FILED MAR 6 2019 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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 No. CC-18-1185-FLS

BENZEEN INC., Bk. No. 1:17-bk-13113-MT

Debtor.

BENZEEN INC.,

Appellant,

v. MEMORANDUM*

UST - UNITED STATES TRUSTEE, WOODLAND HILLS,

Appellee.

Argued and Submitted on February 21, 2019 at Pasadena, California

Filed – March 6, 2019

Appeal from the United States Bankruptcy Court for the Central District of California

* 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. Honorable Maureen A. Tighe, Chief Bankruptcy Judge, Presiding

Appearances: Michael R. Sment argued for appellant Benzeen Inc.

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

INTRODUCTION

Chapter 111 debtor Benzeen Inc. appeals from the bankruptcy court’s

order sua sponte dismissing its case at a status conference and hearing on

Benzeen’s disclosure statement. Benzeen argues that the bankruptcy court

deprived it of due process by dismissing the case without proper notice

and erred by failing to make specific findings of the factors warranting

dismissal.

While the circumstances of the case are suspicious, we agree with

Benzeen that the bankruptcy court committed procedural errors.

Accordingly, we VACATE and REMAND.

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

.

2 FACTUAL BACKGROUND2

A. Benzeen’s chapter 11 petition

On November 20, 2017, Benzeen filed a chapter 11 petition signed by

its president, Roman Preys. It scheduled real property located on Appian

Way in Los Angeles, California (“Property”) in which Benzeen claimed a

twenty-five percent interest. It valued the entirety of the Property at $3.6

million. Bayview Loan Servicing LLC (“Bayview”) was the servicer for

Bank of New York Mellon, which held the first deed of trust against the

Property in the original principal amount of $1.5 million.

Benzeen also scheduled residential real property located on Iredell

Lane in Studio City, California valued at $5.9 million. JPMorgan Chase

Bank held a $3.2 million first-position lien against that property.

In December 2017, the bankruptcy court entered its Order Setting

Scheduling and Case Management Conference and Filing of Monthly

Reports. The order appeared to be a form document and provided:

PLEASE TAKE FURTHER NOTICE that, based upon the Court’s records and evidence presented at the status conference, the Court may take any of the following actions at the status conference (or at any continued hearing) without further notice:

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 1. Dismiss the case; 2. Convert the case to another chapter . . . .

Benzeen timely filed its proposed disclosure statement and proposed

chapter 11 plan. In relevant part, the disclosure statement provided that

Bayview “will receive 0 payments but [it] shall retain all State rights.”

However, the plan indicated without explanation that Bayview’s claim

would not be impaired and that it would be paid 100 percent.

The disclosure statement also provided that the plan would initially

be funded by a $500,000 loan from Mr. Preys. Mr. Preys would procure the

funds by selling “real property not owned by the Bankruptcy estate.”

Benzeen would then use the loan proceeds to renovate and sell the real

property located on Iredell Lane to fund the plan.

B. Objection to disclosure statement

Bayview objected to approval of Benzeen’s disclosure statement. It

alleged that the mortgage loan secured by the Property was twelve years in

arrears. It contended that the original borrowers had executed an

unauthorized grant deed in 2013 that transferred a twenty-five percent

interest in the Property to Benzeen; they only recorded the grant deed

postpetition in March 2018. Bayview alleged that the Property had been

involved in five bankruptcy cases by four debtors in the past three years.3

3 The prior bankruptcy cases were filed on August 19, 2015 (dismissed October (continued...)

4 Bayview objected that the disclosure statement falsely claimed that

Benzeen owned the Property. It argued that the deed of trust “specifically

precluded [the original borrowers] from transferring any interest in the

subject property without [Bayview’s] prior written approval.”

Bayview also objected that the disclosure statement was vague as to

the treatment of its claim. The plan provided that Bayview would receive

no money but would “retain all State rights.” Bayview argued that Benzeen

failed to explain the supposed “rights” it would retain. It also pointed out

that the proposed plan contradicted the disclosure statement and provided

that Bayview’s claim would be paid in full.

Finally, Bayview objected because the disclosure statement failed to

provide adequate information about the plan’s feasibility. The plan

proposed to sell two pieces of real property to raise $7.8 million, but the

disclosure statement did not adequately identify what property would be

sold or provide any details of the proposed sale.

C. Hearing on Bayview’s objection

A hearing on the disclosure statement and a case status conference

were scheduled for June 6, 2018. The day before the hearing, the

3 (...continued) 19, 2015), October 28, 2015 (dismissed November 16, 2015), March 2, 2016 (dismissed May 2, 2016), and November 6, 2017 (dismissed January 9, 2018). The court dismissed the cases for either failure to appear at the § 341(a) meeting of creditors or failure to file schedules. In each case, the debtor claimed an interest in the Property by way of an allegedly unauthorized grant deed.

