In Re: Thomas Moldo v. Ash ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: MIGUEL SELWYN THOMAS, 
Debtor. No. 03-57164
BAP No.
CC 03-1052
BYRON Z. MOLDO, Chapter 7
Trustee,  Bk. No.
SV 01-11666-AG
Appellant,
Adv. No.
v. AD 02-1022-AG
ARVIS ASH, OPINION
Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel
Perris, Marlar and Pappas, Bankruptcy Judges, Presiding
Argued and Submitted
September 14, 2005—Pasadena, California
Filed November 18, 2005
Before: Susan P. Graber and William A. Fletcher,
Circuit Judges, and Jeremy Fogel, District Judge*
Opinion by Judge Fogel
*The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
15457
15460 IN RE: THOMAS
COUNSEL
Anthony A. Friedman, Rein Evans & Sestanovich, LLP, Los
Angeles, California, for the appellant.
Andrew E. Smyth, Los Angeles, California, and Arvis Ash,
pro se, Van Nuys, California, for the appellee.
OPINION
FOGEL, District Judge:
Byron Moldo, the Chapter 7 Trustee (“Trustee”), appeals a
decision of the Bankruptcy Appellate Panel (“BAP”) revers-
ing the bankruptcy court’s determination that the bankruptcy
debtor, Miguel Selwyn Thomas (“Debtor”), fraudulently
transferred a condominium to his mother, Arvis Ash (“Ash”),
before filing for bankruptcy. We have jurisdiction pursuant to
28 U.S.C. § 158(d). Because we conclude that the BAP erro-
neously excluded from its review the relevant findings under-
pinning the bankruptcy court’s judgment, we vacate and
remand so that the BAP may review the bankruptcy court’s
judgment based upon the full record.
BACKGROUND
Debtor acquired legal title to a condominium located in
Van Nuys, California in 1997, and executed a quitclaim deed
conveying the condominium to Ash in 2000. The quitclaim
deed was recorded on June 7, 2000. On February 28, 2001,
Debtor filed a voluntary petition for relief under Chapter 7 of
IN RE: THOMAS 15461
Title 11 of the United States Code. Trustee subsequently filed
an adversary proceeding against Ash, seeking to set aside the
transfer of the condominium as fraudulent under California’s
fraudulent transfer laws.1
The bankruptcy court conducted a one-day bench trial on
January 7, 2003. At the start of the trial, Trustee’s counsel
clarified that Trustee would attempt to demonstrate fraudulent
transfer on the grounds that Debtor was insolvent at the time
of conveyance and did not receive equivalent value for the
condominium; counsel stated that Trustee would not attempt
to prove that Debtor actually intended to defraud his creditors.
Immediately following the bench trial, the bankruptcy court
rendered an oral decision in favor of Trustee, concluding that
Trustee had demonstrated insolvency at the time of the trans-
fer because Debtor’s bankruptcy petition disclosed a single
debt of approximately $2,000 and indicated that he did not
receive any income for the two years preceding his petition.
The court further concluded that Debtor had gifted the condo-
minium to his mother and therefore had not received reason-
ably equivalent value.2
Two days later, on January 9, 2003, Ash filed a motion to
amend the judgment. On January 21, 2003, the bankruptcy
court issued a written judgment in favor of Trustee, voiding
the transfer as fraudulent and preserving the condominium for
the benefit of the bankruptcy estate. The judgment, which did
not address Ash’s pending motion, was entered on January
22, 2003. After the completion of briefing on Ash’s timely
appeal, the BAP discovered the existence of Ash’s pending
motion to amend the judgment; it therefore suspended the
1
Pursuant to 11 U.S.C. § 544, a bankruptcy trustee may avoid any trans-
fer by the debtor that constitutes a fraudulent transfer under state law.
Decker v. Advantage Fund Ltd., 362 F.3d 593, 596 (9th Cir. 2004).
2
The bankruptcy court made an alternative finding that, even if it were
to accept Ash’s representation that she paid Debtor $3,600 for the condo-
minium, such payment did not constitute equivalent value.
15462 IN RE: THOMAS
appeal and remanded to the bankruptcy court for disposition
of the motion.
On remand, the bankruptcy court permitted the parties to
depose Debtor, who had not been available at trial, to conduct
other discovery, and to submit additional evidence and brief-
ing. On August 14, 2003, the court issued a written decision
denying Ash’s motion to amend the judgment and reaffirming
judgment in favor of Trustee (“August 2003 Order”). How-
ever, while the bankruptcy court again found that Debtor was
insolvent at the time of the conveyance, the insolvency deter-
mination on remand was based upon new and different factual
determinations. Specifically, the court found that, at the time
of transfer, Debtor had debt of approximately $90,000 (as
opposed to debt of approximately $2,000 as originally found)
and income of approximately $30,000 per year (as opposed to
no income as originally found). The bankruptcy court stated
explicitly that, to the extent these new findings were inconsis-
tent with the original findings, the new findings constituted
the findings of the court.
The BAP then reinstated Ash’s appeal. At oral argument,
Trustee asked that the BAP consider the bankruptcy court’s
amended findings set forth in the August 2003 Order. The
BAP declined to do so; instead, it proceeded with Ash’s
appeal as though the bankruptcy court’s judgment still rested
only upon the original findings. On November 12, 2003, the
BAP issued a written memorandum disposition reversing the
bankruptcy court’s judgment for Trustee, after concluding that
a single debt of approximately $2,000 and a lack of income
at the time of conveyance were insufficient as a matter of law
to establish insolvency.
