In re Parker, BAP No. EC-95-1828-RBMe. Bankruptcy No. 95-23730-C-7.

Decision Date14 March 1996
Docket NumberBAP No. EC-95-1828-RBMe. Bankruptcy No. 95-23730-C-7.
Citation193 BR 525
PartiesIn re David P. PARKER, Sr., Debtor. McCLELLAN FEDERAL CREDIT UNION, Appellant, v. David P. PARKER, Sr., Appellee.
CourtU.S. Bankruptcy Appellate Panel, Ninth Circuit

Larry J. Cox, Peter A. Buck, Sacramento, CA, for Appellant.

David P. Parker, Sr., North Highlands, CA, appellant in pro. per.

Before: RUSSELL, BARR1, and MEYERS, Bankruptcy Judges.


RUSSELL, Bankruptcy Judge:

An in propria persona chapter 72 debtor filed a motion to reaffirm a secured car loan and an unsecured credit card debt owed to the same creditor. The bankruptcy court denied the debtor's motion. The creditor appeals. We DISMISS because the creditor lacks standing to bring this appeal.


On April 28, 1995, David P. Parker, Sr., an in propria persona debtor ("debtor"), filed a chapter 7 bankruptcy petition along with a statement of intention pursuant to § 521(2)(A).

On June 21, 1995, the debtor filed a motion to reaffirm his debt with McClellan Federal Credit Union ("McClellan" or "creditor"). The reaffirmation agreement ("agreement") included two separate obligations, one an unsecured credit card debt in the amount of $1,986.50 and the other a secured debt in the amount of $9,977.56. The latter was secured by an automobile with a fair market value of between $9,000 and $10,000, and the debtor was current on these payments.

On July 19, 1995, at the reaffirmation hearing, the bankruptcy court denied the debtor's motion on the ground that the debtor was current on his secured payments and, therefore, it was not necessary to reaffirm the secured debt.3 With respect to the unsecured debt, the bankruptcy court concluded that the debtor could continue to make payments to McClellan if he elected to do so, but the court would not order it.

On August 18, 1995, the bankruptcy court granted the debtor a discharge. McClellan appeals the bankruptcy court's order denying the debtor's motion to approve the reaffirmation agreement.


Whether a creditor, whose debt the debtor has agreed to reaffirm, has standing to appeal the bankruptcy court's order denying the debtor's motion to approve the reaffirmation agreement.


Standing represents a jurisdictional requirement which is open to review at all stages of the litigation. National Org. For Women, Inc. v. Scheidler, ___ U.S. ___, ___, 114 S.Ct. 798, 802, 127 L.Ed.2d 99 (1994). Whether an entity has standing to appeal is a question of law reviewed de novo. Barrus v. Sylvania, 55 F.3d 468, 469 (9th Cir.1995); see also Board of County Comm'rs v. W.H.I., Inc., 992 F.2d 1061, 1063 (10th Cir.1993).


McClellan's standing to appeal

The Ninth Circuit has adopted the "aggrieved person" test for determining whether an entity has standing. Matter of Fondiller, 707 F.2d 441, 443 (9th Cir.1983). Under the aggrieved person standard, only those persons who are directly and adversely affected pecuniarily by an order of the bankruptcy court have standing to appeal that order. Id. at 442. The appellant must demonstrate that the order diminished its property, increased its burdens or detrimentally affected its rights. Id.

To have standing to appeal, an appellant must also assert that its own legal rights and interests were directly affected by the order. An appellant cannot rest his claim for relief on the legal rights or interests of another. Umpqua Shopping Ctr., 111 B.R. 303, 305 (9th Cir. BAP 1990) (citing Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)).

Although McClellan was a party to the debtor's proposed reaffirmation agreement, it does not appear that McClellan was adversely affected pecuniarily as a result of the bankruptcy court's order. Even though the agreement was not approved, the debtor remained obligated to repay his secured debt to McClellan or surrender the collateral in satisfaction of the debt. § 521(2)(A). The order did not detrimentally affect a "right" by McClellan to receive payment on the unsecured debt because while the agreement may have provided for this debt to be repaid, McClellan did not have a right to this payment because the unsecured debt was otherwise dischargeable.4 Merely being a party to the agreement did not confer standing on McClellan to appeal the bankruptcy court's order.

In addition, the substance of McClellan's argument on appeal is that the agreement should have been approved because it satisfied the requirements of § 524(c)(6)(A)5, namely, that the agreement was in the debtor's best interest and that it did not impose any undue hardship on the debtor. In sum, McClellan's appeal is based entirely on its assertion that the agreement benefitted the debtor's interests and, therefore, should have been approved. While the debtor could have prosecuted this appeal based upon whether the agreement was in his best interest, McClellan cannot. See Umpqua Shopping Ctr., 111 B.R. at 305 (holding that a debtor cannot appeal a confirmation order on the basis that it unfairly discriminates against a class of claims). Standing requires that an appellant rest its claim for relief on its own legal rights or interests.6 Id. at 305.

We conclude that McClellan lacks standing to appeal because it is not an aggrieved entity under the Fondiller standard and because its claim for relief rests on the interests of the debtor.


Just as the right to seek approval of a reaffirmation agreement lies solely with the debtor, it also appears that it is the debtor's exclusive right to appeal an order denying his motion to approve a reaffirmation agreement. Fed.R.Bank.P. 4008.7 We therefore conclude that McClellan lacks standing to bring this appeal. Accordingly, we DISMISS.

1 Hon. James N. Barr, Bankruptcy Judge for the Central District of California, sitting by designation.

2 Unless otherwise indicated, all chapter, section and Rule reference are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330 and the Federal Rules of Bankruptcy Procedure, Rules XXXX-XXXX.

3 The bankruptcy court's reasoning appears to be based upon a line of cases holding that under § 521(2)(A), a nondefaulting debtor need not affirm, redeem or surrender the collateral, but may retain it and continue making payments. In re Weir, 173 B.R. 682, 692 (Bankr.E.D.Cal.1994); see also In re Belanger, 962 F.2d 345 (4th Cir. 1992); Lowry Fed. Cred. Union v. West, 882 F.2d 1543 (10th Cir.1989).

4 The creditor also contends that by allowing the debtor to retain the property and to continue making payments, we are in effect allowing the debtor to redeem the property by installment which is not allowed by § 722....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT