In re: Charlene M. Milby

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: February 24, 2016
• Docket: CC-15-1180-FCTa
• Status: Published

Opinion

FILED FEB 24 2016 1 ORDERED PUBLISHED SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-15-1180-FCTa ) 6 CHARLENE M. MILBY, ) Bk. No. 9:11-14487-PC ) 7 Debtor. ) Adv. No. 9:14-01132-PC ______________________________) 8 ) PATRICIA A. TEMPLETON and ) 9 G. CRESSWELL TEMPLETON III, ) individuals on behalf of ) 10 the Bankruptcy Estate of ) Debtor Charlene M. Milby, and ) 11 derivatively on behalf of ) Charlene’s Transportation, ) 12 Inc., ) ) 13 Appellants, ) ) 14 v. ) OPINION ) 15 JON A. MILBY; D&J TRUCKING ) CO.; SANDRA HOLDER MILBY; ) 16 SANJON, INC.; 5TH ST CONDO, ) LLC; CHARLENE M. MILBY; ) 17 CHARLENE’S TRANSPORTATION, ) INC., ) 18 ) Appellees. ) 19 ______________________________) 20 Argued and Submitted on January 21, 2016 at Pasadena, California 21 Filed – February 24, 2016 22 Appeal from the United States Bankruptcy Court 23 for the Central District of California 24 Honorable Peter Carroll, Bankruptcy Judge, Presiding 25 26 Appearances: Daniel Joseph McCarthy of Hill, Farrer & Burrill, LLP argued on behalf of Appellants Patricia A. 27 Templeton and G. Cresswell Templeton III; Karen L. Grant argued on behalf of Appellees Jon A. Milby, 28 D&J Trucking Company, Sandy Holder Milby, Sanjon, 1 Inc., 5th St. Condo, LLC, Charlene M. Milby, and Charlene’s Transportation, Inc. 2 3 Before: FARIS, CORBIT*, and TAYLOR, Bankruptcy Judges. 4 5 FARIS, Bankruptcy Judge: 6 7 INTRODUCTION 8 Appellants Patricia A. Templeton and G. Cresswell Templeton 9 III initiated an adversary proceeding on behalf of themselves and 10 Debtor Charlene M. Milby’s bankruptcy estate to avoid fraudulent 11 transfers. Appellees Jon A. Milby, D&J Trucking Company, Sandy 12 Holder Milby, Sanjon, Inc., 5th St. Condo, LLC, Charlene M. 13 Milby, and Charlene’s Transportation, Inc. moved for summary 14 judgment on the ground that the claims were untimely by virtue of 15 the two-year statute of limitations under § 546(a)(1).1 The 16 bankruptcy court agreed with Appellees that certain of the 17 Templetons’ claims were untimely, holding that, while chapter 7 18 trustee Sandra K. McBeth was diligent and could not have 19 discovered the causes of actions earlier, she did not diligently 20 pursue the claims after discovery. The court thus granted 21 summary judgment and dismissed those claims pursuant to 22 § 546(a)(1)(A). 23 24 * Honorable Frederick P. Corbit, Chief United States Bankruptcy Judge for the Eastern District of Washington, sitting 25 by designation. 26 1 Unless specified otherwise, all chapter and section 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules of Bankruptcy 28 Procedure, Rules 1001-9037, and all “Civil Rule” references are to the Federal Rules of Civil Procedure, Rules 1-86.

2 1 We hold that the bankruptcy court erred in its application 2 of equitable tolling to the two-year statute of limitations. We 3 affirm other decisions of the bankruptcy court in a separate 4 memorandum entered concurrently with the entry of this opinion. 5 Accordingly, we AFFIRM IN PART and VACATE IN PART the bankruptcy 6 court’s order granting summary judgment; VACATE the court's order 7 denying reconsideration; and REMAND this action for further 8 proceedings consistent with our opinion. 9 FACTUAL BACKGROUND2 10 The Debtor is a materials hauling broker who conducts 11 certain business operations through a wholly-owned company, 12 Charlene’s Transportation, Inc. (“CTI”). The Debtor filed for 13 chapter 7 bankruptcy on September 22, 2011, and the Trustee was 14 appointed to administer her estate. The Templetons filed a proof 15 of claim in the amount of $2,756,077.21. 16 The Debtor has an adjudicated history of concealment and 17 refusal to produce relevant information. The Templetons 18 initiated an adversary proceeding to deny discharge under § 727 19 and determine the dischargeability of the Debtor’s debts to the 20 Templetons under § 523. The Templetons argued that, under § 727, 21 the court should deny the Debtor’s discharge because she 22 knowingly made false and deceptive statements in her schedules 23 and testimony, failed to disclose assets, failed to produce 24 documents requested by the Trustee, and was unable to explain the 25 2 26 The Templetons’ excerpts of record are incomplete and make reference to certain documents on the bankruptcy court’s 27 docket without including the actual document. We have exercised our discretion to review the bankruptcy court’s docket, as 28 appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008).

