In Re: Nanette Sisk ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE NANETTE MARIE SISK, No. 18-17445
Debtor,
D.C. No.
5:16-bk-50548
NANETTE MARIE SISK,
Appellant.
IN RE MARK IRVIN CANDALLA, No. 18-17446
Debtor,
D.C. No.
5:16-bk-50659
MARK IRVIN CANDALLA,
Appellant.
IN RE JERI LYLE SALDUA MERCADO, No. 18-17447
Debtor,
D.C. No.
5:16-bk-50651
JERI LYLE SALDUA MERCADO,
Appellant.
2 IN RE SISK
IN RE DENNIS MICHAEL ESCARCEGA, No. 18-17448
Debtor,
D.C. No.
5:16-bk-50368
DENNIS MICHAEL ESCARCEGA,
Appellant. OPINION
Appeal from the Bankruptcy
Appellate Panel for the Ninth Circuit
M. Elaine Hammond and Stephen L. Johnson,
Bankruptcy Judges, Presiding
Argued and Submitted March 6, 2020
San Francisco, California
Filed June 22, 2020
Before: Kim McLane Wardlaw, Milan D. Smith, Jr.
and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay
IN RE SISK 3
SUMMARY *
Bankruptcy
The panel affirmed in part and reversed and vacated in
part the Bankruptcy Appellate Panel’s decision refusing to
allow confirmation of four Chapter 13 debtors’ plans with an
estimated duration, and the bankruptcy court’s subsequent
confirmation of plans with a fixed duration.
Neither the bankruptcy trustee nor any unsecured
creditor objected to debtors’ plans. The BAP affirmed the
bankruptcy court’s rejection of the initial plans as in
violation of the Bankruptcy Code and not proposed in good
faith. On remand, the bankruptcy court confirmed plans
with a fixed duration. This court then granted debtors’
certifications for direct appeal.
The panel held that even though only the debtors
challenged the bankruptcy court’s ruling, the panel had
jurisdiction to consider their appeal because they suffered an
“injury in fact” sufficient to confer standing. The panel held
that, as the only parties, the debtors need not establish
prudential standing. Further, the lack of an appellee did not
deprive the panel of jurisdiction, and the lack of an objection
by creditors did not insulate the bankruptcy court from
appellate review or abrogate debtors’ rights to challenge plan
provisions that could detrimentally affect their interests.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 IN RE SISK
Reversing, the panel held that when there is no objection,
a bankruptcy plan need not include a fixed duration because
no express provision of Chapter 13, even when viewed in the
context of its broader structure, prohibits plans with
estimated lengths. The panel concluded that neither 11
U.S.C. § 1322 nor § 1325 points to an express fixed or
minimum duration requirement for Chapter 13 plans absent
an objection, and neither provision prohibits estimated term
plans. Read together, the Bankruptcy Code provides for a
maximum duration for all plans and a minimum duration for
objected-to plans. The panel concluded that the clear
implication of this framework was that, for plans with no
objection, the Code provides no minimum or fixed durations.
The panel concluded that the Code’s structure also supported
a debtor’s ability to include estimated terms, and allowing
estimated terms would not nullify a trustee’s or creditor’s
modification rights under 11 U.S.C. § 1329.
The panel vacated the BAP’s ruling that the debtors’
proposed their initial plans in bad faith.
Affirming in part as to the BAP’s holding regarding the
bankruptcy court’s confirmation procedures, the panel held
that the bankruptcy court did not fail to hold a confirmation
hearing within the timeframe prescribed by the Code and
properly exercised its discretion by deferring consideration
of debtors’ estimated-duration provisions until it could
adequately address them.
The panel affirmed in part, reversed and vacated the
BAP’s decision in part, and remanded for further
consideration.
IN RE SISK 5
COUNSEL
Norma L. Hammes (argued), James J. Gold, and Lucinda
L.H. Gold, Gold and Hammes, San Jose, California, for for
Debtor-Appellants Nanette Marie Sisk, Mark Irvin Candalla,
and Dennis Michael Escarcega.
James S.K. Shulman (argued), Shulman Law Offices, San
Jose, California, for Debtor-Appellant Jeri Lyle Saldua
Mercado.
Jane Z. Bohrer (argued), Los Gatos, California, for Amicus
Curiae Devin Derham-Burk.
OPINION
BUMATAY, Circuit Judge:
Absent an objection, Chapter 13 of the Bankruptcy Code
establishes no minimum duration for a bankruptcy plan.
Debtors are thus free to propose a bankruptcy plan lasting
any amount of time up to the statutory maximum period of
three or five years. See 11 U.S.C. § 1322(d). 1 In this case,
we consider whether the Code allows debtors to confirm a
plan with an estimated duration. The Bankruptcy Appellate
Panel (“BAP”) held that it does not. We disagree.
1
All statutory citations are to Title 11 unless otherwise indicated.
6 IN RE SISK
BACKGROUND
To file for Chapter 13 bankruptcy, a debtor must propose
a plan to use future income to repay a portion of debts within
the Code’s maximum duration. Bullard v. Blue Hills Bank,
135 S. Ct. 1686, 1690 (2015). If the plan is confirmed and
the debtor succeeds in carrying it out, the debtor is entitled
to a discharge of the debts according to the plan. Id.
Between February and March of 2016, Dennis Michael
Escarcega, Nanette Marie Sisk, and Mark Irvin Candalla
(“Debtors”) filed petitions for Chapter 13 bankruptcy. 2
Before 2016, the San Jose Division of the Northern
District of California Bankruptcy Court used a preprinted
model Chapter 13 plan that expressly permitted a debtor to
propose a plan with an estimated term of months. In
February of 2016, bankruptcy judges of the San Jose
Division began requiring debtors to use the Northern District
of California’s new Model Chapter 13 Plan (“Model Plan”).
Unlike the previous plan, the new Model Plan omitted any
reference to an estimated plan duration and instead allowed
only a fixed number of months to be proposed for plan
length.
