William Jeffrey Gilliam

OCR transcription for search; preserved printed pages are authoritative

Entered on Docket FILED
August 24, 2005
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
vob AUG 10 2095
1 NOT FOR PUBLICATION
HAROLD S. MARENUS, CLERK
2 OS BGY Are, PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5
6 |} In re: ) BAP No. NC-04-1311-SBrP
)
7 || WILLIAM JEFFREY GILLIAM, ) Bk.No. 04-42153
)
8 Debtor. )
)
9 )
WILLIAM JEFFREY GILLIAM, )
10 )
Appellant. ) MEMORANDUM
11 )
)
12 )
13
Argued and Submitted on
14 March 24, 2005 at San Francisco, California
15 Filed - August 10, 2005
16 Appeal from the United States Bankruptcy Court
for the Northern District of California
17
Honorable Randall J. Newsome, Chief Bankruptcy Judge, Presiding
18
19
20 || Before: SMITH, BARR? AND PERRIS, Bankruptcy Judges
21
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24
25 'This disposition is not appropriate for publication and may
26 || not be cited excep = when relevant under the doctrines of law of
the case, res judicata, or collateral estoppel. See 9th Cir. BAP
27 || Rule 8013-1.
28 Hon. James N. Barr, United States Bankruptcy Judge for the
Central District of California, sitting by designation.
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This appeal is from a final order dismissing the chapter 11

case of debtor, Wiliam Jeffrey Gilliam, for cause. We AFFIRM.
FACTS |

Debtor filed this chapter 11 bankruptcy on April 19, 2004.
The voluntary petition form he completed directs petitioners to
list all “prior bankruptcy cases filed within the last 6 years”
and “pending bankruptcy cases filed by any spouse, partner or
affiliate of this debtor.” At the time Debtor filed his
petition, he had two related chapter 7 cases pending in South
Carolina. He disc iosed one of the pending cases, involving an

affiliate (In re Marine Energy Systems Corporation, Case No. 97-

01929B (“MESC case”)) but did not disclose his individual case,

styled In re William J. Gilliam, Case No. 96-76468B, filed eight

years earlier in 1996* (“1996 case”). Though he had received a
discharge in the latter case in 1999, it remained open at the
time he commenced the present case.’ Debtor also did not
disclose that he had filed a chapter 13 case in the Northern
District of California, Santa Rosa Division, on July 31, 2000,
Case No. 00-11820 ‘“Santa Rosa case”). He claims that, for
various reasons, he did not believe he had to list the cases on
his current petition.

Debtor filed the present case the same morning a hearing was

scheduled to be heard in a state court action against him filed

3Debtor had filed a chapter 11 case in 1996 in the District
of Delaware, which was later transferred to South Carolina and,
in 1998, converted to a chapter 7.

“The two cases are sometimes referred to herein collectively
as the “South Caro_ina cases.”

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by his former domestic partner, Joan Cooper. Cooper had filed a
motion in that case alleging, among other things, that Debtor was
a vexatious litigant. The hearing was scheduled to take place at
8:30 a.m. According to Debtor, he notified both Cooper and the
state court that he had filed bankruptcy prior to the
commencement of the hearing, but the state court conducted the
hearing anyway and entered a default judgment against him.°
Debtor claims that he first deposited his petition into the
court’s drop box at 7:19 a.m. on April 19, and that, while he was
physically present at 9:00 a.m. to file the petition and pay the
filing fee, administrative delays imposed by the Clerk of the
Court prevented it from being filed until later. Because the
record on appeal does not include a conformed copy of the
petition bearing the clerk’s time-stamp, there is no evidence of

what time the petition was actually filed or whether it was filed

[Debtor commenced an adversary proceeding against Judge
Laurence Sawyer, the state court judge, and the two creditors
involved in the Cooper action, seeking, among other things, to
set aside the default judgment as a violation of the automatic
stay. That case was dismissed with prejudice by the bankruptcy
court.

