Mizraim Mohammed El and Patrese M. El

OCR transcription for search; preserved printed pages are authoritative

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GPO

< December 29, 2005 FILED
GLORIA L. FRANKLIN, CLERK

U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA DEC 23 2005

NOT FOR PUBLICATION

HAROLD S. MARENUS, CLER

BKCY. APP. PANEL
OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: BAP No. NC-05-1205-MaszZ

MIZRAIM MOHAMMED EL and Bk. No. 04-45048

PATRESE M. EL,

Debtors.

MIZRAIM MOHAMMED EL and
PATRESE M. EL,

Appellants,

Vv. MEMORANDUM

MARTHA BRONITSKY, Chapter 13
Trustee; RUDY SPATENKA; SELECT
PORTFOLIO SERVICING, INC.,

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Appellees. )
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Argued and Submitted on November 16, 2005
at San Francisco, California

Filed - December 23, 2005

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

Honorable Edward D. Jellen, Bankruptcy Judge, Presiding.

Before: MARLAR, SMITH AND ZURZOLO,* Bankruptcy Judges.

1 This disposition is not appropriate for publication and
may not be cited by the courts of this circuit except when
relevant under the doctrines of law of the case, res judicata, or
collateral estoppel. See 9th Cir. BAP Rule 8013-1.

2 Hon. Vincent P. Zurzolo, United States Bankruptcy Judge
for the Central District of California, sitting by designation.

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INTRODUCTION

In bankruptcy court, the pro se chapter 13° debtors asserted
that their debts had been discharged prior to full payment in
accordance with their confirmed plan, and they sought an order to
that effect. The court denied their motion for an early discharge
as legally insufficient.

After the debtors filed this appeal of the court’s order,
their chapter 13 case was dismissed. Both orders have been timely
appealed. We conclude that there was no legal error in the

bankruptcy court’s rulings and AFFIRM.
FACTS

Mizraim Mohammed El and Patrese M. El (“Debtors”) fileda
chapter 13 petition on September 15, 2004. At that time, they
owned real property in Richmond, California, including residential
real property, located at 2808 Cutting Blvd.’

Select Portfolio Servicing, Inc. (“Select Portfolio”) was a
secured creditor with a loan claim in the amount of $195,826.77,

which was secured by a lien on Debtors’ residential real property.

3 Unless otherwise indicated, all chapter and section
references are to the pre-amended Bankruptcy Code (“Bankruptcy
Code” or “Code”), 11 U.S.C. §§ 101-1330, and rule references are
to the Federal Rules of Bankruptcy Procedure (“Fed. R. Bankr.
P.”), Rules 1001-9036.

* We take judicial notice of pertinent items in the
bankruptcy court records, such as the chapter 13 petition and
schedules, the plan, the claims register, and pleadings referenced
by the appellants. O’Rourke v. Seaboard Sur. Co. (In re E.R.
Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989) (panel may take
judicial notice of bankruptcy court records).

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Rudy Spatenka (“Spatenka”) was a secured creditor holding a
promissory note from Debtors in the amount of $148,500, which was
secured by a first deed of trust (“DOT”) and assignment of rents
in other real property, located at 2901 Cutting Blvd.°*

At the time of the chapter 13 filing, Debtors were
approximately $4,000 in default under Spatenka’s Note and DOT and
$20,000 in arrears to Select Portfolio.

Spatenka originally objected to Debtors’ proposed chapter 13
plan on feasibility grounds. Thereafter, through their attorney,
Timothy J. Walsh (“Walsh”), Debtors entered into a stipulation
with Spatenka to make certain amendments to the plan.

Debtors’ first amended plan proposed to make plan payments of
$740 per month for 60 months, including the curing of arrearages.
It further provided for direct monthly payments to Spatenka and
Select Portfolio in the amounts of $1,608.75 and $1,700,
respectively. Finally, the plan provided for a balloon payment to
Spatenka of the entire debt balance before the 60th month of the
plan.