2
One other debtor involved in the proceedings below, Eugene
Edward Vick, passed away in 2017, and his Chapter 13 case was
dismissed. Additionally, Jeri Saldua Mercado’s appeal is mooted, as he
completed his Chapter 13 case while this appeal was pending.
IN RE SISK 7
Under § 1.01 of the Model Plan, a debtor commits to
make set payments to the trustee for a certain number of
months, as shown below:
Candalla Plan 1, § 1.01(a) and (c).
Under § 2.12 of the Model Plan, a debtor must specify
the amount he will pay unsecured creditors on a pro-rata
basis after satisfying all other claims, as shown below:
Candalla Plan 4, § 2.12.
The Model Plan expressly authorizes a debtor to propose
additional provisions that modify the preprinted text so long
as those provisions are consistent with the Code.
Debtors’ bankruptcy plans largely conformed to the
Model Plan, but deviated from it in two significant ways.
First, Debtors added provisions replacing § 1.01’s fixed
durational language with estimated time periods. In their
8 IN RE SISK
amendments, Debtors changed this provision with the
following language:
Candalla Plan 6, § 5.02.
Second, Debtors sought to amend § 2.12’s default
dividend provision. Instead of choosing between the options
presented in the Model Plan, Debtors added an alternative
provision:
Candalla Plan 6, § 5.03.
Neither the trustee nor any unsecured creditor objected
to Debtors’ plans. The bankruptcy court then held an initial
confirmation hearing for each of the Debtors within 45 days
of their meetings of creditors. See 11 U.S.C. § 1324(a)–(b).
Ordinarily, if a plan draws no objections and complies with
the Code, the court confirms it at an initial confirmation
hearing. Due to the amendments in Debtors’ plans, however,
the bankruptcy court transferred their cases to the Trustee’s
Pending List. Cases placed on this list are monitored by the
trustee, then returned to a normal confirmation timeline once
any outstanding issues are resolved.
Debtors then filed motions requesting confirmation of
their plans and set hearings on the bankruptcy court’s
contested confirmation calendar. The court scheduled
IN RE SISK 9
several additional hearings to determine the confirmability
of Debtors’ plans. First, the court held individual hearings
with each of the Debtors on May 19, 2016. At these
hearings, the court discussed Debtors’ amendments. Next,
the court scheduled additional evidentiary hearings on
confirmation for late July 2016, citing the “complexity of the
issues, the absence of a Trustee objection, and the need for
certain factual findings.”
Before the bankruptcy court, several of the Debtors
raised procedural objections to the length of the court’s
confirmation process. They protested that the additional
hearings fell outside the 45-day window for confirmation
hearings. See 11 U.S.C. § 1324(b). Additionally, Debtors
argued that transferring their cases to the Trustee’s Pending
List constituted a de facto local rule that violated federal law.
In a consolidated joint memorandum decision, two
judges of the bankruptcy court for the Northern District
refused to confirm Debtors’ plans because of the additional
provisions. First, the court rejected Debtors’ procedural
objections. The court ruled that moving cases to the
Trustee’s Pending List did not violate federal law, and
enabled the court to carry out its duty to review plans
submitted under the Code. In re Escarcega, 557 B.R. 755,
763 (Bankr. N.D. Cal. 2016). The court also ruled that
11 U.S.C. § 1324(b) only required a hearing, not a
“substantive or conclusive” hearing, within the prescribed
timeframe. Id. at 762–63.
The bankruptcy court also rejected the amendments to
Debtors’ plans, despite recognizing that they were consistent
with the way “certain plans in the San Jose Division have
been administered in the recent past.” Id. at 764. The court
ruled that Debtors’ amendments calling for estimated plan
durations violated the Code, which “read fairly, provides that
10 IN RE SISK
a debtor will specify a length for their plan and will carry
that plan out.” Id. at 775. The bankruptcy court reasoned
that plans with no specific duration were impermissibly
“self-modifying,” in violation of §§ 1328(a) and 1329(b),
because such provisions “construct a plan that authorizes
modifications without notice to parties in interest eliminates
creditor’s rights to object to the modification.” Id. at 771.
Finally, the bankruptcy court held that Debtors’
proposed plans made “the careful structure and protections
of the Bankruptcy Code ephemeral” and rendered creditors’
modification rights under 11 U.S.C. § 1329 “illusory.” Id.
at 775. Additionally, the court accused Debtors of
“obtain[ing] the Trustee’s agreement to the additional
provisions so as to avoid an objection” to the application of
11 U.S.C. § 1325(b)’s specific commitment period. Id.
at 775–76. On this basis, the court ruled that Debtors’ plans
were not proposed in good faith. Id. at 776.
On appeal, the BAP affirmed the bankruptcy court,
ruling that Debtors’ plans violated the Code and were not
proposed in good faith. The BAP sharply criticized the
trustee’s decision not to object to Debtors’ additional terms.
In re Escarcega, 573 B.R. 219, 233–235 (B.A.P. 9th Cir.
2017).
Debtors filed certifications to appeal directly to this
court, which we denied as interlocutory. Now back in the
bankruptcy court, Debtors removed the offending estimated
duration provisions, re-filed their plans, and had them
confirmed with a fixed duration.
Debtors elected to appeal the confirmations of their
bankruptcy plans in the district court rather than the BAP,
and simultaneously filed certifications for direct appeal in
this court. See 28 U.S.C. § 158(d)(2)(A). We granted
IN RE SISK 11
Debtors’ certifications for direct appeal, and later
consolidated Debtors’ cases into the current proceeding.
Debtors’ appeals were dismissed in the district court without
prejudice to their appeals before us.
DISCUSSION
I.
We review the denial of Debtors’ original plans here. To
obtain final, appealable orders, Debtors filed new plans with
the unwanted fixed duration and appealed from the
confirmation of the amended plans. See Bullard, 135 S. Ct.
at 1692–93. But we may review the bankruptcy court’s
rejection of their initial plans and the BAP’s affirmance of
the amended plan as part of this appeal. See Bank of New
York Mellon v. Watt, 867 F.3d 1155, 1159–60.
