FILED JUN 27 2025 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY.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. SC-25-1025-BFL JAMES GREGORY BARRETT, Debtor. Bk. No. 24-04251-JBM13

JAMES GREGORY BARRETT, MEMORANDUM∗ Appellant.

Appeal from the United States Bankruptcy Court for the Southern District of California J. Barrett Marum, Bankruptcy Judge, Presiding

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

INTRODUCTION

Appellant James Gregory Barrett appeals from an order dismissing his

chapter 13 1 case as a bad faith filing and imposing a two-year refiling bar. The

bankruptcy court determined that James 2 filed his case in bad faith and that a

two-year refiling bar was appropriate given his history of egregious behavior.

Seeing no reversible error, we AFFIRM.

∗ 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. 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 refer to Mr. Barrett as James and Mrs. Barrett as Torri for ease of reference. No

disrespect is intended. 1 FACTS 3

A. History of bankruptcy filings and litigation between the parties

Since 2013, James and Torri have filed 10 separate chapter 13 cases,

most of which were filed between 2021 and 2024 when they were facing

eviction from their home. All cases, including this one, were dismissed before

a chapter 13 plan was confirmed. The Barretts have also engaged in extensive

litigation in the California state and federal district courts.

Central to the bankruptcy filings and the nonbankruptcy litigation has

been the Barretts' (former) residence, located in Thermal, California, which

they purchased in 2002 and still claim to own. In 2015, the Barretts obtained a

loan for $33,740.88 from Salton Sea Estates III, LLC ("Salton") secured by a

deed of trust in favor of Salton against the residence. The Barretts soon

defaulted, and Salton started foreclosure proceedings and sued for quiet title

and other claims in state court in 2017.

Salton foreclosed in 2018. After more litigation in 2019 and 2020, Salton

filed its first unlawful detainer action against the Barretts in April 2021

("Salton UD Case"). In August 2021, James filed an action against Salton for

various claims, including wrongful foreclosure and quiet title ("James Case").

While the Salton UD Case and the James Case were pending, the

Barretts began their tag-team bankruptcy filings and case removals. In

James's fourth chapter 13 case, filed in August 2021, the bankruptcy court

3 We exercise our discretion to take judicial notice of documents electronically filed in the bankruptcy court, where appropriate. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood),

, 233 n.9 (9th Cir. BAP 2003). 2 granted relief from the automatic stay so the Salton UD Case and the James

Case could be litigated in state court. James attempted to circumvent this

order by removing those cases to the bankruptcy court. The bankruptcy court

remanded the Salton UD Case and the James Case to the state court and

dismissed James's fourth bankruptcy case as a bad faith filing.

The day after the district court affirmed the bankruptcy court's decision

to remand the Salton UD Case and the James Case, James filed his fifth

chapter 13 case and again removed the Salton UD Case and the James Case.

The bankruptcy court (Judge Mann) issued an order to show cause ("OSC")

why his fifth case should not be dismissed with prejudice and why the Salton

UD Case and the James Case should not again be remanded. Judge Mann

found that James's objective in his fifth chapter 13 case, as with his prior four

bankruptcy filings, was to stall eviction from the residence and this case, like

the others, had not been filed in good faith. Indeed, Judge Mann found that

removing the Salton UD Case and the James Case immediately after the

district court's affirmance of their remand was particularly egregious. After

James failed to respond to the OSC or appear at the hearing, the bankruptcy

court remanded the Salton UD Case and the James Case, dismissed James's

fifth case as a bad faith filing, and ordered a bar to refiling for two years or

until the Salton UD Case and the James Case were resolved, whichever was

earlier.

