FILED JUN 5 2025 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. NV-24-1111-CBG VICTORIA GIAMPA, Debtor. Bk. No. 23-13014-nmc

VICTORIA GIAMPA, Appellant, v. MEMORANDUM* SELENE FINANCE, LP, servicer for U.S. Bank Trust National Association, not in its individual capacity but solely as owner trustee for RCF2 Acquisition Trust; KATHLEEN A. LEAVITT, Chapter 13 Trustee; U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as owner trustee for RCF2 acquisition trust, Appellees.

Appeal from the United States Bankruptcy Court for the District of Nevada Natalie M. Cox, Chief Bankruptcy Judge, Presiding

Before: CORBIT, BRAND, and GAN Bankruptcy Judges.

* 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. INTRODUCTION

Chapter 131 debtor Victoria Giampa (“Giampa”) appeals the

bankruptcy court’s denial of confirmation of her proposed plan and

dismissal of her case. Because Giampa filed a new chapter 13 petition

during the pendency of this appeal, this appeal is moot, and the Panel lacks

jurisdiction. Accordingly, we DISMISS the appeal as MOOT.

FACTS 2

A. Giampa’s bankruptcy case

On July 24, 2023, Giampa, proceeding in pro per, filed a chapter 13

petition. In her schedules, Giampa stated she had $0 in gross monthly

income and a net monthly deficiency of $4,006.84. Giampa listed her

primary residence on Wellington Court in Henderson, Nevada

(“Property”), which she valued at $311,700.00, but Giampa did not identify

any secured claims or creditors.

On August 16, 2023, Giampa filed a chapter 13 plan. In her plan,

Giampa indicated she would make one $800 payment3 despite representing

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

, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure. 2 We exercise our discretion to take judicial notice of documents electronically

filed in the main bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

, 233 n.9 (9th Cir. BAP 2003). 3 Giampa stated that her applicable commitment was one month. However, a

document attached to the proposed plan indicated that Giampa planned to make $800/month payments for 60 months. The chapter 13 trustee requested that Giampa amend the plan to provide for the applicable commitment period, but Giampa never filed an amended or corrected plan. Trustee testified at the dismissal hearing that 2 that the liquidation value of her estate was $582,092.38. Giampa’s proposed

plan did not identify any secured claims or propose to pay any secured

creditors.

Both the chapter 13 trustee (“Trustee”) and creditor U.S. Bank Trust

National Association, as owner trustee for RCF2 Acquisition Trust (“U.S.

Bank”), objected to confirmation of the plan. U.S. Bank argued that it had a

claim secured by the Property in the total amount of $617,812.26

($342,330.68 of that being prepetition arrearage). U.S. bank argued that

confirmation should be denied because Giampa’s proposed plan failed to

provide for monthly mortgage payments (either in the plan or directly to

U.S. Bank) and failed to provide for curing or paying the prepetition

arrears in contravention of § 1322(b)(5). Trustee argued that confirmation

should be denied for several reasons including Giampa’s failure to make

plan payments and provide the requested bank statements. Trustee also

argued that the proposed plan failed to meet the liquidation value test

under § 1325(a)(4) and unfairly discriminated against general unsecured

claims in violation of § 1322(b)(1).

Giampa’s response followed a familiar, although almost always

unsuccessful, refrain used by many debtors − that the creditor asserting a

security interest in the real property (U.S. Bank in this case) was not the

entity entitled to enforce payment on the claim because of alleged

although the case had been pending for over a year, Giampa had only made four $800 payments. 3 infirmities in the loan and assignment documents. Giampa further asserted

that U.S. Bank was not a legally recognized entity and, therefore, lacked

standing. As to Trustee’s objections, Giampa argued that she had provided

all the necessary documents and she had no disposable income so there

was no applicable commitment period to amend in her plan.

Trustee filed amended oppositions to confirmation and filed a

motion to dismiss (“Dismissal Motion”) pursuant to § 1307(c)(1) based on

Giampa’s unreasonable delay that prejudiced creditors. Trustee argued

that: (1) Giampa’s self-reported income was a negative $4,006.84 and a

debtor with a negative income does not generally qualify to be in chapter

13; (2) the plan failed to provide for all of Giampa’s disposable income

pursuant to § 1325(a)(3); (3) the plan failed to meet liquidation value under

§ 1325(a)(4) based on Giampa’s $581,867.38 of non-exempt property; (4) the

plan had not been amended to provide the correct commitment period;

(5) Giampa refused to comply with Trustee’s request for bank statements;

and (6) Giampa failed to amend her schedules to disclose all personal

property. Trustee noted that even though the case had been pending for

over a year, Giampa had not filed an amended plan to cure the previously

identified deficiencies. Trustee further argued that the case should be

dismissed because using the information provided by Giampa, there was

little likelihood that Giampa could ever propose a confirmable plan and,

therefore, there was clearly unreasonable delay prejudicing creditors.

4 U.S. Bank joined Trustee’s Dismissal Motion. U.S. Bank explained

that it was “not receiving distributions on its claim,” and that Giampa’s

unreasonable delay in confirming a plan was prejudicial to U.S. Bank and

other creditors.

Giampa requested, and was given, an extension of time to respond to

the Dismissal Motion. On April 15, 2024, Giampa filed two oppositions.

Giampa continued to question U.S. Bank’s claim and its authority to

enforce the debt. Giampa argued that U.S. Bank did not file a timely proof

of claim, was using unauthorized attorneys, was a defunct and illegitimate

organization, and was falsely representing it had a secured claim against

the Property. Giampa also argued that Trustee’s objections were without

merit because Trustee was intentionally misquoting the Bankruptcy Code,

was refusing to carry out her statutory duties, and was attempting to

deceive Giampa.

