Zapata v. United States Trustee (In Re Zapata)

FILED
NOT FOR PUBLICATION AUG 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JUAN CARLOS ZAPATA and No. 12-60081
PATRICIA ULTRERAS,
BAP No. 11-1184
Debtors,
MEMORANDUM*
JUAN CARLOS ZAPATA; PATRICIA
ULTRERAS,
Appellants,
v.
UNITED STATES TRUSTEE,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Kirscher, and Novack, Bankruptcy Judges, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Juan Carlos Zapata and Patricia Ultreras (“Debtors”) appeal pro se from the
Bankruptcy Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s
order dismissing their Chapter 13 petition. We review de novo BAP decisions, and
apply the same standard of review that the BAP applied to the bankruptcy court’s
ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th
Cir. 2009). We affirm.
The bankruptcy court properly dismissed Debtors’ Chapter 13 petition
because Debtors failed to demonstrate that they attended the § 341(a) creditors
meeting, and failed to commence making timely payments. See 11 U.S.C. § 343
(“The debtor shall appear and submit to examination under oath at the meeting of
creditors under section 341(a) of this title.”); id. § 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”); Bernard v. Coyne (In re
Bernard), 40 F.3d 1028, 1030 n.1 (9th Cir. 1994) (“[An] [u]nexcused failure to
attend a 341(a) meeting can . . . result in sanctions, such as dismissal of the petition
. . . .” (internal citation omitted)).
The bankruptcy court did not abuse its discretion in denying reconsideration
of the dismissal order because Debtors failed to demonstrate any basis for relief.
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See Fed. R. Bankr. P. 9023 (making Federal Rule of Civil Procedure 59 applicable
to bankruptcy cases); Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5
F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds
for reconsideration under Rule 59).
Debtors’ contentions that they did not receive the required notice and
hearing prior to dismissal, and regarding recusal of the bankruptcy judge and
removal of the trustee, are unpersuasive.
We do not consider Debtors’ arguments regarding the bankruptcy court’s
order granting relief from the stay to Aurora Loan Services LLC because Debtors
failed to file a timely notice of appeal from the bankruptcy court’s order. See Fed.
R. Bankr. P. 8002(a)(1) (“[A] notice of appeal must be filed with the bankruptcy
clerk within 14 days after entry of the judgment, order, or decree being
appealed.”); In re Nat’l Envtl. Waste Corp. v. City of Riverside (In re Nat’l Envtl.
Waste Corp.), 129 F.3d 1052, 1054 (9th Cir. 1997) (“Orders granting or denying
relief from the automatic stay are deemed to be final orders.”).
All pending requests are denied.
AFFIRMED.
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