Three days before James's fifth case was dismissed, Torri filed her first

in a series of four chapter 13 cases. She removed (for the third time) the Salton

3 UD Case. The bankruptcy court (Judge Mann) issued an OSC for why Torri's

case should not be dismissed with prejudice and why the Salton UD Case

should not again be remanded. The court found that Torri, like James, had

misrepresented her ownership in the residence since Salton foreclosed in 2018

and that the Barretts' actions and the timing of their bankruptcy filings

indicated an intent to avoid the Salton UD Case and warranted imputing

James's bad faith to Torri. Ultimately, the court did not dismiss Torri's first

chapter 13 case, but it remanded the Salton UD Case on May 10, 2023. The

next day, the state court entered a judgment and writ of possession in favor of

Salton, and the Barretts were ejected from the residence on or around June 1,

2023. James's appeal of the judgment in the Salton UD Case was dismissed on

June 6, 2023. Torri dismissed her first chapter 13 case on August 4, 2023.

Twenty days after voluntarily dismissing her first chapter 13 case, Torri

filed her second chapter 13 case, which was eventually dismissed with a 180-

day refiling bar. While her second case was pending, Torri filed an action

against Salton in state court, (the "Forcible Detainer Action"), which she later

removed to the bankruptcy court. In the Forcible Detainer Action, Torri

sought to recover possession of the residence and damages, which was

essentially the same relief James sought in the James Case, which the state

court had just dismissed for his failure to post a $10,000 bond. Torri obtained

a default against Salton, but the bankruptcy court denied a default judgment

and instead remanded the Forcible Detainer Action. Torri obtained a default

judgment against Salton in the Forcible Detainer Action from the state court

4 on May 31, 2024. Salton sought to stay enforcement of and set aside the

"fraudulently obtained" default judgment on several grounds, including

improper service. Salton was granted a stay, and the court set a hearing for

July 2, 2024. The hearing ultimately did not proceed due to Torri's third

bankruptcy filing.

Meanwhile, in June 2024, the Barretts broke into the residence, Torri

filed her third chapter 13 case, and she again removed the Forcible Detainer

Action, which had just been remanded two months prior. During her third

case, Torri filed a motion to sell the residence. She argued that she and James

owned the residence based on the claims process that occurred in her first

bankruptcy case. In her first case, after the claims bar date had passed

without Salton filing a proof of claim, Torri filed a proof of claim on Salton's

behalf, claiming that she and James owned the residence subject to Salton's

deed of trust for $20,845.46. Torri contended that, since no one objected to the

proof of claim, the claim was "deemed allowed," and the subsequent

dismissal of her case on August 4, 2023 conclusively established as a matter of

law that she and James owned the residence subject to Salton's deed of trust.

The bankruptcy court (Judge Latham) denied Torri's motion to sell, finding

that she did not appear to own the residence. Torri's third case was

dismissed, and the Forcible Detainer Action was again remanded.

In the meantime, Salton served a three-day notice to quit on the

Barretts, who had been squatting at the residence since the June break-in.

When they failed to vacate, Salton filed its second unlawful detainer action.

5 Before the trial could take place, Torri filed a "skeletal" fourth chapter 13 case.

She then removed Salton's second unlawful detainer action to the bankruptcy

court, claiming that she and James owned the residence. On the trustee's

unopposed motion, Torri's fourth case was dismissed in December 2024 with

a one-year refiling bar. James's instant bankruptcy filing also stayed the

hearing set for Salton's refiled motion to set aside the default judgment in the

Forcible Detainer Action.

B. The instant bankruptcy case

James filed his sixth chapter 13 case in the Eastern District of Oklahoma

on October 22, 2024. Over his objection, it was transferred to the Southern

District of California on November 8, 2024.

After determining that James had not violated Judge Mann's refiling bar

because the Salton UD Case and the James Case were resolved before he filed

the case, the bankruptcy court (Judge Marum) issued an OSC for why it

should not dismiss the sixth case as a bad faith filing and impose at least a

two-year refiling bar. While the Salton UD Case and the James Case had

technically been resolved, the "issues" in those cases, namely ownership and

possession of the residence, were still being challenged by the Barretts in

Torri's Forcible Detainer Action.

