Maurice Gilbert v. Rod Danielson ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MAURICE ALLEN GILBERT, No. 16-55253
Debtor. D.C. No. 5:15-cv-01675-DOC
______________________________
MAURICE ALLEN GILBERT, MEMORANDUM*
Appellant,
v.
ROD DANIELSON, Chapter 13 Trustee,
Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Maurice Allen Gilbert appeals pro se from the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
affirming the bankruptcy court’s order dismissing his chapter 13 bankruptcy
petition. We have jurisdiction under 28 U.S.C. §§ 158(d), 1291. We review de
novo the district court’s decision on appeal from the bankruptcy court and apply
the same standard of review applied by the district court. In re AFI Holding, Inc.,
525 F.3d 700, 702 (9th Cir. 2008). We affirm.
The bankruptcy court did not abuse its discretion in dismissing Gilbert’s
chapter 13 petition because Gilbert failed to commence making payments under his
chapter 13 plan. See 11 U.S.C. § 1326(a)(1) (“[D]ebtor shall commence making
payments not later than 30 days after the date of the filing of the plan . . . .”); id.
§ 1307(c)(4) (a bankruptcy court may dismiss a case for “failure to commence
making timely payments under section 1326.”); see also Leavitt v. Soto (In re
Leavitt), 171 F.3d 1219, 1222-23 (9th Cir. 1999) (stating standard of review).
Contrary to Gilbert’s contention, the bankruptcy court properly exercised
jurisdiction over proceedings related to Gilbert’s chapter 13 petition prior to this
court issuing its mandate in appeal No. 15-55260. See Sherman v. SEC (In re
Sherman), 491 F.3d 948, 967 (9th Cir. 2007) (a notice of appeal typically divests a
bankruptcy court of jurisdiction over aspects of the case involved in the appeal but
the bankruptcy court retains jurisdiction to implement or enforce the order and may
2 16-55253
exercise jurisdiction over related proceedings).
We reject as without merit Wade’s contentions that the bankruptcy court
violated due process.
Gilbert’s motion to take judicial notice, filed June 28, 2016, is denied as
moot.
AFFIRMED.
3 16-55253