FILED DEC 21 2022 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
OF THE NINTH CIRCUIT
In re: BAP No. NC-22-1062-BFT DEBBIE REID O'GORMAN, Debtor. Bk. No. 21-10374
THE LOVERING TUBBS TRUST; CLC Adv. No. 21-01009 COMPLIANCE, INC., TRUSTEE; PACIFIC EQUITIES, LLC, Appellants, v. MEMORANDUM∗ TIMOTHY W. HOFFMAN, Chapter 7 Trustee, Appellee.
Appeal from the United States Bankruptcy Court for the Northern District of California Roger L. Efremsky, Bankruptcy Judge, Presiding
Before: BRAND, FARIS, and TAYLOR, Bankruptcy Judges.
INTRODUCTION
Appellants, The Lovering Tubbs Trust ("LT Trust"), CLC Compliance,
Inc., ("CLC"), and Pacific Equities, LLC ("Pacific") (collectively, "Appellants"),
appeal an order granting summary judgment to the chapter 7 1 trustee,
∗ This disposition is not appropriate for publication. 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 Cir. BAP Rule 8024-1. 1 Unless specified otherwise, all chapter and section references are to the Bankruptcy
Code, 11 U.S.C. §§ 101-1532, all "Rule" references are to the Federal Rules of Bankruptcy 1 Timothy W. Hoffman ("Trustee"), on his claim against Appellants under
§ 548(a)(1)(A) as transferees of an actual fraudulent transfer, and the judgment
avoiding the transfer and recovering the property. Trustee alleged, and the
bankruptcy court determined, that debtor Debbie Reid O'Gorman transferred
real property to Appellants with the actual intent to hinder, delay, or defraud
a creditor. Appellants also argue that the bankruptcy court should have
granted their request for time to continue discovery. Seeing no reversible
error by the bankruptcy court, we AFFIRM.
FACTS
A. Prepetition events
O'Gorman was the owner of a home on about 30 acres in Calistoga,
California ("Property"). In 2010, she gave Grant Reynolds a second deed of
trust against the Property as security for a loan.
In 2019, O'Gorman was in default on her mortgage with the senior
lienholder on the Property. Protecting his junior interest, Reynolds cured
O'Gorman's default with the senior lienholder. In early 2020, Reynolds
initiated a nonjudicial foreclosure on his deed of trust.
In July 2020, attorney William Utnehmer contacted O'Gorman and
offered to assist her with the foreclosure. O'Gorman agreed and entered into
an attorney-client relationship with Utnehmer and his firm, Sonoma Law
Center. According to their Retainer Agreement, Utnehmer promised to
provide O'Gorman legal services "for the research, strategic advisory and
Procedure, and all "Civil Rule" references are to the Federal Rules of Civil Procedure. 2 representation related to foreclosure proceedings, bankruptcy, bridge
financing, repositioning, marketing and/or sale of [the Property]."
As the nonjudicial foreclosure progressed, Utnehmer told O'Gorman
that she could save the Property by transferring it into an "irrevocable land
trust," making herself a 20% beneficiary and another entity as an 80%
beneficiary. To accomplish the transfer, Utnehmer created Pacific, the LT
Trust, and CLC. Utnehmer holds an interest in both Pacific and CLC. Pacific
was a real estate investment group created to arrange for funding and
development of the Property, the LT Trust was the land trust, and CLC served
as trustee of the LT Trust. The LT Trust beneficiaries were the O'Gorman
Family Trust (20% beneficial interest) and Pacific (80% beneficial interest).
O'Gorman signed a grant deed transferring the Property to the LT Trust. She
did not receive any money in exchange for the transfer, and no transfer tax
was paid. No notice of the transfer was provided to the senior lienholder or to
Reynolds. O'Gorman occupied the Property after the transfer and was still
living there on the petition date.
