In re: Gabi Kim Collins

Filing 81

ORDER AFFIRMING BANKRUPTCY COURT ORDERS - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/5/2015. "The court affirms the Bankruptcy Court orders that 1) denied confirmation of Collins's Third Amended Chapter 13 Pla n, 2) dismissed Collins's Chapter 13 case, 3) denied reconsideration of those rulings, and 4) dismissed the adversarial proceeding." "The court affirms the Bankruptcy Court orders without a hearing pursuant to Local Rule 7.2(d) and without waiting for any Appellee Brief, as Collins's brief on its face shows no entitlement to the relief requested. The Clerk of Court is directed to terminate the appeals at issue in the consolidated cases before this court, Civil Nos. 14-00453 SOM/BMK and 14-00488 SOM/BMK. " Associated Cases: 1:14-cv-00453-SOM-BMK, 1:14-cv-00488-SOM-BMK (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electro nic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Gabi Kim Collins served electronically at the e-mail address listed on the Notice of Electronic Filing (NEF) and served by first class mail at the address of record on February 5, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
GABI KIM COLLINS,
)
)
Debtor/
)
)
Appellant,
)
_____________________________ )
)
GABI KIM COLLINS,
)
)
)
Plaintiff/
)
Appellant,
)
)
vs.
)
COUNTRYWIDE HOME LOANS, INC., )
)
et al.,
)
)
Defendants/
)
Appellees.
_____________________________ )
In re

CIVIL NO. 14-00453 SOM/BMK
CIVIL NO. 14-00488 SOM/BMK
ORDER AFFIRMING BANKRUPTCY
COURT ORDERS

CIVIL NO. 14-00488 SOM/BMK

ORDER AFFIRMING BANKRUPTCY COURT ORDERS
I.

INTRODUCTION.
Debtor/Appellant Gabi Kim Collins filed a Chapter 13

bankruptcy case.

After Collins failed four times to offer a

viable Chapter 13 plan, the bankruptcy court determined that
there was no reasonable chance that a viable plan would be
confirmed in a reasonable amount of time.

Because the lack of

progress towards a viable plan resulted in an unreasonable delay
prejudicial to Collins’s creditors, the bankruptcy court
dismissed Collins’s Chapter 13 case.

Pursuant to Local Rule, the

bankruptcy court, having dismissed the Chapter 13 case, also

dismissed an adversary proceeding in which Collins was
challenging secured creditors’ claims.
rulings.

This court affirms.

II.

Collins appeals these

FACTS.
Collins unsuccessfully sought a state court injunction

prohibiting a nonjudicial foreclosure sale of her real property.
See Civ. No. 12-1-2513-09 VLC, ECF No. 17-2.
A few hours after the state court denied her motion for
preliminary injunction, Collins filed a voluntary Chapter 13
petition with the United States Bankruptcy Court for the District
of Hawaii.

U.S. Bankr. Ct. No. 13-01783, Dkt # 1.
Collins’s Amended Schedules in her bankruptcy case

indicated that: 1) Countrywide Home Loans had a secured claim of
$132,000; 2) AOAO Palehua Community had a secured claim of
$3,000; 3) Bayview Financial Loan had an unsecured claim of
$132,000; 4) Real Time Resolutions, Inc., had an unsecured claim
of $42,348; 5) Kemoo by the Lake AOAO had an unsecured claim of
$51,920, 6) Porter McGuire Kiakona Chow had an unsecured claim of
$25,000, and 7) five companies had unsecured claims totaling more
than $60,000 for what appear to be credit card debts.

See U.S.

Bankr. Ct. No. 13-01783, Dkt # 80.
During the bankruptcy proceedings, Collins filed four
proposed Chapter 13 plans.

See Docket # 13 (Nov. 20, 2013,

Plan); Docket # 21 (First Amended Plan of Jan. 6, 2014); Docket

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# 78 (Second Amended Plan of Apr. 21, 2014); Docket # 129 (Third
Amended Plan of July 21, 2014).

None of the plans was confirmed.

Docket # 219, Page 2.
On August 20, 2014, the bankruptcy trustee objected to
Collins’s Third Amended Plan as not feasible, unintelligible, and
unduly speculative.

The trustee asked that Collins’s bankruptcy

case be dismissed because of unreasonable delay that was
prejudicial to creditors.
Docket No. 177-1.