Judge Sawyer’s ex parte motion seeking dismissal of the
adversary proceeding against him states that the judge had
entered his tentative ruling on April 16, the business day prior
to Gilliam’s petition filing date. In his tentative ruling, the
judge refused Gilliam’s request for leave to file cross-—
complaints and found him to be a vexatious litigant. Gilliam’s
attorney requested a hearing, without which the tentative ruling
would automatically have become the order of the court. Neither
Gilliam nor his attorney attended the 8:30 a.m. hearing which
took place on April 19. The panel obtained a copy of the ex
parte motion from the bankruptcy court’s electronic docket for
Adversary No. 04-4139, available through PACER (Public Access to
Court Electronic Records).

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before the state court hearing.®

According to Debtor, on April 22, 2004, Cooper sought and
obtained an affirmation from the state court that the April 19
hearing had not violated the automatic stay.’

On April 28, Debtor filed a motion seeking authority from
the bankruptcy court to execute a settlement agreement involving
Debtor, creditors in the MESC case and the MESC chapter 7
trustee. Opposition to the motion was posed by one of Debtor's
former spouses, Cathleen Gilliam, as well as by General Dynamics
Corp (“GD”). Following a flurry of motions and responsive
pleadings on issues ranging from relief from stay to the
employment of counsel, the court held a hearing on May 27.
Thereafter, the court issued an order to show cause why the case
should not be dismissed with prejudice (“OSC”), and set a hearing
to address that anc various other pending motions for June 9.
(Case No. 04-42153, Docket entries of 05/28/2004, 06/09/2004.)

In response to the OSC, Debtor filed a 37-page opposition
brief the day before the hearing, arguing that there was no cause
for dismissal under §§ 1112(b) and § 305(a). Among other things,

Debtor advised that he had amended his petition to list the Santa

Sbebtor apparently admits that the time-stamp on his
petition would reflect a time later than 9 a.m., but attributes
this to administrative delays imposed by the court clerk.

In Judge Sawyer’s ex parte motion to have the adversary case
against him dismissed, his attorney states that Debtor’s petition
was not time-stamped until 11:00 a.m. on April 19.

’The Judge’s ex parte motion also states that because the
Cooper action was a matter originally commenced in the area of
domestic violence stay-away injunctions, the analysis of whether
an automatic stay applies may be different.

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Rosa case and that he had not initially listed the 1996 case
based on his belief that the case had been consolidated with the
MESC case. All in all, Debtor maintained that his failure to
disclose all related bankruptcy cases was inadvertent and that
dismissal of the current case would not be in the best interest
of creditors, particularly since he had filed a disclosure
statement and plan.

The United States Trustee supported dismissal on the grounds
that the timing of the filing suggested an improper intent to
thwart the state court proceedings, Debtor failed to disclose all
related bankruptcy cases, his debt consisted primarily of
delinquent persona” income taxes, and Debtor’s ability to funda
plan was highly speculative.’

At the June 9 hearing, the court ordered that the case be
dismissed with prejudice pursuant to §105(a) and §109(g),
ordering Debtor not to file another bankruptcy petition for 180
days under penalty of sanctions of not less than $50,000.00.

This timely appeal followed.
JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. § 1334

and § 157(b) (1) and (b) (2). We have jurisdiction under 28 U.S.C.
§ 158(b) (1).
ISSUES
1. Whether the bankruptcy court abused its discretion in

dismissing Debtor’s case for cause.

’The United States Trustee has informed the Clerk that he is
not a party to this appeal and that he did not intend to
participate in the appeal.

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2. Whether the court erred in finding that Debtor made
false and misleading statements under penalty of
perjury.

3. Whether the court erred in prohibiting Debtor from
filing another bankruptcy petition for 180 days.

4. Whether the court erred in dismissing an adversary
Proceedinc after Debtor filed the Notice of Appeal
commencine this appeal.

STANDARD OF REVIEW

The bankruptcy court’s decision to dismiss a case for cause

under § 1112(b) is reviewed for abuse of discretion. st. Paul

Self Storage Ltd. Partnership v. The Port Authority of the City

of St. Paul (In re St. Paul Self Storage), 185 B.R. 580, 582 (9th

Cir. BAP 1995). Findings of bad faith are reviewed for clear

error. Bisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.

