In re: Javier Jimenez ( 2020 )

FILED
MAR 3 2020
NOT FOR PUBLICATION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 Nos. CC-19-1177-TaLG
CC-19-1186-TaLG
JAVIER JIMENEZ,
Bk. No. 2:19-bk-12271-VZ
Debtor.
JAVIER JIMENEZ,
Appellant,
v. MEMORANDUM*
ARCPE 1, LLP, AKA ARCPE HOLDING,
LLC; NANCY K. CURRY, CHAPTER 13
TRUSTEE,
Appellees.
Argued and Submitted on January 30, 2020
at Pasadena, California
Filed – March 3, 2020
*
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 Vincent P. Zurzolo, Bankruptcy Judge, Presiding
Appearances: Appellant Javier Jimenez argued pro se, assisted by
translator Victor Rivera; Sevan Gorginian argued for
appellee ARCPE 1, LLP aka ARCPE Holding, LLC;
Masako Okuda argued for appellee Nancy K. Curry,
Chapter 13 Trustee
Before: TAYLOR, LAFFERTY, and GAN, Bankruptcy Judges.
INTRODUCTION
Here we consider related appeals.
First, chapter 131 debtor Javier Jimenez challenges an order
dismissing his bankruptcy case2 (the “Dismissal Order”). But he failed to
promptly propose a confirmable plan, produce documents to the
chapter 13 trustee, and otherwise to perform his debtor duties. We see no
error in the dismissal and, therefore, we AFFIRM the Dismissal Order.
He also challenges an order (the “Stay Relief Order”) granting
appellee ARCPE 1, LLP (“ARCPE”) § 362(d)(1) and (d)(4) relief from the
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal
Rules of Bankruptcy Procedure.
2
Appeal No. CC-19-1186.
2
automatic stay to foreclose on his residence located in Los Angeles,
California (the “Property”).3 Given our affirmance of case dismissal, we
DISMISS the § 362(d)(1) stay relief appeal as MOOT; we cannot reimpose
the stay in a dismissed case.
But the appeal of the § 362(d)(4) stay relief is not moot. Because in rem
relief may impact future cases, we can grant effective relief on appeal. And
ARCPE did not support its § 364(d)(4) stay relief request with evidence or
argument beyond reference to three bankruptcies filed over the last decade
and the unadorned assertion that this constitutes the inappropriate scheme
required for in rem relief. The record adds no additional supportive
evidence. And the bankruptcy court made no findings supporting this
relief beyond a reference to the three cases and the conclusion that this
evidenced the statutorily required scheme. As the mere filing of three
bankruptcies over a 10-year period does not unfailingly equate to a scheme
to delay, hinder, or defraud creditors, we REVERSE the Stay Relief Order
to the extent it grants § 362(d)(4) relief.
FACTS
The following facts are primarily reconstructed from the bankruptcy
court’s dockets.4
3
Appeal No. CC-19-1177.
4
Mr. Jimenez did not timely or appropriately comply with Rules 8014(a)(8) and
8018(a), (b)(1), and (c) in connection with his briefing and submission of the record.
(continued...)
3
The Property and Deeds of Trust
Mr. Jimenez and his non-debtor spouse, Julieta Jimenez, co-own the
Property. In 2008, they borrowed money from Wells Fargo Bank, N.A.5 and
E-Loan, Inc. (“E-Loan”) and secured their indebtedness by deeds of trust
on the Property. E-Loan’s lien under its deed of trust (the “Deed of Trust”)
was second in priority. ARCPE claims interests in the Deed of Trust and
related note (the “Note”) through a series of assignments.
The Bankruptcies
The First Bankruptcy
The Jimenezes defaulted on Wells Fargo’s loan. Accordingly, it
scheduled a foreclosure sale for August 12, 2009. But on that day, the
Jimenezes filed a chapter 13 case (In re Jimenez, 09-bk-31209-SK) (the
4
(...continued)
Such noncompliance may be grounds for affirmance or waiver of issues. See Mitchel v.