See U.S. Bankr. Ct. No. 13-01783,

On August 28, 2014, the bankruptcy court held

a hearing on the proposed Third Amended Plan and the trustee’s
request for dismissal of Collins’s Chapter 13 case.
At the hearing, Bankruptcy Judge Robert Faris noted
that the Third Amended Plan “apparently works only if the
mortgage claims and the Association’s claims, as secured claims,
are reduced to zero or close to zero.
impossible.”

And that’s pretty much

See ECF No. 77-1 at 3, PageID # 2868.

The

Statement in the Third Amended Plan listing the Countrywide Home
Loans claim secured by property on Wilikina Drive as $0.00
contrasted with Collins’ Amended Schedule D indicating that
Countrywide Home Loans claimed a debt of $132,000 secured by the
Wilikina Drive property.

Cf. U.S. Bankr. Ct. No. 13-01783,

Docket # 129, page 3 with U.S. Bankr. Ct. No. 13-01783,
Docket # 80, page 6.

Bankruptcy Judge Faris declined to confirm

the Third Amended Plan and dismissed Collins’s Chapter 13 case in

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light of the unreasonable delay that prejudiced creditors.
ECF No. 77-1.
that effect.

See

On August 29, 2014, he issued a written order to
See U.S. Bankr. Ct. No. 13-01783,

Docket # 194

(“August 29 Order”).
On September 8, 2014, Collins filed a motion to
reconsider the August 29 Order.
01783, Docket # 207.

See U.S. Bankr. Ct. No. 13-

On September 16, 2014, the bankruptcy court

issued an order denying Collins’s motion to reconsider.

See U.S.

Bankr. Ct. No. 13-01783, Docket # 209 (“September 16 Order”).
The next day, the bankruptcy court dismissed Collins’s
adversary proceeding complaint against Countrywide Home Loans,
Inc., and Bayview Loan Servicing, LLC, initiated on June 25, 2014
(“September 17 Order”).

See U.S. Bankr. Ct. No. 14-90038,

Docket # 15; Civil No. 14-00488.

The adversary proceeding

complaint was dismissed pursuant to Local Bankruptcy Rule 7001-2,
which states, “Whenever a case is dismissed, any adversary
proceeding filed in connection with that case will be dismissed
without prejudice unless otherwise ordered, and any proceedings
that have been removed to the bankruptcy court in connection with
that case shall be remanded.”
Collins has appealed the bankruptcy court’s August 29
Order dismissing the Chapter 13 bankruptcy proceeding, the
September 16 Order denying reconsideration of that order, and the
September 17 Order dismissing the adversary proceeding based on

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the dismissal of the underlying bankruptcy proceeding.

See Civ.

No. 14-00453 SOM/BMK, ECF No. 1, PageID # 2 (Referral of Appeal
stating that Collins is appealing the orders of August 29, 2014,
and September 16, 2014, which refused to confirm Collins’s
Chapter 13 Plan and dismissed her bankruptcy case, and which
refused to reconsider that order); Civ. No. 14-00488 SOM/BMK, ECF
No. 1-2, PageID # 4 (Referral of Appeal stating that Collins is
appealing the order of September 17, 2014, which dismissed the
adversary proceeding complaint).
these appeals.

This court has consolidated

See ECF No. 21.

On January 23, 2015, Collins filed her Appellant’s
Brief.

See Civ. No. 14-00453 SOM/BMK, ECF No. 69.

On January

29, 2015, Collins filed a motion to amend her Appellant’s Brief,
as well as a proposed Amended Appellant’s Opening Brief.

See

Civ. No., 14-00453 SOM/BMK, ECF Nos. 79 (motion to amend brief)
and 75-2 (proposed Amended Appellant’s Brief).
III.

STANDARD OF REVIEW.
This court reviews a bankruptcy court’s findings of

fact for clear error and its conclusions of law de novo.

See In

re Kimura (United States v. Battley), 969 F.2d 806, 810 (9th Cir.
1992) (“The court reviews the bankruptcy court’s findings of fact
under the clearly erroneous standard and its conclusions of law
de novo.”).

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This court reviews for abuse of discretion bankruptcy
court orders denying motions for reconsideration.

In re

O’Kelley, 420 B.R. 18, 22 (D. Haw. 2009) (citing In re Weiner,
161 F.3d 1216, 1217 (9th Cir. 1998), for proposition that Ninth
Circuit reviews bankruptcy court orders independently of
Bankruptcy Appellate Panel’s decision, and bankruptcy court’s
denial of motion for reconsideration is reviewed for abuse of
discretion); In re Greco, 113 B.R. 658, 662 (D. Haw. 1990).
IV.