1994). A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a

mistake had been committed. In re Leavitt, 209 B.R. 935, 938

(9th Cir. BAP 1997) (citation omitted). If the trial court’s
account of the evidence is plausible in light of the record
viewed in its entirety, a reviewing court may not reverse even if
convinced that it would have weighed the evidence differently as
a trier of fact. Id.
The issue of statutory construction involving the proper
application of §105(a) and § 109(g) is also before the panel.

Legal issues such as interpretation of statutes and rules are

reviewed de novo. Arnold v. Gill (In re Arnold), 252 B.R. 778,

6

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784 (9th Cir. BAP 2000); In re Carty, 149 B.R. 601, 602 (9th Cir.

BAP 1993).
DISCUSSION

A. Dismissal of [Lebtor’s Case.

The court dismissed Debtor’s case for cause on its own
motion? on the grounds that Debtor had willfully omitted both a
prior bankruptcy case and a pending chapter 7 case, used the
bankruptcy proceeding as a litigation tactic, and filed the case
with no reasonable basis or prospect of reorganizing.

Under § 1112 (b)!°, bankruptcy courts have broad discretion

%Section 105(a) makes clear the court’s power to act sua
sponte where no party in interest or the United States trustee
has filed a motion to dismiss a bankruptcy case. In re Greene,
127 B.R. 805, 807-808 (Bankr. N.D. Ohio 1991); see also In re
Meints, 222 B.R. 870, 871-72 (D. Neb. 1998).

Msection 1112'b) provides in relevant part

Conversion or dismissal

(bo) . . . the court may convert a case under this chapter.
to a case under chapter 7. . . or may dismiss a case under this
chapter. . . whichever is in the best interest of creditors and
the estate, for cause, including--
(1) continuing loss to or diminution of the estate and
absence of a reasonable likelihood of rehabilitation;
(2) inability to effectuate a plan;

(3) unreasonable delay by the debtor that is prejudicial to
creditors;

(4) failure to propose a plan under section 1121 of this
title . . . within any time fixed by the court;
(5) denial of confirmation of every proposed plan and

denial of a request made for additional time for filing
another plan or a modification of a plan;

(6) revocation of an order of confirmation under section
1144 of this title. . . and denial of confirmation of
another plan or a modified plan under section 1129 of
this title. . .;

(7) inability to effectuate substantial consummation of a
confirmed plan;

(8) material default by the debtor with respect to a
confirmed plan;

(continued...)

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to convert or dismiss a chapter 11 case for cause shown. Lack of
good faith in filing the case may be cause for dismissal. See,

In re Little Creek Dev. Co., 779 F.2d 1068, 1072 (5th Cir. 1986).

“The test [of good faith] is whether a debtor is attempting to
unreasonably deter and harass creditors or attempting to affect a
speedy, efficient reorganization on a feasible basis.” In _re
Marsch, 36 F.3d at 828. “The existence of good faith depends on
an amalgam of factors and not upon a specific fact.” In re
Arnold, 806 F.2d 937, 939 (9th Cir. 1986). The determination
requires a case-by-case assessment of multiple factors, taking

into account the circumstances of each case. United Enters, Ltd.

vy. ACI Sunbow, LLC (In re ACI Sunbow, LLC), 206 B.R. 213, 219

(Bankr. S.D. Cal. 1997). While the court’s discretion is not
completely unfettered, the court is not required to give

exhaustive reasons for its decision. In_re Koerner, 800 F.2d

1358, 1368 (5th Circ. 1986).
There is no bright line, talismanic number of factors which

must exist to find bad faith; the weight of any given factor

depends on the facts and circumstances of the case. See, Laguna
Assocs. Ltd. Partnership v. Aetna Casualty & Sur. Co. (In re

Laguna Assocs. Ltd. Partnership), 30 F.3d 734, 738 (6th Cir.

1994).
The bankruptcy court listed three independent grounds for

dismissing Debtor’s case. Debtor argues on appeal that the court

10(_. continued)

(9) termination of a plan by reason of the occurrence of a
condition specified in the plan; or

(10) nonpayment of any fees or charges required under
chapter 123 of title 28.