In a document dated June 30, 2021, and signed by Utnehmer and
O'Gorman ("June Letter"), Utnehmer described how he had "successfully
structured a work-out" for the Property by transferring it to the LT Trust and
how Pacific had arranged for its clean-up, renovation, and remediation of
building code violations. However, explained Utnehmer, these improvement
efforts were frustrated by the COVID-19 pandemic, tenants refusing to vacate,
and his business partner's unstable mental condition and failure to fund his
3 share of the project. Thus, Utnehmer recommended that the Property be
immediately marketed while his law firm maintained a legal defense to
postpone the foreclosure to accommodate a sale.
O'Gorman terminated her relationship with Utnehmer in August 2021.
B. Postpetition events
After a failed pro se chapter 13 case, O'Gorman, with the assistance of
counsel, filed a chapter 7 case on August 19, 2021.
Trustee filed an adversary complaint against Appellants, seeking to
avoid and recover what he alleged was O'Gorman's fraudulent transfer of the
Property to Appellants under § 548(a)(1)(A). Appellants, represented by
Utnehmer's law firm, filed an answer denying Trustee's allegations.
Five weeks after Appellants filed their answer and before the parties
had engaged in discovery, Trustee moved for summary judgment ("MSJ"). He
argued that the transfer of the Property to the LT Trust was an intentionally
fraudulent transfer designed to hinder and delay (if not defraud) Reynolds in
his efforts to foreclose on his deed of trust. To establish O'Gorman's requisite
intent, Trustee argued that at least six of the eleven enumerated "badges of
fraud" under Cal. Civ. Code § 3439.04(b)(1)-(11)2 were met: (a) the transfer
2 Trustee relied on the common law badges of fraud codified in Cal. Civ. Code § 3439.04(b)(1)-(11) to establish O'Gorman's intent under § 548(a)(1)(A). The eleven enumerated badges of fraud in California are whether: (1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was disclosed or concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the 4 was to an insider – the LT Trust – in which O'Gorman held a 20% beneficial
interest; (b) O'Gorman remained in control of the Property after the transfer to
the LT Trust; (c) at the time of the transfer, Reynolds had been pursuing a
foreclosure on his deed of trust and the transfer was admittedly designed to
thwart that effort; (d) the transfer was a transfer of substantially all of
O'Gorman's assets; (e) by transferring the Property to the LT Trust, O'Gorman
removed the Property from the reach of her creditors; and (f) the LT Trust
paid no consideration in exchange for the transfer of the Property to it.
In support of the MSJ, Trustee provided a declaration from O'Gorman.
She admitted that she understood the transfer would prevent or delay
Reynolds from foreclosing on his deed of trust and that this was her only
reason for following Utnehmer's advice. O'Gorman said that Utnehmer told
her that he would devise a plan to improve the Property so that it could be
sold at a higher price. O'Gorman said she relied on his legal advice at the time
because she was desperate to save her home. O'Gorman now believed that the
scheme of creating the LT Trust, Pacific, and CLC and transferring the
debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor. Cal. Civ. Code § 3439.04(b)(1)-(11). Although § 548(a)(1)(A) is a matter of federal law, it was not error for the bankruptcy court to consider the California badges of fraud for determining whether Trustee had established O'Gorman's actual intent. See Brown v. Third Nat'l Bank (In re Sherman), 67 F.3d 1348, 1354 (8th Cir. 1995) (discussing application of Missouri's codified badges of fraud to § 548(a)(1)). 5 Property to the LT Trust was an attempt by Utnehmer to defraud her.
O'Gorman said the Property was worth at least $2.5 million when she
transferred it to the LT Trust and that it comprised substantially all of her
assets. Contrary to what Utnehmer said in the June Letter, implying that some
form of consideration was exchanged, O'Gorman said she did not receive any
funds for clean-up, development, or sale of the Property. She was also not
aware of any third party who received funds for those reasons. O'Gorman
said that she should have read the June Letter more carefully before she
signed it and regretted signing it at all.