We review the legal conclusions of the BAP de novo. In
re Leavitt, 171 F.3d 1219, 1222 (9th Cir. 1999). Because the
BAP’s decision is based on the bankruptcy court’s order, we
review the bankruptcy court’s conclusions of law de novo
and its factual findings—including those related to good
faith—for clear error. Id. The bankruptcy court’s
evidentiary rulings, including its decision of whether to hold
evidentiary hearings, are reviewed for abuse of discretion.
In re Int’l Fibercom, Inc., 503 F.3d 933, 939–40 (9th Cir.
2007).
II.
This case presents the somewhat unusual circumstance
in which only one side, composed of the Debtors, appears
before us to challenge the bankruptcy court’s ruling. Given
this unique posture, we must first assure ourselves that we
have jurisdiction to consider their appeal. See Bates v.
12 IN RE SISK
United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007)
(en banc).
A.
The Constitution restricts our jurisdiction to “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. Standing is
an “essential and unchanging part” of this limitation. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The doctrine
of standing requires that a party demonstrate (1) an injury in
fact, (2) a causal connection between the injury and the
conduct complained of, and (3) a likelihood that the injury
will be redressed by a favorable decision. Id. at 561. These
requirements are the “irreducible constitutional minimum of
standing.” Id. at 560–61.
To demonstrate “injury in fact,” the pleaded injury must
be both “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Id. A
“concrete” injury must actually exist; it must be “real” and
not “abstract,” “remote,” or “speculative.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1548 (2016); Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 409 (2013). It need not, however,
be tangible. “The violation of a procedural right granted by
statute can be sufficient in some circumstances to constitute
injury in fact.” Spokeo, 136 S. Ct. at 1549. A
“particularized” injury must affect a plaintiff in “a personal
and individual way.” Lujan, 504 U.S. at 560 n.1.
The key question here is whether Debtors have shown an
“injury in fact”: the “[f]irst and foremost” of standing’s three
elements. Steel Co. v. Citizens for Better Env’t, 523 U.S. 83,
103 (1998). We are convinced that Debtors’ current and
ongoing injuries meet this test.
IN RE SISK 13
Debtors identify three rights allegedly abridged by the
bankruptcy court’s denial of their original plans: (1) the right
to file their own initial plans under § 1321; (2) the right to
confirmation of their plans under § 1325; and (3) the right to
discharge once plan payments have been completed under
§ 1328.
In practical terms, Debtors assert that the bankruptcy
court’s rejection of their proposed bankruptcy plans will
cause them economic harm. Under their original plans,
Debtors specified a fixed dividend to unsecured creditors of
zero dollars ($0) and an estimated plan duration. Debtors
argue that they could have exited bankruptcy easily with
these plans, requesting discharge “as soon as” their priority
and secured creditors’ debts were paid off. See § 1328(a).
By contrast, Debtors must now either: (1) continue in
bankruptcy for the duration of the fixed period required by
their court-confirmed plans (regardless of their satisfaction
of priority and secured obligations); or (2) request and obtain
a plan modification, subject to the notice provisions of
§ 1329, to shorten the duration of the plan. See In re Fridley,
380 B.R. 538, 544 (B.A.P. 9th Cir. 2007) (holding that when
a confirmed plan specifies a fixed term, “[a] debtor desiring
to prepay a chapter 13 plan and obtain an early discharge
without paying allowed unsecured claims in full must follow
the § 1329 modification procedure.”). Thus, Debtors now
face a procedural burden not required by the original plans.
As a result, Debtors maintain that they will be stuck in
bankruptcy for the length of the fixed period, even if they
pay off all listed priority and secured debts before that period
elapses. With the fixed duration, Debtors can be forced to
make additional payments beyond what they would have
under their original plans. During the additional time that
their plans remain in effect, Debtors contend, they will be
14 IN RE SISK
vulnerable to “hostile” plan modifications by creditors or the
trustee that could increase the amounts they owe, currently
set at $0, to unsecured creditors. See Escarcega, 573 B.R.
at 239. In addition, this extended time may lead to greater
fees being paid to the trustee. See 28 U.S.C. § 586(e).
While Debtors concede that the exact effect of the
bankruptcy court’s order is unknown at this time, they face
a “risk of real harm” and increased economic burdens due to
the bankruptcy court’s order. See Spokeo, 136 S. Ct. at 1549.
Debtors have alleged that the bankruptcy court’s order,
beyond affecting their procedural rights under the Code,
impaired their ability to immediately exit their bankruptcies,
exposed them to greater costs and payments, and increased
their burdens.
This harm is illustrated by the results in the (now moot)
case of Mr. Mercado, who would have been eligible for a
discharge as soon as he completed all outstanding payments
under his original plan. Under his amended plan,
Mr. Mercado was required to pay nearly $1,000 to unsecured
creditors during the remaining term of his bankruptcy. See
Chapter 13 Standing Trustee’s Final Report and Account
(Mercado), ECF No. 81 Case No. 5:16-BK-50651. The
injuries stemming from the bankruptcy court’s order are,
thus, sufficiently “concrete” for Article III standing. 3
3
For similar reasons, we hold that this dispute is constitutionally
ripe for adjudication. See In re Coleman, 560 F.3d 1000, 1005 (9th Cir.
2009) (“Where a dispute hangs on future contingencies that may or may
not occur, it may be too impermissibly speculative to present a justiciable
controversy.”) (simplified). Debtors face immediate injury to their
procedural rights. And while their pecuniary injuries remain contingent,
they sufficiently allege real risk of economic harm from the court’s
IN RE SISK 15
The injuries are also “particularized” since each Debtor
suffered an impairment to their own ongoing bankruptcy
case. Lujan, 504 U.S. at 560 n.1. Accordingly, we conclude
that Debtors suffered an “injury in fact” sufficient to confer
standing. 4
B.
In the bankruptcy context, Article III is not the end of the
standing inquiry. Since bankruptcy proceedings affect the
“rights of many,” implicating the interests of persons not
formally parties to the litigation, our court has adopted an
additional prudential test to determine an appellant’s
standing to appeal a bankruptcy order. See In re P.R.T.C.,
Inc., 177 F.3d 774, 777 (9th Cir. 1999). This limitation
stems from an interest to promote “efficient judicial
administration.” Matter of Fondiller, 707 F.2d 441, 443 (9th
Cir. 1983).