3 1 loss of assets. The Templetons further requested that the court 2 deny discharge of the Debtor’s debt to them under § 523(a), 3 because the Debtor had fraudulently induced them to co-purchase 4 real property by making certain false representations. The 5 Debtor and CTI failed to respond to discovery requests and defied 6 the court’s discovery orders. As a discovery sanction, the 7 bankruptcy court entered a default judgment against the Debtor, 8 denied the Debtor’s discharge pursuant to § 727(a)(4) and (5), 9 and awarded the Templetons $349,623.54 pursuant to § 523(a)(2). 10 In the meantime, the Trustee and the Templetons both 11 investigated and began to assert additional claims against the 12 Debtor and her affiliates. The Trustee was able to negotiate an 13 early compromise of an insider preference claim against the 14 Debtor’s father, Jon A. Milby, and Mr. Milby’s business, D&J 15 Trucking, Co., Inc., receiving $7,500 in settlement of a claim 16 based on an undisclosed $10,000 payment from the Debtor’s bank 17 account to Mr. Milby or D&J Trucking. 18 The normal deadline (absent tolling) to commence actions to 19 recover avoidable transfers was two years after the bankruptcy 20 filing, or September 22, 2013. Not surprisingly, there was 21 significant activity just before that deadline. 22 On September 5, 2013, the Templetons’ counsel provided the 23 Trustee with “a binder consisting of descriptions of assets and 24 transfers that the Templetons believed might be recoverable for 25 the benefit of the estate, as well as some supporting 26 documentation . . . .” On September 17, the Trustee requested 27 further documentation from the Templetons’ counsel regarding one 28 of the transfers. The next day, counsel provided the requested

4 1 information. 2 On September 19, 2013, three days before the statute of 3 limitations was set to expire, the Trustee brought an adversary 4 proceeding (the “Trustee’s Avoidance Action”) against the 5 Debtor’s father and one of his companies to avoid and recover 6 fraudulent transfers, preferential transfers, and unauthorized 7 post-petition transfers. The Trustee’s Avoidance Action did not 8 state claims based on the transfers identified by the Templetons; 9 the Trustee later explained that, when she filed the Trustee’s 10 Avoidance Action, she did not have adequate documentation or 11 supporting evidence about those transfers and was concerned about 12 the Debtor’s track record of non-cooperation in discovery and the 13 potential litigation costs to the estate.3 14 The Trustee negotiated a settlement of the Trustee’s 15 Avoidance Action. The Templetons objected to the settlement 16 agreement, arguing that the release should cover only the 17 transfers alleged in the complaint and not other transfers. The 18 Trustee, the Templetons, and the settling defendants resolved 19 this dispute by stipulating to narrow the scope of the releases 20 to the transfers alleged in the Trustee’s Avoidance Action; thus, 21 the Trustee preserved all other claims. The bankruptcy court 22 approved the settlement agreement with the narrowed releases. 23 In August 2014, while the motion to approve the settlement 24 of the Trustee’s Avoidance Action was pending, the Templetons 25 approached the Trustee and discussed the possibility of being 26 3 27 The Trustee also filed a second adversary proceeding to compel the Debtor, the Debtor’s husband, Rex Rossoll, and 28 Mr. Rossoll’s company, Double R Cutting Horse LLC, to turn over assets that the Debtor had not disclosed in her schedules.

