Opinion
21-55873
06-29-2022
In re: ANIBAL SILVA, Debtor, v. ROD DANIELSON; MIDLAND MORTGAGE; MIDFIRST BANK, Appellees. ANIBAL SILVA, Appellant,
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the Central District of California No. 5:21-cv-00265-JWH John W. Holcomb, District Judge, Presiding
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
MEMORANDUM
Chapter 13 debtor Anibal Silva appeals pro se from the district court's judgment affirming the bankruptcy court's order dismissing Silva's bankruptcy action. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court's decision on appeal from a bankruptcy court and apply the same standard of review the district court applied to the bankruptcy court's decision. Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1166 (9th Cir. 1990). We affirm.
The bankruptcy court properly dismissed Silva's bankruptcy action because Silva committed a material default with respect to a term of the confirmed Chapter 13 plan by failing to make contractual post-petition payments to creditors. See 11 U.S.C. § 1307(c) ("[T]he court may . . . dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including- . . . (6) material default by the debtor with respect to a term of a confirmed plan[.]"); Derham-Burk v. Mrdutt (In re Mrdutt), 600 B.R. 72, 81 (9th Cir. BAP 2019) (holding that failing to perform a promise to maintain post-petition payments to a mortgage creditor is a material default of the bankruptcy plan, subjecting the case to dismissal under § 1307(c)(6)).
The district court did not abuse its discretion by denying Silva's motion for a stay because Silva failed to move first in the bankruptcy court or show that doing so was impracticable and because he failed to include an affidavit or serve the motion on all parties. See Fed.R.Bankr.P. 8007(a) &(b) (establishing requirements to move for a stay of a bankruptcy court order pending appeal); AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949-50 (9th Cir. 2006) (setting forth standard of review).
The district court did not abuse its discretion by denying Silva's motion for mandatory withdrawal of the reference of the pending bankruptcy proceedings because doing so after an appeal has been taken would jeopardize the uniformity of the bankruptcy's administration and encourage forum shopping. See Security Farms v. Sec. Farms v. Intl. Broth. of Teamsters, Chauffers, Warehousemen &Helpers, 124 F.3d 999, 1008 (9th Cir. 1997) (setting forth standard of review and grounds for mandatory withdrawal of the reference).
We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Silva's motion requesting this court to take judicial notice of the documents he attaches (Docket Entry No. 23) and appellees' motions to strike portions of the documents Silva attaches (Docket Entry Nos. 28 &29) are denied as unnecessary. Silva's motion requesting a stay of the appellate proceedings (Docket Entry No. 34) is denied as moot.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).