FILED
JAN 29 2019
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. CC-18-1132-KuTaF
ETTA HINDRA, Bk. No. 2:16-bk-10297-SK
Debtor.
ETTA HINDRA,
Appellant,
v. MEMORANDUM*
KATHY A. DOCKERY, Chapter 13
Trustee; UNITED STATES TRUSTEE;
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Morgan
Stanley Mortgage Loan Trust 2005-6AR,
Appellee.
Argued and Submitted on January 24, 2019
at Pasadena, California
Filed – January 29, 2019
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Appeal from the United States Bankruptcy Court
for the Central District of California
Honorable Sandra R. Klein, Bankruptcy Judge, Presiding
Appearances: Appellant Etta Hindra argued pro se.
Before: KURTZ, TAYLOR, and FARIS, Bankruptcy Judges.
Debtor Etta Hindra appeals from the bankruptcy court's order
denying her motion to vacate dismissal and reopen her bankruptcy case.
We AFFIRM.
FACTS
In January 2016, Ms. Hindra filed an incomplete chapter 131 case with
the help of an attorney. A few weeks later, she filed her chapter 13 plan and
other required documents. Shortly after, Ms. Hindra substituted in pro se.
Deutsche Bank National Trust Company as Trustee for Morgan
Stanley Mortgage Loan Trust 2005-6AR, its assignees and/or successors, by
and through its servicing agent PNC Mortgage, a division of PNC Bank,
N.A. (Deutsche), objected to confirmation of Ms. Hindra's plan because
(1) it failed to provide for payment on almost $300,000 in pre-petition
arrearages owed to Deutsche on her home mortgage; and (2) it was not
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code,
11 U.S.C. §§ 101-1532, and “Rule” references are to the Federal Rules
of Bankruptcy Procedure.
2
feasible due to Ms. Hindra's monthly disposable income of $405. CAM XIV
Trust objected to Ms. Hindra's plan on similar grounds. The chapter 13
trustee (Trustee) also objected to her plan on several grounds, including
Ms. Hindra's failure to (1) disclose numerous claims; (2) provide
information regarding her previous bankruptcies; and (3) provide evidence
of plan payments.
At the confirmation hearing, Trustee's counsel recommended
dismissal of Ms. Hindra's case based on feasibility and requested a 180-day
bar due to her failure to disclose claims which she had scheduled in a prior
bankruptcy case and based on her filing history. The bankruptcy court
entered an order dismissing the case with a 180-day bar.
Thereafter, Ms. Hindra filed a motion to vacate the dismissal, which
the bankruptcy court denied. At the same time, the bankruptcy court
declined to retain jurisdiction over an adversary proceeding and issued an
order dismissing it.2
Ms. Hindra appealed these orders to the Bankruptcy Appellate Panel
(BAP). The BAP dismissed both appeals for failure to prosecute.
On March 2, 2017, the bankruptcy court clerk's office entered an
order closing Ms. Hindra's bankruptcy case.
2
Ms. Hindra had filed an adversary complaint against Deutsche and others
alleging that the defendants lacked standing to foreclose on her property and violated
multiple federal and state laws.
3
A few days later, Ms. Hindra appealed the BAP's dismissals of her
appeals to the Ninth Circuit. The Ninth Circuit eventually dismissed the
appeals.
In April 2017, Ms. Hindra filed a motion to reopen her bankruptcy
case. The bankruptcy court entered an order granting the motion.
Ms. Hindra then filed a request to vacate the dismissal of her case. She did
not notice the motion for hearing. In March 2018, her case was again closed.
She then filed the motion to vacate the dismissal and reopen her
bankruptcy case which is connected to this appeal. Her motion was based
on the following: her computer was stolen which prevented her from filing
her motion to vacate and reopen sooner, she had filed a motion to reinstate
the appeals in the Ninth Circuit, and the bankruptcy court would be able to
reverse its own judgment.
