an equitable certainly interest in the lease
and the use of the equipment.
11
12 Hr’g Tr. 4:16-21, March 8, 2011.
13 After considering the record and the arguments of counsel,
14 the bankruptcy judge announced his findings and decision on the
15 record. The court focused on whether the Lease was property of
16 the bankruptcy estate:
17 The moving party has sought relief from stay on two
grounds. The two that I find most pertinent are as
18 follows: The moving party has given me evidence which
is not controverted by the Debtor that the property []
19 is subject to a lease and that the lease was made
between the moving party and another entity and that
20 there is a provision in the lease that prohibits
assignment of rights under the lease without the
21 consent of the lessor.
22 This is not contradicted by [IK/S]. And that in and of
itself would constitute cause to grant relief from stay
23 under (d)(1).
24 Hr’g Tr. 5:24—6:10.
25 The bankruptcy court also noted, as a second reason for its
26 decision, that no lease payments had been made. The court
27 acknowledged that if a lessor accepts payments from a party other
28 than the lessee which is in possession of the property subject to
5
1 a lease, an argument could be made “not always, but sometimes”
2 that the lessor had waived the anti-assignment provision in the
3 lease. Hr’g Tr. 6:11-17. However, the bankruptcy court did not
4 find that such a waiver had occurred in this case. Instead, the
5 bankruptcy court concluded that Direct Capital had satisfied its
6 burden under § 362(d)(1) of showing “cause” and granted relief
7 from stay. It did not address Direct Capital’s claim for relief
8 under § 362(d)(2).
9 The bankruptcy court entered its order granting Direct
10 Capital’s motion for relief from the automatic stay on April 8,
11 2011. IK/S filed a timely appeal on April 12, 2011.
12 JURISDICTION
13 The bankruptcy court had jurisdiction under
28 U.S.C. § 1334
14 and 157(b)(2)(G). We have jurisdiction under
28 U.S.C. § 158.
15 ISSUE
16 Whether the bankruptcy court abused its discretion in
17 granting relief from stay to Direct Capital under § 362(d)(1)?
18 STANDARD OF REVIEW
19 An order granting relief from the automatic stay is reviewed
20 for abuse of discretion. Kronemyer v. Am. Contractors Indem.
21 Co. (In re Kronemyer),
405 B.R. 915, 919 (9th Cir. BAP 2009). In
22 applying the abuse of discretion standard, we first "determine de
23 novo whether the [bankruptcy] court identified the correct legal
24 rule to apply to the relief requested." United States v.
25 Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If the
26 correct legal rule was applied, we then consider whether its
27 "application of the correct legal standard was (1) illogical,
28 (2) implausible, or (3) without support in inferences that may be
6
1 drawn from the facts in the record."
Id. Only in the event that
2 one or more of these three apply are we then able to find that
3 the bankruptcy court abused its discretion.
Id.
4 DISCUSSION
5 As a preliminary matter, we note that the bankruptcy court
6 granted Direct Capital’s motion only under § 362(d)(1), finding
7 adequate “cause” for relief because IK/S was not a lessee under
8 the Lease, and consequently, that the Lease was not property of
9 the estate. As a result, the extensive discussion in IK/S’s
10 appellate brief concerning § 362(d)(2), its “equity” in the
11 leased equipment, and its critical need for the equipment to
12 reorganize, is largely irrelevant in this appeal.4 The standards
13 for relief set forth in §§ 362(d)(1) and (d)(2) are independent
14 and alternative. Can-Alta Props., Ltd. v. State Sav. Mortg. Co.
15 (In re Can-Alta Props., Ltd.),
87 B.R. 89, 92 (9th Cir. BAP
16
17 4
As discussed below, the Panel affirms the bankruptcy
court’s decision to grant relief from stay under § 362(d)(1), and
18 did not consider in its deliberations IK/S’s arguments under
19 § 362(d)(2). Nevertheless, subsequent developments disclosed by
counsel for IK/S at the Panel hearing undercut IK/S’s argument
20 that the Lease and equipment were necessary for reorganization.
Counsel informed the Panel that he had filed IK/S’s disclosure
21 statement and plan of reorganization the previous day. See
Disclosure Statement at dkt. no. 122. Page 9 of the Disclosure
22
Statement states that the restaurant and all assets of IK/S were
23 sold and executory contracts were assigned to the new owners,
with the sale and assignment closing on September 14, 2011, or
24 one week before the hearing before the Panel. IK/S had received
the proceeds from the sale and filed a liquidation plan.
