In re: Betsey Warren Lebbos

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 31, 2012
• Docket: EC-11-1735-KiDJu
• Status: Unpublished

Opinion

FILED DEC 31 2012 SUSAN M SPRAUL, CLERK 1 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. EC-11-1735-KiDJu ) 6 BETSEY WARREN LEBBOS, ) Bk. No. 06-22225-RSB ) 7 Debtor. ) Adv. No. 11-2386-RSB ) 8 ) JOSEPH GIOVANAZZI, Trustee of ) 9 the Aida Madeleine Lebbos ) No. 2 Trust; JOSEPH ) 10 GIOVANAZZI, Trustee of the ) Aida Madeleine Lebbos ) 11 Trust II, ) ) 12 Appellants, ) ) 13 v. ) M E M O R A N D U M1 ) 14 LINDA SCHUETTE, Chapter 7 ) Trustee, ) 15 ) Appellee. ) 16 ______________________________) 17 Argued and Submitted on October 19, 2012, at Sacramento, California 18 Filed - December 31, 2012 19 Appeal from the United States Bankruptcy Court 20 for the Eastern District of California 21 Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding 22 Appearances: Neil Harrison Lewis, Esq. argued for appellant, 23 Joseph Giovanazzi; Michael Paul Dacquisto, Esq. argued for appellee, Linda Schuette. 24 25 Before: KIRSCHER, DUNN, and JURY, Bankruptcy Judges. 26 1 This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th 28 Cir. BAP Rule 8013-1. 1 Appellant, Joseph Giovanazzi (“Giovanazzi”), Trustee of the 2 Aida Madeleine Lebbos No. 2 Trust and the Aida Madeleine Lebbos 3 Trust II (collectively the “Trust”), appeals an order and judgment 4 from the bankruptcy court granting the chapter 72 trustee, Linda 5 Schuette (“Trustee”), partial summary judgment on two of her three 6 claims against Giovanazzi. Giovanazzi also appeals from the 7 bankruptcy court: (1) the order denying his motion to dismiss 8 Trustee's adversary action; (2) the orders denying his motions to 9 disqualify the court and transfer venue; and (3) the orders 10 denying his motion for reconsideration of all of the above orders 11 and judgment. We AFFIRM in part and DISMISS in part. 12 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 13 A. The prior adversary action 07-2006 14 Debtor, Betsey Warren Lebbos (“Lebbos”), filed a chapter 7 15 bankruptcy case on June 26, 2006.3 On January 3, 2007, Trustee 16 filed an avoidance action against Lebbos, Thomas Carter (“Carter”) 17 and Jason Gold (“Gold”). Gold is a law school graduate. Lebbos, 18 Carter and Gold were either the sole or co-trustees of the Trust. 19 Lebbos was sued in her individual capacity and as trustee of the 20 21 2 Unless specified otherwise, all chapter, code and rule 22 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The 23 Federal Rules of Civil Procedure are referred to as “Civil Rules.” 24 3 Lebbos is a former attorney who practiced law in California from 1975 until 1991 when she was disbarred. Giovanazzi is also a 25 California licensed attorney, SBN 42827. He was admitted to practice law in California in 1969. Giovanazzi was disbarred in 26 1990. His license was reinstated in 2003. In connection with his actions surrounding the instant adversary action and other 27 matters, Giovanazzi is facing multiple disciplinary charges before the California State Bar Court. See California State Bar website 28 at http://members.calbar.ca.gov/fal/Member/Detail/42827.

-2- 1 Trust; Carter and Gold were sued in their capacities as trustees 2 of the Trust. The avoidance action sought to set aside two 3 fraudulent transfers by Lebbos of a condominium located in Long 4 Beach, California (“Condo”), injunctive relief, turnover of the 5 Condo and its rent proceeds and other additional relief. The 6 transfers at issue occurred on August 19, 2004 (from Lebbos to the 7 Trust) and May 25, 2005 (from Lebbos as trustee of the Trust to 8 Carter and Gold, co-trustees of the Trust). 9 On January 4, 2007, Trustee served a Notice of Pendency of 10 Action on Lebbos, Carter and Gold (“Lis Pendens”). The Lis 11 Pendens was recorded in Los Angeles County on March 14, 2007. 12 On April 17, 2008, Trustee obtained a default judgment 13 (“Judgment”), with supporting findings of fact and conclusions of 14 law, which (1) avoided both transfers, (2) awarded recovery of all 15 right, title, and interest in the Condo held by Lebbos, Carter and 16 Gold to Trustee and (3) found Trustee's interest in the Condo to 17 be superior to any right, title, and interest of Lebbos, Carter 18 and Gold. The defendants were ordered to turn over the Condo and 19 all rents it generated as of June 26, 2006 (the date Lebbos filed 20 her chapter 7 petition), and were further enjoined from any 21 efforts to convey, transfer, encumber or otherwise affect the 22 title to or the encumbrances on the Condo. 23 Lebbos, Carter and Gold appealed the Judgment to the United 24 States District Court, Eastern District of California, the Ninth 25 Circuit Court of Appeals and the United States Supreme Court. 26 27 28

-3- 1 Each appeal was unsuccessful.4 The Judgment is now final. 2 B. Events leading to the present adversary action 11-2386 3 On April 14, 2008, just three days before the bankruptcy 4 court entered the Judgment, a quitclaim deed from Carter and Gold 5 to Giovanazzi transferring title of the Condo to Giovanazzi was 6 recorded in Los Angeles County. 7 On August 13, 2008, Giovanazzi, as trustor, signed a deed of 8 trust purporting to encumber the Condo to secure payment of an 9 alleged promissory note for $775,000. The beneficiaries of the 10 deed of trust were Aida Madeleine Lebbos (debtor's daughter), 11 Cameron Dacquila (debtor's granddaughter) and Brandon Dacquila 12 (debtor's grandson)(collectively “Beneficiaries”). That deed of 13 trust was recorded in Los Angeles County on September 19, 2008. 14 In January 2009, Giovanazzi filed a quiet title action in the 15 Los Angeles Superior Court against Judges Bardwil and Bufford, 16 Trustee and her counsel. That suit was dismissed on immunity 17 grounds and the dismissal was affirmed on appeal. 18 On July 30, 2009, Trustee advised Giovanazzi (and Lebbos, 19 Carter and Gold) by letter that Giovanazzi did not have an 20 ownership interest in the Condo and that he was not entitled to 21 pursue any actions against it. Trustee advised Giovanazzi of the 22 same in a second letter dated October 2, 2009. 23 On August 20, 2009, the bankruptcy court entered an order 24 authorizing Trustee to employ a real estate broker to sell the 25 26 4 The district court affirmed the bankruptcy court on January 26, 2009 (case no. 08-912-FCD). The Ninth Circuit 27 affirmed the district court on January 22, 2010 (case no. 09- 15271). The U.S. Supreme Court denied a petition for writ of 28 certiorari on November 10, 2010 (case no. 10-6484).

-4- 1 Condo. On April 1, 2010, the bankruptcy court entered an order 2 authorizing Trustee to employ Haas Management Company as property 3 manager for the purposes of renting and caring for the Condo. 4 On August 27, 2010, Giovanazzi, still claiming he owned the 5 Condo, filed an unlawful detainer action in Los Angeles Superior 6 Court seeking to evict the tenants placed in the Condo by Trustee 7 and Haas Management Company. 8 C. The present adversary action 11-2386 9 In response to Giovanazzi's actions and after the last appeal 10 from adversary action 07-2006 had been completed, on May 26, 2011, 11 Trustee filed an adversary action against Giovanazzi asserting 12 three claims. In her first claim under § 551 for preservation of 13 a previously avoided transfer and subsequent transfer, Trustee 14 sought an order/judgment (a) confirming the August 19, 2004 and 15 May 25, 2005 transfers of the Condo had been preserved for the 16 benefit of the bankruptcy estate, (b) avoiding the April 14, 2008 17 quitclaim deed to Giovanazzi, (c) avoiding the August 13, 2008 18 deed of trust to the Beneficiaries, (d) declaring the unlawful 19 detainer lawsuit had no force or effect on Trustee or the Condo, 20 and (e) for injunctive relief preventing Giovanazzi from any 21 further actions affecting the Condo. Trustee's second claim 22 sought turnover of rents allegedly collected by Giovanazzi on the 23 Condo between April 17, 2008, the date Trustee was awarded title 24 to the Condo, and July 2009, the date Trustee took possession.5 25 Trustee's third claim sought declaratory relief as to the issues 26 27 5 Trustee ultimately did not seek a judgment on the second claim and withdrew it on December 19, 2011. Therefore, we do not 28 discuss this claim, except as necessary.