General Elec. Co., 689 F.2d 877, 878–79 (9th Cir. 1982); McCarthy v. Prince (In re McCarthy),
230 B.R. 414, 416–17 (9th Cir. BAP 1999); 9th Cir. BAP R. 8018(a)-1(c). Nevertheless,
given Mr. Jimenez’s pro se status, we accept and consider his briefing, as well as the
attached transcripts. We also exercise our discretion to take judicial notice of documents
electronically filed in his bankruptcy cases and related adversary proceeding. See
Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n. 9 (9th Cir. BAP
2003). But we do not consider any evidence attached to his appellate briefing that was
not filed in the bankruptcy court. See Encino Bus. Mgmt. v. Prize Frize, Inc. (In re Prize
Frize, Inc.), 150 B.R. 456, 461 (9th Cir. BAP 1993).
5
At some point, Federal Home Loan Mortgage Corporation, as Trustee for the
benefit of the Seasoned Credit Risk Transfer Trust, Series 2018-2 (“FHLM Corp.”),
acquired Wells Fargo Bank, N.A.’s secured claim. We refer to FHLM Corp. and
Wells Fargo jointly as “Wells Fargo” herein.
4
“First Case”). They asserted that Wells Fargo’s senior lien overencumbered
the Property, and, thus, they also filed an adversary complaint to avoid the
Deed of Trust pursuant to § 506(a) and (d). The bankruptcy court
eventually entered a default judgment, avoiding the Deed of Trust lien on
the condition that the Jimenezes complete their confirmed chapter 13 plan
and receive a discharge.
Neither condition subsequent occurred. Almost two years into the
case, Wells Fargo moved for stay relief to continue its foreclosure and, after
a failed attempt at resolution through an adequate protection stipulation,
the Jimenezes dismissed the First Case.
The Second Bankruptcy
The Jimenezes filed a second chapter 13 case (In re Jimenez,
12-bk-34474-SK) (the “Second Case”) pro se one day before dismissing the
First Case. The stay as to the Property promptly terminated by operation of
§ 362(c)(3)(A).
The Jimenezes failed to provide notice of this Second Case and all
relevant filings therein to BLB Trading, LLC (“BLB”), the then holder of the
Note. They neither scheduled BLB as a creditor nor provided for payment
to it under their confirmed chapter 13 plan.
In May 2013, the Jimenezes obtained a loan modification from
Wells Fargo and dismissed the Second Case without receiving a discharge.
The Third Bankruptcy
5
Thereafter ARCPE became the Deed of Trust beneficiary, the
Jimenezes made no payments on the Note, and it matured. Accordingly,
ARCPE scheduled a foreclosure sale of the Property.
Mr. Jimenez stopped the foreclosure by filing his third chapter 13
case (In re Jimenez, 19-bk-12271-VZ) (the “Third Case”). ARCPE then filed a
$262,131.60 secured claim. His chapter 13 plan did not provide for
ARCPE’s claim.
ARCPE’s Motion for Relief from Stay
ARCPE moved for relief from the automatic stay (the “Stay Relief
Motion”) to continue its foreclosure for cause under § 362(d)(1) and based
on an alleged scheme to delay, hinder, or defraud creditors under
§ 362(d)(4).
Mr. Jimenez filed opposition in which he asserted, without
admissible evidence or authority, that ARCPE did not have a legitimate
secured claim. He also asserted that he filed bankruptcy in good faith.
At the hearing on the Stay Relief Motion, Mr. Jimenez appeared
pro se with an uncertified interpreter, Victor Rivera. The bankruptcy court
allowed Mr. Rivera to translate even though Mr. Jimenez confirmed that he
had personally read, understood, and prepared the opposition to the Stay
Relief Motion. After hearing argument, the bankruptcy court observed that
ARCPE had met its burden to establish a colorable secured claim. It then
found that ARCPE presented admissible evidence that Mr. Jimenez:
6
(1) filed multiple bankruptcies; and (2) failed to make postpetition
payments as they came due on the Note.
On July 18, 2019, the court entered a form Stay Relief Order, granting
the Stay Relief Motion pursuant to both § 362(d)(1) and (d)(4). The order
contained a bald finding that Mr. Jimenez was involved in a scheme to
delay, hinder, or defraud creditors that involved multiple bankruptcies
affecting the Property.