25 Excluded from the sale and assignment were the Lease and
26 equipment at issue in this appeal. See Asset Purchase Agreement
¶ 1.2(g) at dkt. no. 101. Thus, contrary to the repeated
27 arguments of IK/S that the equipment was necessary for a possible
sale and reorganization, the sale was completed and a liquidation
28 plan filed without including the Lease or the equipment.
7
1 1988). In other words, relief from stay may be granted for
2 “cause" under subsection (d)(1) despite the existence of debtor’s
3 equity in the property, or its need for the property in its
4 reorganization. Id.
5 Similarly, IK/S’s discussion of adequate protection in this
6 context is also less than helpful. While a “cause” for stay
7 relief explicitly referenced in § 362(d)(1) is a lack of adequate
8 protection, it is but one example of cause, rather than the
9 exclusive ground for relief under § 362(d)(1). Ellis v. Parr
10 (In re Ellis),
60 B.R. 432, 435 (9th Cir. BAP 1985). Instead,
11 what constitutes cause to terminate the stay is determined on a
12 case by case basis. Delaney-Morin v. Day (In re Delaney-Morin),
13
304 B.R. 365, 369 (9th Cir. BAP 2003) (citing MacDonald v.
14 MacDonald (In re MacDonald),
755 F.2d 715, 717 (9th Cir. 1985)).
15 Finally, under § 362(g)(2), the party seeking to preserve
16 the stay, in this case IK/S, had the ultimate burden of proof on
17 whether good cause existed to justify relief from the stay. In
18 re Ellis,
60 B.R. at 435.5
19
5
20 At oral argument, counsel for IK/S insisted that Direct
Capital had not sought relief under § 362(d)(1) in that it had
21 not “checked that box” on the form motion for relief from stay
used in the Central District of California bankruptcy court.
22
Consequently, counsel argued, IK/S was not required and had no
23 reason to make an offer of adequate protection to Direct Capital
before the motion hearing. After review of the record, it
24 appears counsel’s representation is incorrect. On its form
motion, Direct Capital checked the boxes marked “3. Grounds for
25 Relief from Stay: (a) Pursuant to
11 U.S.C. § 362(d)(1), cause
26 exists to grant Movant the requested relief from stay as follows:
(1) Movant’s interest in the Property is not adequately
27 protected.” IK/S Excerpts of Record at p. 7; see also dkt. no.
43 at p. 3. Counsel’s argument is also not consistent with
28 (continued...)
8
1 After its review of the record, the bankruptcy court found
2 that the only relevant evidence submitted showed that the Lease
3 had been entered into by entities other than IK/S as lessee, and
4 that the Lease expressly prohibited assignment of “rights under
5 the lease or the lessee’s interest in the Lease without the
6 consent of the lessor.” Hr’g Tr. 6:1-7. Since insufficient
7 evidence was presented by IK/S to prove that Direct Capital had
8 consented to any assignment, the bankruptcy court concluded that
9 IK/S had no cognizable interest in the Lease. The bankruptcy
10 court did not err in its decision.
11 If a chapter 11 debtor has no interest in a leased property,
12 it is not property of the bankruptcy estate. Arizona Appetito’s
13 Stores, Inc. v. Paradise Vill. Investment Co. (In re Arizona
14 Appetito’s Stores, Inc.),
893 F.2d 216, 218 (9th Cir. 1990).6
15 Because IK/S was not a party to the Lease, the enforcement of the
16 Lease is a matter between Direct Capital and the Original
17 Lessees, Ivan Kane Enterprises, Inc. and The Gin Joint, LLC.
18 Since these are all nondebtor parties, that contest must be
19
20 5
(...continued)
IK/S’s opposition to the stay relief motion it filed in the
21 bankruptcy court, where IK/S devoted most of three pages to
22 responding to Direct Capital’s § 362(d)(1) arguments. IK/S
Excerpts of Record at pp. 63-65; see also dkt. no. 56 at 9-11.
23
6
In a brief comment at the hearing in the bankruptcy
24 court, IK/S argues that “the issue that was raised by counsel a
number of times about it not being property of the estate, [§]
25 541 is very clear that this is — that a lease is property of the
26 estate. The Debtor has an equitable certainly interest in the
lease and the use of the equipment.” Hr’g Tr. 4:17-21. Although
27 IK/S is correct that “a” lease may be property of the estate
under § 541(a), IK/S has not shown through the facts of this case
28 that “this” Lease was property of its bankruptcy estate.
9
1 adjudicated in state court. As the Ninth Circuit has long held,
2 “cause” exists for relief from stay under § 362(d)(1) where the
3 issues are more appropriately adjudicated in a state court.