Appellants filed a late opposition to the MSJ, arguing that it should be
denied because it was premature and Trustee had not demonstrated the
absence of a genuine issue of material fact. Appellants argued that the parties
had not yet engaged in any discovery, including conducting a Civil Rule 26(f)
conference. Appellants requested time to continue discovery under Civil Rule
56(d)3 so they could obtain and present facts essential to their opposition.
Appellants further argued that Trustee had not provided sufficient evidence
that the transfer was done with actual intent to hinder, delay, or defraud
Reynolds, who they argued Trustee had not shown was a legitimate creditor.
Thus, genuine issues of material fact were in dispute and precluded summary
3 Civil Rule 56(d) provides: When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. 6 judgment.
In reply to Appellants' discovery arguments, Trustee argued that
Appellants had failed to demonstrate that they were entitled to a continuance
under Civil Rule 56(d). As architect of the transfer, argued Trustee, Utnehmer
was in possession of more facts than O'Gorman and did not need discovery to
formulate an opposition to the MSJ. Further, he argued, Appellants had failed
to submit an affidavit or declaration in support of a continuance. In fact,
Appellants failed to even articulate in their opposing brief what facts they
needed or hoped to elicit if they had more time for discovery.
In addition, Trustee argued that Appellants had failed to establish the
existence of a triable issue of material fact. Appellants did not support their
opposition with a declaration (or any other evidence) contradicting any of the
specifically averred facts in the MSJ. Simply put, Appellants' opposition was
not supported by any admissible evidence as required by Civil Rule 56(c)(1)
and failed to show that Trustee was not entitled to judgment as a matter of
law.
After a hearing, the bankruptcy court granted the MSJ and denied
Appellants' request for time to conduct discovery. The court concluded that
Appellants had failed to establish the existence of a triable issue of material
fact with any admissible controverting evidence, or to comply with Civil Rule
56(d)'s requirement of an affidavit or declaration for a continuance. This
timely appeal followed.
////
7 JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(A) and (O). We have jurisdiction under 28 U.S.C. § 158.
ISSUES
1. Did the bankruptcy court err when it granted summary judgment in
favor of Trustee?
2. Did the bankruptcy court abuse its discretion when it denied
Appellants' request for time to allow discovery prior to ruling on the MSJ?
STANDARDS OF REVIEW
We review the appeal of a summary judgment ruling de novo.
Stadtmueller v. Sarkisian (In re Medina), 619 B.R. 236, 240 (9th Cir. BAP 2020),
aff'd, No. 20-60045, 2021 WL 3214757 (9th Cir. July 29, 2021). Under de novo
review, we view the evidence in the light most favorable to the nonmoving
party to determine whether the moving party was entitled to judgment as a
matter of law because no genuinely disputed issues of material fact needed to
be tried. Wolkowitz v. Beverly (In re Beverly), 374 B.R. 221, 230 (9th Cir. BAP
2007), aff'd in part, dismissed in part, 551 F.3d 1092 (9th Cir. 2008). "When the
material facts are not in dispute, our only function is to determine whether the
bankruptcy court correctly applied the law." Patow v. Marshack (In re Patow),
632 B.R. 195, 202 (9th Cir. BAP 2021) (citation omitted), aff'd, No. 21-60051,
2022 WL 2256325 (9th Cir. June 23, 2022).
We review the denial of a Civil Rule 56(d) motion seeking more time to
conduct discovery for an abuse of discretion. Kurtin v. Ehrenberg (In re Elieff),
8 637 B.R. 612, 621 (9th Cir. BAP 2022) (citing Atay v. Cnty. of Maui, 842 F.3d 688,
698 (9th Cir. 2016)). The bankruptcy court abuses its discretion if it applies the
wrong legal standard, misapplies the correct legal standard, or makes factual
findings that are illogical, implausible, or without support in the record.
United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).