The plan was confirmed on March 2, 2005. The confirmation
order made the following provisions for Spatenka’s debt:

2. The trustee shall make disbursements on the
secured claim of [Spatenka] per the claim filed, with

interest at the rate of 10%;

3. The debtor shall pay directly [Spatenka] [sic],
the sum of $1,608.75 per month;

4. The debtor will further propose pursuant to 11 USC
1322(b): [Spatenka] to be paid in full within 60 months or
prior to the end of 60 months, in the amount of the entire
indebtedness of approximately $148,500.00;

° Spatenka filed secured claims for $5,457.34 and $153,957.
The record does not show that these claims were the subject of an
objection. See Fed. R. Bankr. P. 3007.

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5. Debtor shall maintain homeowner’s insurance on the
real property at 2901 Cutting Bl, Richmond, Ca, and provide
proof to creditor [Spatenka] ;

6. Debtor shall maintain all post petition property tax
on said real property, as they [sic] become due, and provide
proof to creditor [Spatenka] ;

7. In the event the debtors do not make the regular
monthly payments to [Spatenka], by the 10th of each month, or
default as to the providing of home owner’s [sic] insurance, or
timely payment of property tax on said real estate, creditor
[Spatenka] may serve a letter upon debtors and debtors’ counsel
by first class postage, with a notice of 10 days to cure said
default; if said default is not cured within the 10 days, the
automatic stay will lift without further notice or hearing;
debtors will have the right to cure on only 3 separate
occasions; upon the fourth occasion of default, as described
above, the automatic stay will lift without further notice to
debtors or debtors’ counsel.

Order Approving Chapter 13 Plan (March 2, 2005), pp. 1-2.

Almost immediately, Debtors defaulted and, on or about March
11, 2005, Spatenka served a first letter notice of default on
Debtors regarding the regular March payment. On or about March
17, 2005, Spatenka served a second letter notice indicating that,
although he had received $1,607 from Debtors, that amount was
insufficient, as the regular payment was $1,608.75 plus a late
penalty of $160.88. In addition, Spatenka demanded that Debtors
submit evidence of homeowners’ insurance.

Debtors responded, without benefit of counsel, on March 17,
2005, by serving upon the chapter 13 trustee (“Trustee”), Spatenka
and Select Portfolio, and filing with the court, a pleading
entitled “ACTION (UCC1-201(1) [sic] BY NOTICE OF TENDER AND TENDER
IN TRANSFER, SATISFYING i.e. DISCHARGING ALL ALLEGED DEBT--
TOGETHER WITH NOTICE OF MOTION AND AND [SIC] MOTION TO DISCHARGE
ALLEGED DEBTORS BEFORE COMPLETION OF CHAPTER 13 PLAN PURSUANT TO

TITLE 11 U.S.C. SECT. 1328(b)” (“Motion for Discharge of Debts”).

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Debtors did not, however, ask the court to allow a post-
confirmation modification to the plan pursuant to § 1329.

Basically, Debtors asserted that they could extinguish and
discharge the debts owed to Spatenka and Select Portfolio, as well
as the plan payments to Trustee. They proposed to do this via
self-styled promissory notes and documents given to each one,
which were based upon Debtors’ unilateral view of the law and how
it should work, a view that was completely contrary to their
confirmed plan.

The documents being substituted for actual cash payments were
unorthodox. Accompanying the promissory note was a “self-
executing” security agreement,® which labeled Trustee as “User”
and the so-called secured party as Debtors, themselves, under an
alleged trade-name/trademark, MIZRAIM MOHAMMED EL®, PATRESE
MOHAMMED EL®, PATRESE MICHELLE ALSTON®.’ The documents included
some type of duty by which Trustee could “opt-out” only by ceasing
to “use” the estate’s property. The security agreement purported
to prevent Trustee from any unauthorized “use” of the “trade-name”
or the collateral, under pain of monetary sanctions.

A financing statement was attached which designated, as both
the Debtor and the secured party, Mizraim Mohammed El, and
described as “collateral” all of his real and personal property.

All in all, these documents were virtually incomprehensible,
unsupported by applicable bankruptcy law, and legally ineffective.
None of the affected parties had agreed to this new treatment of

their obligations.