-5- 1 between Trustee and Giovanazzi and requested an order/judgment 2 providing essentially the same relief sought in the first claim. 3 1. Giovanazzi's motions 4 In response to Trustee's complaint, Giovanazzi, appearing pro 5 se, filed three motions: (1) a motion to dismiss under Civil 6 Rule 12(b)(6) (“Motion to Dismiss”); (2) a motion to disqualify 7 Judge Bardwil (“Recusal Motion”); and (3) a motion to transfer 8 venue (“Venue Motion”). 9 a. Motion to Dismiss 10 Giovanazzi argued that adversary action 11-2386 should be 11 dismissed for a multitude of reasons. He contended, generally, 12 that because Lebbos never signed her chapter 7 petition, and 13 because she never resided within the district the required 14 180 days, the bankruptcy court lacked jurisdiction to have entered 15 the Judgment. He further argued Trustee lacked standing and the 16 bankruptcy court lacked jurisdiction over this matter because 17 Lebbos had been denied her discharge and therefore no pending 18 bankruptcy existed. 19 Specifically, Giovanazzi contended that the Judgment was void 20 as to him and the Beneficiaries and that Trustee’s preservation 21 claim under § 551 pertained only to Lebbos, Carter and Gold - the 22 parties sued in Trustee’s avoidance action, not Giovanazzi and the 23 Beneficiaries, who were indispensable parties not joined in that 24 prior action. Giovanazzi further contended that because the 25 instant action was filed three years after entry of the Judgment, 26 it was barred by the one year statute of limitations in § 550(f). 27 In other words, Trustee's “new avoidance action” against him and 28 the Beneficiaries, the subsequent transferees of the Condo, was

-6- 1 time barred. Alternatively, Giovanazzi asserted Trustee’s action 2 was barred by laches because she waited over three years after the 3 Judgment to sue him and the Beneficiaries. Finally, Giovanazzi 4 contended that Trustee had no claim for preservation under § 551 5 because the Condo was never property of the estate, and he further 6 disputed the bankruptcy court’s jurisdiction over the Condo since 7 it was located in Los Angeles. Giovanazzi summarily asserted that 8 Trustee's third claim for declaratory relief had to be dismissed 9 because all title reports showed that he owned the Condo. 10 Giovanazzi's Motion to Dismiss also asserted that a case was 11 pending in the U.S. Supreme Court regarding the criminal conduct 12 of Trustee and her counsel of fabricating a writ to take 13 possession of the Condo and steal the rugs, paintings, appliances 14 and rents from the Beneficiaries. Giovanazzi further asserted 15 that a complaint was pending to the Judicial Conference Committee 16 concerning Judge Bardwil's conduct in issuing two ex parte orders 17 to sell or lease the Condo knowing he had no jurisdiction to do so 18 and never providing any notice to anyone. 19 Trustee opposed the Motion to Dismiss, asserting that 20 Giovanazzi's arguments lacked foundation or factual support and 21 that most of them were frivolous and designed solely to delay. 22 Specifically, Trustee argued that since her claim for preservation 23 was brought under § 551, it was not subject to the one year 24 statute of limitations in § 550(f) and, in any event, no action 25 under § 550 was necessary or requested against Giovanazzi. 26 According to Trustee, she did not need to sue Giovanazzi for 27 avoidance of the pre-Judgment transfer to him from Carter and Gold 28 because the Judgment ordered the avoidance of the earlier

-7- 1 transfers and recovery of the Condo; thus, she could rely on the 2 automatic preservation provision of § 551 for the subsequent 3 transfer to Giovanazzi. Trustee also rejected Giovanazzi's laches 4 argument, contending that she waited to sue him until the appeal 5 of the Judgment was resolved and filed her action in just over six 6 months from that date, which was timely. 7 Trustee further contended that the issue of whether the Condo 8 was property of the estate was decided in the prior adversary 9 action and affirmed on appeal. Moreover, Giovanazzi's claim that 10 the “owners” of the Condo were never sued was incorrect; the 11 Judgment determined that Lebbos owned the Condo. Thus, argued 12 Trustee, these factual issues were law of the case and not subject 13 to challenge. Further, argued Trustee, the denial of Lebbos's 14 discharge did not remove the Condo from estate property. 15 As to Giovanazzi's assertions that the bankruptcy court 16 lacked subject matter jurisdiction over the action because 17 (1) Lebbos never signed her bankruptcy petition or resided in the 18 district, (2) the Judgment had no effect over the Beneficiaries, 19 (3) the Condo was located in Los Angeles and (4) the court failed 20 to provide the Beneficiaries with any opportunity to appear and 21 defend this action, Trustee contended that such matters were both 22 outside the allegations in the complaint and they had already been 23 resolved in prior court rulings. 24 b. The Recusal Motion 25 Giovanazzi alleged that Judge Bardwil should disqualify 26 himself from adversary action 11-2386 for a multitude of reasons: 27 (1) he had a financial interest in its outcome, which stemmed from 28 a previous suit against him by Lebbos, Carter and Gold and a new

-8- 1 suit by Giovanazzi and the Beneficiaries; (2) he had a political 2 and personal interest in the outcome since his conduct of "taking 3 property from owners without any notice” was the subject of an 4 article published by the Ninth Circuit entitled "Ambush Owner 5 Scam;” (3) he had prejudged the matter as reflected by his 6 issuance of two ex parte orders in 2009 and 2010 authorizing the 7 sale and lease of the Condo; (4) he had ex parte contacts with 8 Trustee in connection with those ex parte orders; (5) he was 9 embroiled with Lebbos in her discrimination case against him 10 pending before the Ninth Circuit; and (6) he had a pervasive bias 11 against Lebbos, the prior defendants, Giovanazzi and the 12 Beneficiaries. 13 Trustee opposed the Recusal Motion, contending Giovanazzi's 14 arguments were not supported by any facts and that the motion 15 failed to meet the requirements for recusal under 28 U.S.C. § 455 16 and Rule 5004(a). Trustee further noted that Lebbos had filed 17 similar recusal motions against Judge Bardwil in her bankruptcy 18 case and in adversary action 07-2006, each of which was denied,6 19 and argued that Giovanazzi was merely engaging in the same antics 20 and regurgitating Lebbos’s prior arguments. 21 c. The Venue Motion 22 Giovanazzi moved to transfer adversary action 11-2386 to 23 either Maryland or the Central District of California. Giovanazzi 24 contended that Maryland was a proper venue because the Trust was 25 created there and because the three owners and settlor of the 26 27 6 The record reflects that three motions to disqualify were filed in the main case and five motions were filed in adversary 28 action 07-2006.

-9- 1 Trust resided there. Alternatively, he asserted the Central 2 District of California was the proper venue because the Condo was 3 located there and all experts and other witnesses were in Los 4 Angeles. Giovanazzi asserted virtually the same reasons set forth 5 in the Recusal Motion and the Motion to Dismiss as a basis to 6 grant the Venue Motion. 7 Trustee opposed the Venue Motion, contending that Giovanazzi 8 failed to meet his burden of proof to transfer the case. 9 2. Trustee's motion for partial summary judgment 10 Trustee moved for partial summary judgment against Giovanazzi 11 on her first and third claims ("PSJ"). Trustee asserted that she 12 was entitled to relief on her first claim for preservation under 13 § 551 because the avoided transfers under §§ 544 and 548, as set 14 forth in the Judgment, were automatically preserved for the 15 benefit of the bankruptcy estate. Trustee argued that by virtue 16 of the Judgment, she became the owner of the Condo as of 17 August 19, 2004, the date of the first avoided transfer, and 18 therefore any transfer of or lien placed on the Condo after that 19 date was void. As a result, argued Trustee, the April 14, 2008 20 quitclaim deed from Carter and Gold to Giovanazzi and the 21 August 13, 2008 deed of trust from Giovanazzi to the Beneficiaries 22 were void and of no force or effect. The same was true for 23 Giovanazzi's unlawful detainer action. 24 Alternatively, Trustee contended that she was entitled to 25 relief on her first claim under California law. She argued that 26 based on the Judgment and CAL. CODE CIV. PROC. ("CCP") § 405.24, she 27 obtained title to the Condo when the Lis Pendens was recorded - 28 March 14, 2007. Because the Lis Pendens was recorded more than

-10- 1 one year prior to the transfer to Giovanazzi in August 2008, 2 Trustee argued that Giovanazzi and all others had constructive 3 notice of the pending adversary action and that her interest 4 prevailed over the later-recorded quitclaim deed to Giovanazzi, 5 the deed of trust executed by Giovanazzi and recorded on 6 September 19, 2008, and the unlawful detainer action Giovanazzi 7 filed on August 27, 2010. 8 For judgment on her third claim for permanent injunctive 9 relief, Trustee contended that based on Giovanazzi's actions of 10 taking title to the Condo despite having notice of the Lis 11 Pendens, his signing a deed of trust to encumber the Condo, his 12 filing of an unlawful detainer action to obtain possession of the 13 Condo and his ignoring counsel’s letters from July and October 14 2009 regarding his lack of ownership, a reasonable likelihood 15 existed that Giovanazzi would continue to interfere with Trustee's 16 exclusive right to administer the Condo for the benefit of the 17 bankruptcy estate. 18 Giovanazzi opposed the PSJ, raising primarily the same 19 arguments asserted in his Motion to Dismiss as a basis for denying 20 the PSJ. Giovanazzi additionally contended that because the Lis 21 Pendens failed to comply with California law for a variety of 22 technical reasons, it was void, and so the Judgment did not relate 23 back to March 14, 2007. In support of his opposition, Giovanazzi 24 included declarations from Lebbos and Gold. Both Lebbos and Gold 25 claimed they never received a copy of the Lis Pendens or a copy of 26 Trustee's counsel's July 2009 letter. 27 In her reply to the PSJ, Trustee contended that Giovanazzi 28 had failed to assert any disputed material fact to defeat it.

