In re Thomas, 03-57164.

• Decision Date: 18 November 2005
• Docket Number: No. 03-57164.,03-57164.
• Citation: 428 F.3d 1266
• Parties: In re Miguel Selwyn THOMAS, Debtor. Byron Z. Moldo, Appellant, v. Arvis Ash, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

428 F.3d 1266

In re Miguel Selwyn THOMAS, Debtor Byron Z. Moldo, Appellant, v. Arvis Ash, Appellee.

No. 03-57164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2005.

Filed November 18, 2005.

Anthony A. Friedman, Rein Evans & Sestanovich, LLP, Los Angeles, CA, for the appellant.

Andrew E. Smyth, Los Angeles, California, and Arvis Ash, pro se, Van Nuys, CA, for the appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Perris, Marlar and Pappas, Bankruptcy Judges, Presiding. BAP No. CC 03-1052, Bk. No. SV 01-11666-AG, Adv. No. AD 02-1022-AG.

Before GRABER and W. FLETCHER, Circuit Judges, and FOGEL, District Judge.^*

FOGEL, District Judge.

Byron Moldo, the Chapter 7 Trustee ("Trustee"), appeals a decision of the Bankruptcy Appellate Panel ("BAP") reversing 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 erroneously excluded from its review the relevant findings underpinning 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 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 transfer 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 condominium to his mother and therefore had not received reasonably 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 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 briefing. 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"). However, while the bankruptcy court again found that Debtor was insolvent at the time of the conveyance, the insolvency determination 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 inconsistent 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. 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 pursuant to Rule 8002(b).

STANDARD OF REVIEW

We review de novo the decisions of the BAP. Hanf v. Summers (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

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 specified 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;

(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...