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abused its discretion when it dismissed his case, sua sponte,
because the court “Zailed to apply the “totality of circumstances”
test. Specifically, Debtor claims that the court erred in
finding that he willfully omitted information concerning prior
bankruptcies from =he voluntary petition, attempted to use
bankruptcy as a ‘mere litigation tactic’ and submitted schedules
and statement of financial affairs containing false and
misleading informazion. On all counts, we disagree.

None of the arguments Debtor offers on appeal persuades us
that the court erred in finding that he filed the petition in bad
faith or abused its discretion in dismissing his case.”

We agree with the court’s findings that, under the circumstances
of this case, Debtor’s actions lead to the conclusion that the
petition was not filed in good faith and should be dismissed.

1. Failure to List Prior Cases.

The first, and perhaps most important, basis for the court’s
ruling was its finding that Debtor filed the bankruptcy petition
in bad faith, as evidenced by his failure to disclose two prior
bankruptcy cases, i.e., the Santa Rosa and 1996 cases. Indeed,
Debtor initially listed only the pending bankruptcy case of his
corporate affiliate, MESC.

According to Debtor, the court erroneously failed to

consider the later amendment disclosing the Santa Rosa case which

Ngome of Debtor’s arguments are difficult to follow. For
example, Debtor claims that he presented unrefuted evidence that
he has spent considerable sums of money overcoming fraudulently
obtained state court orders and judgments involving Cooper and
GD, but he fails to explain how this is relevant to the issue of

the dismissal.

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he filed prior to the OSC hearing. Debtor’s explanation was that
he initially omitted it because he believed the case was
irrelevant since it had been dismissed. The court found his
explanation to be “preposterous,” noting that since Debtor had
attended law school, he should have known that questions answered
under penalty of perjury must be accurately and fully answered,
regardless of their relevancy.

The petition form Debtor completed directed him to list all
“prior bankruptcy cases filed within the last 6 years.” The
Santa Rosa case clearly should have been listed on Debtor's
petition in the first instance. That Debtor cured the error in
his amended petition helps his argument. However, we do not find
that it was clearly erroneous for the court to view the initial
omission as evidence of bad faith, especially since the
correction was not made until after the OSC was issued and,
further, in light of Debtor’s failure to also list his 1996 case,
a case that was st:1ll pending and active in South Carolina.

Debtor claimed that he omitted the 1996 case because he
believed it had been “effectively consolidated” with the MESC
case which he did ist on his petition. On appeal, as proof that
these cases were consolidated, Debtor points to colloquy from a
hearing in one of the South Carolina cases where the parties
discuss the idea of having one trustee administering the claims
in both of Debtor’s South Carolina cases.

The bankruptcy court was not convinced by Debtor’s argument
and noted that, even in his amended petition, Debtor again
suspiciously omitted his individual chapter 7 case still pending

in South Carolina. The court determined that Debtor was

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attempting to “finesse” that case by claiming it had been
consolidated with the MESC case.

In the court’s view, the omission of the South Carolina case
was particularly egregious because Debtor had every reason to
conceal the fact that a chapter 7 trustee had control of his 1996
financial affairs and property, including the settlement Debtor
is seeking leave to enter into from this Court. For these
reasons, the court found Debtor’s omission was willful and held
that on this ground alone, the court was justified in dismissing
the case with prejudice.

Though not for the reasons articulated by Debtor, it is not
clear that Debtor’s omission of the 1996 case was as egregious as
the court found it to be. The petition form required Debtor to

list prior cases “filed within the last 6 years.” Debtor’s case

was filed eight years before the present case and converted from
a chapter 7 to a chapter 11 just over six years before the
current filing and, thus, was not technically “within in the last
6 years.” To be sure, in the interest of full disclosure, Debtor
should have disclosed the 1996 case. However, since the
disclosure was technically not required, we disagree with the
court’s determination that the omission was willful and that, on

this qround alone, the court was justified in dismissing the case

with prejudice.

