FILED NOT FOR PUBLICATION NOV 13 2018

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. EW-18-1071-FLS

MARK KEVIN HANNA and JENNIFER Bk. No. 2:16-bk-03437-FPC McWILLIAMS-HANNA,

Debtors.

ALLAN MARGITAN,

Appellant,

v. MEMORANDUM*

MARK KEVIN HANNA; JENNIFER McWILLIAMS-HANNA,

Appellees.

Argued and Submitted on October 25, 2018 at Pasadena, California

Filed – November 13, 2018

* 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 Eastern District of Washington

Honorable Frederick P. Corbit, Bankruptcy Judge, Presiding

Appearances: Appellant Allan Margitan argued pro se; Ian Ledlin, Phillabaum Ledlin Matthews & Sheldon, PLLC, argued on behalf of appellees Mark Kevin Hanna and Jennifer McWilliams-Hanna.

Before: FARIS, LAFFERTY, and SPRAKER, Bankruptcy Judges.

INTRODUCTION

The parties are neighbors who have been locked in an acrimonious

dispute for over six years. In this skirmish, creditor Allan Margitan appeals

from the denial of his motion to dismiss Mark Kevin Hanna’s and Jennifer

McWilliams-Hanna’s (collectively, the “Hannas”) chapter 11 1 case.

Mr. Margitan argued that the Hannas were paying less every month than

what their confirmed plan required. The Hannas argued, however, that

they had actually paid more than the plan required.

The bankruptcy court had concerns about the Hannas’ ability to

make future payments but held that, at the time Mr. Margitan sought

dismissal, the Hannas were current on their payments and had not

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code,

.

2 materially breached their plan. We agree and AFFIRM.

FACTUAL BACKGROUND2

A. The underlying property dispute3

Mr. Margitan and the Hannas have been neighbors since 2002. The

Hannas own what is known as Parcel 2 of a three-parcel short plat;

Mr. Margitan and his wife own Parcels 1 and 3 and live on Parcel 1.

Parcel 3 is a lakeside property that contains a high-end vacation home that

the Margitans remodeled for use as a rental property. Parcel 3 is benefitted

by a forty-foot wide ingress, egress, and utility easement over the Hannas’

Parcel 2. In 2002, a water-line supplying potable water to the parcels was

installed somewhere in the forty-foot easement.

In 2003, the Hannas obtained a permit from the Spokane Regional

Health District (“SRHD”) to construct a septic tank and drain field for

Parcel 2. The Hannas (or their agent) told SRHD, incorrectly, that the

easement was only twenty feet wide. Mr. Hanna knew that the easement

was forty feet wide but never gave his contractor that information. Because

of that error, the Hannas’ septic tank and drain field were placed partly

2 We exercise our discretion to review the bankruptcy court’s docket, as appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.),

, 725 n.2 (9th Cir. BAP 2008). 3 This is the second appearance of the Hannas and Mr. Margitan before this Panel. We borrow heavily from the facts stated in our prior decision, Margitan v. Hanna (In re Hanna), BAP No. EW-17-1238-BJF,

, at *1-2 (9th Cir. BAP Apr. 13, 2018).

3 within the forty-foot easement in violation of Washington law.

In 2012, the Hannas filed a quiet title action against the Margitans in

state court to resolve easement issues for the three parcels. The Margitans

filed a counterclaim for intentional interference with their easement and

requested that the Hannas remove their sewage system from it.

The Margitans initially prevailed in their litigation against the

Hannas. The jury returned a verdict in favor of the Margitans in the

amount of $422,934 for damages resulting from the Hannas’ intentional

interference with the Margitans’ easement, including lost rents and

emotional distress. The state court entered a judgment on the verdict and

ordered the Hannas to remove the existing drain field encroaching on the

easement.

The state court later reduced the jury’s damages award and entered

an amended judgment against the Hannas for $297,834 (“State Court

Judgment”).

The Hannas appealed the State Court Judgment; the Margitans

cross-appealed (“State Court Appeal”).