* Only the documents provided to Trustee have been included
in the excerpts of record.

7 The significance of the copyright symbols is unexplained.

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After receiving these documents, on March 22, 2004, Spatenka
filed a “Declaration Re Breach of Chapter 13 Plan and Adequate
Protection Order.” He requested immediate relief from the
automatic stay due to Debtors’ failure to pay the March payment in
full and to provide proof of homeowners’ insurance and payment of
real estate taxes.

Spatenka also filed a response to the Motion for Discharge of
Debts, which he stated lacked factual or legal basis, describing
it as “nonsensical and near impossible to decipher.” He
challenged Debtors’ attempt to unilaterally replace his secured
lien with other incomprehensible and legally invalid documents.

On April 6, 2005, Walsh filed a motion to withdraw as
Debtors’ counsel. Matters then worsened for Debtors when, on
April 7th, Trustee filed a “Notice of Default in Chapter 13 Plan
Payments and Demand for Cure.” The notice informed Debtors that
they were delinquent in their chapter 13 plan payments, and that
if they did not pay $1,480 within 20 days, their case could be
immediately dismissed without further notice or hearing.

On April 14, 2005, Debtors followed up on their Motion for
Discharge of Debts with the service and filing of a “Notice of
Alleged Creditors [sic] Acceptance of Alleged Debtors [sic] Tender
of Credits and Offer of Performance Made and Offered on March 17,
2005.” They asserted that Trustee’s and Select Portfolio’s
silence was an “acceptance” of their position, and, additionally,
that Spatenka, by not verifying the debt, also “accepted” the new

treatment.

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These unusual events culminated in a hearing on May 5, 2005.8
First, the bankruptcy court granted Walsh’s motion to withdraw.
Next, addressing Debtors’ Motion for Discharge of Debts, the
bankruptcy court reasoned, among other things, that the Uniform
Commercial Code (“UCC”) sections which Debtors had proffered were
not applicable to secured interests in real property. It
therefore denied the Motion.

The bankruptcy court noted that Debtors were still in default
under their plan as to Spatenka’s debt. It also confirmed, with
Trustee, that Debtors were still in default in their plan
payments, in the sum of $1,480. The court therefore granted
Spatenka’s motion and, independently, dismissed the chapter 13
case for the plan payment default. It ordered the automatic stay
to be lifted after May 25, 2005.’

Separate orders were then entered, as follows:

- Order Denying Motion for Discharge of Debts - May 6, 2005

- Order Re Breach of Chapter 13 Plan - May 10, 2005

- Order Granting Motion to Withdraw - May 10, 2005

- Order Dismissing Case - June 6, 2005

Debtors timely appealed the Order Denying Motion for

Discharge of Debts and the Order Dismissing Case, and we review

* The transcript of this hearing was ordered and filed with
the bankruptcy court and with the BAP. Although it was not
included in the excerpts of record, we presume that Debtors
intended it to be, as it is necessary for us to review their
argument. See Ehrenberg v. Cal. State Univ. (In re Beachport
Entm’t), 396 F.3d 1083, 1087 (9th Cir. 2005) (panel abuses its
discretion if it fails to consider the impact of a sanction for
procedural violations). Therefore, we will consider it.

° Mr. El, appearing pro se at oral argument, stated that
foreclosure had not yet occurred.

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both orders.?°

ISSUES

1. Whether the bankruptcy court erred in denying the Motion

for Discharge of Debts.

2. Whether the bankruptcy court abused its discretion in

dismissing the chapter 13 case.
3. Whether the bankruptcy court’s orders were void because
they violated Debtors’ due process rights, or were

products of fraud or judicial bias.

STANDARD OF REVIEW

The bankruptcy court's findings of fact are reviewed for
clear error and its conclusions of law, including its
interpretation of the Bankruptcy Code, are reviewed de novo.

Latman v. Burdette, 366 F.3d 774, 781 (9th Cir. 2004).