5 1 appointed to pursue the fraudulent transfer claims that they had 2 brought to the Trustee’s attention in September 2013. The 3 Trustee agreed, and the bankruptcy court approved the 4 appointment. 5 A few days later, on September 17, 2014, the Templetons 6 initiated the adversary proceeding from which this appeal arises. 7 They asserted claims on behalf of themselves and the Debtor’s 8 estate, including derivative claims for CTI. The Templetons 9 alleged claims for (1) actual fraud under § 544(b) and California 10 Civil Code § 3439.04(a)(l); (2) constructive fraud under § 544(b) 11 and California Civil Code §§ 3439.04(a)(2) and 3439.05; 12 (3) aiding and abetting fraudulent transfers; and (4) unjust 13 enrichment. They alleged that CTI is the Debtor’s alter ego. 14 Among other things, the Templetons challenged transfers from 15 certain bank accounts allegedly owned by the various Appellees. 16 They claimed that the Debtor owned three bank accounts ending in 17 -0242, -2368, and -0449. (As to account -0449, the Templetons 18 alleged that the account was opened “under the name ‘Milby, 19 Charlene dba Charlene’s Transportation.’”) The Templetons stated 20 that CTI owned a bank account ending in -0526. They claimed that 21 Mr. Milby and D&J Trucking had a bank account ending in -0589. 22 Finally, the Templetons alleged that Sanjon, Inc. had a bank 23 account ending in -9226. 24 In November 2014, Appellees filed summary judgment motions 25 on the basis of the two-year statute of limitations in 26 § 546(a)(1). They argued that equitable tolling did not apply, 27 despite the Trustee’s diligence, because there were no 28 extraordinary circumstances that prevented her from bringing suit

6 1 within two years after the Debtor filed for bankruptcy, i.e., by 2 September 22, 2013. 3 In response, the Templetons argued that the Debtor’s 4 misconduct and evasion were “extraordinary circumstances” 5 hindering the Trustee; the two-year limitations period had been 6 tolled until September 2013; and the Templetons’ adversary 7 complaint was filed within one year of that date. In support of 8 the Templetons’ opposition, the Trustee stated that the Debtor 9 failed to disclose the transfers at issue in the adversary 10 proceeding; the Debtor failed to cooperate with the Trustee’s 11 investigation; the Trustee first learned of the allegedly 12 fraudulent transfers in September 2013 from the Templetons’ 13 attorney; and, at that time, she did not have sufficient evidence 14 of the fraudulent transfers. 15 On March 2, 2015, the bankruptcy court granted the 16 Appellees’ motions. The court began by analyzing which of the 17 Templetons’ claims were brought under § 544(b) and were therefore 18 actually subject to the limitations period of § 546(a)(1)(A). 19 Because § 544(b) refers to “transfer[s] of an interest of the 20 debtor in property[,]” the court held that only the transfers 21 from the Debtor’s bank accounts (the transfers identified in 22 paragraph 30 of the complaint and related to account -0449) were 23 covered by § 544(b). The court ruled that the transfers from the 24 other Appellees’ bank accounts (described in paragraphs 31 25 through 35 of the complaint) “are not subject to avoidance under 26 § 544(b) as fraudulent . . . because they do not involve a 27 ‘transfer of an interest of the debtor in property’ by the terms 28 of the complaint.” The court held that the Templetons’

7 1 allegations did not state a plausible claim. However, the court 2 stated that it “is not convinced that a plausible claim for 3 avoidance of the alleged transfers cannot be pled by amendment 4 under a different theory” and dismissed with leave to amend the 5 first three counts to the extent they were based on paragraphs 31 6 through 35.4 7 Having determined which claims were subject to 8 § 546(a)(1)(A), the court next turned to the timeliness of the 9 claims to avoid the transfers from the Debtor’s accounts (alleged 10 in paragraph 30 of the complaint). The court found that the 11 Trustee had been diligent and “[t]here is no significantly 12 probative evidence in the record that [the Trustee] discovered, 13 or could have discovered, the Subject Transfers earlier than 14 September 2013, when she had only three days to evaluate the 15 Subject Transfers before expiration of the limitations period.” 16 Nevertheless, the court held that the Trustee “was dilatory in 17 seeking relief after discovering facts regarding the Subject 18 Transfers and ultimately made a conscious decision not to pursue 19 the transfers on behalf of the estate.” The court dismissed with 20 prejudice the First, Second, and Third Claims for Relief (to the 21 extent they concerned paragraph 30) as barred by the statute of 22 limitations.5 23 After the bankruptcy court denied their motion for 24 reconsideration, the Templetons gave notice that they would not 25 4 26 We address this portion of the bankruptcy court’s decision in a separate memorandum. 27 5 The court dismissed Count 4 for unjust enrichment without 28 leave to amend on the ground that it did not state an independent cause of action. The Templetons do not challenge this ruling.