The Trustee’s Motion to Dismiss
At the § 341(a) meeting of creditors and in an objection to
confirmation of the chapter 13 plan, the Trustee raised numerous case
deficiencies (the “Issues”): (1) improper service of the plan and related
notice; (2) significant plan shortcomings, including failures to meet
§ 1325(a)(4) liquidation requirements, to contribute all of Mr. Jimenez’s
disposable income, and to provide for all claims; (3) missing mandatory
filings; (4) incomplete and inaccurate Schedule disclosures; and
(5) significant unfulfilled document requests. Mr. Jimenez neglected to
address these Issues. Accordingly, and because he also missed a plan
payment, the Trustee moved to dismiss the case (the “Dismissal Motion”).
At the Dismissal Motion hearing, the Trustee confirmed that, while
Mr. Jimenez was now current on plan payments and had produced his
2017 tax returns, he failed to remedy the other Issues. Mr. Jimenez
appeared pro se, was again assisted by his uncertified interpreter,
7
Mr. Rivera, and offered no excuse for his failures. He merely stated that he
wanted the case to remain open to protect the Property from ARCPE.
The bankruptcy court then entered its Dismissal Order based on the
failure to adequately remedy the Issues.
The Appeals
Mr. Jimenez timely appealed from the Stay Relief Order and the
Dismissal Order. He requested a stay pending the appeals, which we
denied. ARCPE also moved to dismiss the stay relief appeal as moot
because the Third Case was dismissed and it had a scheduled foreclosure
sale. We denied its motion.
At oral argument, ARCPE confirmed that it had not completed its
foreclosure. And Mr. Rivera, who appeared at oral argument as a
“translator,” eventually acknowledged that after case dismissal: (1)
Mr. Jimenez granted him an interest in the Property; and (2) he filed his
own bankruptcy. See In re Rivera, 19-bk-20664-SK.6
JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334
and 157(b)(2)(A) and (G). Subject to the mootness discussion below, we
have jurisdiction under 28 U.S.C. § 158.
6
After oral argument, the presiding judge in Mr. Rivera’s bankruptcy case
entered an order granting ARCPE § 362(d)(1) and (d)(4) relief to foreclose on the
Property. Mr. Rivera has appealed the order to this Panel.
8
ISSUES
1. Did the bankruptcy court abuse its discretion when it dismissed
the Third Case?
2. Is Mr. Jimenez’s appeal of the Stay Relief Order moot?
3. Did the bankruptcy court err when it determined that ARCPE had
standing to file and prosecute the Stay Relief Motion?
4. Did the bankruptcy court abuse its discretion when it granted
ARCPE stay relief?
5. Was the bankruptcy court biased against Mr. Jimenez?
STANDARD OF REVIEW
We review mootness and standing issues de novo. Suter v. Goedert,
504 F.3d 982, 985 (9th Cir. 2007) (mootness); Mayfield v. United States,
599 F.3d 964, 970 (9th Cir. 2010) (standing).
We review the bankruptcy court’s orders dismissing a chapter 13
bankruptcy case and granting relief from the automatic stay for an abuse of
discretion. Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R.
904, 914 (9th Cir. BAP 2011) (dismissal); First Yorkshire Holdings, Inc. v.
Pacifica L 22, LLC (In re First Yorkshire Holdings, Inc.), 470 B.R. 864, 868
(9th Cir. BAP 2012) (relief from stay).
A bankruptcy court abuses its discretion if it applies an incorrect
legal standard, misapplies the correct legal standard, or makes factual
findings that are illogical, implausible, or not supported by the record.
9
United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). We
may affirm on any ground fairly supported by the record. Leavitt v. Soto (In
re Leavitt), 171 F.3d 1219, 1223 (9th Cir. 1999).
The bankruptcy court did not abuse its discretion by dismissing the case.
Section 1307(c) provides that the bankruptcy court may either dismiss
a chapter 13 case or convert it to chapter 7 for cause, “whichever is in the
best interests of creditors and the estate.” It must first consider “cause”
based on a list of nonexclusive grounds set forth in § 1307(c)(1)–(11). Nelson
v. Meyer (In re Nelson), 343 B.R. 671, 675 (9th Cir. BAP 2006). If “cause”
exists, it then must elect between conversion or dismissal. Id.