"A reorganization plan resembles a consent decree and
therefore, should be construed basically as a contract." Hillis

Motors, Inc. v. Haw. Auto. Dealers' Ass'n, 997 F.2d 581, 588 (9th

*° Debtors’ notice of appeal expressed their.intent to appeal
both orders, although it was premature as to the dismissal order,
and we have jurisdiction over both orders. See Munoz v. S.B.A.,
644 F.2d 1361, 1364 (9th Cir. 1981) (intent to appeal froma
specific judgment may be fairly inferred from the notice); Fed. R.
Bankr. P. 8002(a) (premature notice of appeal is considered filed
upon entry of final judgment).

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Cir. 1993). In the absence of factual issues, questions of
contract enforcement and interpretation are subject to de novo

review. See Dolven v. Bartleson (In re Bartleson), 253 B.R. 75,

79 (9th Cir. BAP 2000).
A bankruptcy court’s decision to dismiss a chapter 13 case
“for cause” pursuant to § 1307(c) is reviewed for an abuse of

discretion. Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1223

(9th Cir. 1999). A court necessarily abuses its discretion when

it makes an error of law. Debbie Reynolds Hotel & Casino, Inc. v.

Calstar Corp. (In re Debbie Reynolds Hotel & Casino, Inc.), 255

F.3d 1061, 1065 (9th Cir. 2001).
The question of whether the requirements of due process have

been satisfied is one of law which we review de novo. Willamette

Waterfront, Ltd., v. Victoria Station Inc. (In re Victoria
Station, Inc.), 875 F.2d 1380, 1382 (9th Cir. 1989).
DISCUSSION

A. Debtors’ Tender was Legally Insufficient and an Improper
Attempt to Modify the Chapter 13 Plan
Debtors proposed to pay off their chapter 13 plan obligations
by giving Trustee a “promissory note” in the amount of $54,000 as
well as other self-styled documents. This option was not what
their plan called for, and they had no unilateral right to change
its terms or to impose unauthorized conditions on other parties.
Debtors’ obligation under the plan, which they voluntarily
proposed and for which they had obtained confirmation, was to pay

money in monthly installments. A debtor and all creditors are

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bound by the provisions of a chapter 13 plan. See § 1327(a). The
creditors “have a justifiable expectation that they will be

treated in accordance with” the plan’s terms. In re Richardson,

192 B.R. 224, 228 (Bankr. S.D. Cal. 1996). Thus, the plan acts as
a contract between the debtor and the debtor’s creditors and
governs their contract rights until the plan is properly modified.

See Hillis Motors, 997 F.2d at 588 (discussing nature of chapter

11 plan); In re O’Brien, 181 B.R. 71, 78 (Bankr. D. Ariz. 1995).

Debtors did not file a motion to modify their plan, post-
confirmation. Instead, Debtors argued that they acted pursuant to
the UCC and California law.

First, the bankruptcy court correctly ruled that the UCC was
inapplicable to this situation. The only creditors listed in
Debtors’ plan were secured creditors with liens on Debtors’ real
property and the tax collector. The UCC is designed to promote a
fair and efficient framework for commercial transactions involving
personalty and fixtures. See UCC § 1-102, Cal. Com. Code § 1102;

Ford & Vlahos v. ITT Commer. Fin. Corp., 8 Cal. 4th 1220, 1234,

885 P.2d 877, 886, 36 Cal. Rptr. 2d 464, 473 (1994). It has no
bearing on real property transactions, tax obligations, or on the
professional relationship between a chapter 13 trustee and the
debtor, which is governed by the Bankruptcy Code.

Second, Debtors argued that, pursuant to California law, they
had extinguished their obligations by tendering their offers and,
thus, were entitled to an early order of discharge. To the extent
Debtors attempted to usurp federal bankruptcy law, the state law
upon which they relied was pre-empted, “because the ability to

grant a discharge is ‘one of the principal requisites’” of federal

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bankruptcy law. Sherwood Partners, Inc. v. Lycos, Inc., 394 F.3d

1198, 1203 (9th Cir.) (quoting Stellwagen v. Clum, 245 U.S. 605,

616 (1918)) (state statutes that purport to grant a bankruptcy

discharge are preempted), cert. denied, U.S. , 126 S.Ct.

