NOT FOR PUBLICATION FILED
JUN 29 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ANIBAL SILVA, No. 21-55873
Debtor, D.C. No. 5:21-cv-00265-JWH
______________________________
ANIBAL SILVA, MEMORANDUM*
Appellant,
v.
ROD DANIELSON; MIDLAND
MORTGAGE; MIDFIRST BANK,
Appellees.
Appeal from the United States District Court
for the Central District of California
John W. Holcomb, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
Chapter 13 debtor Anibal Silva appeals pro se from the district court’s
judgment affirming the bankruptcy court’s order dismissing Silva’s bankruptcy
*
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).
action. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a
district court’s decision on appeal from a bankruptcy court and apply the same
standard of review the district court applied to the bankruptcy court’s decision.
Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162,
1166 (9th Cir. 1990). We affirm.
The bankruptcy court properly dismissed Silva’s bankruptcy action because
Silva committed a material default with respect to a term of the confirmed Chapter
13 plan by failing to make contractual post-petition payments to creditors. See 11
U.S.C. § 1307(c) (“[T]he court may . . . dismiss a case under this chapter,
whichever is in the best interests of creditors and the estate, for cause, including—
. . . (6) material default by the debtor with respect to a term of a confirmed
plan[.]”); Derham-Burk v. Mrdutt (In re Mrdutt), 600 B.R. 72, 81 (9th Cir. BAP
2019) (holding that failing to perform a promise to maintain post-petition payments
to a mortgage creditor is a material default of the bankruptcy plan, subjecting the
case to dismissal under § 1307(c)(6)).
The district court did not abuse its discretion by denying Silva’s motion for a
stay because Silva failed to move first in the bankruptcy court or show that doing
so was impracticable and because he failed to include an affidavit or serve the
motion on all parties. See Fed. R. Bankr. P. 8007(a) & (b) (establishing
requirements to move for a stay of a bankruptcy court order pending appeal);
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AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949-50 (9th Cir.
2006) (setting forth standard of review).
The district court did not abuse its discretion by denying Silva’s motion for
mandatory withdrawal of the reference of the pending bankruptcy proceedings
because doing so after an appeal has been taken would jeopardize the uniformity of
the bankruptcy’s administration and encourage forum shopping. See Security
Farms v. Sec. Farms v. Intl. Broth. of Teamsters, Chauffers, Warehousemen &
Helpers, 124 F.3d 999, 1008 (9th Cir. 1997) (setting forth standard of review and
grounds for mandatory withdrawal of the reference).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Silva’s motion requesting this court to take judicial notice of the documents
he attaches (Docket Entry No. 23) and appellees’ motions to strike portions of the
documents Silva attaches (Docket Entry Nos. 28 & 29) are denied as unnecessary.
Silva’s motion requesting a stay of the appellate proceedings (Docket Entry No.
34) is denied as moot.
AFFIRMED.
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