Under this test, the appellant must be a “person
aggrieved” by the bankruptcy order to pursue an appeal.
P.R.T.C., Inc., 177 F.3d at 777. The appellant is “aggrieved”
if the bankruptcy court order “diminish[es] the [appellant’s]
property, increase[s] his burdens, or detrimentally affect[s]
his rights.” Fondiller, 707 F.2d at 442. Nevertheless, “[w]e
denial of their initial plans. See Coleman, 560 F.3d at 1005 (holding that
bankruptcy dispute was ripe, where one factual contingency remained).
4
Debtors easily satisfy the constitutional standing requirements of
causation and redressability. The bankruptcy court’s actions directly
caused Debtors’ injury, as they would have otherwise been able to
implement their preferred plans and avoid the financial risk they allege.
And Debtors’ injury is redressable by this Court—reversal of the
bankruptcy court’s reasoning would enable Debtors to confirm and
complete their plans according to their original terms.
16 IN RE SISK
generally do not invoke [this test] in instances in which the
appellant was the party that brought the motion at issue on
appeal.” In re Palmdale Hills Prop., LLC, 654 F.3d 868, 874
(9th Cir. 2011) (simplified). We adopted this exception
because the purpose of the doctrine—limiting the appeals of
remote non-parties—is not implicated when the appellant is
the party below and remains integrally connected to the
issues on appeal. See In re Sherman, 491 F.3d 948, 957 n.8
(9th Cir. 2007).
No reason warrants applying the “persons aggrieved”
test to Debtors. In contrast to non-parties with only a remote
connection to the bankruptcy proceedings, Debtors are the
only parties below and remain the only parties in this appeal.
Debtors also brought the filings—their own Chapter 13
plans—at issue in this appeal. We, therefore, hold that
Debtors need not establish prudential standing here. 5
C.
Nor does the lack of an appellee here deprive us of
jurisdiction. 6 The bankruptcy court has jurisdiction to
5
Even if we applied the test, Debtors satisfy it. As described above,
the court-mandated plan both “detrimentally affected” their rights and
“increase[d their] burdens” by requiring them to include a fixed duration
in their plans. Fondiller, 707 F.2d at 443.
6
We need not address whether the lack of an appellee presents a
prudential or constitutional impediment to jurisdiction. Compare Mills
v. United States, 742 F.3d 400, 406 (9th Cir. 2014) (simplified) (“[R]ules
of prudential standing are flexible rules applied to ensure the concrete
adverseness which sharpens the presentation of issues.”) with I.N.S. v.
Chadha, 462 U.S. 919, 939 (1983) (“[P]rior to Congress’ intervention,
there was adequate Art. III adverseness even though the only parties
were the INS and Chadha.”). In either case, we are satisfied that the lack
of an appellee presents no obstacle to our jurisdiction here.
IN RE SISK 17
confirm Debtors’ plans, contested or not, in the first instance.
See 28 U.S.C. § 157(b)(1). Bankruptcy courts, thus,
regularly exercise jurisdiction over non-adversarial matters. 7
Congress has likewise granted courts of appeals jurisdiction
to review orders of the bankruptcy courts regardless of
whether an appellee appears. See 28 U.S.C. § 158(d)(1),
(2)(A) (expressly contemplating a lack of appellees). This
makes considerable sense given that bankruptcy courts,
although they are not Article III courts, are units of Article
III courts. See 28 U.S.C. § 151; Stern v. Marshall, 564 U.S.
462, 473 (2011) (“[T]he district courts of the United States
have ‘original and exclusive jurisdiction of all cases under
title 11’ . . . . District courts may refer any or all such
proceedings to the bankruptcy judges of their district.”)
(quoting 28 U.S.C. § 1334(a)).
Thus, in the bankruptcy context, courts have retained
jurisdiction from unopposed proceedings challenging a
decision of the bankruptcy court. In Toibb v. Radloff,
501 U.S. 157, 159–160 (1991), for example, the Court
7
See James E. Pfander, Daniel D. Birk, Article III Judicial Power,
the Adverse-Party Requirement, and Non-Contentious Jurisdiction,
124 Yale L.J. 1346, 1394 (2015) (referring to “the many uncontested
matters that find their way onto the dockets of the bankruptcy courts”);
see also Michael T. Morley, Consent of the Governed or Consent of the
Government? The Problems with Consent Decrees in Government-
Defendant Cases, 16 U. Pa. J. Const. L. 637, 671 (2014) (“The fact that
the debtor and creditors cannot voluntarily resolve their conflicts among
themselves establishes that they are adverse . . . . [T]his underlying
adverseness is not eliminated by the fact that a creditor might not find it
economically worthwhile to contest a bankruptcy proceeding or have any
colorable claims or defenses to raise.”); Martin H. Redish & Andrianna
D. Kastanek, Settlement Class Actions, the Case-or-Controversy
Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L.
Rev. 545, 587, n.157 (2006) (“It suffices to note that the bankruptcy
scheme is a narrow exception to the adverseness requirement.”).
18 IN RE SISK
considered the appeal of a debtor whose bankruptcy petition
was sua sponte dismissed by the bankruptcy court. Because
the trustee in that case was no longer part of the bankruptcy
proceedings, no opposing party appeared in the Court of
Appeals or Supreme Court. Id. at 160 n.4. The Court found
no jurisdictional issue with the lack of an adversary, but
appointed an amicus to support the bankruptcy court’s
position. Id.
Our court has regularly considered bankruptcy appeals
with only one party appearing. See, e.g., In re Eliapo,
468 F.3d 592, 596 n.1 (9th Cir. 2006) (no appellee briefs
filed); In re Nakhuda, 797 F. App’x 328 (9th Cir. 2020)
(unpublished) (no respondent); In re Inglewood Woman’s
Club, Inc., 708 F. App’x 392, 393 (9th Cir. 2017)
(unpublished) (no appellee briefs filed). Other circuit courts
have done the same. See, e.g., Matter of Kindhart, 160 F.3d
1176, 1177 (7th Cir. 1998) (no appellee to support lower
court order); In re Ramirez, 204 F.3d 595, 595 (5th Cir.