Although the bankruptcy court did not explicitly identify the basis
for dismissal, we conclude that the record strongly supports dismissal
under § 1307(c)(1): “unreasonable delay by the debtor that is prejudicial to
creditors.” 11 U.S.C. § 1307(c)(1). “A debtor’s unjustified failure to
expeditiously accomplish any task required either to propose or confirm a
chapter 13 plan may constitute cause for dismissal under § 1307(c)(1).” de la
Salle v. U. S. Bank, N.A. (In re de la Salle), 461 B.R. 593, 605 (9th Cir. BAP
2011) (quoting Ellsworth, 455 B.R. at 915).
Here, over three months passed between the time the Trustee notified
Mr. Jimenez of the Issues and the Dismissal Motion hearing. At the
hearing, Mr. Jimenez neither denied nor attempted to justify his failure to
resolve the Issues. Nor did he contest that his failures prejudiced creditors.
10
On this record, the bankruptcy court did not err in finding that cause
existed to dismiss or convert the case.
Finding cause existed under § 1307(c), the bankruptcy court was
obliged to then determine whether dismissal or conversion would be in the
best interests of creditors and the estate. Nelson, 343 B.R. at 675. The record
provides no evidence of the bankruptcy court’s deliberations in this regard.
But Mr. Jimenez did not request conversion as an alternative to dismissal
and did not raise the issue on appeal. And in this case, the record entirely
supports that dismissal is the best option from a creditor’s perspective.
Accordingly, we affirm the Dismissal Order.
Our affirmance of case dismissal moots the appeal of § 362(d)(1) relief.
ARCPE asserts that case dismissal moots the stay relief appeal. We
agree, in part.
We lack jurisdiction over a moot appeal. Ellis v. Yu (In re Ellis),
523 B.R. 673, 677 (9th Cir. BAP 2014). An appeal is moot if, at the time it is
pending, the issues do not present a live case or controversy. Id. The test for
mootness is whether the appellate court can grant effective relief to
appellant if appellant prevails on appeal. Id. Because Mr. Jimenez timely
appealed from the Dismissal Order, the appeal from the Stay Relief Order
was not moot because the Panel had the power to restore the bankruptcy
and reverse the Stay Relief Order.
But once we affirm the Dismissal Order, the metrics change and the
11
§ 362(d)(1) appeal is moot. Section 362(c)(2)(B) provides that the stay
terminates at the time the case is dismissed; we cannot reinstate it even if
we disagree with the bankruptcy court.7 See, e.g., Rice v. Dunbar (In re Rice),
357 B.R. 514, 519 (8th Cir. BAP 2006), aff’d, 271 F. App’x 538 (8th Cir. 2008).
But his appeal of the § 362(d)(4) relief is not likewise moot because
we have the power to grant him effective relief regardless of case dismissal.
If such an order is properly recorded, it prevents the debtor from obtaining
the benefits of the automatic stay as to the property at issue in future
bankruptcies. First Yorkshire, 470 B.R. at 871. Thus, it has serious effects
outlasting the duration of the dismissed case. See Alakozai v. Citizens Equity
First Credit Union (In re Alakozai), 499 B.R. 698 (9th Cir. BAP 2013). We have
the power to remedy those effects notwithstanding case dismissal.
Accordingly, we have jurisdiction over the § 362(d)(4) component of
the Stay Relief Order, which we will now address.8
The bankruptcy court did not err in determining that ARCPE had
standing to prosecute the Stay Relief Motion.
7
We note that even were we to address the merits of Mr. Jimenez’s appeal of the
§ 362(d)(1) relief, we would conclude that the bankruptcy court did not abuse its
discretion in granting this relief. See, e.g., Price v. Del. State Police Fed. Credit Union (In re
Price), 370 F.3d 362, 373 (3d Cir. 2004) (persistent failure to make monthly payments
under loan documents can constitute cause for § 362(d)(1) stay relief).
8
As we noted supra, ARCPE has not yet conducted its foreclosure sale. But, until
Mr. Jimenez is legally or physically ousted from possession, even foreclosure will not
moot his § 362(d)(4) appeal. Id.
12
Because Mr. Jimenez is pro se, we liberally construe his brief. See Cruz
v. Stein Strauss Trust # 1361 (In re Cruz), 516 B.R. 594, 604 (9th Cir. BAP
2014). Mr. Jimenez contends that ARCPE does not hold a valid secured
claim. We interpret his contention as a challenge to ARCPE’s standing as a
real party in interest entitled to seek relief from the automatic stay.