In declining to address the bankruptcy court’s amended
findings, the BAP relied upon Rule 8002(b) of the Federal
Rules of Bankruptcy Procedure. That rule provides, inter alia,
that a party seeking review of an order disposing of a motion
to amend the judgment must file an amended notice of appeal.
IN RE: THOMAS 15463
Fed. R. Bank. P. 8002(b). The BAP concluded that the
amended findings that ultimately underpinned the bankruptcy
court’s judgment were not subject to review because those
findings were set forth in the August 2003 Order denying
Ash’s motion to amend the judgment, and Ash did not file an
amended notice of appeal seeking review of that order pursu-
ant to Rule 8002(b).
STANDARD OF REVIEW
We review de novo the decisions of the BAP. Hanf v. Sum-
mers (In re Summers), 332 F.3d 1240, 1242 (9th Cir. 2003).
We review the bankruptcy court’s conclusions of law de novo
and its findings of fact for clear error. Id.DISCUSSION
[1] The BAP erred in concluding that it lacked jurisdiction
to review the bankruptcy court’s amended findings. Although
the parties did not brief the jurisdictional issue on appeal, we
are required to consider the presence or absence of subject
matter jurisdiction sua sponte. Cannon v. Hawaii Corp. (In re
Hawaii Corp.), 796 F.2d 1139, 1141 (9th Cir. 1986).
Rule 8002(b), on which the BAP relied in limiting its
review to the bankruptcy court’s original findings, provides:
If any party makes a timely motion of a type speci-
fied immediately below, the time for appeal for all
parties runs from the entry of the order disposing of
the last such motion outstanding. This provision
applies to a timely motion:
(1) to amend or make additional findings of fact
under Rule 7052, whether or not granting the motion
would alter the judgment;
(2) to alter or amend the judgment under Rule
9023;
15464 IN RE: THOMAS
(3) for a new trial under Rule 9023; or
(4) for relief under Rule 9024 if the motion is filed
no later than 10 days after the entry of judgment. A
notice of appeal filed after announcement or entry of
the judgment, order, or decree but before disposition
of any of the above motions is ineffective to appeal
from the judgment, order, or decree, or part thereof,
specified in the notice of appeal, until the entry of
the order disposing of the last such motion outstand-
ing. Appellate review of an order disposing of any of
the above motions requires the party, in compliance
with Rule 8001, to amend a previously filed notice
of appeal. A party intending to challenge an alter-
ation or amendment of the judgment, order, or
decree shall file a notice, or an amended notice, of
appeal within the time prescribed by this Rule 8002
measured from the entry of the order disposing of
the last such motion outstanding. No additional fees
will be required for filing an amended notice.
Fed. R. Bank. P. 8002(b).
[2] Under this rule, Ash’s notice of appeal of the bank-
ruptcy court’s judgment was ineffective when filed because of
the pendency of her motion to amend the judgment. See id.,advisory committee notes (1994 Amend.) (stating that “[a]
notice filed before the filing of one of the specified motions
or after the filing of a motion but before disposition of the
motion is, in effect, suspended until the motion is disposed of,
whereupon, the previously filed notice effectively places
jurisdiction in the district court or bankruptcy appellate
panel”). Ash’s appeal of the judgment became effective only
upon the bankruptcy court’s entry of its August 2003 Order
disposing of her motion. At that time, the judgment rested on
the amended findings. The BAP thus had jurisdiction to
review the amended findings.
IN RE: THOMAS 15465
[3] Rule 8002(b) requires an amended notice of appeal
when the bankruptcy court’s ruling on a postjudgment motion
alters the judgment and the appellant wishes to challenge that
alteration. Rule 8002(b) provides that “[a] party intending to
challenge an alteration or amendment of the judgment, order,
or decree shall file a notice, or an amended notice, of appeal
within the time prescribed by this Rule 8002 measured from
the entry of the order disposing of the last such motion out-
standing.” Fed. R. Bank. P. 8002(b). The Advisory Commit-
tee Notes clarify that “[i]f the judgment is altered upon
disposition of a postjudgment motion . . . and if a party who
has previously filed a notice of appeal wishes to appeal from
the disposition of the motion, the party must amend the notice
to so indicate.” Id., advisory committee notes (1994 Amend.)
(emphasis added).
[4] The BAP apparently believed that these provisions
deprived it of jurisdiction to consider any aspect of the August
2003 Order because Ash did not file an amended notice of
appeal with respect to that order. However, Ash did not seek
review of the disposition of her motion to amend the judg-
ment, but rather of the judgment itself. See 10 Collier on
Bankruptcy ¶ 8002.08 (15th ed., rev. 2005) (“If the appellant
does not wish to appeal from the order disposing of the post-
decisional motion, but only from the original order, an
amended notice of appeal is unnecessary.”). Accordingly, the
BAP erred in limiting its review to the original findings,
which had been superseded at the time Ash’s appeal became
effective.3
Remand is the appropriate remedy when the BAP errone-
ously fails to address the merits of an appeal of a bankruptcy
3
The BAP’s approach may have worked a substantial injustice as to
Trustee. The bankruptcy court’s findings regarding insolvency arguably
were much stronger on remand, and thus were more favorable to Trustee,
but the BAP declined to consider those findings because Ash failed to file
an amended notice of appeal.
15466 IN RE: THOMAS
court’s judgment because of a perceived procedural bar. See
Arrowhead Estates Dev. Co. v. U.S. Trustee (In re Arrowhead
Estates Dev. Co.), 42 F.3d 1306, 1311-12 (9th Cir. 1994)
(concluding that the BAP erred in failing to reach the merits
of an appeal of the bankruptcy court’s judgment and remand-
ing for further proceedings).
VACATED AND REMANDED.