2000) (no opposing brief filed).
We see no reason why the lack of an objection by the
creditors here insulates the bankruptcy court from appellate
review or abrogates Debtors’ rights to challenge plan
provisions which may detrimentally affect their interests. If
deprived of appellate jurisdiction here, Debtors would be
powerless to vindicate their statutory or constitutional rights
from infringement in the lower courts merely because
creditors acquiesced to it. 8
8
We recognize that Debtors could have requested modifications
shortening the duration of their plans and appealed a denial of that
request for modification. See, e.g., In re Sunahara, 326 B.R. 768 (9th
Cir. BAP 2005) (appealing the denial of request for plan modification).
IN RE SISK 19
For the foregoing reasons, we have jurisdiction over
Debtors’ appeal and we now turn to the merits of this case.
III.
We have never had occasion to decide whether a
bankruptcy plan must include a fixed—rather than
estimated—duration when no party objects to the plan’s
confirmation. Since no express provision of Chapter 13,
even when viewed in the context of its broader structure,
prohibits plans with estimated lengths, we reverse.
A.
“Statutory construction must begin with the language
employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose.” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.
Dist., 541 U.S. 246, 252 (2004) (quoting Park ‘N Fly, Inc. v.
Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985)). “We
must enforce plain and unambiguous statutory language
according to its terms.” Hardt v. Reliance Standard Life Ins.
Co., 560 U.S. 242, 251 (2010). We read legislative texts “in
their context and with a view to their place in the overall
statutory scheme.” FDA v. Brown & Williamson Tobacco
If the modification was objected to by the trustee or a creditor, we would
have at least had an appellee appear. That scenario, however, would not
be the same as the one before us; namely, the question there would be
whether Debtors must be granted a plan modification under § 1329
allowing them to finish early. Id. at 781 (discussing the factors courts
should consider when evaluating a debtor’s proposed modification).
That inquiry is quite different than the issue here: whether the Code
allows Debtors to propose estimated terms in the first place.
Accordingly, although we would have preferred to receive briefing from
the other side, we may still decide this case.
20 IN RE SISK
Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Mich.
Dept. of Treasury, 489 U.S. 803, 809 (1989)).
The Bankruptcy Code is no different. We are not at
liberty to “alter the balance struck by the statute” when
interpreting the Code. Czyzewski v. Jevic Holding Corp.,
137 S. Ct. 973, 987 (2017) (quoting Law v. Siegel, 571 U.S.
415, 427 (2014)). “[W]hatever equitable powers remain in
the bankruptcy courts must and can only be exercised within
the confines of the Bankruptcy Code.” Norwest Bank
Worthington v. Ahlers, 485 U.S. 197, 206 (1988). Thus, we
apply the traditional tools of statutory interpretation in
construing the Code.
The Code expressly allows debtors to “include any other
appropriate provision not inconsistent with [Chapter 13]” in
their plans, § 1322(b)(11). So, barring a clear prohibition in
the Code, debtors have “considerable discretion to tailor the
terms of a plan to their individual circumstances.” In re
Monroy, 650 F.3d 1300, 1301 (B.A.P. 9th Cir. 2011).
Only two provisions of Chapter 13 expressly discuss the
duration of a bankruptcy plan. First, § 1322 imposes a
maximum duration for all plans. For above-median-income
debtors, “the plan may not provide for payments over a
period that is longer than 5 years.” 11 U.S.C. § 1322(d)(1).
Below-median debtors’ plans generally “may not provide for
payments over a period that is longer than 3 years[.]” 11
U.S.C. § 1322(d)(2).
Second, § 1325(b)(4) mandates a fixed minimum
duration for confirmation—but only if the plan triggered an
objection by the trustee or a creditor. 11 U.S.C.
§ 1325(b)(1), (b)(4)(A). Under this provision, with few
exceptions, a debtor’s plan must adhere to a minimum
duration of three or five years, depending on the debtor’s
IN RE SISK 21
“applicable commitment period.” Id.; see In re Flores,
735 F.3d 855, 856 (9th Cir. 2013) (en banc) (holding that a
Chapter 13 plan under § 1325(b)(1)(B) can be confirmed
only if “the length of the proposed plan is at least equal to
the applicable commitment period under § 1325(b)(4)”).
Like § 1322(d), the “applicable commitment period” is tied
to the debtor’s income. 11 U.S.C. § 1325(b)(4)(A). Once
again, this fixed minimum term applies only if “the trustee
or the holder of an allowed unsecured claim objects to the
confirmation of the plan.” 11 U.S.C. § 1325(b)(1). The rest
of § 1325, which governs the confirmation of all plans, does
not include any fixed duration requirement. See 11 U.S.C.
§ 1325(a).
Neither § 1322 nor § 1325 point to an express fixed or
minimum duration requirement for Chapter 13 plans absent
an objection. Conversely, neither provision prohibits
estimated term plans. Indeed, § 1325(b)(1)(B)’s explicit
imposition of a minimum duration only when an objection is
raised strongly suggests that the absence of such fixed terms
in other sections of Chapter 13 was intentional. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002)
(“[I]t is a general principle of statutory construction that
when Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”)
(simplified).
Read together, the Code provides for a maximum
duration for all plans and a minimum duration for objected-
to plans. The clear implication of this framework is that, for
plans with no objection, the Code provides no minimum or
fixed durations. Coupled with the additional grant allowing
debtors to “include any other appropriate provision not
22 IN RE SISK
inconsistent with [Chapter 13]” in their plans, § 1322(b)(11),
we believe the Code permits a debtor to add an estimated
term provision, so long as the plan does not draw an
objection.
The Code’s structure also supports a debtor’s ability to
include estimated terms. Section 1328 mandates that “as
soon as practicable after completion by the debtor of all
payments under the plan, . . . the court shall grant the debtor
a discharge of all debts provided for by the plan.” 11 U.S.C.