-11- 1 Specifically, argued Trustee, Gold's statement that he never 2 received the Lis Pendens at his address of record was irrelevant; 3 Gold was not a defendant in this action and service of the Lis 4 Pendens had no bearing on the issues raised in the PSJ. In any 5 event, argued Trustee, Giovanazzi had constructive notice of the 6 Lis Pendens under CCP § 405.24, and he did not dispute it. 7 Similarly, Gold's statement that he never received the July 2009 8 letter from Trustee's counsel was irrelevant as it was not being 9 offered against Gold; the letter was being offered against 10 Giovanazzi, and he did not dispute receiving it. Trustee asserted 11 the same arguments with respect to the Lebbos declaration. 12 3. The bankruptcy court's decision on the PSJ, Motion to Dismiss, Recusal Motion, and Venue Motion 13 14 After a hearing on the PSJ and the Motion to Dismiss on 15 August 31, 2011, the bankruptcy court took the matters under 16 submission and entered written decisions on each. 17 a. The PSJ 18 The bankruptcy court entered a memorandum decision, judgment 19 (“PSJ Judgment”) and order granting Trustee's PSJ on September 30, 20 2011. Before articulating its reasons for granting it, the court 21 discussed the lengthy and tumultuous history of prior adversary 22 action 07-2006, the shenanigans that led to defendants' default 23 and the eventual Judgment. 24 In the memorandum, the court explained that after Trustee had 25 obtained the defaults of Lebbos, Carter and Gold, she moved for 26 default judgment against them on March 11, 2008. All three 27 defendants filed oppositions to Trustee's motion. A hearing on 28 Trustee's motion was scheduled for April 9, 2008, but was

-12- 1 continued to April 15, 2008. At the request of Lebbos's attorney, 2 the court continued the hearing again until April 17, 2008. The 3 hearing went forward on April 17, at which Gold and Lebbos's 4 attorney appeared. That same day, the bankruptcy court entered 5 its findings and conclusions and the Judgment against Lebbos, 6 Carter and Gold, which avoided the two transfers from 2004 and 7 2005, awarded title and possession of the Condo to Trustee, and 8 further enjoined Lebbos, Carter and Gold from efforts to convey, 9 transfer, encumber or otherwise affect the title to or the 10 encumbrances on the Condo. The bankruptcy court then noted: 11 Three days earlier, on April 14, 2008, Gold and Carter, having by that time participated heavily in the adversary 12 proceeding, including seeking to have it dismissed, to have the venue changed, and to have this judge 13 disqualified; having appealed the decisions against them; having thrown up unrelenting roadblocks to the trustee's 14 discovery efforts; knowing full well that their defaults had been entered over their objections; and knowing full 15 well of the hearing on the trustee's motion for default judgment -- at that time, scheduled for the very next 16 day, signed and caused to be recorded a quitclaim deed purporting to transfer the [C]ondo to Giovanazzi . . . . 17 18 Mem. (Sept. 30, 2011) 4:5-15. The court further noted that 19 Giovanazzi was no stranger to Lebbos's bankruptcy case when the 20 Condo was transferred to him in 2008. He had filed two 21 declarations in her case - one in support of Lebbos's motion to 22 remove Trustee and the other objecting to Trustee's settlement of 23 a lawsuit brought by Lebbos in 2002. Among other things, 24 Giovanazzi had accused Trustee and her counsel of fraud and deceit 25 because they had compromised the estate’s claims asserted in the 26 2002 suit. Giovanazzi had also threatened to obtain arrest 27 warrants for Trustee and her counsel. 28 In addressing the merits of the PSJ, the bankruptcy court

-13- 1 rejected Giovanazzi's contention that Trustee's claim for 2 preservation was time barred due to the one year statute of 3 limitations in § 550(f). The Judgment accomplished both avoidance 4 and recovery under §§ 548 and 550, so Trustee was not required to 5 "recover” the avoided transfers under § 550. Thus, § 550(f) was 6 irrelevant. 7 The court further found that the Judgment, which was final, 8 related back to March 14, 2007 - the date Trustee recorded her Lis 9 Pendens. Therefore, at the time Carter and Gold signed and 10 recorded the quitclaim deed in 2008, they had no interest to 11 convey, and at the time Giovanazzi signed and recorded the deed of 12 trust in 2008, he had no interest to convey. The fact that Gold 13 and Carter signed and recorded the quitclaim deed three days 14 before the Judgment had no effect on Trustee's rights because the 15 Judgment related back to the date Trustee recorded her Lis 16 Pendens. CCP § 405.24. Thus, to the extent Giovanazzi was a 17 "purchaser” or "transferee” and the Beneficiaries were 18 "encumbrancers,” they were deemed to have constructive notice of 19 adversary action 07-2006 and were therefore unable to acquire an 20 interest in the Condo superior to that of Trustee. Hurst Concrete 21 Prods. v. Lane (In re Lane), 980 F.2d 601, 605 (9th Cir. 1982); 22 CCP § 405.24; CAL. CIV. CODE § 1214.7 23 As to Giovanazzi's claim that the Lis Pendens was void for 24 technical reasons, the bankruptcy court agreed that a lis pendens 25 which does not comply with the requirements set forth in 26 7 On a side note, the bankruptcy court questioned whether the 27 transfer of the quitclaim deed actually effectuated a transfer as it was merely from two individuals as trustees of the Trust to a 28 third trustee of the Trust.

-14- 1 CCP § 405.22 may be expunged. However, Giovanazzi had not cited, 2 and the court could not locate, any authority for the proposition 3 that a lis pendens not in compliance with CCP § 405.22 failed to 4 provide constructive notice to subsequent purchasers or 5 encumbrancers. In any event, the court found that none of the 6 alleged deficiencies impaired the effectiveness of the Lis Pendens 7 in achieving its purpose of notifying the public. 8 The bankruptcy court rejected Giovanazzi's contention that 9 nothing was to be “preserved” under § 551 because Gold and Carter 10 had no interest in the Condo when the Judgment was entered. That 11 argument failed to recognize that the Judgment effectuated the 12 avoidance of the transfer by which Gold and Carter had acquired 13 the Condo and awarded recovery to Trustee, determining that her 14 interest was superior to theirs. In other words, articulated the 15 court, the effect of the Judgment was that, as of March 14, 2007, 16 Trustee stepped into the shoes of Gold and Carter and succeeded to 17 their rights in the Condo. The court also rejected Giovanazzi's 18 argument that the Judgment had no effect as to him and the 19 Beneficiaries due to lack of notice or opportunity to defend. To 20 the contrary, the Judgment, which was affirmed at every level of 21 appeal, was final and bound all parties claiming an interest 22 adverse to that of Trustee in the Condo. 23 Finally, the bankruptcy court rejected, as a complete 24 misunderstanding of bankruptcy law, Giovanazzi's claims that no 25 creditors or bankruptcy estate existed due to Lebbos having been 26 denied a discharge. The denial of discharge did not eliminate the 27 existence of the bankruptcy estate or Trustee's power and duty to 28 continue to liquidate property of the estate for the benefit of

-15- 1 creditors. 2 Accordingly, because Trustee had met her burden of producing 3 evidence showing that no genuine issue of material fact existed, 4 and because Giovanazzi had failed to demonstrate the existence of 5 genuine issues for trial, Trustee was entitled to judgment on her 6 first and third claims as a matter of law. In the PSJ Judgment, 7 the bankruptcy court determined that: (1) the transfers avoided in 8 the Judgment were preserved for the benefit of the bankruptcy 9 estate; (2) the quitclaim deed from Gold and Carter as co-trustees 10 of the Trust to Giovanazzi as co-trustee of the Trust was void and 11 of no force or effect; (3) the deed of trust from Giovanazzi to 12 the Beneficiaries was void and of no force or effect; 13 (4) Giovanazzi's unlawful detainer action was of no force or 14 effect and provided no evidence of ownership of the Condo; 15 (5) Giovanazzi had no right, title or interest in or to, and no 16 claim to or against, the Condo; and (6) Giovanazzi was permanently 17 enjoined from any further actions or efforts to convey, transfer, 18 encumber or otherwise affect the title to or possession of the 19 Condo. 20 b. The Motion to Dismiss 21 The bankruptcy court entered a memorandum decision and order 22 denying Giovanazzi's Motion to Dismiss on October 3, 2011. As a 23 housekeeping matter, the court rejected Giovanazzi's declaration 24 filed in support because it did not fall within the “incorporation 25 by reference” doctrine, it consisted of impermissible legal 26 conclusions, and Giovanazzi's allegations regarding the history of 27 the Trust, the history of Lebbos's bankruptcy case and the 28 ownership of the Condo demonstrated no personal knowledge. These