DISCUSSION
A. Summary judgment standard
Civil Rule 56(a), applicable here by Rule 7056, provides that summary
judgment is appropriate when "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." A dispute over
material facts is genuine where a reasonable jury could return a verdict for the
nonmoving party based on the evidence presented. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Once the movant has come forward with uncontroverted facts entitling
it to relief, the burden shifts to the nonmovant to establish that there is a
specific and genuine issue of material fact to warrant a trial. See Celotex Corp.
v. Catrett, 477 U.S. 317, 332 n.3 (1986). The nonmovant "may not rely on
denials in the pleadings but must produce specific evidence, through
affidavits or admissible discovery materials, to show that the dispute exists."
Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 707 (9th Cir. 2008)
(citation omitted). Conjecture, surmise or "metaphysical doubt" by the
nonmovant of the movant's assertions will not defeat a summary judgment
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
9 (1986). The nonmovant's evidence must be probative. Gertsch v. Johnson &
Johnson, Fin. Corp. (In re Gertsch), 237 B.R. 160, 165 (9th Cir. BAP 1999) (even in
cases where intent is at issue, summary judgment may be appropriate if the
nonmovant "rests merely upon conclusory allegations, improbable inferences,
and unsupported speculation") (citation omitted).
In deciding whether material factual issues exist, the court must resolve
all ambiguities and draw all reasonable inferences against the moving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587. However, the court is required to
do so only in circumstances where a fact specifically averred by the moving
party is contradicted by specific evidence submitted in opposition to the
motion. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). If a motion for
summary judgment is properly supported and the nonmovant does not set
forth specific facts showing a genuine issue for trial, summary judgment must
be entered. Civil Rule 56(a); Rule 7056.
B. The bankruptcy court did not err in granting the MSJ.
Section 548 allows a trustee to avoid any transfer of an interest of the
debtor in property if the debtor made such transfer with actual intent to
hinder, delay or defraud any creditor. § 548(a)(1)(A). To prevail in an action
under § 548(a)(1)(A), the trustee must prove that (1) the property transferred
was property of the debtor, (2) there was a transfer, (3) the transfer occurred
within two years prior to bankruptcy, and (4) the transfer was made with the
actual intent to hinder, delay, or defraud the debtor's creditors. Argyle Online,
LLC v. Nielson (In re GGW Brands, LLC), 504 B.R. 577, 607 (Bankr. C.D. Cal.
10 2013). Because the statute is stated in the disjunctive, an actual fraudulent
transfer occurs when the debtor makes a transfer with the actual intent either
to hinder or to delay or to defraud creditors. Leslie v. Mihranian (In re
Mihranian), BAP No. CC-16-1381-KuFTa, 2017 WL 2775044, at *7 (9th Cir. BAP
June 26, 2017) (citing § 548(a)(1)(A); Cal. Civ. Code § 3439.04; In re Beverly, 374
B.R. at 232). Actual intent can be found on the basis of circumstantial evidence
since direct proof will rarely be available. Hayes v. Palm Seedlings Partners (In
re Agric. Rsch. & Tech. Grp., Inc.), 916 F.2d 528, 534 (9th Cir. 1990).
In support of the MSJ, Trustee set forth uncontroverted evidence that
(1) the Property belonged to O'Gorman, (2) she transferred it to the LT Trust,
(3) the transfer occurred within two years of the petition date, and (4) she
transferred the Property with the actual intent to prevent or delay Reynolds
from foreclosing on his deed of trust. Appellants opposed the MSJ. Other than
denying that the transfer was fraudulent and making conclusory statements
that there were material fact disputes precluding summary judgment,
Appellants did not present an affidavit or any other admissible evidence
specifically averring any of the facts about the transfer or O'Gorman's intent.
The bankruptcy court found that the MSJ established the necessary
elements for an actual fraudulent transfer under § 548(a)(1)(A) and that
Appellants had failed to create any triable issue of material fact. Appellants
argue that the bankruptcy court erred by granting Trustee summary
judgment on the sole basis that they did not file a responsive affidavit. In
other words, Appellants contend it was summary judgment by default. But
11 the bankruptcy court did not grant summary judgment solely on that basis.