4 Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.),
5
912 F.2d 1162, 1169 (9th Cir. 1990); Piombo Corp. v. Castlerock
6 Props. (In re Castlerock Props.),
781 F.2d 159, 163 (9th Cir.
7 1986).
8 The commencement of a bankruptcy case creates an estate
9 comprised of all legal or equitable interests of the debtor in
10 property, wherever located and by whomever held, as of the
11 commencement of the case. § 541(a)(1). Although § 541 provides
12 the framework for determining the scope of the bankruptcy estate,
13 it does not provide the rules for determining whether the debtor
14 has an interest in property in the first place. Instead, the
15 bankruptcy court must look to state law to determine whether, and
16 to what extent, the debtor has any legal or equitable interests
17 in property as of the commencement of the case. Butner v. United
18 States,
440 U.S. 48, 54-55 (1979) ("Congress has generally left
19 the determination of property rights in the assets of a
20 bankrupt's estate to state law. . . . Unless some federal
21 interest requires a different result, there is no reason why such
22 interests should be analyzed differently simply because an
23 interested party is involved in a bankruptcy proceeding.");
24 Gaughan v. Edward Dittlof Rev. Tr. (In re Costas), 555 F.3d 790,
25 794 (9th Cir. 2009).
26 The bankruptcy court’s analysis in this case is consistent
27 with the law of New Hampshire. The Lease contains two choice of
28 law clauses governing its interpretation, both instructing that
10
1 its terms are to be interpreted using New Hampshire law. A forum
2 selection clause in a contract is presumptively valid. Doe 1 v.
3 AOL LLC,
552 F.3d 1077, 1083 (9th Cir. 2009) (citing M/S Bremen
4 v. Zapata Off-Shore Co.,
407 U.S. 1, 17 (1972)).
5 As a general rule, the courts of New Hampshire will enforce
6 a contract according to the plain meaning of its terms, and when
7 interpreting a contract, the “inquiry focuses on the intent of
8 the contracting parties at the time of the agreement.” R. Zoppo
9 Co. v. City of Dover,
124 N.H. 666, 671,
475 A.2d 12, 16 (N.H.
10 1984). “In the absence of ambiguity, the parties' intent will be
11 determined from the plain meaning of the language used. The
12 words and phrases used by the parties will be assigned their
13 common meaning, and we will ascertain the intended purpose of the
14 contract based upon the meaning that would be given to it by a
15 reasonable person.” Greenhalgh v. Presstek,
152 N.H. 695, 698,
16
886 A.2d 1000, 1003 (N.H. 2005).
17 IK/S has not suggested that terms of the Lease are in any
18 fashion ambiguous. Specifically, it has not questioned the
19 meaning of the provisions of the Lease prohibiting an assignment
20 of lessee rights by the Original Lessees absent the written
21 consent of the lessor, and prescribing that no waiver of the
22 Lease’s terms is permitted without written approval of the
23 lessor. IK/S has not argued, nor submitted any evidence to show,
24 that Direct Capital was notified and consented to the assignment
25 of the Lease from the Original Lessees to IK/S. Instead, IK/S
26 argues that Direct Capital impliedly waived the anti-assignment
27 provisions in the Lease by accepting lease payments directly from
28 IK/S.
11
1 Assuming IK/S did indeed make direct lease payments at some
2 time to Direct Capital, the New Hampshire Supreme Court has
3 considered a similar case of an equipment lease agreement and its
4 purported assignment. As in this appeal, in Prime Fin. Group v.
5 Masters,
676 A.2d 528 (N.H. 1996), the lease agreement precluded
6 the assignment of the lessee’s rights without the written consent
7 of the lessor.
Id. at 529. The lease agreement also contained a
8 provision forbidding a waiver of any of the lessor’s rights under
9 the lease unless the waiver was in writing.
Id. Despite these
10 provisions, the lessee in Masters assigned its rights to another
11 party without the lessor’s consent.
Id. However, unlike the
12 facts here, the original lessee notified the lessor of the
13 assignment, and sought its consent. While the lessor did not
14 grant consent, it thereafter accepted payments from the assignee.
15 A jury in the trial court determined, based on the facts, that
16 the parties to the lease had agreed to waive the contractual
17 provision requiring assignments of the lease to be in writing,
18 and that the lessor had effectively agreed to the assignment, as
19 indicated by its conduct. The New Hampshire Supreme Court found
20 no error in the trial court proceedings, concluding that a waiver
21 of the anti-assignment provisions could be implied by the conduct
22 of the parties.