-16- 1 same “inadmissible factual allegations and legal conclusions” 2 presented in Giovanazzi's brief were also given no weight. 3 The bankruptcy court rejected Giovanazzi's § 550(f) argument 4 for the same reasons stated in the PSJ Memorandum. Section 550(f) 5 did not apply here because the Judgment accomplished both 6 avoidance and recovery under §§ 548 and 550. The court also 7 rejected Giovanazzi's contention that Trustee failed to state a 8 claim for preservation under § 551. First, preservation of the 9 avoided transfers occurred automatically once the Judgment was 10 entered; Trustee was merely seeking a declaration confirming that 11 fact, and Lebbos, Carter and Gold did not have to be parties to 12 the instant adversary action. Second, the Condo was property of 13 the estate under § 541(a)(4), which includes any interest in 14 property preserved for the benefit of the estate under § 551. 15 Finally, the issues of (1) whether Lebbos owned the Condo (as 16 opposed to the Trust) and (2) whether the Beneficiaries of the 17 Trust (who were not served with the complaint in 07-2006) were 18 indispensable parties to the prior adversary action had been 19 raised during that action and were precluded by the Judgment. 20 Furthermore, in that particular action, California law required 21 service of the complaint only on the trustee, not the 22 Beneficiaries.8 23 8 24 Although Trustee later dismissed her second claim for turnover, the bankruptcy court made some important findings in 25 that regard which apply in this appeal. The court found that Lebbos’s case was still open and pending despite Giovanazzi’s 26 arguments to the contrary that it was closed because she was denied a discharge. The court also found that the Condo was 27 determined to be property of the estate in the Judgment, which was affirmed on appeal. Further, Giovanazzi's contention that the 28 (continued...)

-17- 1 The bankruptcy court also rejected Giovanazzi’s laches 2 argument as “ironic,” noting that if anyone had engaged in 3 prejudicial delay tactics it was Giovanazzi. Further, any delays 4 resulting from the numerous appeals were not caused by Trustee, 5 but rather by the actions of Lebbos, Giovanazzi, Carter and Gold. 6 Thus, Giovanazzi had failed to show Trustee’s lack of diligence or 7 that he had suffered any prejudice as a result of it. 8 Giovanazzi's argument that the bankruptcy court had no 9 jurisdiction to “change title” to the Condo since it was located 10 in Los Angeles also failed. Under Rule 7070,9 the bankruptcy 11 court was permitted to divest any party's title and vest title in 12 another when the real property is “within the jurisdiction of the 13 court.” Because the bankruptcy court had jurisdiction over the 14 Condo by virtue of § 541(a) and 28 U.S.C. § 1334(e)(1), it had 15 jurisdiction to enter the Judgment vesting title to the Condo in 16 Trustee. 17 Finally, the bankruptcy court rejected Giovanazzi's shopworn 18 arguments previously raised by Lebbos that she did not sign her 19 bankruptcy petition, that she never resided in the district, and 20 that the court had no jurisdiction over the “owners” of the Condo 21 so the Judgment was not binding on them. These issues had been 22 8 23 (...continued) Condo was worthless because it was over-encumbered failed because, 24 by way of the PSJ Judgment, the court had determined his deed of trust was void and of no force and effect. Finally, because of 25 the PSJ Judgment, Trustee was not required to provide “adequate protection” of the interests of alleged “owners” of the Condo. 26 9 Rule 7070 provides that the bankruptcy court “may enter a 27 judgment divesting the title of any party and vesting title in others whenever the real or personal property involved is within 28 the jurisdiction of the court.”

-18- 1 decided in the Judgment, which was final and binding. 2 Accordingly, because Trustee’s complaint stated a claim upon 3 which relief could be granted, the Motion to Dismiss was denied. 4 c. The Recusal Motion and Venue Motion 5 The bankruptcy court entered civil minute orders denying both 6 the Recusal Motion and the Venue Motion on September 6, 2011. 7 i. The Recusal Motion 8 The bankruptcy court noted that the arguments raised by 9 Giovanazzi were ones Lebbos had made many times in her chapter 7 10 case and various adversary proceedings. Carter and Gold had 11 brought similar motions. The court further noted that 12 Giovanazzi's declaration in support was full of unsupported 13 conclusions and allegations of which he failed to demonstrate 14 personal knowledge. In short, Giovanazzi presented nothing new to 15 cause the court to rule any differently than it had on the 16 previous motions to disqualify. The bankruptcy court remained 17 persuaded that it was unbiased and impartial. Therefore, based on 18 the above reasons, Giovanazzi had not met his burden for recusal 19 under 28 U.S.C. § 455(a) or (b). 20 ii. Venue Motion 21 The bankruptcy court found that Giovanazzi's declaration, the 22 only evidence in support of the Venue Motion, failed to establish 23 he had personal knowledge of the alleged facts. Further, his 24 assertion that the Beneficiaries were the only real parties in 25 interest was a legal conclusion, and an erroneous one, and he 26 failed to establish that these parties had anything to contribute 27 to the instant adversary action. Giovanazzi had also failed to 28 identify the experts and other witnesses who would testify or

-19- 1 establish what evidence, if any, might be located in the Central 2 District of California. Finally, the remainder of Giovanazzi's 3 contentions, many of which were made on information and belief, 4 raised arguments that had already been decided and affirmed on 5 appeal. Accordingly, like past similar venue motions filed by 6 Lebbos and by Giovanazzi's predecessors, which were considered and 7 denied, Giovanazzi had presented nothing to persuade the court to 8 reach a different result. 9 4. Giovanazzi's motions to reconsider 10 a. The motion to reconsider the PSJ Judgment, Recusal Motion, and Venue Motion 11 12 Giovanazzi filed a motion to reconsider the PSJ Judgment and 13 the orders denying the Recusal Motion and the Venue Motion on 14 October 13, 2011. He contended that many disputed material facts 15 existed requiring the bankruptcy court to reconsider the PSJ 16 Judgment: (1) the Judgment was a nullity as to the Beneficiaries 17 because the bankruptcy court never had jurisdiction over the 18 Trust, or the Condo or the Condo owners, and the district court 19 and Ninth Circuit only upheld the Judgment against Lebbos, Carter 20 and Gold as individuals, not as trustees; (2) because Giovanazzi 21 obtained the Condo before entry of the Judgment, the bankruptcy 22 court had no jurisdiction to avoid his deed or the deed of trust 23 and declare them void; (3) the bankruptcy court had no 24 jurisdiction to “retroactively change the date” of the Judgment 25 against Lebbos, Carter and Gold without notice or without motions 26 filed in the prior or present adversary actions; (4) the 27 bankruptcy court lacked jurisdiction to declare Giovanazzi's 28 unlawful detainer action invalid; (5) the bankruptcy court could

-20- 1 not enjoin Giovanazzi as it had no jurisdiction over the Condo or 2 the Trust; (6) Trustee was required to file a separate recovery 3 action against Giovanazzi and the Beneficiaries, so the bankruptcy 4 court erred in not applying the one year statute of limitations in 5 § 550(f); and (7) Trustee's Lis Pendens was void due to its 6 noncompliance with CCP § 405.22, so it failed to provide notice to 7 anyone. 8 Although the motion caption sought reconsideration of the 9 orders denying the Recusal Motion and the Venue Motion, Giovanazzi 10 did not present any argument as to why the bankruptcy court should 11 reconsider those orders. He stated in his declaration in support 12 only that Judge Bardwil had a duty to disqualify himself because 13 he had committed fraud, encouraged others to commit fraud and he 14 called “the disabled debtor vicious names and exhibits an extreme 15 personal bias.” 16 b. The motion to reconsider the Motion to Dismiss 17 Giovanazzi filed a motion to reconsider the order denying the 18 Motion to Dismiss on October 17, 2011. The motion raised many of 19 the same arguments raised in the motion to reconsider the PSJ 20 Judgment and in the original Motion to Dismiss. In short, 21 Giovanazzi contended that the bankruptcy court had to grant the 22 Motion to Dismiss because: (1) it erred in not considering his 23 declaration filed in support of the Motion to Dismiss, which set 24 forth facts subject to judicial notice; (2) Lebbos had not signed 25 her bankruptcy petition or lived in the district the required 26 180 days, so the bankruptcy court lacked jurisdiction and all of 27 its decisions were void; (3) Trustee was required to file a 28 separate recovery action against Giovanazzi and the Beneficiaries