Under § 362(d), only a “party in interest” may request stay relief. A
moving party is a “party in interest” in the stay relief context if “it has a
colorable claim to enforce a right against property of the estate.” Veal v. Am.
Home Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897, 914–15 (9th Cir. BAP
2011). Under California law, a trustee, mortgagee, beneficiary, or any of
their agents or successors in interest can initiate nonjudicial foreclosure
proceedings. Debrunner v. Deutsche Bank Nat'l Trust Co., 204 Cal. App. 4th
433, 440–42 (2012); see also Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp.
2d 1092, 1099 (E.D. Cal. 2010)).
ARCPE evidenced its right to enforce the Deed of Trust through
copies of the original Deed of Trust and Corporate Assignments of
Mortgage. These documents sufficiently support its assertion of standing to
foreclose.
In response, Mr. Jimenez claims that (1) the assignments were
fabricated; (2) private mortgage insurance paid the debt under the Note in
full; (3) the Deed of Trust lien was avoided in the First Case; and (4)
ARCPE must prove it “owns the Note.” But he has offered no evidence that
13
ARCPE’s claim is either fabricated or inflated or that private mortgage
insurance paid the Note for his benefit or otherwise.9 And the Deed of
Trust lien was not avoided in his First Case because he dismissed it
without receiving a discharge. Finally, to the extent that he claims ARCPE
must prove it “owns the Note,” he is wrong. As explained supra, ARCPE
need only show that it has the right to commence foreclosure proceedings
to establish standing to prosecute its Stay Relief Motion. It has done so.
We reverse concerning the § 362(d)(4) relief.
But ARCPE has not shown that it was entitled to § 362(d)(4) relief. A
bankruptcy court may grant in rem relief from the automatic stay under
§ 362(d)(4) to prevent schemes using bankruptcy to thwart foreclosures
through one or more real property transfers or bankruptcies. First Yorkshire,
470 B.R. at 870. The bankruptcy court must affirmatively find the existence
of a scheme. Id. at 870–71.
The term “scheme” is not defined in the Code. Some courts have
drawn from Black’s Law Dictionary and defined the term in the context of
§ 362(d)(4) to mean an “intentional artful plot or plan to delay, hinder or
defraud creditors.” See, e.g., In re Duncan & Forbes Dev., Inc., 368 B.R. 27, 32
(Bankr. C.D. Cal. 2006). Thus “[a] scheme is an intentional construct. It does
not happen by misadventure or negligence.” Id.; see also In re Everton
9
At best, he included in his untimely and unauthorized sur-reply, filed on the
eve of the Stay Relief Motion hearing, unauthenticated correspondence discussing the
possibility of a workout for the Note.
14
Aloysius Sterling, 543 B.R. 385, 394 (Bankr. S.D.N.Y. 2015) (“[A] scheme
warranting § 362(d)(4) relief implies a level of insidiousness or
deceitfulness.”).
In moving for § 362(d)(4) relief, ARCPE simply requested that the
bankruptcy court take judicial notice of the Jimenezes’ 2009 and 2012
bankruptcies. Otherwise, it submitted no evidence or even argument to the
bankruptcy court or on appeal that the three cases were part of a scheme to
delay, hinder, or defraud creditors that originated in 2009 and continued
over the decade thereafter. The filing of multiple bankruptcies over a very
extended period of time (as in this case) does not invariably justify the
findings required for § 362(d)(4) relief. 3 Collier on Bankruptcy
¶ 362.05[19][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. rev.
2013). Matter of House, No. 17-30434-BEH, 2018 WL 1505572, at *7 (Bankr.
E.D. Wis. Mar. 26, 2018) (citing In re Gray, 558 F. App’x 163, 166 (3d Cir.
2014); United States v. Olayer (In re Olayer), 577 B.R. 464, 469 (Bankr. W.D.
Pa. 2017)). The bankruptcy court’s findings were similarly conclusory.
Thus, we cannot determine on this record that the required scheme existed.
Indeed, the only evidence we have is to the contrary.