In his response to the OSC, James argued that the claims process in

Torri's first chapter 13 case, as well as the default judgment entered in the

Forcible Detainer Action, finally and conclusively determined that the

Barretts owned and had the right to possess the residence subject to Salton's

6 deed of trust. Thus, he argued, the "issues of ownership and possession" were

resolved in their favor before he filed the sixth case and could not provide a

basis for bad faith. James argued that selling the residence would allow him

to fund a plan paying creditors in full, and that therefore he filed his case in

good faith. James disputed that he was trying to defeat state court litigation

with his sixth chapter 13 filing, because no civil cases pending at the time

named him as a party. Lastly, James blamed the bankruptcy judges for their

continued refusal to determine whether the residence was estate property as

the reason for his and Torri's serial bankruptcy filings.

The chapter 13 trustee also responded to the OSC, arguing that James

and Torri had demonstrated a long history of filings that served no

bankruptcy purpose. In this case, the trustee argued, James was again seeking

the protection of the automatic stay without fully complying with the

Bankruptcy Code and while attempting to pervert the bankruptcy process

through manipulative and misleading conduct, including repeatedly failing

to comply with court orders and engaging in tactics to defeat state court

litigation. The trustee argued that this case, like the previous one, should be

dismissed as a bad faith filing with a two-year refiling bar.

After a hearing, the bankruptcy court dismissed James's sixth chapter

13 case with a two-year refiling bar. The court found that all four Leavitt

factors were present, and based on the totality of the circumstances, including

Judge Mann's findings in James's fifth case, it determined that James filed his

sixth case in bad faith and that a two-year refiling bar was appropriate given

7 his history of egregious behavior. This timely appeal followed.

JURISDICTION

The bankruptcy court had jurisdiction under

and

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

.

ISSUE

Did the bankruptcy court abuse its discretion in dismissing James's

sixth chapter 13 case for bad faith and imposing a two-year refiling bar?

STANDARDS OF REVIEW

A bankruptcy court's finding of bad faith is reviewed for clear error.

Khan v. Barton (In re Khan),

(9th Cir. 2017). Factual

findings are clearly erroneous if they are illogical, implausible, or without

support in the record. Retz v. Samson (In re Retz),

(9th Cir.

2010).

A bankruptcy court's decision to dismiss a case with prejudice and

impose a filing bar is reviewed for abuse of discretion. See Leavitt v. Soto (In re

Leavitt),

(9th Cir. 1999). A bankruptcy court abuses its

discretion if it applies an incorrect legal standard, misapplies the correct legal

standard, or makes factual findings that are illogical, implausible, or not

supported by the record. United States v. Hinkson,

(9th

Cir. 2009) (en banc).

DISCUSSION

A. Governing law

The dismissal order does not state what authority the bankruptcy court

8 relied upon to sua sponte dismiss the case. In any event, the bankruptcy court

has the power to dismiss a chapter 13 case sua sponte under § 105(a). Tennant

v. Rojas (In re Tennant),

(9th Cir. BAP 2004) (holding that the

bankruptcy court may sua sponte dismiss a chapter 13 case under §§ 1307

and 105(a)). James does not contest that he was given the required notice and

opportunity to be heard before the case was dismissed. See id. at 870 (stating

that, for a sua sponte dismissal, notice and an opportunity to be heard must

be provided).

Bad faith is a "cause" for dismissal of a chapter 13 case under § 1307(c).

In re Leavitt,

. Section 349(a) establishes a general rule that

dismissal of a case is without prejudice, but it expressly grants a bankruptcy

court the authority to dismiss a case with prejudice – i.e., a permanent bar to

refiling.

.

To determine the existence of bad faith sufficient to order dismissal of a

chapter 13 case with prejudice, the bankruptcy court must consider the

totality of the circumstances.

. Factors to consider in determining

the presence of bad faith include: (1) whether debtor misrepresented facts in

the petition, unfairly manipulated the Bankruptcy Code, or otherwise filed

the petition in an inequitable manner; (2) debtor's history of filings and

dismissals; (3) whether debtor only intended to defeat state court litigation;

and (4) the presence of egregious behavior.