8 1 amend the complaint and instead filed a timely notice of appeal. 2 The Templetons also filed their designation of excerpts of 3 record, but Appellees moved to strike nine items that were not 4 before the bankruptcy court in its consideration of the motions 5 for summary judgment. The bankruptcy court granted the motion. 6 The Templetons requested that this Panel take judicial 7 notice of the stricken items or permit enlargement of the record. 8 The motions panel denied the motion without prejudice. 9 JURISDICTION 10 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 11 §§ 1334, 157(b)(1), and 157(b)(2)(F) and (H). We have 12 jurisdiction under 28 U.S.C. § 158. 13 ISSUES 14 (1) Whether the bankruptcy court erroneously applied the 15 doctrine of equitable tolling when it granted summary judgment 16 and dismissed the First, Second, and Third Claims for Relief (to 17 the extent they are based on fraudulent transfers alleged in 18 paragraph 30 of the complaint) as untimely under § 546(a)(1)(A). 19 (2) Whether this Panel should consider excerpts of record 20 stricken by the bankruptcy court. 21 STANDARDS OF REVIEW 22 We review de novo the bankruptcy court’s decision to grant 23 or deny summary judgment. Boyajian v. New Falls Corp. (In re 24 Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). 25 The bankruptcy court has latitude in granting relief from a 26 strict construction of a statute of limitations and reaches its 27 determination on a case-by-case analysis. See Scholar v. Pac. 28 Bell, 963 F.2d 264, 267–68 (9th Cir. 1992). Thus, we review for

9 1 abuse of discretion the bankruptcy court’s decision that the 2 trustee could not invoke the doctrine of equitable tolling. See 3 Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per 4 curiam); see also Scholar, 963 F.2d at 267. 5 Similarly, we review for abuse of discretion the denial of a 6 motion for reconsideration. See N. Alaska Envtl. Ctr. v. Lujan, 7 961 F.2d 886, 889 (9th Cir. 1992). Under an abuse of discretion 8 standard, a reviewing court cannot reverse unless it has “a 9 definite and firm conviction that the [court below] committed a 10 clear error of judgment” in the conclusion it reached upon a 11 weighing of the relevant factors. Marchand v. Mercy Med. Ctr., 12 22 F.3d 933, 936 (9th Cir. 1994). 13 DISCUSSION 14 A. The bankruptcy court incorrectly applied the doctrine of equitable tolling to the statute of limitations under 15 § 546(a)(1)(A). 16 The primary issue on appeal concerns the bankruptcy court’s 17 application of equitable tolling. We hold that the bankruptcy 18 court erred when it dismissed the § 544(b) claims as untimely 19 because of the Trustee’s alleged lack of diligence after 20 discovery of the fraudulent transfers.6 21 1. Section 546(a)(1)(A)’s two-year statute of limitations is subject to equitable tolling. 22 23 Section 546(a)(1)(A) provides a two-year statute of 24 limitations for avoidance actions: 25 (a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced 26 27 6 Our discussion herein considers and disposes of arguments raised in conjunction with both the Appellees' motions for 28 summary judgment and the Templetons' motion for reconsideration.

10 1 after the earlier of - 2 (1) the later of - 3 (A) 2 years after the entry of the order for relief; or 4 (B) 1 year after the appointment or election 5 of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such 6 appointment or such election occurs before the expiration of the period specified in 7 subparagraph (A); or 8 (2) the time the case is closed or dismissed. 9 § 546(a). 10 The statute of limitations period under § 546(a)(1)(A) may 11 be subject to equitable tolling. Gladstone v. U.S. Bancorp., 12 No. 13-55773, --- F.3d ----, 2016 WL 142469 at *8 (9th Cir. Jan. 13 8, 2016) (citing Ernst & Young v. Matsumoto (In re United Ins. 14 Mgmt., Inc.), 14 F.3d 1380, 1387 (9th Cir. 1994)); see Young v. 15 United States, 535 U.S. 43, 49 (2002). “Congress must be 16 presumed to draft limitations periods in light of this background 17 principle. . . . That is doubly true when it is enacting 18 limitations periods to be applied by bankruptcy courts, which are 19 courts of equity and apply the principles and rules of equity 20 jurisprudence.” Young, 535 U.S. at 49-50 (internal citations, 21 quotation marks, and alteration omitted). “Under the equitable 22 tolling doctrine, where a party ‘remains in ignorance of [a 23 wrong] without any fault or want of diligence or care on his 24 part, the bar of the statute does not begin to run until the 25 fraud is discovered, though there be no special circumstances or 26 efforts on the part of the party committing the fraud to conceal 27 it from the knowledge of the other party.’” In re United Ins. 28 Mgmt., Inc., 14 F.3d at 1384 (quoting Lampf, Pleva, Lipkind,