Rather, it reviewed Trustee's evidence and determined that he had
demonstrated the absence of a genuine dispute as to O'Gorman's actual intent
so that the burden shifted to Appellants, and Appellants had failed to present
any admissible evidence to create a genuine dispute on that issue. We agree
with that determination. Trustee presented admissible evidence to support
every element of his § 548(a)(1)(A) claim; Appellants presented nothing to
create a genuine issue of material fact as to any of those elements.
Appellants argue that they were not required to provide a responsive
affidavit because their opposition established that O'Gorman's "conclusory
and inconsistent" declaration was insufficient to establish fraudulent intent.
To the extent Appellants now attempt to manufacture a material question of
fact by asserting inconsistencies as to O'Gorman's intent or whether
consideration was given for the transfer, that effort fails. Apart from
identifying two paragraphs in Trustee's brief with which Appellants took
issue, the opposition said nothing about any purported conclusory or
inconsistent statements made by O'Gorman. The thrust of their argument was
that the MSJ was premature. In any case, the disputed paragraphs in Trustee's
brief were not evidence; the evidence was presented by O'Gorman's
declaration. Appellants' late attempt to point out alleged inconsistencies as to
O'Gorman's intent with other facts known to them at the time begs the
question why did they not present these alleged facts in a declaration from
Utnehmer.
12 Appellants next argue that the "badges of fraud" did not overcome the
direct evidence in the June Letter that O'Gorman lacked fraudulent intent
because she transferred the Property for a legitimate business purpose. The
implication from this argument is that an actual intent to defraud is required.
This is not correct. It is sufficient that O'Gorman intended to hinder or delay
Reynolds in his efforts to foreclose. While the June Letter established that the
plan was to sell the Property for more than would be received in a foreclosure,
it also provided for the transfer of the Property for no consideration and
without notice to creditors, which are two of the badges of fraud relied upon
by Trustee and the court.
Next, Appellants argue that Trustee offered insufficient evidence that
Reynolds was or could have been harmed by the transfer. In other words,
Appellants contend that harm is a necessary element for a § 548(a)(1)(A)
claim. Appellants never raised this argument before the bankruptcy court. In
any case, they are wrong. "Actual damages" or "actual harm" is not an element
of an actual fraudulent transfer claim. See In re Medina, 619 B.R. at 240, 244
n.11 (holding that "actual damages" or "actual harm" is not an element of an
actual fraudulent transfer claim under Cal. Civ. Code § 3439.04(a)(1) and
noting that courts construing nearly identical § 548(a)(1)(A) have reached the
same conclusion, citing In re Sherman, 67 F.3d at 1355 n.6 ("The [transferees]
also argue that the transfers cannot be avoided as fraudulent because no
creditor was harmed. However, the bankruptcy court correctly noted that
under § 548(a)(1), actual harm is not required; the trustee must show only that
13 the debtor acted with the intent to hinder, delay or defraud creditors.")).
While summary judgment is rarely granted on a § 548(a)(1)(A) claim
because the element of intent often requires a factual determination,
Appellants failed to show the existence of a genuine dispute as to O'Gorman's
actual intent; thus, summary judgment was appropriate in this case.
C. The bankruptcy court did not abuse its discretion in denying Appellants' unsupported request for time to continue discovery.
To justify a continuance of summary judgment under Civil Rule 56(d),
applicable here by Rule 7056, the movant must: (1) set forth in affidavit form
the specific facts it hopes to elicit through further discovery; (2) show that the
facts sought exist; and (3) show that the sought-after facts are essential to
oppose summary judgment. Family Home & Fin. Ctr. v. Fed. Home Loan Mortg.