B. Bankruptcy proceedings

The Hannas filed a chapter 11 bankruptcy petition on November 2,

2016. The bankruptcy court granted the Hannas relief from the automatic

stay to proceed with the State Court Appeal and allowed them to continue

installing a new drain field.

4 On May 24, 2017, the Hannas proposed an amended chapter 11 plan

(“Plan”) and disclosure statement. Because Mr. Hanna’s monthly income

varied, Part 9.3 of the Plan provided that the Hannas would make monthly

payments based on a formula. The formula allowed the Hannas to keep the

first $7,760 of their wages and commissions per month for living expenses.

Of the remaining amount, the Hannas would retain an additional ten

percent, while ninety percent would go into an account (the “DIP Agent

General Account”) from which disbursements would be made. The Plan

provided that the Hannas’ counsel would administer the DIP Agent

General Account and other accounts established under the Plan.

The Hannas proposed to pay the Margitans’ claim based on the State

Court Judgment, to the extent it was allowed, in full plus interest within

sixty months of the “Effective Date of Plan.”4

The Plan noted that the outcome of the State Court Appeal would

determine the amount of the Margitans’ claim. The Plan thus provided

that, in the meantime, amounts distributable to the Margitans would be

held in two special accounts. The first account, the “DIP Agent Margitan

Secured Account,” would hold proceeds of the sale of assets against which

the Margitans held a judgment lien. The second account, the “DIP Agent

Margitan Unsecured Account,” would hold other funds distributable to the

4 Under Part 2.25 of the Plan, “‘Effective Date of Plan’ shall mean when the order confirming this Plan becomes final and non-appealable.”

5 Margitans.

The Plan provided for distributions to the Margitans from a

combination of sources.

First, Part 9.4 of the Plan provided that the Margitans would receive

any available insurance proceeds.

Second, Part 9.6 of the Plan required the Hannas to sell a business

(The Tin Cup Café and Country Store, LLC) and associated real property

owned by Ms. McWilliams-Hanna and a friend. The Hannas would deposit

their half of the sale proceeds of the business and the real property (after

payment of the sales costs and a senior lien) into the DIP Agent General

Account and the DIP Agent Margitan Secured Account, respectively.

Third, Part 9.14 provided that the Margitans would receive a pro rata

share of distributions to unsecured creditors from the DIP Agent General

Account. While the State Court Appeal was pending, the Margitans’ share

would be held in the DIP Agent Margitan Unsecured Account.

Fourth, if the funds from the first three sources were insufficient to

satisfy the Margitans’ claim within sixty months of the “Effective Date of

Plan,” the Hannas would list Parcel 2, which was their residence, or a

separate parcel of real estate they owned, or both, for sale within forty-five

days of the entry of a final, non-appealable judgment in the State Court

Appeal and use the net proceeds of the sale to pay the Margitans’ claim.

No later than forty-five days after a non-appealable judgment in the

6 State Court Appeal, the Margitans would receive the amounts deposited in

the DIP Agent Margitan Secured Account and the DIP Agent Margitan

Unsecured Account.

The Margitans filed a motion to dismiss the Hannas’ case for bad

faith. The bankruptcy court denied the Margitans’ motion to dismiss and

confirmed the Hannas’ Plan on August 9, 2017.

Mr. Margitan appealed the bankruptcy court’s decisions to the BAP.

Earlier this year, we affirmed. Mr. Margitan further appealed to the Ninth

Circuit, where the matter is pending.

C. The second motion to dismiss

After the bankruptcy court confirmed the Hannas’ Plan, the

Margitans filed a second motion to dismiss (“Motion to Dismiss”).

The Motion to Dismiss was short and fairly perfunctory. The

Margitans presented two grounds for dismissal under § 1112(b)(4). First,

they argued that the Hannas failed to comply with the Plan by making a

$1,000 insurance deductible payment without prior court approval. Second,

the Margitans alleged that the Hannas have “spent excessively . . . in excess

of funds designated in the plan” and had not deposited as much as they

should have into the DIP Agent General Account or the DIP Agent

Margitan Unsecured Account.