397 (2005). See also, Aerocon Eng’g, Inc. v. Silicon Valley Bank

(In re World Aux. Power Co.), 303 F.3d 1120, 1128-29 (9th Cir.

2002) (state laws that conflict with a federal statutory scheme
are preempted).

Debtors’ discharge was governed by the Bankruptcy Code and
the terms of their confirmed plan, and we review this appeal in
the context of the substantive law, both pre- and post-
confirmation.

Debtors’ residential real property was scheduled with a value
of $310,000 and reflected a lien of Select Portfolio in the amount
of $215,000. In regards to the treatment of such secured clain,
the Code permits only the curing of arrearages over a reasonable
time. See § 1322(b) (5). Otherwise, the rights of such
residential secured creditor may not be modified. See
§ 1322(b) (2). In compliance with the Code, Debtors’ plan proposed
to cure the arrearage over time and to make the monthly loan
payments of $1,700 directly to Select Portfolio.

Spatenka’s lien was listed on Debtors’ schedules in the
amount of $160,000 on other real property valued at $470,000.
Under the Code, § 1325(a) (5) requires that, unless a secured
creditor accepts the plan or the collateral which secures the
claim is surrendered, the plan must provide for the retention of
the creditor's lien and provide for the distribution of cash

payments which are not less than the allowed amount of the claim.

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q

See § 1325(a) (5) (B) (i) and (ii). Compliance with the payment

requirement of § 1325(a) (5) (B) (ii) is mandatory. See Barnes v.

Barnes (In re Barnes), 32 F.3d 405, 407 (9th Cir. 1994). In

addition, § 1322(b)(5) provides for the curing of arrearages and
maintenance of payments in a plan, and § 1322(b) (8) allows
“payment” of all or part of a claim from either estate property or
Debtors’ property. 11 U.S.C. § 1322(b) (8).

In meeting Code requirements, Debtors proposed a plan which
would cure the $4,000 arrearage through the monthly plan payments,
pay $1,608.75 directly to Spatenka each month, and pay off the
entire secured debt with a cash payment before 60 months.

Another condition of confirmation is that the plan must be
feasible, in that “[t]he debtor will be able to make all payments
under the plan... .” 11 0.S8.C. § 1325(a) (6). Debtors’
confirmed plan nowhere provided that the required “payments” could
be in a form other than what the Code and the parties intended--
cash.

The Code further requires that each month, for the term of
the plan, the debtor must submit “all or such portion of future
earnings or other future income . .. as is necessary for the
execution of the plan.” 11 U.S.C. § 1322(a) (1). Debtors’ plan
was confirmable because it set forth the proper treatment of the
secured creditors’ claims. Additionally, it called for cash
payments of $740 each month to Trustee. Once the plan was
confirmed, it was legally binding upon Debtors and each creditor.
See § 1327(a).

In the normal course of a plan, a debtor makes all of the

payments under its terms and, after completing such payments, is

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entitled to a discharge. See § 1328(a). A “hardship” discharge

may be granted before all payments have been made “only if”:
(1) the debtor's failure to complete such payments is due
to circumstances for which the debtor should not justly be
held accountable;
2) the value, as of the effective date of the plan, of
property actually distributed under the plan on account of
each allowed unsecured claim is not less than the amount
that would have been paid on such claim if the estate of
the debtor had been liquidated under chapter 7 of this
title on such date; and

(3) modification of the plan under section 1329 of this
title is not practicable.

11 U.S.C.A. § 1328(b).

Debtors satisfied none of the statutory conditions for an
early or “hardship” discharge. Instead, they unilaterally
attempted to force their secured creditors, as well as Trustee, to
accept something other than the cash payments promised in their
plan, under which they and their creditors were bound. It is not
surprising that Trustee and the affected secured creditors
resisted that effort.

Post-confirmation changes to a plan are governed by § 1329.
Debtors did not file a motion to modify their plan post-
confirmation. Or, if they were attempting to modify their plan,
they failed to comply with the requirements of § 1329.