§ 1328(a). Notably, § 1328(a) does not expressly condition
the discharge on any time period elapsing, but solely on
“completion” of “all payments under the plan.” 11 U.S.C.
§ 1328(a). 9 If Congress intended to set a fixed duration for
all Chapter 13 plans, it could have easily done so by
predicating discharge not on completion of “payments,” but
on the expiration of the plan’s duration.
And estimated plan lengths would not interfere with
fundamental aspects of the court’s bankruptcy
administration. The bankruptcy court and trustee can
determine whether a plan is “complete” by looking to
whether the debtor has satisfied all required payments under
the plan. 11 U.S.C. § 1328(a). Similarly, estimated plan
lengths would not affect the bankruptcy court’s evaluation
of the debtor’s ability to pay under § 1325(a)(6), as this
inquiry necessarily involves an estimation of the debtor’s
future ability to pay.
9
In Fridley, 380 B.R. at 540, the BAP found that “completion”
under § 1328(a) encompasses an “implied temporal requirement” when
the plan includes a designated fixed duration. But Fridley interpreted
§ 1328(a)’s application to a plan under § 1325(b)(1)(B), which expressly
committed debtors to a fixed term of 36 months. Id. at 545. We do not
read this analysis as applying to all Chapter 13 plans.
IN RE SISK 23
Instead of construing the Code’s silence on estimated
terms as a permissive grant to debtors, the BAP read a
prohibition where none exists. The BAP’s decision relies
principally on its interpretation of § 1329. Section 1329
permits a debtor, trustee, or unsecured creditor to modify a
bankruptcy plan “[a]t any time” before “the completion of
payments under such plan.” 11 U.S.C. § 1329(a). The
provision allows them to request changes to various aspects
of the plan, including the amount, timing, and distribution of
payments by the debtor. 11 U.S.C. § 1329(a). Specifically,
§ 1329 permits a request to “extend or reduce the time for
[plan] payments.” 11 U.S.C. § 1329(a)(2).
The BAP concluded that it would not make sense to
allow a debtor to have unfettered discretion to complete
payments “early” and shorten the time for payments without
complying with § 1329’s requirements for plan
modification. Escarcega, 573 B.R. at 237–38. Allowing a
debtor to do this, the court reasoned, would render a trustee’s
or creditor’s § 1329 modification rights a “nullity.” Id.
at 238–239.
We disagree. First, § 1329 governs modifications of an
existing, confirmed plan. 11 U.S.C. § 1329(a). While it
permits changes to a plan’s “time” for payments, it says
nothing about requiring fixed durations ab initio. A post-
confirmation ability to modify a plan’s duration does not
logically command a set plan length pre-confirmation. We
see nothing wrong with a plan starting with an expected
length at confirmation and then being converted to a fixed
length as the plan unfolds.
Second, estimated term provisions do not allow debtors
to unilaterally reduce the “time” for plan payments.
11 U.S.C. § 1329(a)(2). Instead, the estimated term permits
a debtor to discharge remaining debts once the payments
24 IN RE SISK
required to satisfy priority, secured, and unsecured creditors
called for “under the plan” are “complet[ed]” (regardless of
any estimated time set in the plan). 11 U.S.C.
§ 1328(a). This is not the same as reducing the “time” of the
plan. Discharge of a plan and modification of a plan are
governed by different provisions with different purposes. In
this way, a debtor who seeks a discharge earlier than
previously estimated after paying off all listed creditors’
claims is not requesting a modification at all.
Third, the modification rights of creditors and trustees
are not nullified by allowing a plan to be confirmed with an
estimated term. After plan confirmation, both still retain the
right to modify the amount, timing, and distribution of
payments of a debtor’s plan before completion of the plan.
11 U.S.C. § 1329(a). To the extent a creditor’s or trustee’s
§ 1329 modification rights are limited, it is not because of
estimated term provisions, but because § 1328 permits them
to be. It is the discharge, not the estimated term, that
terminates their modification rights and ultimately prevents
creditors from recovering more from Debtors.
Moreover, if creditors are concerned about a plan
containing an estimated duration, they can object prior to
confirmation or seek conversion to a fixed duration under
§ 1329(a). As we have long held, an unsecured creditor
“ignores [notice of bankruptcy] proceedings . . . at its peril.”
Matter of Gregory, 705 F.2d 1118, 1123 (9th Cir. 1983).
In fact, § 1329 shows that Congress knew precisely how
to enact temporal requirements. Like § 1322(d) and
§ 1325(b)(1)(B), § 1329 uses clear temporal language: “[a]
plan modified under this section may not provide for
payments over a period that expires after the applicable
commitment period[.]” 11 U.S.C. § 1329(c) (emphasis
added). It also allows for the modification of the “time” for
IN RE SISK 25
plan payments. 11 U.S.C. § 1329(a)(2). Congress’s
unmistakable use of temporal language highlights its
absence elsewhere.
Because the text and structure of the Code do not
mandate a fixed term requirement for all Chapter 13 plans,
we should not add one without clear direction from the
statute. Accordingly, we hold that the Code does not prevent
Debtors from proposing and confirming plans with an
estimated duration.
B.
The BAP relied on several distinguishable cases to
support its ruling that Chapter 13 plans confirmed without
objection must have a fixed term. In Fridley, the debtors
expressly committed to make plan payments for a specific
period of 36 months. Fridley, 380 B.R. at 544. The BAP
explained that “since they committed themselves to thirty-six
months, their prepayment does not ‘complete’ their plan for
purposes of §§ 1328(a) or 1329.” Id. at 545 (emphasis
added). Thus, the Fridley court only read a temporal
requirement into “completion of payments” because the plan
itself required it to do so. So, as relevant here, Fridley
merely tells us that a debtor who commits to a fixed duration
is committed to the fixed duration.
The BAP’s interpretation of Flores, our en banc case,
suffers from a similar flaw. In Flores, 735 F.3d at 862, we
held that a bankruptcy court may confirm a plan under
§ 1325(b)(1)(B) “only if the plan’s duration is at least as long
as the applicable commitment period provided by
§ 1325(b)(4).” Id. at 862. In other words, we read a
“temporal requirement” of three or five years into
§ 1325(b)(1)(B)’s applicable commitment period. Id. at 858.