In response, the Hannas represented that they were current because,

between the petition date and January 23, 2018, they paid $90,739.94 into

7 the DIP Agent General Account and $32,748.30 into the DIP Agent

Margitan Unsecured Account. They argued that there was no substantial

continuing loss to or diminution of the estate under § 1112(b)(4)(A); that

they had not grossly mismanaged the estate under § 1112(b)(4)(B); that

they had not used any cash collateral under § 1112(b)(4)(D); and that they

had complied with all orders of the court under § 1112(b)(4)(E).

The Margitans raised additional assertions in their reply to the

Hannas’ opposition. They claimed that the Hannas disregarded their duties

by failing to file required reports. They argued that the Hannas used cash

collateral5 without court approval, including the purchase of a refrigerator,

repairs to a truck, payment of college tuition, and the purchase of a new

vehicle. They also contended that the Hannas grossly mismanaged the

estate by paying for legal services that were not relevant to the bankruptcy

case.

D. Hearing on the Motion to Dismiss

At the evidentiary hearing on the Motion to Dismiss, the presentation

of evidence was often confusing. Among other things, the parties offered

various calculations of the amounts due or paid under the Plan that could

5 The Margitans’ counsel had earlier argued that the money that should be going into the DIP Agent Margitan Unsecured Account is cash collateral: “The money that goes to my client and the money that under the plan that’s earmarked to my client is cash collateral under the Bankruptcy Code.” The bankruptcy court was skeptical of this position.

8 not be reconciled.

1. Payment formula under Part 9.3

The court had to sort through the payment calculations. Mr. Hanna

testified that he believed that he had paid the required amounts into the

DIP Agent General Account. But Mr. Margitan testified that, using the Plan

formula, the Hannas were approximately $15,000 short.

In discussions between the court and counsel, it came to light that the

Hannas’ counsel had been miscalculating the required monthly deposits.

Using a hypothetical month where Mr. Hanna earns $18,000, the court

summarized Part 9.3 of the Plan: “So we take this $18,000 dollar amount,

subtract the $7,700 dollars, and then 90 percent of that remaining balance is

supposed to go into the plan[.]” However, the Hannas’ counsel had

calculated the monthly deposit backwards by first dividing Mr. Hannas’

income into the 90/10 split, then subtracting the $7,760 from the portion to

be paid into the DIP Agent General Account.6

6 According to the court’s hypothetical, the Hannas should have paid $9,216 into the DIP Agent General Account:

$18,000 - $7,760 $10,240 x .9 $9,216 (with $8,784 to the Hannas)

But using the Hannas’ counsel’s calculations, the Hannas would have paid only $8,440 (continued...)

9 2. Sufficiency of payments into the DIP Agent General Account

Even when the formula was sorted out, the parties still did not agree

whether the Hannas had paid enough into the DIP Agent General Account.

On the one hand, the Hannas maintained that they had paid over $92,000

into the DIP Agent General Account; yet the Margitans insisted that the

Hannas violated the Plan because they should have paid approximately

$50,000 and were $15,000 short.

After a tortured inquiry, the court hit upon the discrepancy in the

parties’ calculations. The Hannas had begun paying into the DIP Agent

General Account before the Plan was confirmed. This resulted in a grand

total of $92,000 in payments between May 2017 and January 2018.

Conversely, Mr. Margitan’s calculations focused exclusively on the

postconfirmation time period between September 2017 and January 2018,

during which the Hannas were short every month.7

6 (...continued) into the DIP Agent General Account:

$18,000 x .9 $16,200 - $7,760 $8,440 (with $9,560 to the Hannas) 7 The Margitans’ counsel pointed out that many of the monthly payments into the DIP Agent General Account were made late. Mr. Hanna testified that he was unaware that the Plan required payment by the tenth of each month.

10 The Margitans argued that it was improper to count preconfirmation

payments when considering compliance with the Plan. They also

contended that the Plan was unfeasible going forward. The Hannas’

counsel once again fell on his sword: “There’s been a little bit of a glitch,

that was my fault. Fortunately, they front-loaded that, and I’ve spoken

with Mr. Hanna and the problem will be rectified.”

3. The Hannas’ spending habits and “extravagant lifestyle”

The court also heard testimony regarding the Hannas’ spending and

lifestyle.