On the whole, however, we do not find that the court’s
conclusion - that Debtor’s omissions were evidence of bad faith -
is clearly erroneous. Even if we may have weighed the evidence
differently, the inferences drawn by the court from the evidence

are plausible in l:ght of the record viewed in its entirety. The

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court was presented with a debtor who had three prior or on-going
bankruptcy cases, but who only initially disclosed one of those
cases when filing this petition, his fourth in less than eight
years. Additionally, Debtor failed to disclose a case filed
within the prior six years, the explanation for which the court
reasonably found implausible, and further failed to disclose
another actively ongoing case, albeit filed more than Six years
earlier.

2. Litigation Tactic.

As an additional and independent ground for dismissal, the
court found that Debtor filed his petition as a litigation tactic
against a host of pending lawsuits brought by or against him,
involving various domestic partners, spouses and children.

Debtor conceded that one of his motives for filing his petition
was to halt a hearing scheduled to take place in the Cooper state
court case. The ccurt noted that the Cooper case involved the
same set of circumstances that was the subject of another federal

court suit brought by Debtor, Gilliam v. Sonoma County, et al.,

No. C-02-3382, which was ultimately dismissed with prejudice,
attorney’s fees ana costs being awarded against Debtor in the
amount of $34,553. In that case, in response to Debtor’s motions
for reconsideration and recusal, the court filed a lengthy
opinion warning Debtor of further sanctions and condemnation as a
vexatious litigant, if he persisted.

The court also found noteworthy that Debtor filed this
petition shortly after GD had obtained a writ of attachment in
the South Carolina cases as to all of Debtor’s property. The

court concluded that Debtor was attempting to use the bankruptcy

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as both a shield and a sword in his various disputes.

On appeal, while admitting that obtaining a stay in the
state court proceedings was one reason for filing his petition,
Debtor contends that there were other reasons he filed his
petition when he did. Specifically, Debtor claims that he filed
this petition to 1) regain possession of his good name, which was
“wrongfully taken from him in his July 1996 chapter 11
bankruptcy”; 2) clear up a “dilemma” involving a settlement in
the South Carolina cases, the GD writ of attachment against his
interest in MESC case settlement proceeds, and a $5.2 million
claim asserted by the IRS; and 3) “clean up” his credit rating.

By all accounts, the debts in this case consist primarily of
delinquent personal income taxes allegedly owed by Debtor. He
states that the IRS filed a proof of claim in this case asserting
the right to collect taxes that were discharged in his 1996 case.
He also contends that the IRS claim is in error and believes that
the IRS claims should be adjudicated in the instant bankruptcy
case, even though the matter is currently before the bankruptcy
court in South Carolina. The United States Trustee has indicated
that the trustee ir. the 1996 case has not objected to claims
filed by the IRS in that case and that he intends to pay at least
a portion of the claims from proceeds of the MESC case
settlement. The trustee apparently disputed Debtor’s assertion
that he stands to receive 20% of the proceeds under the

settlement agreement.

Whether Debtor is seeking a tactical advantage in the Cooper
state court case, or in the South Carolina cases, makes little

difference. “It constitutes bad faith to file bankruptcy to

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impede, delay, forum shop, or obtain a tactical advantage
regarding litigation ongoing in a nonbankruptcy forum - whether
that nonbankruptcy forum is a state court or a federal court. In

re Silberkraus, 253 B.R. 890, 905 (C.D. Cal. 2000) citing In re

SGL Carbon Corp., 200 F.3d 154 (3d Cir. 1999) (oad faith for

debtor to file bankruptcy to seek to gain a tactical litigation

advantage in pending antitrust litigation); In re Start the

engines, Inc., 219 B.R. 264 (C.D. Cal. 1998) (bankruptcy filed in

bad faith because petition filed for the improper purpose of

delaying a state court action); In re St. Paul Self Storage, 185

B.R. 580 (bad faith for debtor to file bankruptcy one day prior
to a hearing on a creditor’s discovery motion in state court
litigation revolving around a lease that was allegedly owned by

debtor); see also, In re Little Creek Dev. Co., 779 F.2d 1068

(the seminal bad faith case, which opined, inter alia, that it is
bad faith to file oankruptcy as a follow on to state court
litigation).