Modification is essentially a new plan confirmation and must
be consistent with the statutory requirements for confirmation.

See Max Recovery, Inc. v. Than (In re Than), 215 B.R. 430, 434

(9th Cir. BAP 1997); see also § 1329(b) (1). Had Debtors attempted
to modify their plan pursuant to the Code, any modifications would
also be subject to the requirements of §§ 1322(a) and (b),

1323(c), and 1325(a). See § 1329(b) (1).

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Not having a proper modified plan before it, either
substantively or procedurally, the bankruptcy court did not err in
rejecting Debtors’ efforts to substitute bizarre, legally
ineffective pieces of paper for their promises (both pre- and
post-bankruptcy) to pay cash in order to satisfy legal obligations
which they had voluntarily incurred.

Based on the foregoing analysis, we conclude that Debtors’
offers of tender to Trustee and the secured creditors were legally
insufficient to effectuate a modification to the confirmed plan.
Moreover, Debtors did not satisfy the requirements for an early
discharge. Therefore, the bankruptcy court properly denied their

Motion for Discharge of Debts.

B. Dismissal of the Bankruptcy Case was Warranted

Under § 1307(c), on request of a party in interest or the
United States Trustee, and after notice and a hearing, the
bankruptcy court may dismiss a chapter 13 case for “cause,”
including "material default by the debtor with respect to a term
of a confirmed plan." 11 U.S.C. § 1307(c) (6).

Here, Trustee filed a notice of default and possible
dismissal of Debtors’ case because they were in default in plan
payments. At the May 5, 2005 hearing, Trustee informed the court
that Debtors were still in default.

Debtors did not present a plausible defense to Trustee's
motion to dismiss, but only advanced their labored fantasies about
how the Code should be construed. We have affirmed the bankruptcy

court’s conclusion that Debtors’ so-called notes and offers of

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tender were legally insufficient, because they did not comply with
the Code, which was the applicable substantive law. Therefore,
the bankruptcy court did not abuse its discretion in dismissing

Debtors’ chapter 13 case.

Cc. The Orders Were Not Void Due to Lack of
Due Process, Fraud or Judicial Bias

Debtors argue three grounds for asserting that the bankruptcy
court’s Order Denying Motion for Discharge of Debts and Order
Dismissing Case were void: lack of due process, fraud, and
judicial bias.

Due process guarantees notice and an opportunity to be heard
where a protected property or a liberty interest is at stake.

What constitutes due process and adequate notice depends on the

facts and circumstances of each case. Owens-Corning Fiberglas

Corp. v. Ctr. Wholesale, Inc. (In re Ctr. Wholesale, Inc.), 759

F.2d 1440, 1449 (9th Cir. 1985). In general, notice must be
reasonably calculated to apprise the parties of the pendency of
the action and afford interested parties a reasonable opportunity

to respond. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.

306, 314 (1950).

Debtors have not complained that they did not have notice of
the May 5th hearing, or that they were unable to participate ina
meaningful way. They appeared pro se after their attorney’s
motion to withdraw was granted at that same hearing, and then they
requested additional time to obtain new counsel. The bankruptcy
court agreed that new counsel was vital to their cause, and

allowed Debtors 20 days in which to obtain new counsel and file a

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motion for reconsideration or take other action, such as
converting the case to chapter 7. Debtors, therefore, were not

prejudiced by their attorney’s withdrawal. See Reyes-Melendez v.

I.N.S., 342 F.3d 1001, 1006 (9th Cir. 2003) (constitutional due
process claims require showing of prejudice, “which means that the
outcome of the proceeding may have been affected by the alleged
violation.”) However, Debtors never did obtain new counsel, and
have proceeded pro se since the May 5th hearing.

Debtors had their day in court and the full opportunity to
raise all issues before the bankruptcy court, and the evidence and
record do not support a violation of their due process rights.

Next, Debtors contend that Spatenka, Trustee and the
bankruptcy court engaged in fraud, including fraudulent
nondisclosure. Debtors’ examples of fraud are merely their belief
that the court’s opinions or rulings, which were simply contrary
to their views and arguments, were wrong. That is not enough.