In doing so, the Flores court reasoned that “[a] minimum
26 IN RE SISK
duration for Chapter 13 plans is crucial to an important
purpose of § 1329’s modification process: to ensure that
unsecured creditors have a mechanism for seeking increased
(that is, non-zero) payments if a debtor’s financial
circumstances improve unexpectedly.” Id. at 860. Without
a “minimum plan duration” in § 1325(b)(1)(B), then
creditors’ ability to seek modification would be undermined.
Nevertheless, Flores is squarely an interpretation of
§ 1325(b)(1)(B). As stated above, § 1325(b)(1)(B) is only
triggered if a trustee or creditor objects to the original plan.
11 U.S.C. § 1325(b)(1)(B). As Flores itself noted,
§ 1325(b)(1)(B) applied only in the case of an objection, a
“distinction” “that suggests that Congress intended” it “to
serve [a] different function[]” from other parts of the Code
that applied to all plans. 735 F.3d at 858 n.5 (distinguishing
§ 1325(b) from § 1322(d)). Nothing in Flores’ text or
rationale compels the conclusion that a fixed duration must
be included in all plans. If Congress intended this end, it
could have easily said so by removing the objection trigger
of § 1325(b)(1)(B).
Finally, we disagree with the BAP’s reading of In re
Anderson, 21 F.3d 355 (9th Cir. 1994). There, the trustee
sought a plan provision to require the debtors to pay their
“actual” rather than “projected” disposable income and to
allow him to automatically adjust their periodic plan
payments without a court order. Anderson, 21 F.3d at 358.
Nevertheless, § 1325(b)(1)(B) expressly requires only the
payment of “projected disposable income.” Id. We thus
rejected the provision because the trustee was not permitted
“to impose a different, more burdensome requirement” on
debtors. Id. Additionally, we found that allowing the trustee
to automatically adjust debtors’ payments conflicted with
IN RE SISK 27
the procedures established for modifying a debtor’s plan
under § 1329. Id.
The BAP construed Anderson to prohibit a plan
provision that amounts to a plan modification without notice
to the trustee or creditors or complying with § 1329’s
modification procedures. But Anderson counsels us to
adhere to the requirements of the Code and not to substitute
them with “different, more burdensome” terms. Id. Thus, if
anything, Anderson supports Debtors here: the bankruptcy
court cannot impose the “more burdensome” fixed duration
terms when not required by the Code.
To be sure, we were also concerned that the contested
plan provision in Anderson would extinguish debtors’
§ 1329 modification rights. There, the trustee tried to evade
the Code’s modification procedures by inserting a term
allowing the trustee to modify debtors’ payment amounts
without seeking the court’s approval. Here, by contrast,
Debtors are not seeking a provision tantamount to a
modification under § 1329. Instead, they seek a discharge
“as soon as” they complete the payments required in order
to satisfy the claims of their creditors under § 1328(a).
C.
The BAP also rested its imposition of fixed terms on
policy grounds. The BAP concluded that mandating a
specified plan duration in all Chapter 13 bankruptcies is
consistent with Congress’s intent in enacting the Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005
(“BAPCPA”)—“to ensure that debtors repay creditors the
maximum they can afford.” Escarcega, 573 B.R. at 241
(citing Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 64
(2011) (quoting H.R. Rep. No. 109–31, pt. 1, at 2 (2005)).
28 IN RE SISK
We do not believe that this purpose, extrapolated from a
single sentence in the congressional record, justifies judicial
reconstruction of the Code. Even if Congress intended a
“pro-unsecured creditor” policy in crafting the BAPCPA, we
cannot upset the balance it struck in enacting the Code.10
Indeed, nothing in this decision contravenes a creditor’s
right to object to an estimated term plan prior to confirmation
or to seek modification of the plan before the debtor
completes payments. Even if creditors might be better
served by requiring fixed minimum terms, this does not give
courts license to judicially amend Chapter 13’s
requirements. “Our task is to apply the text, not to improve
upon it.” Pavelic & LeFlore v. Marvel Entm’t Grp.,
493 U.S. 120, 126 (1989).
Moreover, there is no reason to read this particular
requirement derived from Congressional purpose into the
statute. Courts have identified several congressional
purposes underlying Chapter 13, including “enabl[ing] the
debtor to make a fresh start,” In re Alexander, 670 F.2d 885,
889 (9th Cir. 1982); “affording relief only to an ‘honest but
unfortunate debtor,’” Lamar, Archer & Cofrin, LLP v.
Appling, 138 S. Ct. 1752, 1758 (2018); “permit[ting] eligible
debtors . . . [to] pay a greater amount on debts than they
10
And we have our doubts that the entirety of BAPCPA was
designed with that purpose. That sentence from the congressional record
refers not to the whole of BAPCPA, but to a specific provision within it.
See H.R. Rep. No. 109–31, pt. 1, at 2 (2005) (“The heart of the bill’s
consumer bankruptcy reforms consists of the implementation of [means
testing], which is intended to ensure that debtors repay creditors the
maximum they can afford.”). Moreover, BAPCPA did not amend the
portions of § 1329 upon which the BAP relied to reach its determination.
See BAPCPA, Pub. L. No. 109–8, §§ 102, 318, 119 Stat 23 (2005).
Thus, BAPCPA’s purpose, whatever that may be, should not guide our
interpretation here.
IN RE SISK 29
would have . . . under a Chapter 7 liquidation,” In re
Blendheim, 803 F.3d 477, 496 (9th Cir. 2015); and
“secur[ing] a broader discharge for debtors under Chapter 13
than Chapter 7[.]” Pennsylvania Dep’t of Pub. Welfare v.
Davenport, 495 U.S. 552, 563 (1990). Given the wide array
of divergent “purposes” embodied in the Code, we hew to
the statute’s language and structure, neither of which
prohibits estimated term provisions.
* * *
Because Congress did not prohibit Debtors from
proposing an estimated duration in their Chapter 13 plans,
we reverse. 11
IV.
