William Bender V. , 480 F. App'x 445 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: WILLIAM P. BENDER, No. 11-60006
Debtor. BAP No. 10-1121
WILLIAM P. BENDER, MEMORANDUM *
Appellant,
v.
DIANE M. MANN, Chapter 7 Trustee;
THE WARREN AND ROSALIE
GUMMOW TRUST,
Appellees.
In re: WILLIAM P. BENDER, No. 11-60007
Debtor. BAP No. 10-1122
CONGREJO INVESTMENTS, LLC,
Appellant,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
v.
DIANE M. MANN, Chapter 7 Trustee,
Appellee.
Appeals from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Bauer, Bankruptcy Judges, Presiding
Submitted April 16, 2012 **
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and GRABER, Circuit Judges.
I
In No. 11-60007, Congrejo Investments, LLC challenges the bankruptcy
court’s order avoiding the transfer of property from William P. Bender, Debtor, to
Congrejo. The Trustee filed a motion to dismiss this appeal as moot because the
property at issue has now been sold to a purchaser in good faith.
We deny the motion to dismiss. Though the sale of the property cannot be
undone because no stay order was sought, see 11 U.S.C. § 363(m), relief could still
be awarded in the form of damages, see, e.g., In re Berg, 45 B.R. 899, 902 (B.A.P.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
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9th Cir. 1984), assuming that the estate contains additional property, see In re
Filtercorp, Inc., 163 F.3d 570, 577–78 (9th Cir. 1998).
On the merits, the bankruptcy court properly applied equitable tolling to the
Trustee’s avoidance action. The court found that Bender actively concealed his
interest in and conveyance of the property, that the Trustee did not discover the
conveyance until five months after the deed was executed, and that the Trustee
diligently investigated the estate’s possible claim to the property. These findings
are supported by the record and are not clearly erroneous. Applying equitable
tolling in these circumstances is proper. See, e.g., In re Olsen, 36 F.3d 71, 73 (9th
Cir. 1994). Tolling rescues the Trustee’s otherwise time-barred claim, see Socop-
Gonzalez v. INS, 272 F.3d 1176, 1193–95 (9th Cir. 2001) (en banc), and the
avoidance order must be affirmed.
II
In No. 11-60006, Bender appeals the bankruptcy court’s order overruling his
objection to the William and Rosalie Gummow Trust’s proof of claim. Because
Bender presents this appeal as contingent on the reversal of the avoidance order,
which we instead affirm, we grant the motion to dismiss this appeal as moot. See
Church of Scientology v. United States, 506 U.S. 9, 12 (1992).
No. 11-60007 is AFFIRMED and No. 11-60006 is DISMISSED.
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