11 1 Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991)). 2 2. The Ninth Circuit applies equitable tolling without regard to a trustee’s diligence in pursuing claims 3 after discovery. 4 The Templetons contend that, based on equitable tolling, the 5 adversary complaint filed in September 2014 was timely. 6 Appellees contend that the Trustee was dilatory after the 7 discovery of the fraudulent transfers, such that she should be 8 denied the benefit of equitable tolling. We agree with the 9 Templetons and hold that the bankruptcy court misapplied Ninth 10 Circuit law. 11 In Socop-Gonzalez v. Immigration & Naturalization Service, 12 272 F.3d 1176 (9th Cir. 2001), the Ninth Circuit, sitting en 13 banc, considered whether a limitations period was subject to 14 equitable tolling. An immigrant seeking to challenge an order of 15 deportation (initially on the basis of asylum) asked an 16 Immigration and Naturalization Service (“INS”) officer how to 17 submit a petition to immigrate based on his recent marriage to an 18 American citizen. Id. at 1181. The INS officer instructed the 19 appellant to withdraw his asylum appeal and file an application 20 for adjustment of status with the INS. Unfortunately, the 21 information provided by the INS officer was incorrect. The 22 Bureau of Immigration Appeals (“BIA”) terminated his asylum 23 appeal and returned the case to the immigration court, which made 24 the deportation order immediately effective as of May 5, 1997. 25 Id. 26 On July 7, 1997, the appellant received a letter from the 27 INS, instructing him to report for deportation. This was the 28 first time he was alerted to a problem in his attempt to adjust

12 1 his status. Shortly thereafter, while processing the appellant’s 2 application for adjustment of status, the INS informed the 3 appellant that he was eligible to receive his employment 4 authorization card. Concerned by the INS’s conflicting posture, 5 on August 11, the appellant moved to reopen his case and to 6 reinstate the asylum appeal. The BIA denied the motion on the 7 ground, inter alia, that the motion to reopen was untimely 8 because it was not filed within ninety days of the BIA’s May 5 9 deportation order. Id. at 1182. 10 On appeal, the appellant argued that the BIA should have 11 equitably tolled the ninety-day limitations period between May 5 12 (the entry of the deportation order) and July 7 (the notice to 13 report for deportation), because he did not know that the INS 14 officer’s erroneous advice had caused him to follow the wrong 15 procedure. Id. at 1183. The Ninth Circuit agreed. It concluded 16 that equitable tolling was applicable to the filing deadline for 17 a motion to reopen. Id. at 1187-89. It then considered 18 “whether, despite due diligence, [the appellant] was prevented 19 during this period, by circumstances beyond his control . . . 20 from discovering that his order of deportation had become 21 effective . . . .” Id. at 1194. It held that “[b]etween May 5, 22 1997 and July 7, 1997, [the appellant] had no reason to believe 23 that his deportation order had become effective. In fact, he had 24 every reason to believe that he had followed the correct 25 procedure for adjusting his status.” Id. The court thus held 26 that the period from May 5 through July 7 should not have counted 27 toward the ninety-day period. Id. 28 The court noted that, at the time the appellant was put on

13 1 notice by the deportation notice, he still had twenty-seven days 2 in which he could have filed a motion to reopen. Id. The court 3 held that this was irrelevant. It overruled the Ninth Circuit 4 panel decision in Santa Maria v. Pacific Bell, 202 F.3d 1170 (9th 5 Cir. 2000), which stood for the proposition that “courts should 6 not apply equitable tolling in situations where a plaintiff 7 discovers the existence of a claim before the end of a 8 limitations period and the court believes that the plaintiff 9 could have been expected to bring a claim within the remainder of 10 the limitations period.” Socop-Gonzalez, 272 F.3d at 1194. The 11 court stated that, “[i]n tolling statutes of limitations, courts 12 have typically assumed that the event that ‘tolls’ the statute 13 simply stops the clock until the occurrence of a later event that 14 permits the statute to resume running.” Id. at 1195 (emphasis in 15 original). It held that the Santa Maria decision does away with 16 “the relative certainty and uniformity with which a statutory 17 period may be calculated and applied”; was explicitly rejected by 18 the Supreme Court; and “trumps what is arguably Congress’ 19 intended policy objectives in setting forth a statute of 20 limitations period – to permit plaintiffs to take a specified 21 amount of time . . . to further investigate their claim and 22 consider their options before deciding whether to file suit.” 23 Id. at 1195-96. It thus concluded by stating that, 24 we reject the approach to tolling adopted in Santa Maria, and we need not inquire whether [the appellant] 25 could have filed his motion to reopen within the twenty-seven days remaining in the limitations period 26 after he received [notice of deportation]. . . . Instead, we need only ask whether [the appellant] filed 27 within the limitations period after tolling is taken into account. [The appellant] had until ninety days 28 after July 7 to file a motion to reopen, or until