Debtors further allege that Trustee and the court worked in
collusion to put the real property into foreclosure and that they
were not provided with a report of the distribution of proceeds.
There is no evidence of such collusion in the transcript of
proceedings of May 5, 2005, nor in any other part of the record.
Furthermore, any allegations that the foreclosure sale, which was
scheduled to occur after the bankruptcy case was dismissed, was
improperly conducted is well beyond the scope of this appeal and
the record presented for review.

Finally, Debtors contend that the bankruptcy judge was biased
and violated the judicial code of conduct. Their sole basis for

this assertion is based on the court’s rejection of their

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arguments. Opinions formed by the bankruptcy judge, on the basis
of either the facts introduced at trial or the absence of such

facts, do not constitute bias or impartiality unless the judge has
displayed a “deep-seated favoritism or antagonism that would make

fair judgment impossible.” Liteky v. United States, 510 U.S. 540,

555 (1994).

Our review of the May 5th transcript does not reveal any
favoritism or antagonism on the part of the bankruptcy judge.
Indeed, the opposite is true. The bankruptcy judge listened
without interruption to the arguments and considered the facts and
law before rendering his rulings. He then stayed the ruling for
20 days in order to give Debtors a fair opportunity to obtain new
counsel or to file any necessary motions, including a motion for
reconsideration of the court’s rulings.

Therefore, we find no basis for Debtors’ assertion that
either the Order Denying Motion for Discharge of Debts or the
Order Dismissing Case was void for lack of due process, or that

they were based upon fraud or judicial bias.

CONCLUSION

The evidence and law supports the bankruptcy court’s rulings.
Debtors were provided due process, but they did not file a proper
motion to modify their confirmed plan. Their unilateral efforts
to impose new conditions on Trustee and their secured creditors,
based upon erroneous and improper conclusions as to what law
should guide the course of the bankruptcy case, did not alter

their obligation to comply with the terms of their confirmed plan.

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Since they defaulted, the court did not err in dismissing their
case. The court’s rulings against Debtors’ position were not
indicative of fraud or judicial bias. Therefore, both orders are

AFFIRMED.

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U.S. Bankruptcy Appellate Panel
of the Ninth Circuit
125 South Grand Avenue, Pasadena, California 91105
Appeals from Central California (626) 229-7220
Appeals from all other Districts (626) 229-7225

NOTICE OF ENTRY OF JUDGMENT

BAP No. NC-05-1205-MaSZ

RE: MIZRAIM MOHAMMED EL and PATRESE M. EL

A separate Judgment was entered in this case on 12/23/05

BILL OF COSTS:

Bankruptcy Rule 8014 provides that costs on appeal shall be taxed by the
Clerk of the Bankruptcy Court. Cost bills should be filed with the Clerk
of the Bankruptcy Court from which the appeal was taken.

9th Cir. BAP Rule 8014-1

ISSUANCE OF THE MANDATE:

The mandate, a certified copy of the judgment sent to the Clerk of
the Bankruptcy Court from which the appeal was taken, will be issued
7 days after the expiration of the time for filing a petition for
rehearing unless such a petition is filed or the time is shortened or
enlarged by order. See Federal Rule of Appellate Procedure 41.

APPEAL TO COURT OF APPEALS:

An appeal to the Ninth Circuit Court of Appeals is initiated by

filing a notice of appeal with the Clerk of this Panel. The Notice

of Appeal should be accompanied by payment of the $255 filing fee
(effective November 1, 2003) and a copy of the order or decision on
appeal. Checks may be made payable to the U.S. Court of Appeals for

the Ninth Circuit. See Federal Rules of Appellate Procedure 6 and the
corresponding Rules of the United States Court of Appeals for the Ninth
Circuit for specific time requirements.

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CERTIFICATE OF MATLING

The undersigned, deputy clerk of the U.S. Bankruptcy
Appellate Panel of the Ninth Circuit, hereby certifies that a copy
of the document on which this certificate appears was mailed this date
to all parties of record to this appeal.

By: Edwina Clay

Deputy Clerk: December 23, 2005

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