The bankruptcy court need not

find that every factor is satisfied. In re Khan,

. Rather, the

Leavitt factors are "simply factors to consider[,]" and "what matters is the

9 totality of the circumstances."

(cleaned up). Filing a bankruptcy case to

defeat or delay state court litigation, even if that is not the only purpose for

the filing, constitutes bad faith. See id.; Eisen v. Curry (In re Eisen),

(9th Cir. 1994); see also In re Silberkraus,

(Bankr. C.D. Cal.

2000) ("[T]wo party disputes in state court (or federal district court) should be

resolved through the normal litigation process in those forums, and . . . it is

bad faith to file bankruptcy instead of continuing with the normal litigation

process in the nonbankruptcy forums."), subsequently aff’d,

(9th

Cir. 2003).

B. The bankruptcy court did not abuse its discretion in dismissing James's sixth chapter 13 case for bad faith and imposing a two-year refiling bar.

Upon a thorough review of the Leavitt factors, the bankruptcy court

found that each was present and that under the totality of the circumstances,

all four weighed in favor of a bad faith filing. For the first factor, the court

found that James had demonstrated an unfair manipulation of the

Bankruptcy Code through his continuous case filings in a clear effort to stall

his eviction from the residence. Although James had numerous opportunities

to resolve this issue in state court, he instead used the Bankruptcy Code and

its corresponding protections to hinder Salton's ability to exercise its state-law

rights.

The court agreed with James's concession that he "is by definition a

serial filer," and found that the sheer volume of filings without successful

discharges adequately demonstrated the second Leavitt factor. 10 As to the third factor, the court found, consistent with Judge Mann's

earlier finding, that James's repeated filings appeared overwhelmingly to be

an effort to defeat state court litigation. James's assertion that he was not

involved in any civil litigation when he filed his sixth case failed to account

for his previous bankruptcy filings (and Torri's) which, the court found, were

clear attempts to hinder Salton's ability to secure its legal rights to the

residence. Indeed, noted the court, James's and Torri's most recent

bankruptcy filings came immediately before a trial was set to begin in

Salton's second unlawful detainer action.

Finally, the court found that James's conduct was egregious and

satisfied the fourth factor. In addition to his pattern of repeated filings

designed to hinder Salton, the court found that James had also attempted to

evade Judge Mann's bar order by (1) dismissing the James Case and then

filing the almost-identical Forcible Detainer Action through Torri, and

(2) filing his sixth chapter 13 case in Oklahoma, where he had never resided

and appeared never to intend to reside.

James lists nine issues on appeal that can be distilled to the following

arguments: (1) the bankruptcy court erred by focusing only on the Leavitt

factors and not considering the totality of the circumstances; (2) the

bankruptcy court erred by not considering the "linchpin" issue of ownership

of the residence and whether it was property of the estate as part of the bad

faith analysis; (3) the bankruptcy court erred by failing to consider that the

proposed plan would have paid creditors in full; and (4) the bankruptcy court

11 erred in its application of the Leavitt factors.

First, James argues that the bankruptcy court erred when it considered

only the Leavitt factors in determining bad faith as opposed to the "totality of

the circumstances." This argument is nonsensical. The Leavitt factors are tools

the bankruptcy court uses in considering the totality of the circumstances,

which the court did here. The court did not consider just one factor in a

vacuum, but rather considered all militating factors and found that each of

the Leavitt factors were present and weighed in favor of a bad faith filing. See

Ho v. Dowell (In re Ho),

(9th Cir. BAP 2002) ("A 'court must

make its good-faith determination in light of all militating factors.'") (quoting

Goeb v. Heid (In re Goeb),

(9th Cir. 1982)). This was not

error.

James argues that the bankruptcy court erred by not considering in its

analysis the "militating factors" of ownership and possession of the residence.