-21- 1 and the one year statute of limitations for that action under 2 § 550(f) had run; (4) laches barred Trustee's complaint and the 3 court erred in finding that Giovanazzi had “unclean hands;” 4 (5) Trustee had no claim for preservation because she sued only 5 Lebbos, Carter and Gold for avoidance, not recovery, and she never 6 sued the owners of the Condo for avoidance; (6) the Judgment was 7 not final and binding on Giovanazzi and the Beneficiaries as they 8 were never joined in the prior avoidance action; and (7) the 9 bankruptcy court had no jurisdiction over the Condo under Rule 10 7070 as it asserted. 11 5. The bankruptcy court's decisions on the motions to reconsider 12 a. The motion to reconsider the Motion to Dismiss 13 14 The bankruptcy court entered a civil minute order denying 15 Giovanazzi's motion to reconsider the Motion to Dismiss on 16 December 19, 2011. Overall, the court found the motion was 17 largely a rehashing of the arguments raised many times before by 18 both Giovanazzi in the Motion to Dismiss and by his predecessor 19 trustees Lebbos, Carter and Gold. Giovanazzi had failed to 20 present any new facts or intervening change in the controlling law 21 or show that the court had erred. 22 First, the court rejected Giovanazzi's reliance on Decker v. 23 Voisenat (In re Serrato), 214 B.R. 219 (Bankr. N.D. Cal. 1997), as 24 that case did not concern, let alone stand for, the proposition 25 for which Giovanazzi cited it. 26 As for rejecting Giovanazzi's declaration and his request for 27 judicial notice of certain facts contained therein, the court 28 found that the type of alleged facts of which Giovanazzi asked the

-22- 1 court to take judicial notice either failed to meet the standards 2 of FED R. EVID. 201(b) or were not appropriate matters for judicial 3 notice. Further, these issues had already been raised by Lebbos 4 and others, considered, and resolved against them in the Judgment, 5 which was affirmed on appeal and was now final and binding. 6 The bankruptcy court also rejected as frivolous Giovanazzi's 7 contention that the district court and Ninth Circuit only upheld 8 the Judgment against Lebbos, Carter and Gold as individuals and 9 not as trustees of the Trust. Not only did Giovanazzi fail to 10 provide any documents to support this proposition, the record 11 showed that Lebbos was sued both individually and as trustee of 12 the Trust; Gold and Carter were sued as trustees of the Trust. 13 Finally, as to Giovanazzi's repeated assertion that the 14 bankruptcy court lacked jurisdiction over the Beneficiaries, that 15 they were indispensable parties in the prior adversary action and, 16 consequently, that the Judgment was not final and binding as to 17 them, the court found that Giovanazzi's assertions were either not 18 supported by any authority or the cases he cited did not stand for 19 the proposition for which he cited them. In short, Giovanazzi 20 cited no authority to overcome the court's conclusion that a 21 beneficiary of a trust is considered to be in privity with the 22 trustee of the trust and is bound by judgments in actions against 23 the trustee, as was the case here. 24 b. The motion to reconsider the PSJ Judgment, Recusal Motion, and Venue Motion 25 26 The bankruptcy court also entered a civil minute order 27 denying Giovanazzi's motion to reconsider the PSJ Judgment, the 28 Recusal Motion and the Venue Motion on December 19, 2011. To the

-23- 1 extent Giovanazzi's motion raised the same arguments asserted in 2 the motion to reconsider the Motion to Dismiss, the court 3 incorporated the findings and conclusions it made regarding that 4 reconsideration motion in this one. As with the motion to 5 reconsider the Motion to Dismiss, the court found that this 6 reconsideration motion was merely a rehashing of prior arguments. 7 Regarding Giovanazzi's allegations of the court's ill 8 treatment of Lebbos, and conspiracy among the court, Trustee and 9 her counsel, the court noted that it had come to expect attacks, 10 both professional and personal, against it and others associated 11 with Lebbos's case and its related adversary proceedings by 12 Lebbos, trustees Carter and Gold and, now, Giovanazzi. However, 13 Giovanazzi's accusations did not change the court’s conclusion 14 that it remained impartial. Therefore, the motion to reconsider 15 the Recusal Motion was denied. Relief was also denied to the 16 extent Giovanazzi sought reconsideration of the order denying the 17 Venue Motion. 18 The court rejected Giovanazzi’s argument that the bankruptcy 19 court had no jurisdiction to apply the Judgment “retroactively” as 20 lacking any cognizable legal theory or support. It was merely 21 another example of Lebbos’s intention, now that she had exhausted 22 her appeals, to drag out as long as possible Trustee’s enforcement 23 of the Judgment. 24 Finally, the court rejected Giovanazzi’s contention that all 25 title reports showed that Trustee never recorded her Lis Pendens 26 and that he owned the Condo. The “title report” Giovanazzi 27 submitted was not a title report but rather a property profile, 28 which had never been authenticated and would have little

-24- 1 evidentiary weight, as such profiles seldom refer to all documents 2 of record. By contrast, Trustee had filed a recorded copy of the 3 Lis Pendens with her PSJ. 4 Giovanazzi timely appealed the PSJ Judgment, the order 5 denying the Motion to Dismiss and the orders denying the 6 reconsideration of those matters on December 23, 2011. 7 II. JURISDICTION 8 The bankruptcy court had jurisdiction under 28 U.S.C. 9 §§ 157(b)(2)(A) and 1334. We herein address our jurisdiction 10 under 28 U.S.C. § 158. 11 A. The PSJ Judgment10 12 Generally, an order granting partial summary judgment is not 13 an appealable final order. Dannenberg v. Software Toolworks, 14 Inc., 16 F.3d 1073, 1074 (9th Cir. 1994); Belli v. Temkim 15 (In re Belli), 268 B.R. 851, 856-57 (9th Cir. BAP 2001)(order 16 granting partial summary judgment without the certification 17 required by Civil Rule 54(b) is not final appealable order). 18 On the same day the bankruptcy court denied Giovanazzi’s 19 reconsideration motion regarding the Motion to Dismiss - 20 December 19, 2011 - Trustee filed her notice of voluntary 21 dismissal of her remaining second claim under Rule 22 7041(a)(1)(A)(i), as Giovanazzi had not filed an answer or a 23 motion for summary judgment. The dismissal was without prejudice. 24 Since the notice complies with Rule 7041(a)(1)(A)(i), it took 25 10 The parties have not questioned our jurisdiction over this 26 appeal, but we have an independent duty to examine jurisdiction issues. In re Lucas Dallas, Inc., 185 B.R. at 804. Whether a 27 bankruptcy court’s order is final is a question of law reviewed de novo. Alexander v. Compton (In re Bonham), 229 F.3d 750, 760-61 28 (9th Cir. 2000).

-25- 1 immediate effect without further order from the bankruptcy court. 2 Rule 7041(a)(1)(B); Swedberg v. Marotzke, 339 F.3d 1139, 1142 (9th 3 Cir. 2003). Nonetheless, despite Trustee’s proper voluntary 4 dismissal, the bankruptcy court entered its own order dismissing 5 without prejudice Trustee’s remaining second claim on December 28, 6 2011. Therefore, although that order has no effect, the court 7 approved the dismissal without prejudice, which disposed of all 8 claims. As such, nothing is left for the bankruptcy court to 9 decide as to Trustee’s complaint. 10 Thus, we conclude that the dismissal, even though without 11 prejudice, effectively made the PSJ Judgment a final judgment for 12 purposes of appeal. Chrysler Motors Corp. v. Thomas Auto Co., 13 939 F.2d 538, 540 (8th Cir. 1991)(following the granting of a 14 motion for partial summary judgment, the court dismisses without 15 prejudice the remainder of the case, the effect of that action 16 makes the judgment granting partial summary judgment a final 17 judgment for purposes of appeal). See James v. Price Stern Sloan, 18 Inc., 283 F.3d 1064, 1069-70 (9th Cir. 2002). 19 B. The order denying the Motion to Dismiss 20 Generally, an order denying a motion to dismiss is not 21 appealable because it does not end the litigation on the merits. 22 Confederated Salish v. Simonich, 29 F.3d 1398, 1401-02 (9th Cir. 23 1994); Dunkley v. Rega Props., Ltd. (In re Rega Props., Ltd.), 24 894 F.2d 1136 (9th Cir. 1990)(order denying a motion to dismiss an 25 adversary proceeding is not a final appealable order). 26 The order denying Giovanazzi’s Motion to Dismiss was entered 27 on October 3, 2011. His timely motion to reconsider that order 28 filed on October 17, 2011, effectively tolled the appeal time of