Corp., 525 F.3d 822, 827 (9th Cir. 2008). The movant "must identify by
affidavit the specific facts that further discovery would reveal, and explain
why those facts would preclude summary judgment." Tatum v. City and Cnty.
of S.F., 441 F.3d 1090, 1100 (9th Cir. 2006) (emphasis added); Cont'l Mar. of S.F.,
Inc. v. Pac. Coast Metal Trades Dist. Council, Metal Trades Dep't, AFL-CIO, 817
F.2d 1391, 1395 (9th Cir. 1987) (party seeking continuance has the burden to
show what specific facts it hopes to discover that will raise an issue of
material fact).
The bankruptcy court denied Appellants' request for time to continue
discovery under Civil Rule 56(d), noting the absence of an affidavit or
declaration from Utnehmer stating what material facts Appellants hoped to
discover and how those facts would preclude summary judgment. The 14 bankruptcy court rejected their argument that it was too early to grant
summary judgment because no discovery had been done. Appellants argue
that, despite their admitted failure to file an affidavit in support of their
request under Civil Rule 56(d), the bankruptcy court erred as a matter of law
by granting summary judgment so early in the case and prior to conducting
discovery. We disagree.
Civil Rule 56(b) permits a party to move for summary judgment at any
time until 30 days after the close of all discovery, unless a local rule or court
order sets a different time, which was not the case here. The rule does not
distinguish between a party that has nearly finished discovery and one that
has not yet begun, and nothing in the rule suggests that summary judgment
cannot be granted unless discovery has commenced.
Nonetheless, controlling case law provides that when a summary
judgment motion is filed early in the case, before a party has had any realistic
opportunity to pursue discovery, the court should grant a Civil Rule 56(d)
motion "fairly freely." Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux
Tribes of Fort Peck Rsrv., 323 F.3d 767, 773 (9th Cir. 2003) (summary judgment
motion filed less than one month after suit was filed); Program Eng'g, Inc. v.
Triangle Publ'ns, Inc., 634 F.2d 1188, 1193 (9th Cir. 1986) ("Generally where a
party has had no previous opportunity to develop evidence and the evidence
is crucial to material issues in the case, discovery should be allowed before the
trial court rules on a motion for summary judgment.").
Despite this general rule, however, a request for a continuance must still
15 comply with Civil Rule 56(d), which requires the filing of an affidavit. See
Bryant v. Ford Motor Co., 886 F.2d 1526, 1534 (9th Cir. 1989) (lack of a formal
request for a continuance is relevant to the question whether the court abused
its discretion by ruling on the motion when it did); Brae Transp., Inc. v. Coopers
& Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) ("Failure to comply with the
requirements of Rule 56(f) is a proper ground for denying discovery and
proceeding to summary judgment.") (applying former Civil Rule 56(f), now
56(d)). Appellants argue that their brief opposing summary judgment
sufficiently identified disputed material facts and therefore served as the
functional equivalent of an affidavit. We reject this. "References in
memoranda and declarations to a need for discovery do not qualify as
motions under Rule 56(f). Rule 56(f) requires affidavits setting forth the
particular facts expected from the movant's discovery." Brae Transp., Inc., 790
F.2d at 1443 (applying former Civil Rule 56(f)).
Even if we accepted Appellants' opposing brief as a substitute for an
affidavit, which diminishes the value of an affidavit by permitting an
attorney's unsworn argument to replace it, Appellants failed to identify the
specific facts they hoped to elicit through further discovery, that these facts
existed, and that these sought-after facts were essential to oppose summary
judgment. Appellants' conclusory statements that discovery would yield
essential, but unspecified, facts fell far short of complying with the rule.
Making this case more egregious is that Utnehmer, the architect of the
transfer, was in possession of enough facts to formulate an affidavit to oppose
16 the MSJ without any discovery and he failed to do so.
Accordingly, the bankruptcy court did not abuse its discretion in
denying Appellants' request for a continuance under Civil Rule 56(d).
CONCLUSION
For the reasons stated above, we AFFIRM.