ANALYSIS.
Chapter 13 of the United States Bankruptcy Code
provides a system for the financial
rehabilitation, through adjustment of debts,
of individuals having a regular source of
income, such as a salary or profits from a
business. It is designed to protect such a
debtor operating thereunder by insulating the
debtor from creditors’ pressures while the
debtor pays off the allowed claims on a
regular basis under a plan to be filed by the
debtor (11 U.S.C.A. § 1321) and confirmed by
the Bankruptcy Court (11 U.S.C.A. § 1325).

126 A.L.R. 665 § 2.
The confirmation of a Chapter 13 plan is governed by 11
U.S.C. § 1325.

See Hamilton v. Lanning, 560 U.S. 505, 508 (2010)

(“Section 1325 of Title 11 specifies circumstances under which a
bankruptcy court ‘shall’ and ‘may not’ confirm a plan”).
section states:
(a) Except as provided in subsection (b), the
court shall confirm a plan if--

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That

(1) the plan complies with the
provisions of this chapter and with the other
applicable provisions of this title;
(2) any fee, charge, or amount required
under chapter 123 of title 28, or by the
plan, to be paid before confirmation, has
been paid;
(3) the plan has been proposed in good
faith and not by any means forbidden by law;
(4) the value, as of the effective date
of the plan, of property to be distributed
under the plan on account of each allowed
unsecured claim is not less than the amount
that would be paid on such claim if the
estate of the debtor were liquidated under
chapter 7 of this title on such date;
(5) with respect to each allowed secured
claim provided for by the plan-(A) the holder of such claim has
accepted the plan;
(B)(i) the plan provides that–
(I) the holder of such
claim retain the lien securing such claim
until the earlier of-(aa) the payment of
the underlying debt determined under
nonbankruptcy law; or
(bb) discharge under
section 1328; and
(II) if the case under
this chapter is dismissed or converted
without completion of the plan, such lien
shall also be retained by such holder to the
extent recognized by applicable nonbankruptcy
law;
(ii) the value, as of the
effective date of the plan, of property to be
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distributed under the plan on account of such
claim is not less than the allowed amount of
such claim; and
(iii) if–
(I) property to be
distributed pursuant to this subsection is in
the form of periodic payments, such payments
shall be in equal monthly amounts; and
(II) the holder of the
claim is secured by personal property, the
amount of such payments shall not be less
than an amount sufficient to provide to the
holder of such claim adequate protection
during the period of the plan; or
(C) the debtor surrenders the
property securing such claim to such holder;
(6) the debtor will be able to make all
payments under the plan and to comply with
the plan;
(7) the action of the debtor in filing
the petition was in good faith;
(8) the debtor has paid all amounts that
are required to be paid under a domestic
support obligation and that first become
payable after the date of the filing of the
petition if the debtor is required by a
judicial or administrative order, or by
statute, to pay such domestic support
obligation; and
(9) the debtor has filed all applicable
Federal, State, and local tax returns as
required by section 1308.
Under 11 U.S.C. § 1307(c), a bankruptcy case under
Chapter 13 may be dismissed for “(1) unreasonable delay by the
debtor that is prejudicial to creditors . . . [or] (5) denial of
confirmation of a plan under section 1325 of this title and
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denial of a request made for additional time for filing another
plan or a modification of a plan.”
On August 28, 2014, a hearing was held to determine
whether Collins’s Third Amended Chapter 13 Plan should be
confirmed.

At that hearing, Bankruptcy Judge Faris denied

confirmation of the plan, determining that there was no
reasonable prospect that any plan would be confirmed in any
reasonable amount of time.

He noted that there had been an

unreasonable delay in getting any plan confirmed and stated that
the plan would only work if secured claims were “reduced to zero
or something close to zero.”

See Transcript of Confirmation

Hearing Third Amended Plan and Trustee Dismissal of Case at 2-3,
ECF No. 77-1, PageID #s 2867-68.
Chapter 13 bankruptcy case.
#s 2871, 2876.

He orally dismissed Collins’s

Id. at 6, 11, ECF No. 77-1, PageID

A written order followed on August 29, 2014.

U.S. Bankr. Ct. No. 13-01783,

See

Docket # 194.

Collins sought reconsideration of the August 29 Order.
That motion was denied on September 16, 2014, as Collins
“offer[ed] no new arguments or evidence . . .[and] failed to
carry her burden.”

See U.S. Bankr. Ct. No. 13-01783, Docket

# 209.
Given the dismissal of Collins’s Chapter 13 bankruptcy
case, Bankruptcy Judge Faris dismissed the adversarial proceeding
Collins had filed against Countrywide Home Loans, Inc., and

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Bayview Loan Servicing, LLC, as required by Local Bankruptcy Rule
7001-2.