The court determined that the rightful owner of the residence was irrelevant

for purposes of deciding whether the sixth case was filed in bad faith, and

that the state court was better suited to decide ownership. While possibly not

"irrelevant," we agree that these issues were not necessary for the court to

find that this was a bad faith filing given the mountain of other factors

indicating bad faith.

Nonetheless, James continues to argue that ownership and possession

of the residence were finally determined in his and Torri's favor in at least

two ways prior to when he filed his sixth case. Both James and Torri have

12 repeatedly argued that they own the residence based on the claims process

that occurred in Torri's first bankruptcy case. In her third case, Torri moved

to sell the residence and in doing so argued that, because the proof of claim

she filed for Salton was "deemed allowed" and her case was dismissed, this

conclusively established as a matter of law that she and James owned the

residence subject to Salton's deed of trust.

Assuming James and Torri are not precluded from raising this issue,

their argument is just legally wrong. James relies on Siegel v. Federal Home

Loan Mortgage Corp.,

(9th Cir. 1998), to argue that the deemed-

allowed claim Torri filed for Salton in her first case finally determined

ownership of the residence in the Barretts' favor and must be given res

judicata, or claim preclusive, effect. In Siegel, the Ninth Circuit Court of

Appeals held that the deemed allowance of a proof of claim under § 502(a) is

a final judgment entitled to preclusive effect in future proceedings, even if no

actual order regarding the claim has been entered.

.

James's reliance on Siegel is misplaced because it is distinguishable on

its facts. First, Siegel was filed as a no-asset chapter 7 case. A chapter 13 case,

by definition, has assets. Second, the debtor in Siegel had received a

discharge, which the Circuit panel found important as to any "lingering

doubts" about the claim's finality.

. Here, there was no confirmed

plan or discharge. This Panel declined to apply Siegel's holding in a case

similar to this one, where the chapter 13 debtors voluntarily dismissed their

case without confirmation of a plan or a discharge. See Inv. Consultants, Inc. v.

13 Ramirez Ramirez (In re Ramirez Ramirez), BAP No. CC-19-1257-STaF,

, at *8 (9th Cir. BAP Aug. 3, 2020). In Ramirez Ramirez, the creditor

filed a proof of claim in the debtors' earlier chapter 13 cases, which the

debtors did not object to, but the cases were dismissed prior to plan

confirmation. In the debtors' subsequent chapter 13 case, the creditor filed

another proof of claim and argued that, under Siegel, the debtors were barred

from challenging the claim because it was deemed allowed in the prior cases

and entitled to preclusive effect.

. The Panel disagreed, distinguishing

Siegel on its facts and determining that a "deemed allowed" proof of claim in a

chapter 13 case that has been dismissed without confirmation of a plan and

without entry of the debtor's discharge is not entitled to claim preclusive

effect in later litigation.

at *8 (citing Fisher v. Santry (In re Santry),

(Bankr. N.D. Ga. 2012)).

James's "claims process" argument additionally fails because the

allowance or disallowance of a claim does not determine ownership of

property. Parties file proofs of claim in order to assert "claims." § 501(a). A

"claim" is a "right to payment" or a "right to an equitable remedy [that] gives

rise to a right to payment . . . ." § 101(5). The allowance of a claim is a

determination that the claimant has a right to payment; it does not determine

that the claimant or anyone else has ownership of any asset. Rather, to obtain

a determination as to ownership rights, one must commence an adversary

proceeding. See Rule 7001(b). A party cannot request a determination of

ownership rights by objecting to a claim, rather than by filing an adversary

14 proceeding. Rule 3007(b). "[I]t is error for a bankruptcy court to determine

property interests outside of an adversary proceeding." In re Ramirez Ramirez,

, at *6 (citing cases). Thus, allowance of the proof of claim

that the Barretts filed on behalf of Salton could not and did not determine

that the Barretts own the residence. 4

James also argues that the issues of ownership and possession of the

residence were determined in Torri's favor in the default judgment the state

court awarded her against Salton in the Forcible Detainer Action on May 31,

2024. Salton has disputed this. First, Salton sold the residence in November

2023 but ultimately bought it back from the buyer on June 10, 2024. Salton

argued that, because it did not own the residence at the time of the default

judgment, and the buyer was not a party to the Forcible Detainer Action,

Torri could not have gained possession of the residence from either the buyer

or Salton, which was not in possession. Further, Salton immediately

challenged the default judgment as fraudulent, but the Barretts' continued

bankruptcy filings and case removals prevented the state court from deciding

that challenge.