Mr. Hanna testified that he paid a $1,000 insurance deductible when

his daughter was involved in an automobile accident. His counsel then

confirmed that “Mr. Hanna did call me about that before the check was

written, and I just didn’t think about filing an application . . . .” Counsel

said that he would rectify his oversight by making sure that the Margitans

and general unsecured creditors “are paid in full before I draw the last

$1,000 of allowed fees.” Mr. Hanna also testified that he used the insurance

proceeds from another vehicle that was involved in an accident and

purchased a replacement vehicle without notifying the court.

Mr. Margitan countered that the Hannas were living beyond their

means. He had carefully parsed the Hannas’ expenditures and pointed out

what he considered “lavish” and “excessive” spending. However, the

Hannas testified that they did not live lavishly; Ms. McWilliams-Hanna

11 testified that she only spent money on food and that she otherwise “do[es]

absolutely nothing.” Mr. Hanna stated that the bankruptcy forced the

family to forego medical procedures, cancel or suspend their membership

in the Spokane Club, curtail vacations, and reduce or eliminate Christmas,

birthday, and Valentine’s Day gifts.

4. The court’s decision and additional briefing

The bankruptcy court denied the Motion to Dismiss. The court was

concerned that the Hannas were only current on the Plan payments

because they had begun making payment prior to confirmation and would

likely have trouble going forward. But the court noted that, at that time, the

Hannas were current on their payments. The court ordered the Hannas to

provide the court with a report of required payments and actual payments

through May 2018. It scheduled an additional hearing and advised the

parties that it would entertain dismissing the case sua sponte after

reviewing the report.

After the hearing, counsel for the Hannas filed a declaration

concerning the estate’s finances in response to some of the court’s

questions. He attested that the Hannas deposited $91,822.71 into the DIP

Agent General Account through January 2018. He stated that $32,748.39

has been deposited into the DIP Agent Margitan Unsecured Account.

Furthermore, attorneys’ fees totaled $41,000. Finally, the balance of the DIP

12 Agent General Account on February 28, 2018 was $32,974.58. 8

The bankruptcy court entered an order denying the Motion to

Dismiss. Mr. Margitan, pro se, timely filed a notice of appeal.

E. The Hannas’ successful state court appeal

On July 24, 2018, the Washington Court of Appeals issued an

unpublished disposition reversing the State Court Judgment. The

Margitans filed a petition for review before the Washington Supreme Court

on October 15.9

JURISDICTION

The bankruptcy court had jurisdiction pursuant to

and 157(b)(2)(A) and (O).

A. The order is final and appealable.

The Hannas filed a motion to dismiss this appeal, arguing that the

8 On May 15, 2018, the Hannas filed the required report on their compliance. They reported that they should have paid $50,717.68 into the DIP Agent General Account postconfirmation (September 2017 to May 2018), but a $5,959.34 postconfirmation shortfall remained. However, preconfirmation (May to August 2017), the Hannas contributed $47,624.03 to the DIP Agent General Account. As a result, the Hannas have paid a total of $92,382.37, which is $41,664.69 more than the postconfirmation amount due. Moreover, $44,437.89 had been paid into the DIP Agent Margitan Unsecured Account. As far as the docket reveals, the court has not taken any further action. 9 The record in the bankruptcy court indicates that the Margitans’ appellate counsel filed the petition for review twenty-one minutes after the filing deadline. Thus, it is currently unclear whether the Margitans filed a timely petition for review and, if so, whether the Washington Supreme Court will grant review.

13 order denying the Motion to Dismiss is interlocutory and Mr. Margitan did

not seek leave to appeal. A motions panel denied that motion, stating that

“the denial of the motion to dismiss, post-confirmation, is sufficiently final

for an immediate appeal.” Federal courts are always obligated to consider

their own subject matter jurisdiction, so we address the finality of the

bankruptcy court’s order.