5 bankruptcy court issued a tentative ruling on the objection to the disclosure

statement. The tentative ruling concluded, “APPROVAL DENIED.

APPEARANCE REQUIRED.” The bankruptcy court did not mention the

possibility of dismissal.

At the hearing and status conference, only counsel for Benzeen

appeared. He agreed that the disclosure statement needed to be more

specific and detailed. But the court interjected, “Well, that’s fine, but it

doesn’t address this phenomenal history of game playing and transfers and

fractional interest. I mean, this is – this is just – . . . a fraud scheme.” In

response to counsel’s offer to amend the plan, the court expressed

frustration: “[T]his is coming up every time there’s a problem, ‘Okay. We’ll

deal with that. We’ll deal with that,’ with no explanation of what kind of

business Benzeen’s been in playing these kind of games for years.” It stated

that Benzeen’s plan was unrealistic and that “you’re going to make up

whatever you need to make up because [Mr. Preys] plays with all of these

different corporations . . . .”

Near the end of the hearing, the bankruptcy court raised the notion of

dismissal for the first time. It said:

I’m denying the disclosure statement, but I’m dismissing the case. I’m not going to give this another chance to revise it. You’ve had since last year. This kind of case appears abusive. . . . The activity has been very suspicious leading up to the case, and I don’t want to be part of being a place for him to play these games. Come in with proper disclosure and activity

6 at the beginning of the case if you’ve got that kind of money lying around instead of coming in and hiding all of this stuff until you get caught on it, and you could have had it in the disclosure.

The court concluded, “I’m not going to allow Mr. [Preys] to use the Court

this way. Go out and straighten it out and then do it a different way. You

had your one chance. It’s over. So that’s dismissed.”

The bankruptcy court’s order dismissing Benzeen’s case did not

provide detailed findings of fact and conclusions of law, but only noted

that the court had held a status conference and stated:

The court, finding cause for dismissal of the case under

(b) based on findings of fact and conclusions of law stated orally and recorded in open court pursuant to F.R.Civ.P. 52(a) . . . ,

IT IS HEREBY ORDERED that the above referenced case be, and the same is hereby, dismissed.

Benzeen timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to

and 157(b)(2)(A). We have jurisdiction under

.

ISSUE

Whether the bankruptcy court erred in sua sponte dismissing

Benzeen’s case at the hearing on Bayview’s objection to the disclosure

7 statement.

STANDARDS OF REVIEW

We review de novo the bankruptcy court’s interpretation of the

Bankruptcy Code. Shapiro v. Henson,

(9th Cir. 2014).

Similarly, “[w]hether an appellant’s due process rights were violated is

a question of law we review de novo.” DeLuca v. Seare (In re Seare),

(9th Cir. BAP 2014) (citing Miller v. Cardinale (In re DeVille),

(9th Cir. BAP 2002), aff’d,

(9th Cir. 2004)).

“De novo review requires that we consider a matter anew, as if no

decision had been made previously.” Francis v. Wallace (In re Francis),

(9th Cir. BAP 2014) (citations omitted).

We review for abuse of discretion the bankruptcy court’s decision to

dismiss a case under § 1112(b). See Sullivan v. Harnisch (In re Sullivan),

(9th Cir. BAP 2014) (citing Leavitt v. Soto (In re Leavitt),

(9th Cir. 1999)).

We apply a two-part test to determine whether the bankruptcy court

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

court applied the correct legal standard. Then, we review the bankruptcy

court’s factual findings for clear error.

(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

8 Hinkson,

).

DISCUSSION

A. The bankruptcy court committed reversible error by failing to give Benzeen notice of its intention to dismiss its case.

Benzeen argues on appeal that it was caught off guard by the

bankruptcy court’s ruling. There was no pending motion to dismiss, and

the bankruptcy court did not give it notice that it was contemplating

dismissal. We hold that the bankruptcy court denied Benzeen due process.

Generally speaking, a court must give sufficient notice of its intention

to dismiss a case and the opportunity for interested parties to be heard. See

Tennant v. Rojas (In re Tennant),

(9th Cir. BAP 2004) (“the

concept of procedural due process requires a notice and an opportunity to

be heard” (citing Muessel v. Pappalardo (In re Muessel),

(1st

Cir. BAP 2003))). According to the United States Supreme Court:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, . . . and it must afford a reasonable time for those interested to make their appearance[.]