ARCPE failed to articulate how the first two bankruptcies were
designed or executed in a manner to delay, hinder, or defraud Wells Fargo
or ARCPE’s predecessor in interest, BLB. As for Wells Fargo, the Jimenezes
endeavored to pay it through two confirmed chapter 13 plans, an adequate
15
protection stipulation, and a loan modification.10 And, as for ARCPE, the
2009 and 2012 bankruptcies arguably aided it by preventing Wells Fargo
from foreclosing on the Property while its predecessor was wholly
unsecured and unmotivated to act. Further incongruent with an artful plot
to delay, hinder, or defraud creditors, the Jimenezes allowed the automatic
stay to terminate as to the Property in the Second Case as they neglected to
seek a continuation of the stay under § 362(c)(3)(B). And, apparently, they
have faithfully paid Wells Fargo for years and reduced debt senior to
ARCPE. These facts do not suggest deceit, insidiousness, or scheming.
Thus, while Mr. Jimenez responded to the continuing foreclosure
threat to his Property by invoking bankruptcy protection on three
occasions — in 2009, 2012, and 2019 — we cannot divine from the record a
coherence between his three bankruptcy cases spanning over a decade that
allows us to affirm in the absence of argument or findings that delineate
the required scheme. Nor is there discernable conduct in the record that
clearly amounts to an abusive filing.
Because we have no findings beyond reference to the three filings
and the conclusion that the required scheme exists, we cannot affirm. The
record does not support the conclusion.
As a result, we REVERSE the bankruptcy court’s Stay Relief Order
10
Mr. Jimenez asserts that he has also been making postpetition payments to
Wells Fargo. There is no evidence to the contrary in the record.
16
only in so far as it grants ARCPE relief from the automatic stay under
§ 362(d)(4).11
There is no evidence that the bankruptcy court was prejudiced or
tampered with the record.
Finally, Mr. Jimenez claims that the bankruptcy court showed
favoritism toward ARCPE and linguistic prejudice against him and
tampered with the record. There is no evidence supporting these claims.
“Judicial impartiality is presumed.” First Interstate Bank of Ariz., N.A.
v. Murphy, Weir & Butler, 210 F.3d 983, 987 (9th Cir. 2000). See also Liteky v.
United States, 510 U.S. 540, 554-55 (1994). An individual alleging judicial
bias has an exceptionally heavy burden and must “overcome a
presumption of honesty and integrity in those serving as adjudicators.”
Withrow v. Larkin, 421 U.S. 35, 47 (1975). The allegation must generally stem
from some extrajudicial source. Liteky, 510 U.S. at 550-55. Where there is no
evidence of an extrajudicial source for bias, the individual alleging bias
must present evidence that the judge exhibited “such a high degree of
favoritism or antagonism to make fair judgment impossible.” Id. at 555. The
test is an objective one—”whether a reasonable person with knowledge of
all the facts would conclude that the judge’s impartiality might reasonably
be questioned.” Seidel v. Durkin (In re Goodwin), 194 B.R. 214, 222 (9th Cir.
11
Remand for further proceedings or findings related to § 362(d)(4) relief is
unnecessary given the § 362(d)(4) relief granted in Mr. Rivera’s bankruptcy case.
17
BAP 1996) (quotation omitted).
Mr. Jimenez failed to meet his heavy burden. His alleged feeling that
the bankruptcy judge was personally biased against him is legally
insufficient. While he claims the court tampered with filings and
incorrectly transcribed the hearings, he provided no proof of such claims.
Indeed, he fails to identify anything in the transcripts of the hearings or in
the orders on appeal that reasonably raises a question regarding the
bankruptcy court’s impartiality or propriety.
In fact, the record entirely supports the opposite conclusion. The
bankruptcy judge read and considered his untimely and unauthorized
filings in opposition to the Stay Relief Motion and Dismissal Motion. He
then allowed Mr. Rivera to “translate” at the hearings despite Mr. Rivera
being uncertified and Mr. Jimenez confirming that he had personally read
and understood the Stay Relief Motion and prepared his opposition. In
sum, the allegations of judicial bias and tampering are not grounded on
facts that would create a reasonable doubt concerning the bankruptcy
court’s impartiality and propriety. We reject them utterly.
CONCLUSION
For the foregoing reasons, we AFFIRM the Dismissal Order. We
DISMISS AS MOOT all portions of the Stay Relief Order other than the in
rem relief granted against the Property. We REVERSE the Stay Relief Order
insofar as it grants § 362(d)(4) relief.
18