14 1 October 5, 1997. 2 Id. at 1196 (emphases added). 3 The holding of Socop-Gonzalez is still good law in this 4 circuit. See Mangum v. Action Collection Serv., Inc., 575 F.3d 5 935, 947 (9th Cir. 2009) (O’Scannlain, J., concurring). There is 6 no reason to think that the Ninth Circuit would apply equitable 7 tolling in a different fashion under § 546(a)(1). 8 Very recently, the Ninth Circuit again indicated that 9 equitable tolling simply extends the statute of limitations 10 period by the length of time the plaintiff could not discover the 11 injury. In Gladstone, the court held that the trustee’s 12 avoidance action was subject to § 546(a)(1)(A). 2016 WL 142469 13 at *8. It quoted United Insurance Management for the proposition 14 that, “where a party ‘remains in ignorance of [a wrong] without 15 any fault or want of diligence or care on his part, the bar of 16 the statute does not begin to run until the fraud is discovered 17 . . . .” Id. (quoting In re United Ins. Mgmt., Inc., 14 F.3d at 18 1384). The court did not inquire whether the trustee was 19 thereafter diligent, but merely held that “the statute of 20 limitations was tolled until the fraudulent transfers were 21 revealed to the Trustee’s attorney . . . .” Id. at *9. The 22 court’s language implies that a plaintiff would receive the 23 benefit of the full statutory period after the discovery of the 24 fraudulent transfer. 25 Appellees and the bankruptcy court relied heavily upon 26 Taylor v. Hosseinpour-Esfahani (In re Hosseinpour-Esfahani), 198 27 B.R. 574 (9th Cir. BAP 1996), a pre-Socop-Gonzalez BAP decision 28 that considered an issue identical to that posed in this appeal.

15 1 In that case, the “issue before the Panel [was] whether the 2 bankruptcy court abused its discretion in refusing to apply the 3 doctrine of equitable tolling when the trustee was dilatory after 4 discovering the existence of a claim.” In re Hosseinpour- 5 Esfahani, 198 B.R. at 579 (emphasis in original). The panel held 6 that “[d]espite the trustee’s alleged diligence in discovering 7 the alleged fraud before the statute of limitations lapsed, we 8 cannot conclude that this obviates the need for the trustee to 9 act diligently and in a timely manner once he has this 10 knowledge.” Id. (internal citations omitted); see also Gladstone 11 v. Michaelis (In re QualityBuilt.com), Bkr. no. 09-12113-PB7, 12 2014 WL 5089040, at *3 (Bankr. S.D. Cal. Apr. 14, 2014) 13 (determining that “the Trustee was indeed dilatory after 14 discovering the facts underlying the Avoidance Claims, and that 15 there [were] no extreme circumstances which warrant equitable 16 tolling to save the Trustee from the time limitations”). 17 Appellees urge us to ignore the Ninth Circuit’s explicit 18 ruling in Socop-Gonzalez in favor of our own earlier decision in 19 Hossseinpour-Esfahani. We decline to do so. After Socop- 20 Gonzalez, Hosseinpour-Esfahani is no longer good law. A court 21 should not look at the trustee’s post-discovery diligence when 22 considering whether equitable tolling should be applied. If the 23 trustee was diligent in discovering the claims, then he should 24 receive the benefit of the full limitations period after 25 discovery of the fraudulent transfers. 26 We note that Socop-Gonzalez’s “stop-clock” rule is 27 consistent with bankruptcy policy for several reasons. 28 First, the rule advocated by the Appellees would create