See U.S. Bankr. Ct. No. 14-90038, Docket # 15; Civil No.

14-00488.
Before the court are Collins’s appeals of the order
denying confirmation of her proposed plan and dismissing her
Chapter 13 case, the order denying reconsideration of that order,
and the order dismissing the adversarial proceeding because the
Chapter 13 case had been dismissed.
On January 23, 2015, Collins filed her Appellant’s
Brief.

See Civ. No. 14-00453 SOM/BMK, ECF No. 69.

On January

29, 2015, Collins filed a motion to amend that brief.

See Civ.

No., 14-00453 SOM/BMK, ECF Nos. 79 (motion to amend brief) and
75-2 (proposed Amended Appellant’s Brief).

The court grants her

motion to file the Amended Appellant’s Brief.
Collins misunderstands the nature of the appeals before
this court.

Rather than explaining why the Bankruptcy Court

erred in denying confirmation of her proposed Chapter 13 plan and
in dismissing the case, Collins spends most of her brief on other
issues.

Viewed in the light most favorable to her, Collins’s

appeal argues that, had she been allowed to continue her case,
“she would have been able to show feasibility of a confirmable
plan after certain claimants would have been eliminated from the
case.”

See ECF No. 75-2 at 12, PageID # 2406.

But Collins

provides little detail as to how any plan would have been

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feasible.

At most she says that, had the Bankruptcy Court

examined the secured claims, two of three claimants would have
been determined not to have secured claims.
13, PageID # 2407.

See ECF No. 75-2 at

Offering only unsupported assertions about

what might have happened, Collins fails to show that her Chapter
13 bankruptcy case should not have been dismissed.

Collins

raises issues while failing to demonstrate error.

Nor do the

many documents she submits without explanation as to their
relevance show error by the bankruptcy court.
Collins makes no attempt to demonstrate that she
proposed a Chapter 13 plan that satisfied the requirements of 11
U.S.C. § 1325.

She does not show that the bankruptcy court erred

in finding unreasonable delay that prejudiced claimants for
purposes of § 1307(c).

Reviewing the matter de novo, this court

agrees that her Third Amended Plan was unfeasible, as it assumed
a reduction to zero of secured claims.

Despite Collins’s

multiple attempts to submit a viable plan, Collins never came
close to satisfying the statutory requirements.

It appears that

she was using the Chapter 13 bankruptcy as a tool to delay
foreclosure proceedings and other debt collection activities.
This court agrees that dismissal of her Chapter 13 case was
appropriate given the unreasonable delay in offering a
confirmable Chapter 13 plan.

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Collins filed her Chapter 13 petition on October 20,
2013.

After multiple proposals spanning nearly 10 months, during

which claimants had to respond multiple times, no confirmable
plan loomed.

Collins’s confusing Appellant’s Brief suggests that

she continues to have no vision of what a viable plan requires.
Under these circumstances, this court affirms the
bankruptcy court’s orders declining to confirm Collins’s Third
Amended Chapter 13 Plan and dismissing her Chapter 13 case.

See

In re Paulson, 477 B.R. 740, 743 (8th Cir. B.A.P. 2012)
(affirming dismissal of bankruptcy petition based on unreasonable
delay in obtaining confirmation of a plan in case involving five
plans proposed over six months with no progress towards
confirmation).
Because Collins demonstrates no error in the bankruptcy
court’s dismissal of her Chapter 13 case, this court also affirms
the bankruptcy court order dismissing the adversarial proceeding.
V.

CONCLUSION.
The court affirms the Bankruptcy Court orders that

1) denied confirmation of Collins’s Third Amended Chapter 13
Plan, 2) dismissed Collins’s Chapter 13 case, 3) denied
reconsideration of those rulings, and 4) dismissed the
adversarial proceeding.
The court affirms the Bankruptcy Court orders without a
hearing pursuant to Local Rule 7.2(d) and without waiting for any

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Appellee Brief, as Collins’s brief on its face shows no
entitlement to the relief requested.

The Clerk of Court is

directed to terminate the appeals at issue in the consolidated
cases before this court, Civil Nos. 14-00453 SOM/BMK and 14-00488
SOM/BMK.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 5, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

In re Gabi Kim Collins, Civ. No. 14-00453 SOM/BMK, and Gabi Kim Collins v.
Countrywide Home Loans, Inc., et al., Civ. No. 14-00488 SOM/BMK; ORDER
AFFIRMING BANKRUPTCY COURT ORDERS

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