Even accepting Debtor’s stated reasons for filing this
petition, it is clear that he was, in large part, attempting to
circumvent proceedings which are on-going in both the state court
and in the South Carolina cases. Therefore, in our view, the
court did not err in finding that Debtor filed his petition as a
litigation tactic.

3. Debtor has no Business _or Means of Repaying his Debt.

As a third ground for dismissal, the court determined that
Debtor was not engaged in business and had no visible means of
repaying even a fraction of his debt. Notwithstanding Debtor's

filing of a plan and disclosure statement the day before the

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hearing, the court found that there was no reasonable basis for
concluding that Debtor had any prospects of reorganizing under
chapter ll.

Debtor listed $38,000 in assets and some $7,000,000 in debt,
including a lien held by the IRS for more than $5.2 million.
Debtor does not dispute that he is not engaged in any business
which he is attempting to reorganize or from which he receives a
substantial income stream. He has no employees, relatively
little cash flow ard no other apparent sources of income to
sustain a plan of reorganization. As the court found, though
Debtor claimed to make $6,000 per month, he did not disclose the
source of those furds. The court also had difficulty accepting
Debtor’s asserted expenditure of $3,000 a month for food for just
himself, and over $1,000 a month for clothing, finding that such
expenditures cast “fatal doubts upon his lifestyle, his financial
acuity, his honesty, or all three.”

The court summarized the matter as follows:

In any event, Chapter 11 reorganizations are not

built on spending more money each month than is brought

in. Although he apparently pins his hope of

reorganizing upon his receipt of some of the money from

the settlement I am asked to approve today, he provides

no basis for believing that the Chapter 7 trustee in

his South Carolina bankruptcy or the IRS or General

Dynamics or one his former wives don’t already have a

superior claim to all or most of that recovery. In any

event, disputes over such funds should be resolved in

South Carolina, not here.

Transcript of Proceedings, June 9, 2004, p. ll.

As the court in Little Creek stated,

“Resort to the protection of the bankruptcy laws is not
proper under these circumstances because there is no
going concern to preserve, there are no employees to
protect, and there is no hope of rehabilitation, except

ou

according to the debtor’s ‘terminal euphoria’”.

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779 F.2d at 1073.

With a few exceptions, not present here, the purpose of
chapter 11 reorganization is to assist financially distressed
businesses or individuals by providing them with breathing space

in which to return to a viable state. Winshall Settlor’s Trust,

758 F.2d at 1137; see also, In re Dolton Lodge Trust No. 35188,

22 B.R. 918, 922 (Bankr. N.D. Ill. 1982); In_re Ironsides, Inc.

34 Bankr. 337, 339 (Bankr. W.D. Ky. 1983) (“If there is not a
potentially viable business in place worthy of protection and
rehabilitation, the Chapter 11 effort has lost its raison d’etre

.“). A petition may be dismissed pursuant to § 1112(b) to
prevent misuse of the chapter 11 remedy by debtors who are not
bona fide business organizations filing to reorganize an ongoing
enterprise. 22 B.R. at 924. The court did not err in finding
that Debtor had not offered evidence or arguments sufficient to
establish the viab:lity of his plan of reorganization. 30 F.3d
at 38. The court’s findings are sufficient to establish cause
for dismissal of the case under § 105(a).

Nor did the court clearly err in determining that Debtor
would likely be unable to fund a plan from the settlement
proceeds, as Debtor contends he will do. The trustee in the
South Carolina cases has not objected to the $5.2 million tax
lien held by the IRS and Debtor proffered no reliable theory upon

which the lien could be avoided.”

2on appeal, Debtor contends that his “Statement of Financial
Affairs disclosed his 1996 debtor in possession Form 1040, which
contained an amendnent to tax year 1993 eliminating the IRS pre-
petition claim.” However, the record submitted on appeal does not

(continued...)

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After reviewirg the record in its entirety, we are not left
with a definite and firm conviction that the court erred. In re
Leavitt, 209 B.R. ét 938. The court determined that the purpose
for which the petition was filed was not consonant with the
purpose of the Bankruptcy Code, and thus that its decision to
dismiss the case was proper.