Bankruptcy’s flexible finality standard dictates that “[o]rders in

bankruptcy cases may be appealed immediately ‘if they finally dispose of

discrete disputes within the larger case . . . .’” Eden Place, LLC v. Perl (In re

Perl),

(9th Cir. 2016) (citation omitted). Here, where the

bankruptcy court already confirmed the Plan, the denial of the Motion to

Dismiss meant that the Margitans’ motion was “definitively and finally

resolved. Resolution of that issue is as final as it will ever be in this case.”

; see Vicenty v. San Miguel Sandoval (In re San Miguel Sandoval),

(1st Cir. BAP 2005) (“Although orders denying motions to

dismiss are generally interlocutory, such an order is final and appealable

where a reorganization plan has already been confirmed, since the order

effectively ends all litigation on the merits of dismissal.”).

In this case, when the bankruptcy court denied the Motion to

Dismiss, it also scheduled a further status hearing and indicated that it

might dismiss the case sua sponte depending on the result of that hearing.

We conclude that the order is final and appealable despite the latter

14 provision. The court denied the Margitans’ motion outright. The fact that

the court might decide, based on additional information and subsequent

events, to dismiss the case on its own motion does not detract from the

finality of the order.

B. This appeal is not moot.

Before we consider the merits of this appeal, we must satisfy

ourselves that this appeal is not moot despite the Washington Court of

Appeals’ reversal of the State Court Judgment and the possible reduction

of the Margitans’ claim to zero.

If we cannot grant Mr. Margitan effective relief, we must dismiss the

appeal as moot. “We cannot exercise jurisdiction over a moot appeal.” Ellis

v. Yu (In re Ellis),

(9th Cir. BAP 2014) (citing United States

v. Pattullo (In re Pattullo),

(9th Cir. 2001); GTE Cal., Inc. v.

F.C.C.,

, 945 (9th Cir. 1994)). “[A] case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” City of Erie v. Pap’s A.M.,

(2000)

(quoting Cty. of L.A. v. Davis,

(1979)). Determining

constitutional mootness turns on whether “the appellate court can give the

appellant any effective relief in the event that it decides the matter on the

merits in [its] favor.” Pilate v. Burrell (In re Burrell),

(9th

Cir. 2005).

Washington state law dictates whether Mr. Margitan has a viable

15 claim against the Hannas. After the Washington Court of Appeals decides

an appeal, a party may file a petition for review within thirty days of the

decision (or decision on a motion to publish or motion to reconsider).

Wash. R. App. P. 13.4(a). If no one appeals the decision, or the Supreme

Court denies a petition for review, the Court of Appeals will issue a

mandate terminating appellate review. Wash. R. App. P. 12.5(a), 12.5(b),

12.7(a).

The Margitans filed a petition for review, and the parties confirmed

at oral argument that the petition for review is still pending (even though

there is a dispute over its timeliness). No mandate has issued. Accordingly,

Mr. Margitan’s claim is still alive, and he has a legally cognizable interest in

the outcome. Mr. Margitan still has the right to maintain this appeal.

Therefore, we have jurisdiction under

.

ISSUE

Whether the bankruptcy court abused its discretion in denying the

Motion to Dismiss.

STANDARD OF REVIEW

We review the bankruptcy court’s ruling on a motion to dismiss

under an abuse of discretion standard. Marshall v. Marshall (In re Marshall),

(9th Cir. 2013); Sullivan v. Harnisch (In re Sullivan),

(9th Cir. BAP 2014). We apply a two-part test to determine

whether the bankruptcy court abused its discretion. First, we consider de

16 novo whether the bankruptcy court applied the correct legal standard to

the relief requested. Then, we review the bankruptcy court’s factual

findings for clear error. In re Sullivan,

(citing United States v.

Hinkson,

(9th Cir. 2009) (en banc)). We must affirm

the bankruptcy court’s factual findings unless we conclude that they are

illogical, implausible, or without support in the record.

at 612 (citing

Hinkson,

).

DISCUSSION

A. The bankruptcy court has wide discretion to determine whether there is “cause” to dismiss.

Section 1112(b)(1) provides that “the court shall convert a case under

this chapter to a case under chapter 7 or dismiss a case under this chapter,

whichever is in the best interests of creditors and the estate, for cause . . . .”

As is relevant to this appeal, “cause” includes (for example) 10:

(A) substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation;

(B) gross mismanagement of the estate;

....