-26- 1 the underlying order. Rule 8002(b)(2). The order denying 2 reconsideration was entered on December 19, 2011, the same date 3 Trustee voluntarily dismissed her remaining second claim. As we 4 concluded above, the PSJ Judgment is a final judgment for purposes 5 of appeal. Accordingly, to the extent the order denying the 6 Motion to Dismiss was interlocutory, it merged into the PSJ 7 Judgment on December 19, 2011, and is now final. See Am. 8 Ironworks & Erectors, Inc. v. N. Am. Const. Co., 248 F.3d 892, 9 897-98 (9th Cir. 2001). 10 C. We dismiss the appeal of the orders denying the Recusal Motion and the Venue Motion. 11 12 The parties have not questioned our jurisdiction over the 13 appeal of the orders denying the Recusal Motion and Venue Motion, 14 but we have an independent duty to examine jurisdiction issues. 15 Gen. Elec. Capital Auto Lease, Inc. v. Broach (In re Lucas Dallas, 16 Inc.), 185 B.R. 801, 804 (9th Cir. BAP 1995). It is not entirely 17 clear from his Notice of Appeal whether Giovanazzi is appealing 18 these orders. However, to the extent that he is, we DISMISS the 19 appeal as untimely. 20 Under Rule 8002(a), a notice of appeal must be filed within 21 14 days of the entry of the order being appealed. The provisions 22 of Rule 8002 are jurisdictional, and the untimely filing of a 23 notice of appeal deprives the appellate court of jurisdiction to 24 review the bankruptcy court's order. Anderson v. Mouradick 25 (In re Mouradick), 13 F.3d 326, 327 (9th Cir. 1994). The orders 26 denying the Recusal Motion and Venue Motion were entered on 27 September 6, 2011. Giovanazzi filed a motion to reconsider those 28

-27- 1 orders (and the PSJ Judgment) on October 13, 2011.11 Although he 2 did not articulate any argument for reconsidering the orders 3 denying the Recusal Motion and Venue Motion, his attempt to 4 challenge the orders in his motion to reconsider could only be 5 considered a motion for relief from judgment under Civil Rule 6 60(b), incorporated by Rule 9024, because it was not filed within 7 14 days of entry of the orders. See Civil Rule 59(e), 8 incorporated by Rule 9023. 9 Under Rule 8002(b)(4), a motion under Rule 9024 only tolls 10 the appeal time of the underlying order when it is filed within 11 14 days after entry of the order. Therefore, Giovanazzi’s motion 12 to reconsider the orders denying the Recusal Motion and Venue 13 Motion, filed on October 13, 2011, did not toll the appeal time of 14 the orders denying those motions on September 6, 2011. 15 Accordingly, the appeal of these orders is untimely, and we must 16 DISMISS the appeal for lack of jurisdiction. As a result, we will 17 not consider any arguments Giovanazzi’s raises with respect to 18 these issues. 19 To the extent his appeal is live with respect to the order 20 denying reconsideration of these orders, Giovanazzi fails to 21 present any argument as to how the bankruptcy court abused its 22 discretion in denying the reconsideration motion. Therefore, this 23 issue has been waived. City of Emeryville v. Robinson, 621 F.3d 24 1251, 1261 (9th Cir. 2010)(appellate court in this circuit “will 25 not review issues which are not argued specifically and distinctly 26 27 11 The PSJ Judgment was entered on September 30, 2011. Thus, the motion to reconsider it was filed within the required 14 days 28 and tolled the appeal time.

-28- 1 in a party’s opening brief.”). 2 III. ISSUES 3 1. Did the bankruptcy court err when it granted the PSJ? 4 2. Did the bankruptcy court err when it denied the Motion to 5 Dismiss? 6 3. Did the bankruptcy court abuse its discretion when it denied 7 the motions to reconsider the PSJ Judgment and the order denying 8 the Motion to Dismiss? 9 IV. STANDARDS OF REVIEW 10 We review the bankruptcy court’s grant of summary judgment 11 de novo. SN Ins. Servs., Inc. v. SNTL Corp. (In re SNTL Corp.), 12 380 B.R. 204, 211 (9th Cir. BAP 2007). Likewise, we review a 13 denial of a motion to dismiss de novo. SEC v. Colello, 139 F.3d 14 674, 675 (9th Cir. 1998). De novo means review is independent, 15 with no deference given to the trial court's conclusion. Mwangi 16 v. Wells Fargo Bank, N.A. (In re Mwangi), 432 B.R. 812, 818 (9th 17 Cir. BAP 2010). 18 The bankruptcy court’s decision to grant permanent injunctive 19 relief is reviewed for an abuse of discretion or application of 20 erroneous legal principles. Fortyune v. Am. Multi-Cinema, Inc., 21 364 F.3d 1075, 1079 (9th Cir. 2004)(reviewing summary judgment). 22 The bankruptcy court's order denying a motion for reconsideration 23 is also reviewed for an abuse of discretion. Ta Chong Bank Ltd. 24 v. Hitachi High Techs. Am., Inc., 610 F.3d 1063, 1066 (9th Cir. 25 2010). A bankruptcy court abuses its discretion if it applied the 26 wrong legal standard or its findings were illogical, implausible, 27 or without support in the record. TrafficSchool.com, Inc. v. 28 Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).

-29- 1 V. DISCUSSION 2 A. The bankruptcy court did not err in granting the PSJ or in denying the Motion to Dismiss. 3 1. Civil Rule 12(b)(6) and Civil Rule 56 4 5 Under Civil Rule 56(c), incorporated here by Rule 7056, the 6 appellate court’s review is governed by the same standard used by 7 the trial court. Quest Comm’ns, Inc. v. Berkeley, 433 F.3d 1253, 8 1256 (9th Cir. 2006). On review, the appellate court must 9 determine, viewing the evidence in the light most favorable to the 10 nonmoving party, whether any genuine issues of material fact exist 11 and whether the bankruptcy court correctly applied the relevant 12 substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 13 922 (9th Cir. 2004). The court must not weigh the evidence or 14 determine the truth of the matter but only determine whether a 15 genuine issue for trial existed. Balint v. Carson City, 180 F.3d 16 1047, 1054 (9th Cir. 1999). Summary judgment may be affirmed on 17 any ground supported by the record. Enlow v. Salem-Keizer Yellow 18 Cab Co., 371 F.3d 645, 649 (9th Cir. 2004). 19 When considering a motion to dismiss for failure to state a 20 claim under Civil Rule 12(b)(6), incorporated here by Rule 7012, a 21 court must take as true all allegations of material fact and 22 construe them in a light most favorable to the nonmoving party. 23 Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th 24 Cir. 1995). To survive a motion to dismiss, a plaintiff needs to 25 plead “only enough facts to state a claim to relief that is 26 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 27 570 (2007). 28

-30- 1 2. Section 551 2 Trustee's first claim sought to preserve the transfers 3 avoided in the Judgment under § 551. That statute provides: 4 Any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724(a) of this title, or any lien void under 5 section 506(d) of this title, is preserved for the benefit of the estate but only with respect to property 6 of the estate. 7 Thus, once a trustee recovers an asset for the estate through one 8 of the enumerated transfer or lien avoidance provisions, § 551 9 automatically preserves the asset for the benefit of the estate. 10 Heintz v. Carey (In re Heintz), 198 B.R. 581, 584 (9th Cir. BAP 11 1996)(citing In re Van De Kamps's Dutch Bakeries, 908 F.2d 517, 12 520 (9th Cir. 1990)); In re Schmiel, 319 B.R. 520, 529 (Bankr. 13 E.D. Mich. 2005)(once the transfer of an asset is avoided, § 551 14 automatically returns that "stick" to the "bundle" that makes up 15 estate property and preserves it for the benefit of the estate). 16 “[I]t is clear that any interest in property preserved for the 17 benefit of the estate or ordered transferred to the estate under 18 section 551 becomes property of the estate under section 19 541(a)(4).”12 5 COLLIER ON BANKRUPTCY ¶ 551.02[2] (Alan N. Resnick & 20 Henry J. Sommer, eds., 16th ed. 2012). Upon avoidance of a lien 21 or fraudulent transfer, under § 551 the trustee “steps into the 22 shoes” of the former lienholder or transferor and enjoys the same 23 rights in the property that the original lienholder or transferor 24 enjoyed. See Morris v. St. John Nat'l Bank (In re Haberman), 25 516 F.3d 1207, 1210 (10th Cir. 2008). 26 12 Section 541(a)(4) provides, in relevant part, that the 27 bankruptcy estate includes “[a]ny interest in property preserved for the benefit of . . . the estate under section . . . 551 of 28 this title.”

-31- 1 3. Analysis 2 The Judgment, entered on April 17, 2008, avoided two 3 transfers by Lebbos - one on August 19, 2004, and one on May 25, 4 2005. Those transfers were avoided under §§ 544 and/or 548. 5 Clearly, these Code sections are referenced in § 551. In addition 6 to avoidance, the Judgment provided Trustee with the remedy of 7 recovery of all right, title and interest in the Condo under 8 § 550. After a series of appeals by defendants Lebbos, Carter and 9 Gold, all of which were unsuccessful, the Judgment is now final. 10 However, just three days prior to entry of the Judgment, a 11 quitclaim deed from Carter and Gold to Giovanazzi transferring 12 title of the Condo to Giovanazzi was recorded in Los Angeles 13 County. Months later, in August 2008, Giovanazzi executed a deed 14 of trust purporting to encumber the Condo to secure payment of an 15 alleged promissory note for $775,000 from the Beneficiaries. That 16 deed of trust was recorded in Los Angeles County in September 17 2008. These acts provide the basis for many of Giovanazzi’s 18 arguments for why the bankruptcy court erred in granting Trustee’s 19 PSJ and denying his Motion to Dismiss. We address each of his 20 arguments in turn. 21 a. Statute of limitations and laches 22 Giovanazzi contends that Trustee’s adversary action 11-2386, 23 brought three years after the Judgment, was barred by the one year 24 statute of limitations in § 550(f).13 Specifically, Giovanazzi 25 13 26 Section 550(f) provides, in relevant part: 27 “An action or proceeding under this section may not be commenced after . . . 28 (continued...)

