United States v. 2024-02-28 | 23-60004 | IN RE: MARCUS SILVER | nonprecedential | memorandum…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARCUS DANIEL SILVER,
Debtor.
______________________________
MARCUS DANIEL SILVER,
Appellant,
______________________________
U.S. BANK, NATIONAL ASSOCIATION,
AS TRUSTEE FOR GREENPOINT
MORTGAGE FUNDING TRUST
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AR7,
Intervenor.
No. 23-60004
BAP No. 22-1101
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Lafferty III, Faris, and Taylor, Bankruptcy Judges, Presiding
Submitted February 21, 2024**
Before: FERNANDEZ, NGUYEN, and OWENS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 28 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 23-60004
Chapter 7 debtor Marcus Daniel Silver appeals pro se from the Bankruptcy
Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s orders
denying his motion to convert and his motion for reconsideration. We have
jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions and
apply the same standard of review that the BAP applied to the bankruptcy court’s
ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th
Cir. 2009). We affirm.
The bankruptcy court did not abuse its discretion by denying Silver’s motion
to convert his case from chapter 7 to chapter 13 because the record supports the
bankruptcy court’s finding of bad faith. See Marrama v. Citizens Bank of Mass.,
549 U.S. 365, 371, 374-76 (2007) (a bankruptcy court may deny a motion to
convert bankruptcy proceedings based on a showing of bad faith by the debtor);
Khan v. Barton (In re Khan), 846 F.3d 1058, 1063-66 (9th Cir. 2017) (setting forth
standard of review and explaining that courts must consider the totality of the
circumstances in determining bad faith); Leavitt v. Soto (In re Leavitt), 171 F.3d
1219, 1224-25 (9th Cir. 1999) (neither malice nor actual fraud is required to find
bad faith).
The bankruptcy court did not abuse its discretion by denying Silver’s motion
for reconsideration because Silver failed to demonstrate any basis for relief. See
Fed. R. Bankr. P. 9023 (making Fed. R. Civ. P. 59 applicable to bankruptcy cases);

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Sch. Distr. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for relief under Rule
59).
The BAP did not abuse its discretion by denying Silver’s motion for
rehearing because Silver failed to establish any basis for relief. See Fed. R. Bankr.
P. 8022(a)(2); United States v. Fowler (In re Fowler), 394 F.3d 1208, 1214 (9th
Cir. 2005) (setting forth standard of review).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not
consider documents and facts not presented to the BAP. See United States v.
Elias, 921 F.2d 870, 874 (9th Cir. 1990).
The motion of U.S. Bank, National Association, as Trustee for Greenpoint
Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2006-AR7’s
(“U.S. Bank”) to intervene for the purpose of opposing Silver’s motion for
injunction pending appeal (Docket Entry No. 12) is granted. The Clerk will file
U.S. Bank’s opposition submitted at Docket Entry No. 14.
All other pending motions are denied.
AFFIRMED.

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