We now address the BAP’s ruling that the Debtors
proposed their initial plans in bad faith. The Code compels
a bankruptcy court to confirm a debtor’s plan if it “has been
proposed in good faith and not by any means forbidden by
law[.]” 11 U.S.C. 1325(a)(3). Fundamentally, the good
faith inquiry assesses “whether the debtor has
misrepresented facts in his plan, unfairly manipulated the
Bankruptcy Code, or otherwise proposed his Chapter 13 plan
in an inequitable manner.” In re Goeb, 675 F.2d 1386, 1390
(9th Cir. 1982).
11
Neither the BAP nor the bankruptcy court addressed Debtors’
claim regarding their changes to the unsecured creditor dividend
provision. Since we reverse the BAP’s interpretation of the Code with
respect to fixed terms, we decline to reach this issue and remand for
consideration in the first instance.
30 IN RE SISK
The good faith inquiry is not a vehicle to promulgate
bankruptcy requirements not already in the Code. Courts
“cannot add to what Congress has enacted under the guise of
interpreting good faith.” In re Welsh, 711 F.3d 1120, 1131
(9th Cir. 2013) (simplified). We decline to create additional
mandatory provisions under the good faith inquiry because
“Congress could enact, ‘if it chooses, further conditions for
the confirmation of Chapter 13 plans.’” Id. (quoting Goeb,
675 F.2d at 1389). It should also go without saying that
“[d]ebtors are not [acting] in bad faith merely for doing what
the Code permits them to do.” Id. at 1132. Instead, the good
faith analysis should be a fact-intensive examination of the
“totality of the circumstances.” Welsh, 711 F.3d at 1129.
Where courts fail to factually support their good faith
determinations, this Court has remanded for further findings.
In re Tucker, 989 F.2d 328, 330 (9th Cir. 1993).
Here, the courts below relied on their erroneous
interpretation of the Code to determine that the Debtors
lacked good faith. The bankruptcy court’s good faith
analysis was sparse: “the court finds the additional
provisions to the plans are not proposed in good faith, as
required by § 1325(a)(3).” Escarcega, 557 B.R. at 776.
Likewise, the BAP found that Debtors’ proposed estimated
duration “put unsecured creditors at a disadvantage and thus
amount[ed] to an unfair manipulation of the Bankruptcy
Code,” and “blatantly” violated the BAPCPA’s purpose “to
maximize payments to unsecured creditors.” Escarcega,
573 B.R. at 242.
None of these reasons justify the lack of good faith
finding. Prior to 2016, Debtors’ estimated duration
provision would have mirrored the provisions in the San Jose
Division’s model Chapter 13 plan. We find it hard to believe
that debtors who dutifully followed the Division’s previous
IN RE SISK 31
model plan were—despite all appearances—“unfairly
manipulat[ing]” the Code all along. Id. at 225. Furthermore,
as we held above, the Code does not prohibit estimated term
plans. Debtors do not lack good faith “merely for doing what
the Code permits them to do.” Welsh, 711 F.3d at 1132.
While estimated duration plans may not favor unsecured
creditors, it is for Congress, not the courts, to determine if
such plans are too prejudicial to unsecured creditors. Id.
at 1131.
We vacate this finding. See Tucker, 989 F.2d at 330.
V.
Debtors finally argue that the bankruptcy court failed to
hold a confirmation hearing within the timeframe prescribed
by the Code and imposed an unwritten “de facto local rule”
which burdened their procedural rights. We disagree.
First, the Code states that “the court shall hold a hearing
on confirmation of the plan” “not earlier than 20 days and
not later than 45 days after the date of the meeting of
creditors.” 11 U.S.C. § 1324(a)–(b). Notably, this provision
requires only that a hearing be “held,” not concluded, within
45 days. See 11 U.S.C. § 1324(b).
In contrast, under Chapter 12’s confirmation provision,
courts must “conclude[]” the confirmation process “not later
than 45 days after” the plan is filed. 11 U.S.C. § 1224. The
presence of clear language requiring a conclusive
confirmation hearing in Chapter 12 and the absence of
similar language in Chapter 13 strongly indicates that courts
need only hold a hearing to comply with Chapter 13 of the
Code. 11 U.S.C. § 1324(b); see Barnhart, 534 U.S. at 452.
And even assuming that, as Debtors argue, those initial
32 IN RE SISK
hearings were not “conclusive” or “substantive,” they met
the Code’s requirements.
Moreover, even when no party objects, courts have an
independent duty to determine whether a debtor’s plan
complies with the Code. United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 277 (2010). The Code “makes plain
that bankruptcy courts have the authority—indeed, the
obligation—to direct a debtor to conform his plan to the
requirements [of Chapter 13].” Id. In fulfilling this duty, the
bankruptcy court has discretion to manage its docket and to
call for additional hearings to aid its inquiry. See 11 U.S.C.
§ 105. While performing this function may delay the
confirmation of Debtors’ plans, this is what the law calls for.
Here, the bankruptcy court properly exercised its discretion
by deferring consideration of Debtors’ additional provisions
until it could adequately address them.
Accordingly, we affirm the BAP’s holding regarding the
bankruptcy court’s confirmation procedures. 12
12
We decline to address the trustee’s due process concerns
regarding the BAP decision. See Escarcega, 573 B.R. at 233–35. The
trustee did not file a notice of appeal, but rather asked us to reverse and
vacate the BAP’s adverse findings against her in an amicus brief. “[T]he
untimely filing of a notice of appeal deprives the appellate court of
jurisdiction to review the bankruptcy court’s order.” In re Mouradick,
13 F.3d 326, 327 (9th Cir. 1994). Accordingly, we lack jurisdiction to
consider her arguments. Debtors, however, timely raised similar
concerns. Since the BAP’s decision is vacated except as to part V.B, we
see no reason to reach the merits of these arguments.
IN RE SISK 33
* * *
For the foregoing reasons, we reverse and vacate the
BAP’s decision except as to part V.B, and remand for further
consideration in light of this opinion.
REVERSED in part, AFFIRMED in part, VACATED
and REMANDED.