-32- 1 contends that because Lebbos, Carter and Gold did not own the 2 Condo at the time of Judgment but rather he, a nonparty, did, 3 Trustee was required to commence a separate recovery action 4 against him under § 550. We disagree. 5 Here, the Judgment accomplished both an avoidance and 6 recovery under §§ 548 and 550. An avoidance sets aside or 7 nullifies a transaction. Nullification means that the transfer is 8 retroactively ineffective and that the transferee legally acquired 9 nothing as a result of the transfer. 5 COLLIER ON BANKRUPTCY at 10 ¶ 548.10[1]. In other words, because the transfers of 2004 and 11 2005 were avoided, Carter and Gold had no interest to convey to 12 Giovanazzi at the time they signed and recorded the quitclaim 13 deed, and Giovanazzi had no interest to convey at the time he 14 signed and recorded the deed of trust. As a result, Trustee was 15 not required to “recover” the Condo from Giovanazzi (or any other 16 party) under § 550. Therefore, the one year statute of 17 limitations in § 550(f) does not apply. Giovanazzi’s reliance on 18 In re Serrato is misplaced. First, it is not relevant to the 19 instant case. Here, per the Judgment, Trustee effectively avoided 20 the transfers by Lebbos and recovered the Condo. As a result, no 21 subsequent “recovery” action was necessary. Second, even if 22 In re Serrato were somehow relevant here, its holding is not 23 binding on this Panel. 24 Giovanazzi also contends that laches barred adversary action 25 11-2386 because Trustee knowingly waited three years before 26 27 13 (...continued) (1) one year after the avoidance of the transfer on account 28 of which recovery under this section is sought[.]”

-33- 1 bringing it. He further contends the bankruptcy court never 2 addressed the laches claim. Giovanazzi is wrong on both counts. 3 Lebbos, Carter and Gold actively pursued appeal of the Judgment to 4 the U.S. Supreme Court, which took a little over two years. 5 Giovanazzi’s role in recording the quitclaim deed, his refusal to 6 recognize the Judgment and its effect of enjoining him from 7 encumbering or exercising control over the Condo, and his unlawful 8 detainer action attempting to remove Trustee from her rightful 9 possession of the Condo, also contributed to delay not 10 attributable to Trustee. The bankruptcy court found Giovanazzi’s 11 laches argument “ironic” when considering these and many of his 12 other antics connected with the Lebbos bankruptcy case. Further, 13 after the defendants had exhausted their appeals of the Judgment, 14 Trustee brought adversary action 11-2386 within seven months of 15 the U.S. Supreme Court’s denial of the defendants’ petition for 16 writ of certiorari. On this record, we fail to see any lack of 17 diligence by Trustee barring her action against Giovanazzi. 18 b. The Lis Pendens 19 Giovanazzi contends that because Trustee’s Lis Pendens is 20 void for a variety of technical reasons, the bankruptcy court 21 could not apply the Judgment retroactively to him or the 22 Beneficiaries and they are not bound by it. We disagree. 23 The purpose of a lis pendens is to give constructive notice 24 to potential purchasers and encumbrancers of pending litigation so 25 that the judgment in the action will be binding on subsequent 26 parties, even if they acquire their interest before judgment is 27 28

-34- 1 actually rendered. CCP § 405.24;14 Arrow Sand & Gravel, Inc. v. 2 Superior Court, 700 P.2d 1290, 1291-92 (Cal. 1985). A recorded 3 lis pendens effectively clouds the title to the property described 4 in the notice and, as a practical matter, it impedes or prevents a 5 sale or encumbrance of the property until the litigation is 6 resolved or the lis pendens is expunged. 5 CAL. REAL EST. § 11:151 7 (Harry D. Miller & Marvin B. Starr, eds., 3d ed. 2009). “A 8 judgment in the pending action that determines the rights in the 9 property favorable to the claimant relates back to and receives 10 its priority from the date the lis pendens is recorded, and is 11 senior and prior to any interests in the property acquired after 12 that date to preclude a subsequent purchaser from acquiring a 13 superior interest.” Id. (citing CAL. CIV. CODE § 1214 and CCP 14 § 405.24). “The judgment has priority even if the subsequent 15 interest or lien is recorded after the lis pendens but before the 16 judgment.” Id. (citing Dobbins v. Econ. Gas Co., 189 P. 1073 17 (Cal. 1920), Goldstein v. Ray, 173 Cal. Rptr. 550 (Cal. Ct. App. 18 1981), and Ahmanson Bank & Trust Co. v. Tepper, 74 Cal. Rptr. 774 19 (Cal. Ct. App. 1969)). The judgment is binding on any person who 20 acquired an interest in the property subject to the lis pendens. 21 5 CAL. REAL EST. § 11:149 (citing CCP § 1908(a)(2)). See Slintak v. 22 Buckeye Ret. Co., 43 Cal. Rptr. 3d 131, 139-40 (Cal. Ct. App. 23 24 14 CCP § 405.24 provides: “From the time of recording the notice of pendency of action, a purchaser, encumbrancer, or other 25 transferee of the real property described in the notice shall be deemed to have constructive notice of the pendency of the noticed 26 action as it relates to the real property and only of its pendency against parties not fictitiously named. The rights and interest 27 of the claimant in the property, as ultimately determined in the pending noticed action, shall relate back to the date of the 28 recording of the notice.”

-35- 1 2006)(lis pendens provides constructive notice of property 2 litigation such that any judgment later obtained in the action 3 relates back to the filing of the lis pendens and clouds title 4 until the litigation is resolved or the lis pendens is expunged; 5 any party acquiring an interest in the property after the action 6 is filed is bound by the judgment). 7 CCP §§ 405.20 through 405.24 govern a lis pendens in 8 California. First, a party to the action must record the notice 9 of pendency of action in the recorder’s office in which the real 10 property is located, and the notice shall contain the names of all 11 parties affected by the action as well as a description of the 12 property affected. CCP § 405.20. Here, Trustee recorded the Lis 13 Pendens in Los Angeles County on January 4, 2007, just one day 14 after she filed adversary action 07-2006 against Lebbos, Carter 15 and Gold. The Condo is located in Los Angeles County. The notice 16 contained a legal description of the Condo and the names of 17 Lebbos, Carter and Gold as trustees. Thus, it complied with 18 CCP § 405.20. 19 Second, the notice must be signed by the claimant’s attorney 20 of record or, if the claimant is acting in propria persona, by the 21 claimant with the approval of the judge. CCP § 405.21. 22 Giovanazzi contends the Lis Pendens was void because the notice 23 states that it was filed by “Michael P. Dacquisto, Attorney for 24 Plaintiff, John W. Reger,” and John Reger was not a party to the 25 action. Although the signature page does reflect this 26 typographical error, the caption on the notice clearly states that 27 Trustee is the plaintiff in the action and that her attorney of 28 record is Michael P. Dacquisto. Further, Giovanazzi cites no

-36- 1 authority holding that this minor error renders the Lis Pendens 2 void. Thus, the notice complied with CCP § 405.21. 3 Third, CCP § 405.22 requires proper service and proof of 4 service of a lis pendens. Prior to recording, a copy of the 5 notice must be mailed by registered or certified mail, return 6 receipt requested, to all known addresses of the parties against 7 whom the claim is adverse and to the record owners of the property 8 affected by the claim in the county assessor’s records. Service 9 must also be made on all new adverse parties as they join the 10 action, and a proof of service must be recorded with the lis 11 pendens. If there is no known address for service on an adverse 12 party or owner, a declaration under penalty of perjury to that 13 effect must be recorded with the lis pendens. Giovanazzi raises 14 many arguments here, contending that violation of any one of the 15 above requirements rendered the Lis Pendens void per 16 CCP § 405.23.15 First, Giovanazzi claims that Trustee failed to 17 mail her Lis Pendens by registered or certified mail with a return 18 receipt requested. The record shows otherwise. Trustee’s proof 19 of service indicates that her Lis Pendens was sent to Lebbos, 20 Carter and Gold via certified mail, return receipt requested. 21 Next, Giovanazzi contends Trustee knowingly sent the Lis Pendens 22 to incorrect addresses for Lebbos, Carter and Gold, and both 23 Lebbos and Gold testified they never received the Lis Pendens. We 24 first note that these issues should have been raised in the prior 25 15 CCP § 405.23 provides: “Any notice of pendency of action 26 shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that 27 party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of 28 pendency of action.”