Id.
23 We believe a fair view of Masters would require that the
24 bankruptcy court enforce an anti-assignment clause in a lease
25 unless, as the trier of fact, it finds that the parties had
26 agreed to modify that provision. However, the lessor in Masters
27 had not only accepted payments from the assignee, he had been
28 notified earlier of the assignment, and requested to consent
12
1 prior to acceptance of lease payments from the purported
2 assignee. In other words, it was the lessor’s acceptance of
3 lease payments with both the knowledge of their source, and that
4 there had been an assignment of the lease, that constituted
5 evidence of an implied, mutual agreement to modify the anti-
6 assignment clause which was accepted by the trial jury and
7 ultimately approved by the New Hampshire Supreme Court.
8 In this appeal, IK/S offered no evidence to the bankruptcy
9 court to show that the Original Lessees or IK/S had notified
10 Capital Network or Direct Capital of the assignment of the
11 lessee’s interest to IK/S, nor was the lessor’s consent to an
12 assignment ever sought or obtained. Instead, IK/S bases its
13 argument that there was waiver on the Kane declaration in the
14 bankruptcy case by alleging, merely, that “[IK/S] has made all of
15 the payments in the amount of $40,579.55 on the Lease.” IK/S
16 repeats this precise claim in its appellate brief. IK/S Op. Br.
17 at 2. While these words appear to be carefully selected, and
18 imply that IK/S made all payments required under the Lease, as
19 confirmed by IK/S’s attorney at oral argument, a more precise
20 statement, according to the supporting documentation provided by
21 IK/S in the record, would be that “All payments that were made on
22 the Lease were made by IK/S.” Indeed, it is undisputed that no
23 payments on the Lease were made in the nine months prior to the
24 hearing on the stay relief motion.7
25
7
26 The supporting documentation for IK/S’s claim that it was
the source of payments made on the Lease is a one-page list,
27 headed “IK/S BAR, LLC Equipment Leasing Expense Record.” It is a
simple three column chart that includes the date, vendor (all
28 (continued...)
13
1 Given the evidence submitted by IK/S, the bankruptcy court
2 did not err in its finding that “no payments have been made.”
3 Hr’g Tr. 6:11-12. The bankruptcy court followed this finding
4 with an explanation that “if payments had been made consistently
5 and they’re accepted by a lessor from someone who is in
6 possession of property subject to a lease who is not the lessee,
7 an argument can be made – not always, but sometimes can be made
8 with regards to a waiver of the anti-assignment provision. But
9 I’ve reviewed the motion and the opposition very carefully, and
10 the moving party has carried its burden under Section 362(d)(1).
11 Based upon the foregoing findings of fact and conclusions of law,
12 the motion is granted.” Hr’g Tr. 6:11–21.
13 The Lease included an anti-assignment clause. Consistent
14 with the New Hampshire case law, it appears the bankruptcy court
15 considered whether the parties by their conduct had waived the
16 anti-assignment clause where the lessor purportedly accepted
17 payments from the assignee. The bankruptcy court declined to
18 accept the evidence presented by IK/S as adequate to show that it
19 had made all of the required payments under the lease to Direct
20 Capital.
21 Whether Direct Capital had impliedly consented to the
22 Original Lessees’ assignment of the Lease to IK/S was a question
23
7
24 (...continued)
Direct Capital), and amount of alleged payments. No copies of
25 cancelled checks or other proof of the details of the alleged
26 payments to Direct Capital were offered. Moreover, the record
also reflects that the business address of the Original Lessees
27 is the same as the address of IK/S, and the name of one of the
Original Lessees, Ivan Kane Enterprises, Inc., is similar to the
28 d/b/a of IK/S, Ivan Kane’s Café.
14
1 of fact. Masters, 676 A.2d at 531. That IK/S made some, but not
2 all of the required lease payments directly to Direct Capital, is
3 some evidence that Direct Capital consented to the assignment of
4 the Lease, but the bankruptcy court declined to so find. Where
5 there are two permissible views of the evidence, the fact-
6 finder’s choice between them cannot be clearly erroneous. United
7 States v. Working,
224 F.3d 1093, 1102 (9th Cir. 2000)(en banc).
8 We conclude that, on this record, the bankruptcy court did
9 not abuse its discretion in granting relief from stay under
10 § 362(d)(1) because the Lease was assigned to IK/S in violation
11 of its terms.
12 CONCLUSION
13 We AFFIRM the decision of the bankruptcy court.
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