16 1 uncertainty about the length of the limitations period. An ad 2 hoc standard eliminates the certainty and sense of repose that a 3 statute of limitations is meant to provide. At oral argument, 4 the Panel asked Appellees’ counsel to state a standard of 5 timeliness that bankruptcy courts could apply in lieu of the 6 “stop clock” rule. Counsel had no answer. 7 Second, an unguided case-by-case standard would require 8 parties to bear the expense of litigating a fact-intensive 9 inquiry into a trustee’s post discovery diligence. This would 10 tend to increase the expense of bankruptcy cases, to the 11 detriment of all creditors. 12 Third, Appellees’ rule would encourage debtors to obstruct 13 the trustee’s investigation or to hide assets and documents. If 14 debtors anticipate a reward for disobeying the trustee, they are 15 more likely to attempt to run out the statute of limitations 16 without cooperating. The fairer course is to allow the trustee 17 the full statutory period after discovery of the cause of action. 18 Finally, the rule of Hosseinpour-Esfahani has an ironic and 19 unjust consequence. For example, if the limitations period is 20 two years, the plaintiff’s suit is timely if filed within the 21 two-year period, even if the plaintiff easily could have filed 22 suit in less than two years. Under Hosseinpour-Esfahani, a 23 plaintiff entitled to equitable tolling has to bear the 24 additional burden of showing that the plaintiff filed suit as 25 promptly as was reasonably possible. In this respect, a 26 plaintiff entitled to equitable tolling is worse off than a 27 plaintiff who is not. This is both ironic and unjust since 28 equitable tolling is often available because the defendant

17 1 concealed the claim or is guilty of some other misconduct. Thus, 2 the rule of Hossseinpour-Esfahani confers benefits on undeserving 3 defendants. 4 The bankruptcy court also said that the Trustee “made a 5 conscious decision” not to pursue the claims identified by the 6 Templetons. This is irrelevant. Prior to the expiration of the 7 limitations period (absent tolling), a plaintiff is perfectly 8 free to change her mind about whether to file suit. The 9 application of equitable tolling is not a reason to deprive a 10 plaintiff of that privilege. 11 The bankruptcy court found that the Trustee acted 12 diligently until she learned of the claims. The Templetons 13 (acting on behalf of the estate) asserted those claims within two 14 years thereafter. The bankruptcy erred in holding that the 15 claims were untimely.7 16 B. The bankruptcy court’s findings do not support the application of equitable estoppel. 17 18 The Templetons urge the Panel to reverse on the alternate 19 basis of equitable estoppel. 20 Ordinarily, we consider only arguments that the parties 21 22 7 The Templetons argue that the bankruptcy court erred by 23 failing to grant them summary adjudication on the statute of limitations defense. However, the Templetons never noticed or 24 filed a cross-motion for summary judgment and only raised this 25 request in their opposition to the motions for summary judgment. Moreover, at the hearings on the motions for summary judgment, 26 counsel for the Templetons conceded that they did not file any cross-motion, and the court was hesitant to grant relief without 27 giving “the parties reasonable opportunity to be heard.” The court did not rule on the supposed cross-motion, and we decline 28 to do so for the first time on appeal.

18 1 first presented to the bankruptcy court. The Templetons barely 2 mentioned the equitable estoppel theory in the bankruptcy court. 3 But the Ninth Circuit, in the Socop-Gonzalez decision, held that 4 a party who relied on equitable estoppel in the lower court can 5 argue an equitable tolling theory on appeal, because “there is 6 ‘clearly some overlap’ between equitable tolling and estoppel, 7 and . . . the two can be difficult to distinguish.” Socop- 8 Gonzalez, 272 F.3d at 1185. This case involves the reverse 9 situation; the Templetons relied almost entirely on equitable 10 tolling in the bankruptcy court and want to argue equitable 11 estoppel on appeal. Nevertheless, the considerations that 12 motivated the Ninth Circuit in Socop-Gonzalez apply here. Thus, 13 although the Templetons did not explicitly raise equitable 14 estoppel in the bankruptcy court, we may consider that doctrine 15 on appeal. 16 “Equitable estoppel focuses primarily on the actions taken 17 by the defendant in preventing a plaintiff from filing 18 suit . . . . Equitable estoppel may be invoked if the defendant 19 takes active steps to prevent the plaintiff from suing in time, 20 such as by misrepresenting or concealing facts necessary to the 21 . . . claim.” Coppinger-Martin v. Solis, 627 F.3d 745, 751 (9th 22 Cir. 2010) (internal citations and quotation marks omitted). 23 Equitable estoppel thus “focuses on the actions of the 24 defendant.” Socop-Gonzalez, 272 F.3d at 1184 (citation omitted). 25 There must be “affirmative misconduct,” which means a “deliberate 26 lie” or “a pattern of false promises.” Id. (citations omitted). 27 Equitable estoppel also requires that: “(1) the party to be 28 estopped must know the facts; (2) the party to be estopped must