-37- 1 adversary action 07-2006, and, to the extent they were not, they 2 are now precluded by virtue of the final Judgment. Further, 3 co-trustee Carter, who was served at the same address as Gold, 4 never testified that he did not receive the Lis Pendens. In 5 addition, if Lebbos had since changed her address from what she 6 reported to the bankruptcy court when her case was filed in 2006 7 as she claimed, Giovanazzi did not provide a copy of her change of 8 address filed with the court. In any event, as the bankruptcy 9 court noted, Giovanazzi failed to cite any authority holding that 10 any of these alleged service errors prevented the Lis Pendens from 11 providing constructive notice of adversary action 07-2006. 12 Giovanazzi also claims the Lis Pendens was not sent to all 13 owners of record of the Condo - i.e., the Beneficiaries and 14 Trust II. Again, this issue should have been raised (if it was 15 not) in adversary action 07-2006 and is now precluded. In any 16 event, Giovanazzi did not provide a copy of the “latest county 17 assessment roll” to prove that these parties were even listed as 18 owners of record in January 2007. The alleged “title report” that 19 he did provide does not list the Beneficiaries, but rather lists 20 only Trust II as “secondary owner.” However, as the bankruptcy 21 court noted, this alleged title report was never authenticated and 22 proves nothing. As a result, Trustee was not required to record a 23 declaration stating she had no known addresses for these alleged 24 owners. 25 Fourth, immediately after recording a lis pendens, a copy of 26 it must be filed with the court in which the action is pending. 27 CCP § 405.22. Service shall also be made immediately and in the 28 same manner upon each adverse party later joined in the action.

-38- 1 Giovanazzi contends that Trustee’s failure to file the Lis Pendens 2 in adversary action 07-2006 is fatal. It is unclear on this 3 record whether Trustee did in fact file it in that action. 4 Nevertheless, this is something that also should have been raised 5 in that action and is now precluded by the Judgment. In any 6 event, Giovanazzi did not cite any authority holding that this 7 defect, if it exists, impaired the effectiveness of the Lis 8 Pendens’ ability to provide the required constructive notice. 9 Accordingly, we conclude that the Lis Pendens either complied 10 with California law, or, to the extent that it may not have, 11 Giovanazzi did not show that it failed to provide constructive 12 notice to him or the Beneficiaries. As a result, the Judgment, 13 which determined the rights to the Condo in favor of Trustee, 14 relates back to the date the Lis Pendens was recorded on March 14, 15 2007, and Trustee’s interest is senior and prior to any interests 16 in the Condo acquired after that date. CAL. CIV. CODE § 1214; 17 CCP § 405.24. This is true as to the quitclaim deed, which was 18 recorded after the Lis Pendens but before the Judgment, and to the 19 deed of trust which was recorded after the Judgment. It is 20 irrelevant that the Judgment was entered after Carter and Gold 21 executed the quitclaim deed to Giovanazzi. Despite Giovanazzi’s 22 contentions to the contrary, he and the Beneficiaries are bound by 23 the Judgment. CCP § 1908(a)(2); Slintak, 43 Cal. Rptr. 3d at 24 139-40. 25 c. The alleged Condo owners did not need to be joined in adversary action 07-2006. 26 27 Giovanazzi contends that because neither he nor the 28 Beneficiaries, as indispensable parties, were joined in the prior

-39- 1 adversary action, then adversary action 11-2386 had to be 2 dismissed. The bankruptcy court noted in its memorandum decision 3 on the Motion to Dismiss that this issue had been raised during 4 the prior adversary action and was now precluded by the Judgment. 5 We agree. Further, as the bankruptcy court noted, beneficiaries 6 are bound by a judgment against their trustee in his capacity as 7 trustee. Davies v. Guinn Res. Co., 978 F.2d 714, at *4 (9th Cir. 8 Oct. 29, 1992)(table case)(citing Chicago, Rock Island & Pac. Ry. 9 v. Schendel, 270 U.S. 611, 620-21 (1926)). 10 d. The bankruptcy court did not retroactively change the date of the Judgment. 11 12 Although difficult to discern, Giovanazzi appears to argue 13 that because the Judgment was entered on April 17, 2008, the 14 bankruptcy court could not “retroactively” change the date of the 15 Judgment to take effect on March 14, 2007, when the Lis Pendens 16 was recorded, contending that this was an unconstitutional ex 17 parte act. We disagree. By virtue of California law, the 18 Judgment avoiding the transfers automatically related back to the 19 date of the Lis Pendens and all parties claiming an interest 20 adverse to that of Trustee in the Condo are bound by it. Further, 21 to the extent he attempts to raise arguments with respect to the 22 Judgment on behalf of Lebbos, Carter or Gold, he lacks standing to 23 do so. 24 e. The unlawful detainer action 25 Giovanazzi contends the bankruptcy court lacked jurisdiction 26 to declare the unlawful detainer action pending in state court 27 void. First, the bankruptcy court did not so declare. It held 28 only that the lawsuit was of no force and effect as to Trustee or

-40- 1 the Condo and provided no evidence of ownership of the Condo. 2 Further, because Trustee (and the bankruptcy estate) is the 3 rightful owner of the Condo, the bankruptcy court has jurisdiction 4 over all persons seeking to interfere with Trustee’s rights to 5 control and administer estate property. 6 f. The injunction is not overly broad. 7 The only argument Giovanazzi raises here is that the 8 bankruptcy court’s permanent injunction enjoining him from any 9 further efforts to convey, transfer, encumber or otherwise affect 10 the title to or the encumbrances on the Condo is overly broad to 11 prevent this appeal. Seeing that we are considering his appeal, 12 this argument fails. 13 g. The Recusal Motion and Venue Motion 14 As we stated above, because Giovanazzi’s appeal of the orders 15 denying the Recusal Motion and Venue Motion were untimely, we will 16 not consider the issues he raises here. In any event, we reject 17 any and all of Giovanazzi’s contentions. 18 4. Conclusion 19 On this record, we see no error by the bankruptcy court in 20 granting Trustee judgment on her first and third claims. Trustee 21 met her burden to show that no genuine issue of material fact 22 existed, and Giovanazzi failed to demonstrate the existence of an 23 issue for trial. We also find no abuse of discretion by the court 24 in issuing the permanent injunction against Giovanazzi. Since we 25 agree that the PSJ Judgment was proper, Trustee clearly pled 26 enough facts in her adversary complaint to state a plausible claim 27 for relief. Thus, it follows that the bankruptcy court did not 28

-41- 1 err in denying Giovanazzi’s Motion to Dismiss.16 2 B. The bankruptcy court did not abuse its discretion in denying the motion to reconsider the PSJ Judgment and the order 3 denying the Motion to Dismiss. 4 A motion under Civil Rule 59(e) should not be granted, absent 5 highly unusual circumstances, unless the court is presented with 6 newly discovered evidence, committed clear error, or if there is 7 an intervening change of controlling law. 389 Orange St. Partners 8 v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). A motion for 9 reconsideration is not for rehashing the same arguments made the 10 first time, or to assert new legal theories or new facts that 11 could have been raised at the initial hearing. In re Greco, 12 113 B.R. 658, 664 (D. Haw. 1990), aff'd and remanded, Greco v. 13 Troy Corp., 952 F.2d 406 (9th Cir. 1991). 14 Giovanazzi does not articulate any specific arguments as to 15 why the bankruptcy court abused its discretion in denying the 16 motions to reconsider the PSJ Judgment and the order denying the 17 16 To the extent Giovanazzi argues that the bankruptcy court 18 lacked jurisdiction because Lebbos did not sign her bankruptcy petition or that the Condo was not property of the estate, these 19 issues have been decided in the Judgment and affirmed time and again on appeal. Not only is Giovanazzi precluded from raising 20 these issues based on issue preclusion, these issues are also law of the case, and we will not consider them. Ariz. v. Cal., 21 460 U.S. 605, 618 (1983)(“when a court decides upon a rule of law, that decision should continue to govern the same issues in 22 subsequent stages in the same case.”). 23 To the extent he argues the bankruptcy court lacked jurisdiction to change title to the Condo since it is located in 24 Los Angeles, because the Condo was property of the estate the bankruptcy court had jurisdiction over it. See § 541(a)(1); 25 28 U.S.C. § 1334(e)(1)(bankruptcy court has exclusive jurisdiction of all property, wherever located, of the debtor and of property 26 of the estate as of the commencement of the case). The bankruptcy court was further authorized under Rule 7070 to enter judgment 27 divesting any party's title in the Condo and vesting title in Trustee because the Condo was “within the jurisdiction of the 28 court.”

-42- 1 Motion to Dismiss. As such, these issues are waived. City of 2 Emeryville, 621 F.3d at 1261. Even if we considered these issues, 3 we see no abuse of discretion by the bankruptcy court in denying 4 the reconsideration motions. The motions either rehashed the same 5 arguments made in the original motions, raised issues that had 6 already been decided in the Judgment, or lacked any merit. 7 VI. CONCLUSION 8 For the foregoing reasons, we AFFIRM the bankruptcy court’s 9 decision to grant the PSJ and to deny the Motion to Dismiss. 10 However, because Giovanazzi’s appeal of the orders denying the 11 Recusal Motion and Venue Motion was untimely, we DISMISS that 12 appeal for lack of jurisdiction. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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