The bankruptcy court held a hearing on both the objection to

confirmation and the Dismissal Motion and took the matters under

advisement. On May 14, 2024, the bankruptcy court issued an oral ruling

denying confirmation and dismissing the case pursuant to § 1307(c)(1) and

(5). On May 14, 2024, consistent with its oral ruling, the bankruptcy court

entered an order denying confirmation of the plan (“Order Denying

Confirmation”) and an order dismissing Giampa’s bankruptcy case

(“Dismissal Order”).

5 Giampa timely appealed both the Order Denying Confirmation and

the Dismissal Order.

B. Post appeal events

On January 22, 2025, the BAP denied Giampa’s January 13, 2025

emergency motion for stay. On February 12, 2025, the BAP received

notification that on January 27, 2025, during the pendency of this appeal,

Giampa filed a new chapter 13 petition in the same bankruptcy court.

Consequently, the BAP issued an order suspending the current appeal. On

May 12, 2025, Giampa requested that the appeal be reinstated because the

automatic stay in her new case was not extended by order of the

bankruptcy court. On May 16, 2025, the BAP reinstated the present appeal.

JURISDICTION

The bankruptcy court had jurisdiction under

and

157(b)(2)(A). We discuss our jurisdiction under

below.

ISSUE

Whether the appeal is moot.

STANDARD OF REVIEW

“This Panel can only address actual cases and controversies and,

therefore, has a duty to raise the issue of mootness sua sponte when the

parties fail to do so.” Omoto v. Ruggera (In re Omoto),

(9th

Cir. BAP 1988) (citation omitted). We assess de novo our own jurisdiction,

including questions of mootness. Ellis v. Yu (In re Ellis),

(9th Cir. BAP 2014). Under de novo review, “we consider a matter anew, as

6 if no decision had been made previously.” Francis v. Wallace (In re Francis),

(9th Cir. BAP 2014).

DISCUSSION

Neither party argues that the appeal is moot. However, before

considering the merits, the Panel has an independent obligation to consider

mootness sua sponte. Pilate v. Burrell (In re Burrell),

(9th

Cir. 2005). Mootness is a jurisdictional limitation on this Panel’s ability to

dispose of an appeal because the Panel “cannot exercise jurisdiction over a

moot appeal.” In re Ellis,

. Constitutional mootness derives

from the case-or-controversy requirement of Article III of the Constitution,

which limits the jurisdiction of all federal courts to actual cases and

controversies.

The Ninth Circuit has stated:

A case is moot if the issues presented are no longer live and there fails to be a “case or controversy” under Article III of the Constitution. The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If it can grant such relief, the matter is not moot.

In re Burrell,

(internal citations and quotation marks

omitted); see also Allard v. DeLorean,

, 466 (9th Cir. 1989) (“A

case is moot if it has lost its character as a present live controversy. If events

7 subsequent to the filing of an appeal moot the issues presented in a case, no

justiciable controversy is presented.”) (internal citation omitted).

Here, during the pendency of this appeal, Giampa filed another

chapter 13 petition (“New Case”). The commencement of a bankruptcy

case “creates an estate” that includes “virtually all [Giampa’s] assets.”

Harrington v. Purdue Pharma L.P.,

, 214 (2024) (citing § 541(a)).

Specifically, under § 541(a)(1), the bankruptcy estate comprises “all legal or

equitable interests of [Giampa] in property as of the commencement of the

case.” In a chapter 13 case, § 1306(a) provides that “[p]roperty of the estate

includes, in addition to the property specified in section 541 . . . (1) all

property of the kind specified in [§ 541] that the debtor acquires after the

commencement of the case but before the case is closed, dismissed, or

converted . . . whichever occurs first[.]” § 1306(a)(1). This provision thus

expands the bankruptcy estate’s scope in chapter 13 cases beyond what

§ 541(a) specifies, such that “the Chapter 13 estate from which creditors

may be paid includes both the debtor’s property at the time of his

bankruptcy petition, and any . . . property acquired after filing.” Harris v.

Viegelahn,

, 514 (2015).

Consequently, pursuant to the Bankruptcy Code, the property of the

dismissed estate is now being administered solely in the New Case. Thus,

if we reverse the Dismissal Order, then we would create the untenable

situation of having two different bankruptcy estates exercising control over

the same property at the same time, thus violating the “single estate rule.”

8 See e.g. Freshman v. Atkins,

(1925); Grimes v. United

States (In re Grimes),

(9th Cir. BAP 1990). Under the

single estate rule, it is well established that property cannot be an asset of

two bankruptcy estates simultaneously.

; Bateman v. Grover (In re

Berg),

(9th Cir. BAP 1984).

Additionally, regardless of creating a violation of the single estate

rule, if the Panel were to decide the issue in her favor, it is questionable

whether reinstating the dismissed case would provide any effective relief.

This is because in the New Case, Giampa has the same opportunity to

reorganize her affairs including disputing U.S. Bank’s authority to enforce

its claim and proposing a feasible chapter 13 plan.

Accordingly, Giampa’s choice to file another chapter 13 case divested

this Panel of jurisdiction because, even if the Panel decided the matter on

the merits in her favor, it is not possible for us to provide her any effective

relief.

CONCLUSION

Based on the foregoing, we DISMISS the appeal as MOOT.

9