Next, James argues that the bankruptcy court should have considered

his proposed chapter 13 plan, which he argues established good faith because

it provided for the sale of the residence and would have paid creditors in full.

As noted above, the residence is not his to sell. But even if it was, his

4 While, under certain circumstances, failure to proceed by adversary proceeding can be harmless error, those circumstances are not present here. See Ruvacalba v. Munoz (In re Munoz),

(9th Cir. BAP 2002). 15 argument fails. The bankruptcy court is not required to "evaluate

confirmability of a debtor's proposed chapter 13 plan when determining

whether § 1307(c) cause exists." Khan v. Barton (In re Khan),

(9th Cir. BAP 2014), aff'd but criticized on other grounds,

(9th Cir.

2017), and abrogated in part by Liquidating Tr. Comm. v. Freeman (In re Del

Biaggio),

(9th Cir. 2016). Here, the plan did not propose to pay

any amount to Salton even though James acknowledges, at minimum, that

Salton has a security interest in the residence. Since the plan did not provide

for James's largest creditor, it does not suggest good faith. See

Finally, James argues that the bankruptcy court erred in its application

of the Leavitt factors, essentially arguing that its findings are erroneous and

not supported by the record. We disagree. It is clear that the Barretts intended

to hinder Salton's nonbankruptcy remedies by systematically invoking the

automatic stay through the filing of well-timed, serial petitions. Even more

egregious, they have engaged in a "tag-team" system of filing separate

petitions to further exploit the automatic stay and circumvent adverse state

court rulings. Their pattern of petition filings and removals of pending state

court actions are merely efforts to delay those actions, avoid adverse rulings,

and hinder Salton's ability to secure and enforce its property rights. As the

bankruptcy court found, their most recent petitions came just before a trial

was set to begin in Salton's second unlawful detainer action. When James,

who claims to have a J.D., faced the hurdle of being declared a vexatious

litigant by the state court and subject to a prefiling order, he manipulated the

16 system by using Torri as a proxy to file actions similar to those that were

dismissed and seek essentially the same relief. It is farcical for James to argue

that he was not trying to defeat state court litigation with his sixth

bankruptcy filing because no civil cases pending at the time named him as a

party.

The Barretts have used the bankruptcy system as a means to further

their litigation position in what is nothing more than a two-party dispute,

lacking any desire or ability to reorganize, that has consumed precious

judicial resources in both the state and federal courts. Their multiple,

sometimes skeletal, chapter 13 filings have had no bankruptcy purpose, and

their repeated failure to appear when facing dismissal demonstrates their

irreverence for the bankruptcy court. For James to argue that the record does

not support the bankruptcy court's decision to dismiss this case as a bad faith

filing with prejudice is ludicrous. The record amply supports its decision.

James does not contest the bankruptcy court's decision to impose the

two-year refiling bar. This is a sufficient basis to affirm that decision. See

United States v. Kama,

(9th Cir. 2005) ("Generally, an issue

is waived when the appellant does not specifically and distinctly argue the

issue in his or her opening brief."). In any event, a two-year refiling bar in this

case was appropriate and not an abuse of discretion. See Kulick v. Leisure Vill.

Ass'n, Inc. (In re Kulick), BAP No. CC-22-1114-FTL,

, at *3

(9th Cir. BAP Dec. 16, 2022) ("[T]he issue of the length of the bar is a matter

for the [bankruptcy] [c]ourt's discretion.") (quoting In re Craighead,

(Bankr. N.D. Cal. 2007)).

CONCLUSION

For the reasons set forth above, we AFFIRM.

18