(E) failure to comply with an order of the court;

(F) unexcused failure to satisfy timely any filing or reporting

10 Section 102(3) provides that “‘includes’ and ‘including’ are not limiting. . . .”

17 requirement established by this title or by any rule applicable to a case under this chapter . . . .

§ 1112(b)(4).

The bankruptcy court has broad discretion to determine what

constitutes “cause” adequate for dismissal under § 1112(b). See In re

Sullivan,

; see also Toibb v. Radloff,

(1991)

(stating that bankruptcy courts have “substantial discretion” to dismiss a

chapter 11 case); Chu v. Syntron Bioresearch, Inc. (In re Chu),

(S.D. Cal. 2000) (“Bankruptcy courts have broad discretion to convert or

dismiss a Chapter 11 petition for ‘cause’ shown.”); In re Hoyle, No. 1:10-

bk-01484-TLM,

, at *8 (Bankr. D. Idaho Jan. 17, 2013) (“That

the itemized grounds are non-exclusive fulfills the Congressional purpose

of giving ‘wide discretion to the court to make an appropriate disposition

of the case when a party in interest requests,’ by allowing the court to

‘consider other factors as they arise.’” (citations omitted)). If the court

determines that “cause” exists, then it must determine whether conversion

or dismissal is in the best interest of the creditors and the estate. In re AVI,

Inc.,

. “The movant bears the burden of establishing by a

preponderance of the evidence that cause exists.” In re Sullivan,

(citing StellarOne Bank v. Lakewatch, LLC (In re Park),

(Bankr. W.D. Va. 2010)).

18 B. The bankruptcy court did not abuse its discretion in denying the Motion to Dismiss.

1. Monthly payments into the DIP Agent General Account

Mr. Margitan argues that, as a result of the Hannas’ excessive

personal spending, they have not fully funded the DIP Agent General

Account in violation of a court order (i.e., the order confirming the Plan)

and that this failure warrants dismissal under § 1112(b)(4)(E). 11

Section 1112(b)(4)(E) provides that failure to comply with an order of

the court can be “cause” for dismissal. However, the court has wide

discretion to determine whether a particular violation or set of violations

amounts to “cause.” “[T]he circumstances of lack of compliance may be

taken into account by the court in determining whether to dismiss or

convert the case.” 7 Collier on Bankruptcy ¶ 1112.04[6][e] (Richard Levin &

Henry J. Sommer, eds. 16th ed. rev. 2018).

As the bankruptcy court determined at the hearing on the Motion to

Dismiss, Mr. Margitan focused solely on the amounts contributed to the

DIP Agent General Account postconfirmation (approximately $34,000),

ignoring the fact that the Hannas had additionally contributed a significant

sum preconfirmation (totaling approximately $92,000). The bankruptcy

11 Although Mr. Margitan invoked § 1112(b)(4)(E) for the failure to comply with a court order, § 1112(b)(4)(N) might have been more appropriate, which concerns “material default by the debtor with respect to a confirmed plan[.]” But no one raised this issue (before the bankruptcy court or on appeal), and it is not clear that it would have made any difference in the final analysis.

19 court did not abuse its discretion in construing the Plan to permit such

preconfirmation payments toward the DIP Agent General Account. See

Marciano v. Fahs (In re Marciano),

(9th Cir. BAP 2011), aff’d,

(9th Cir. 2013) (“We owe substantial deference to the

bankruptcy court’s interpretation of its own orders and will not overturn

that interpretation unless we are convinced that it amounts to an abuse of

discretion.” (citation omitted)). While the court had understandable

concerns about the Hannas’ ability to fund the Plan going forward, the

court did not abuse its discretion in determining that, as of the order on the

Motion to Dismiss, the Hannas were current.12

Mr. Margitan also complains that the Hannas violated the Plan by

making payments after the tenth day of each month. Mr. Hanna testified

that he was unaware of the deadlines in the Plan, and Mr. Margitan did not

identify how he had been prejudiced (because he is not entitled to any

distributions until the State Court Appeal is resolved). The court did not

abuse its discretion when it determined that these late payments did not

12 Mr. Margitan contends that, if the Hannas are allowed to make preconfirmation payments under the Plan, then the Plan formula should apply to the preconfirmation months. Calculating from the petition date, he represents that the Hannas were $39,116.57 short. Mr. Margitan never made this argument to the bankruptcy court, and there is no reasonable interpretation of the Plan that would support that result.