At the May 10, 2018 hearing, the bankruptcy court denied her
motion. First, the court noted that under its local bankruptcy rule (LBR)
5010-1(a), a motion to reopen must not contain a request for any other
relief, and a request for relief other than the reopening of a case (including
relief based on the grounds for reopening) must be made in a separate
motion or adversary proceeding which may be filed concurrently with the
motion to reopen. Since Ms. Hindra's motion contained a request for relief
from the dismissal order in addition to the request that the case be
reopened, the court stated that it should not consider or rule on her request
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to vacate the dismissal order.
Further, the court observed that Ms. Hindra appealed the order
dismissing her case and the order dismissing her adversary proceeding to
the BAP and the Ninth Circuit without success. Therefore, both orders
were final.
Finally, applying the standards for reopening a bankruptcy case, the
court found no purpose would be served by reopening the case. In
addition, because Ms. Hindra's case was dismissed, it was not fully
administered and thus could not be reopened under § 350(b).
Ms. Hindra filed a timely appeal from the bankruptcy court's order
denying her motion to vacate dismissal and reopen the bankruptcy case.
JURISDICTION
The bankruptcy court had jurisdiction pursuant to
28 U.S.C. §§ 1334
and 157(b)(1). We have jurisdiction under
28 U.S.C. § 158.
ISSUE
Whether the bankruptcy court erred in denying Ms. Hindra's motion
to vacate dismissal and reopen the bankruptcy case.
STANDARD OF REVIEW
We review for an abuse of discretion the bankruptcy court's
application of its local rules. See United States v. Heller,
551 F.3d 1108, 1111
(9th Cir. 2009). We also review for abuse of discretion the denial of a
motion to reopen a bankruptcy case. Staffer v. Predovich (In re Staffer), 306
5
F.3d 967, 971 (9th Cir. 2002).
A bankruptcy court abuses its discretion if it applies the wrong legal
standard, misapplies the correct legal standard, or if it makes factual
findings that are illogical, implausible, or without support in inferences
that may be drawn from the facts in the record. See TrafficSchool.com, Inc. v.
Edriver Inc.,
653 F.3d 820, 832 (9th Cir. 2011) (citing United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
DISCUSSION
The bankruptcy court did not err in denying Ms. Hindra's request to
vacate the dismissal of her case. Ms. Hindra sought to vacate the dismissal
in the motion where she also requested reopening of her bankruptcy case.
Under LBR 5010–1(a), "The motion [to reopen a closed bankruptcy case]
must not contain a request for any other relief." Under LBR 5010–1(b), "A
request for any relief other than the reopening of a case, including relief
based upon the grounds for reopening the case, must be made in a separate
motion or adversary proceeding, which may be filed concurrently with the
motion to reopen." Pursuant to LBR 5010-1(a) and (b), the bankruptcy court
was well within its discretion to deny Ms. Hindra's request to vacate the
dismissal of her bankruptcy case. Furthermore, Ms. Hindra had previously
appealed the dismissal order to the BAP and the Ninth Circuit and was
unsuccessful. There was thus no reason for the bankruptcy court to vacate
the order.
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The bankruptcy court also did not abuse its discretion by denying
Ms. Hindra's motion to reopen her case because the statute precluded her
from doing so. Section 350(a) provides that a case shall be closed "[a]fter an
estate is fully administered and the court has discharged the trustee[.]" The
Ninth Circuit has held that a "dismissed" case cannot be reopened under
§ 350(b) because it was not "closed" under § 350(a) following the
administration of the estate. Armel Laminates, Inc. v. Lomas & Nettleton Co.
(In re Income Prop. Builders, Inc.),
699 F.2d 963, 965 (9th Cir. 1982) (per
curiam). Ms. Hindra's case was dismissed upon Trustee's request for
numerous reasons including, among others, her failure to make disclosures
and provide information regarding her previous cases. Her case was not
closed following the administration of her estate and thus could not be
reopened under § 350(b).
We have liberally construed Ms. Hindra's pleadings due to her pro se
status. Kashani v. Fulton (In re Kashani),
190 B.R. 875, 883 (9th Cir. BAP
1995). Nonetheless, even the most liberal reading of her pleadings reveals
no arguments relevant to the order on appeal. We disregard these
irrelevant arguments. Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999).
CONCLUSION
For the reasons stated, we AFFIRM.
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