FILED
MAY 28 2020
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. NC-19-1231-TaFS
NATHANIEL BASOLA SOBAYO, Bk. No. 19-50887-SLJ
Debtor.
NATHANIEL BASOLA SOBAYO,
Appellant,
v. MEMORANDUM*
DEVIN DERHAM-BURK, Chapter 13
Trustee,
Appellee.
Argued and Submitted on May 20, 2020
Filed – May 28, 2020
Appeal from the United States Bankruptcy Court
for the Northern District of California
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Honorable Stephen L. Johnson, Bankruptcy Judge, Presiding
Appearances: Appellant Nathaniel Basola Sobayo argued pro se; Jane
Zimmerman Bohrer argued for appellee Devin Derham-
Burk, Chapter 13 Trustee.
Before: TAYLOR, FARIS, and SPRAKER, Bankruptcy Judges:
Nathaniel Basola Sobayo appeals pro se from the bankruptcy court’s
order denying his motion to (1) vacate an order dismissing his chapter 13 1
case and (2) grant leave to file adversary proceedings (the “Reconsideration
Motion”).
The bankruptcy court granted the chapter 13 trustee’s dismissal
motion as Mr. Sobayo admitted that he did not qualify for chapter 13 relief
because his secured debt exceeded the § 109(e) debt limits; Mr. Sobayo
admitted that he failed to pay all his secured creditors as required by his
proposed chapter 13 plan; and Mr. Sobayo failed to file a report of
payments to secured creditors as required by the bankruptcy court’s local
rules. Mr. Sobayo opposed the motion but did not address any of the
asserted bases for dismissal. He also did not file a timely appeal from the
order dismissing this bankruptcy case, his third. Instead, after the time for
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules
of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of
Civil Procedure.
2
appeal expired, Mr. Sobayo filed the Reconsideration Motion. The
bankruptcy court denied it, and Mr. Sobayo timely appealed.
Mr. Sobayo has never stated a legal basis for the Reconsideration
Motion, but, as did the bankruptcy court, we consider it under Civil
Rule 60 as made applicable in a bankruptcy case by Rule 9024. And, having
done so, we determine that the bankruptcy court did not abuse its
discretion in denying it. See Fernandez v. GE Capital Mortg. Servs., Inc. (In re
Fernandez), 227 B.R. 174, 177 (9th Cir. BAP 1998) (We review the denial of a
Civil Rule 60(b) motion for relief from judgment for an abuse of
discretion.), aff'd, 208 F.3d 220 (9th Cir. 2000). The bankruptcy court’s
decision here was unquestionably well-founded.
Mr. Sobayo has never advanced a relevant argument supporting
reconsideration of the dismissal of his case. He did not assert, nor does the
record reflect, any circumstances that would constitute mistake,
inadvertence, surprise, or excusable neglect under Civil Rule 60(b)(1).
While he states on appeal that the three bankruptcies he filed were
“needlessly, negligently, and abusively dismissed without merits” due to
“mistakes” of the bankruptcy court and the trustee, he failed to specifically
identify any “mistakes” warranting reconsideration. Nor did he offer
newly discovered evidence under Civil Rule 60(b)(2), argue that the
dismissal order was void under Civil Rule 60(b)(4), or argue that it had
been satisfied, discharged, or released under Civil Rule 60(b)(5). At best,
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his desire for adversary proceedings to address alleged issues in state court
matters could be considered under the catch-all provision, Civil Rule
60(b)(6). But, his desire to file adversary proceedings does not excuse his
missed plan payments, noncompliance with local rules, and chapter 13
ineligibility.
We acknowledge the sincerity of Mr. Sobayo’s view that he has been
ill-served by his attorneys, lenders, and others. And we do not
underestimate the difficulties that he has faced in navigating through
disputes in several courts. But there is no basis consistent with controlling
law for a reversal of the bankruptcy court’s decision to deny the
Reconsideration Motion.
We AFFIRM.
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