20 amount to cause for dismissal or conversion.13

Therefore, the court was within its discretion to determine that the

Hannas did not violate a court order in a manner that amounted to “cause”

under § 1112(b)(4)(E).

2. The Hannas’ excessive spending and “lavish lifestyle”

Mr. Margitan argues that the Hannas violated the Plan by spending

more than the Plan allows. He contends that, between September and

December 2017, the Hannas spent $8,548.44 over the formula allowance for

their living expenses. He takes issue with the Hannas “living their pre-

bankruptcy lifestyle while requesting bankruptcy protection . . . .”

Under § 1112(b)(4)(A), a movant must “establish both (1) a

substantial and continuing loss to or diminution of the estate and

(2) absence of a reasonable likelihood of rehabilitation. ‘The loss may be

substantial or continuing. It need not be both in order to constitute

cause . . . .’” L.A. Cty. Treasurer & Tax Collector v. City of W. Covina (In re

Hassen Imports P’ship), BAP No. CC-13-1019-KiPaD,

,

13 Both sides assume that plan payments were to begin in September 2017, which is the first full month following confirmation on August 9, 2017. However, Part 9.3 requires payment in the first full month “following the Effective Date of Plan[.]” The Plan defines “Effective Date of Plan” as “when the order confirming this Plan becomes final and nonappealable.” Mr. Margitan appealed the order confirming the Plan to the BAP and took a further appeal to the Ninth Circuit when we ruled against him. That appeal remains unresolved. This suggests that the Effective Date of Plan has not occurred yet, because the order confirming the Plan is not yet final and unappealable. But we do not decide this issue because no one has argued this point.

21 at *13 (9th Cir. BAP Aug. 19, 2013) (citations omitted). The asserted loss or

diminution must “‘materially negatively impact the bankruptcy estate and

the interest of creditors,’ or [cause] ‘dwindling liquidity, or illiquidity

resulting in unpaid postpetition debts which usually constitute

administrative expenses that will take priority over prepetition claims.’”

(citations omitted). “To determine the existence of a continuing loss to, or

diminution of, the estate, the bankruptcy court must look beyond financial

statements and fully evaluate the present condition of a debtor’s estate.”

Nothing in the Plan dictates what kind of “lifestyle” the Hannas may

enjoy. The Plan simply requires the Hannas to pay into the accounts an

amount determined under the Plan formula. As long as the Hannas pay the

amounts mandated by the Plan, they are free to do whatever they wish

with the income allocated to them. The bankruptcy court did not abuse its

discretion in ruling that the Hannas’ spending did not amount to “cause”

under § 1112(b)(4)(A).

3. Quarterly payments into the Margitan Unsecured Account

Mr. Margitan also contends that the Hannas have failed to fund the

DIP Agent Margitan Unsecured Account. He notes that, if the Hannas

cannot fund the accounts sufficiently, they must liquidate real property. He

argues that requiring him “to wait for personal property to be liquidated

will cause further harm to Creditor/Appellant. . . . [T]he estate will never

recover from excess spending.”

22 This argument fails. The Plan specifies in detail that the Hannas need

not sell any of their real property unless and until it appears that the Plan

funding from other sources will be insufficient to pay the Margitans’

allowed claim in full within sixty months of the Effective Date of Plan. The

Plan does not require the Hannas to sell property simply because the

Margitans are afraid that the Hannas might not be able to make future Plan

payments.

4. Mismanagement of the estate

Mr. Margitan next presents a laundry list of alleged instances of the

Hannas’ gross mismanagement of their estate under § 1112(b)(4)(B). None

of these is persuasive.