Mullane v. Cent. Hanover Bank & Tr. Co.,

(1950) (internal

citations omitted).

9 Section 1112(b) provides that, “after notice and a hearing,” a court

may dismiss a chapter 11 case “for cause.” Section 102(1) defines the phrase

“after notice and a hearing”:

(1) “after notice and a hearing”, or a similar phrase -

(A) means after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances; but

(B) authorizes an act without an actual hearing if such notice is given properly and if -

(I) such a hearing is not requested timely by a party in interest; or

(ii) there is insufficient time for a hearing to be commenced before such act must be done, and the court authorizes such act[.]

§ 102(1).

“[T]he concept of notice and a hearing is flexible and depends on

what is appropriate in the particular circumstance.” In re Tennant,

(citing Great Pac. Money Markets, Inc. v. Krueger (In re Krueger),

(9th Cir. BAP 1988)). A procedure may be “perfectly appropriate”

if it “notifies the debtor of the deficiencies of his petition and dismisses the

case sua sponte without further notice and a hearing when the debtor fails

to file the required forms within a deadline.”

at 870-71 (citing Minkes v.

10 LaBarge (In re Minkes),

(8th Cir. BAP 1999)). However,

we have acknowledged that the “flexible” notice and hearing requirement

does not allow a bankruptcy court to steamroll over a party’s due process

rights.

at 871 (citing Dinova v. Harris (In re Dinova),

(2d Cir. BAP 1997)).

In the present case, the bankruptcy court did not provide Benzeen

adequate prior notice of the contemplated dismissal. There was no motion

to dismiss, and the bankruptcy court’s tentative ruling issued a day before

the hearing only indicated that it was inclined to disapprove the disclosure

statement. At the hearing, the court made abundantly clear that it was

displeased with Benzeen’s conduct, but it did not raise the possibility of

dismissal until nearly the end of the hearing.

The bankruptcy court’s initial order setting the status conference

stated that dismissal was a possibility. But the boilerplate language

referencing dismissal as one of twelve possible actions that the court might

take “at any continued hearing” did not notify Benzeen of any problem

with its disclosure statement or its good faith. The form order did not give

the court blanket license to dismiss the case (or to take any of the twelve

actions) at any time. The order was not reasonably calculated to provide

Benzeen with notice that the bankruptcy court was contemplating

dismissal based on bad faith or deficiencies in the disclosure statement.

Under these circumstances, the bankruptcy court failed “to apprise

11 interested parties of the pendency of the action and to afford them an

opportunity to present their objections.” Mullane,

. “We

acknowledge that the dismissal of [the debtor’s] chapter 11 case may have

been inevitable. . . . Nevertheless, a court may not ‘cut to the chase’ in a

manner that deprives a party of due process.” Sanders v. U.S. Tr. (In re

Sanders), BAP No. CC-15-1344-FKiKu,

, at *3 (9th Cir. BAP

July 15, 2016). The bankruptcy court committed reversible error when it

denied Benzeen due process.

B. The bankruptcy court erred by failing to consider the best interests of the estate and creditors.

The bankruptcy court cited § 1112(b) as the basis for dismissal.

Section 1112(b) provides that the bankruptcy court may dismiss a case “for

cause.” Although the statute does not define “for cause,” it identifies a

nonexclusive list of factors that may constitute “cause.” See § 1112(b)(4).

“The bankruptcy court has broad discretion in determining what

constitutes ‘cause’ under section 1112(b).” In re Sullivan,

(citing Chu v. Syntron Bioresearch, Inc. (In re Chu),

(S.D. Cal.

2000)).

If the bankruptcy court finds that “cause” exists under § 1112, it has

an “independent obligation” to “(1) decide whether dismissal, conversion,

or the appointment of a trustee or examiner is in the best interests of

creditors and the estate; and (2) identify whether there are unusual

12 circumstances that establish that dismissal or conversion is not in the best

interests of creditors and the estate.” In re Sullivan,

(citing

§ 1112(b)(1), (b)(2)). Failure to consider these options is an abuse of

discretion. Id.

The record is devoid of any indication that the bankruptcy court

considered which option – dismissal, conversion, appointment of a trustee,

or no action – was in the best interests of the creditors and the estate. This

was error.4

CONCLUSION

The bankruptcy erred when it sua sponte dismissed Benzeen’s

chapter 11 case without providing Benzeen with proper notice prior to

dismissing its case or considering the best interests of the estate and

creditors. We express no opinion as to the merits of dismissal. We VACATE

and REMAND.

4 We need not consider Benzeen’s argument that the bankruptcy court failed to make adequate findings.

13