B. False and Misleading Statements.

The court fourd Debtor made false and misleading statements
in his petition, under penalty of perjury, and indicated that it
would refer the matter to the State Bar of California.»

Debtor contends that the court’s findings are in error
because he was entitled to amend his schedule under Rule 1009(a),
which permits the amendment of a voluntary petition, schedule or
statement “at any time before the case is closed.” The omission
of his Santa Rosa case was “an oversight” which was cured by his
amended filing, and therefore, Debtor argues, it should be
excused pursuant to Rule 1009(a). While it is true that
amendments to a petition may be made freely, i.e., without leave
of the court, the fact that an amendment can be made does not

preclude a court from finding the initial omitted information to

2 .continued)
contain the information Debtor describes. Issues raised in a
brief but not supported by argument are deemed abandoned absent
manifest injustice. Humble v. Boeing Co., 305 F.3d 1004, 1012
(9th Cir. 2002).

Baccording to Debtor’s disclosure statement, he passed the
February 2004 California bar exam and has satisfied all other
requirements to practice law in California, except that the
Committee of Bar Examiners has not yet reached a favorable
determination of moral fitness as set forth in Rule X of the
Rules Regulating the Practice of Law in California.

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be indicative of bad faith. Further, the court can also consider
the timing of the amendment as indicia of bad faith. In this
case, it appears the amendment was spurred by the OSC issued by
the court. Finally, the court’s consideration of Debtor’s legal
background was not unreasonable. The court’s findings regarding
the omission of the Santa Rosa case are not clearly erroneous.

As for the 1996 case, Debtor maintains that he did not fail
to disclose it but determined that the case had been consolidated
with another bankruptcy case taking place in the same court.
Therefore, he urges, it was not necessary to amend his. petition
to reflect his South Carolina case. We agree with Debtor on this
narrow point, but for a different reason. As discussed above,
the wording on the petition form is such that technically Debtor
was not required to list the 1996 case. Therefore, the omission
of the 1996 case from the petition cannot be characterized as a
false and misleading statement. However, in light of our
analysis regarding the Santa Rosa case, the ultimate conclusion
of the bankruptcy court is not clearly erroneous.

Cc. Prohibition ot Further Filings by Debtor.

Debtor argues that the court erred in prohibiting him from
filing another bankruptcy petition for 180 days. This issue has
become moot as well over 180 days have passed since the court
entered its order dismissing Debtor’s case. Debtor is no longer
barred by the ordez from filing another petition, should he deem

that to be appropriate.

D. Dismissal of the Adversary Proceeding.

Debtor contends that the bankruptcy court erred in

dismissing a related adversary proceeding after Debtor had filed

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a notice of appeal in this case. Presumably, though it is
unclear, Debtor is referring to Adversary No. 04-4139 which is
the adversary proceeding he filed against the judge in the Cooper
state court case, as well as the attorneys involved in that case.
This argument will not be considered by the panel since we do not
have jurisdiction to hear Debtor’s challenge of the court’s
separate order, filed August 13, 2004, dismissing the adversary
proceeding.

The bankruptcy court holds jurisdiction over an adversary

proceeding after dismissal of the underlying case. In re Lake

Tahoe Land Co., Inc., 12 B.R. 479, 481 (Bankr. D.Nev. 1981).

Debtor failed to file a notice of appeal in that proceeding, or a
motion to extend the time to appeal within ten days of the entry
of the Order, as required by Rules 8001 and 8002. Debtor’s

challenge of that order is beyond the scope of this appeal and

beyond the jurisdiction of the panel. See In re Crystal Sands
Properties, 84 B.R. 665, 667 (9th Cir. BAP 1988) (an appellate
court has jurisdiction to hear an appeal only when a timely

notice of appeal has been filed).
CONCLUSION

Based on the foregoing, we AFFIRM.

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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-04-1311-SBrP

RE: WILLIAM JEFFREY GILLIAM

A separate Judgment was entered in this case on August 10, 2005.

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 Nint’a 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 MAILING

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: Patti Ippolito

Deputy Clerk: August 10, 2005

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