“The § 1112(b)(4)(B) inquiry typically focuses on how the debtor or

the debtor’s agents have managed the estate’s assets or business during the

pendency of the chapter 11 proceeding and how they have reported and

handled, postpetition, income and expenses derived from the

assets/business.” Grego v. U.S. Tr. (In re Grego), BAP No. EC-14-1067-

KuPaJu,

, at *5 (9th Cir. BAP May 29, 2015) (citations

omitted). “Bankruptcy courts have found gross mismanagement in cases

where debtors have not maintained an effective corporate management

team, failed to follow through on their fiduciary duties under chapter 11,

including obtaining credit or financing outside the ordinary course of the

debtor’s business, filed monthly reports without closely monitoring them[,]

23 or where the business lacks effective management.” Kingsway Capital

Partners, LLC v. Sosa,

(N.D. Cal. 2016) (citations omitted).

Mr. Margitan alleges that the Hannas wasted estate resources by

paying their counsel for unnecessary work.14 But aside from bald

statements that these tasks were unnecessary, he fails to explain how they

constituted gross mismanagement of the estate. He also fails to provide

citations to the record for certain billing entries, so we are unable to review

those events.

Additionally, Mr. Margitan faults the Hannas’ counsel for spending

forty-three hours redacting subpoenaed documents. However, the Hannas

point out that the entry for 42.22 hours (in a single day) in their counsel’s

billing statement was an obvious typo. In any event, their counsel did not

charge for this time entry and indeed indicated that they billed “0.00 n/c.”

Mr. Margitan also argues that the Hannas have not filed disclosure

statements related to The Tin Cup Café, preconfirmation monthly financial

balance sheets, and postconfirmation quarterly reports. But the Hannas

point out that The Tin Cup Café is not a debtor in this case and there is no

evidence that the Hannas received any income from The Tin Cup Café.

14 We note that the bankruptcy court had previously stated that much of the attorneys’ fees incurred was a result of litigation caused by Mr. Margitan’s animosity toward the Hannas: “You have made this litigation very expensive . . . . I have concluded that much of the attorney’s fees that were incurred in this case were the result of your animosity towards your neighbor.”

24 Moreover, the Hannas’ reports were filed within the months they were due

and were never deemed insufficient. The bankruptcy court was within its

discretion to determine that there was no “cause” to dismiss.

Mr. Margitan argues that the Hannas failed to report that they sold a

vehicle after an automobile accident; purchased a replacement vehicle with

the insurance proceeds; and used estate funds to repair a second vehicle.

The Hannas ultimately addressed these issues to the bankruptcy court’s

satisfaction. The replacement vehicle was entirely purchased with the

insurance proceeds and did not require any estate funds; the Hannas

subsequently amended their schedules. The Hannas’ counsel took

responsibility for the $1,000 insurance deductible paid on the second

vehicle and represented that he would rectify the situation by withholding

$1,000 from the payment of attorneys’ fees until all creditors are paid in

full. The bankruptcy court was satisfied that this was not gross

mismanagement, and we discern no abuse of discretion.

5. Res judicata and collateral estoppel

Finally, Mr. Margitan raises two arguments that make little sense in

this context. It also does not appear that he raised these arguments before

the bankruptcy court. See Yamada v. Nobel Biocare Holding AG,

(9th Cir. 2016) (“Generally, an appellate court will not hear an issue

raised for the first time on appeal.”).

He argues that the Plan is “res judicata.” It is true that an order

25 confirming a plan has preclusive effect, but that is irrelevant here. The

Hannas do not deny that the Plan is binding upon them. Rather, the

question is what the Plan requires the Hannas to do, whether they have

done those things, and what consequences should flow from any failure.

Preclusion principles have nothing to say about these questions. Further, if

anyone is attempting to relitigate the Plan confirmation issues, it is

Mr. Margitan, not the Hannas. Both the bankruptcy court and this Panel

rejected all of those contentions, and we will not reconsider them here.

Even more confusingly, he argues that equitable estoppel “prohibits

the Debtor[s] from failing to comply with a Court Order.” Equitable

estoppel serves to prevent a party from asserting a particular position. It

has no applicability to this case.

CONCLUSION

The bankruptcy court did not abuse its discretion. We AFFIRM.

26