19 1 either intend that its conduct will be acted upon or act in a 2 manner that the party asserting estoppel has a right to believe 3 it is so intended; (3) the party asserting estoppel must be 4 ignorant of the true facts; and (4) the party asserting estoppel 5 must rely on the conduct to its injury.” Alary Corp. v. Sims (In 6 re Associated Vintage Grp., Inc.), 283 B.R. 549, 567 (9th Cir. 7 BAP 2002) (citations omitted). 8 In the present case, there are some indications that 9 equitable estoppel might apply. The Debtor must have known about 10 the fraudulent transfers that were drawn from her bank account. 11 The bankruptcy court highlighted “Debtor’s egregious conduct, 12 including but not limited to, the failure to schedule assets, 13 false oaths in the schedules and in response to questions at 14 creditors’ meetings, the failure to turn over documents and 15 cooperate with the trustee . . . .” Finally, the court found 16 that the Trustee did not and could not have known of the 17 fraudulent transfers and, thus, did not bring suit on those 18 transfers. 19 The court did not, however, make comparable findings of 20 misconduct against the Appellees other than the Debtor. It did 21 not find that the Debtor’s misconduct was attributable to the 22 other Appellees. In the absence of such findings, we cannot say 23 that the bankruptcy court erred in its failure to apply the 24 equitable estoppel doctrine. 25 C. The Panel declines to consider items not before the bankruptcy court and will not take judicial notice of the 26 Templetons’ supplemental documents. 27 Finally, the Templetons urge us to take judicial notice of 28 supplemental documents that were not before the bankruptcy court

20 1 during its consideration of the underlying summary judgment 2 motions. We will not do so. 3 In the first place, the Templetons acknowledged at oral 4 argument that they offered the additional documents only to show 5 that the Trustee acted diligently after discovering the 6 transfers. Because we have decided that the Trustee’s post- 7 discovery diligence is irrelevant, the supplemental documents are 8 unnecessary. 9 In any event, except in rare cases where “‘the interests of 10 justice demand it,’ an appellate court will not consider evidence 11 not presented to the trial court[.]” Graves v. Myrvang (In re 12 Myrvang), 232 F.3d 1116, 1119 n.1 (9th Cir. 2000) (quoting Dakota 13 Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th 14 Cir. 1993); citing Kirshner v. Uniden Corp. of Am., 842 F.2d 15 1074, 1077 (9th Cir. 1988)). An appellate court is “concerned 16 only with the record before the trial judge when his decision was 17 made.” Kirshner, 842 F.2d at 1077 (citation omitted) (emphasis 18 in original). 19 In the present case, it is undisputed that the bankruptcy 20 court did not consider the supplemental documents.8 The 21 Templetons have not presented the Panel with any extraordinary 22 circumstances that would justify our consideration of the 23 supplemental documents. Nor do they show “error or accident” 24 25 26 8 Appellees also point out that the bankruptcy court struck 27 Item 3 in the excerpts of record. We have considered this document to the extent necessary to understand the relevant 28 factual background.

21 1 under Rule 8009.9 We thus decline to take judicial notice of the 2 supplemental documents. 3 CONCLUSION 4 For the reasons set forth above, we conclude that the 5 bankruptcy court erroneously applied the doctrine of equitable 6 tolling when it granted the summary judgment and dismissed the 7 Templetons’ remaining claims as untimely under § 546(a)(1)(A) 8 because the Trustee was dilatory after discovery of the 9 fraudulent transfers. For the reasons stated in our separate 10 memorandum, we find no other error in the bankruptcy court’s 11 decisions. Accordingly, we AFFIRM IN PART and VACATE IN PART the 12 bankruptcy court's order granting summary judgment; VACATE the 13 order denying reconsideration; and REMAND for further proceedings 14 consistent with this opinion and the accompanying memorandum. 15 16 17 18 19 20 21 22 23 24 25 9 26 Rule 8009(e) states, in relevant part: “If anything material to either party is omitted from or misstated in the 27 record by error or accident, the omission or misstatement may be corrected, and a supplemental record may be certified and 28 transmitted . . . by the court where the appeal is pending.”