In re: Richard James Swintek

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 18, 2015
• Docket: CC-14-1569-KiTaKu
• Status: Published

Opinion

FILED DEC 18 2015 1 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-14-1569-KiTaKu ) 6 RICHARD JAMES SWINTEK, ) Adv. No. 8:13-01106-TA ) 7 Debtor. ) Bk. No. 8:10-22458-TA ) 8 ) ) 9 KAREN M. GOOD, ) ) 10 Appellant, ) ) 11 v. ) O P I N I O N ) 12 CHARLES W. DAFF, Chapter 7 ) Trustee, ) 13 ) Appellee. ) 14 ______________________________) 15 Argued and Submitted on November 19, 2015, at Pasadena, California 16 Filed - December 18, 2015 17 Appeal from the United States Bankruptcy Court 18 for the Central District of California 19 Honorable Theodor C. Albert, Bankruptcy Judge, Presiding 20 21 22 Appearances: Roya Rohani argued for appellant Karen M. Good; Arjun Sivakumar of Brown Rudnick LLP argued for 23 appellee Charles W. Daff, Chapter 7 Trustee. 24 25 Before: KIRSCHER, TAYLOR and KURTZ, Bankruptcy Judges. 26 27 28 1 KIRSCHER, Bankruptcy Judge: 2 3 Appellant and judgment creditor Karen Good appeals an order 4 wherein the bankruptcy court determined that § 108(c)1 did not 5 toll or extend the one-year expiration period for Good's lien 6 under CAL. CODE CIV. P. ("CCP") § 708.110(d). This precise question 7 of law is a matter of first impression before the Panel. We hold 8 that § 108(c) tolled the one-year expiration period imposed under 9 CCP § 708.110. Therefore, we VACATE AND REMAND. 10 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 11 A. Prepetition events 12 In 2001, two law firms obtained money judgments totaling 13 approximately $300,000 against Richard J. Swintek, a former 14 certified public accountant, for unpaid legal fees. In 2009, Good 15 acquired the money judgments by assignment. She renewed the 16 judgments in 2010 and began collection efforts. 17 On June 30, 2010, the state court issued an Application and 18 Order for Appearance and Examination ("ORAP") to Swintek pursuant 19 to CCP § 708.110. Good claims she personally served Swintek with 20 the ORAP on that same date. Swintek was ordered to appear for 21 examination on August 19, 2010. 22 In July 2010, Good instructed the Orange County Sheriff to 23 levy upon several deposit accounts and certificates of deposit 24 held in the name of Swintek and/or his wife. The sheriff took 25 custody of approximately $67,000. 26 27 1 Unless specified otherwise, all chapter, code and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 28 the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

-2- 1 Swintek failed to appear for the ordered examination, 2 resulting in the state court continuing it until October 14 and 3 issuing a bench warrant for his arrest. Good claims she served 4 Swintek with the new notice. 5 B. Postpetition events 6 Swintek filed a chapter 7 bankruptcy case on September 2, 7 2010. He identified Good as a secured creditor with an execution 8 lien valued at $2,900, and he identified her as an unsecured 9 creditor holding a claim for $310,000 for "attorney's fees." 10 Notably, Good is Swintek's only creditor. Trustee Charles W. Daff 11 was appointed to Swintek's case. 12 Trustee eventually acquired the $67,000 in levied funds. 13 Good claimed all rights to them in her filed proof of claim. 14 Thereafter, upon Swintek's motion under § 522(f), the bankruptcy 15 court avoided Good's execution lien to the extent it impaired 16 Swintek's allowed exemption of $21,725. Trustee was to hold the 17 balance of the levied funds, $45,274.79 plus any accrued interest. 18 1. Good's first adversary complaint 19 In 2013, Good filed an adversary complaint against Trustee 20 seeking a determination on the priority of her lien and 21 declaratory relief. Good alleged that upon serving Swintek with 22 the ORAP, she obtained a lien (the "ORAP Lien") on all of his 23 personal property assets for one year under CCP § 708.110. Good 24 alleged that all funds held by Trustee were subject to her ORAP 25 Lien, yet he was refusing to distribute them to her. 26 In his motion to dismiss, Trustee argued that Good's ORAP 27 Lien, issued on June 30, 2010, expired one year after the date of 28 the order; thus, any lien created by service of the ORAP expired

-3- 1 on June 30, 2011. Trustee contended the one-year durational 2 period in CCP § 708.110(d) was not extended or tolled by § 108(c), 3 citing In re Gbadebo, 431 B.R. 222, 226 n.4 (Bankr. N.D. Cal. 4 2010). 5 Rejecting the "dictum" in Gbadebo that § 108(c) did not apply 6 to ORAP liens and relying on Kipperman v. Proulx (In re Burns), 7 291 B.R. 846, 849 n.4 (9th Cir. BAP 2003), the bankruptcy court 8 ruled that § 108(c) applied to Good's ORAP Lien. Therefore, 9 because Good had stated a claim for declaratory relief, Trustee's 10 motion to dismiss was denied. 11 2. Good's amended adversary complaint and the motions for summary judgment 12 13 Good filed an amended complaint against Trustee and the 14 parties filed multiple motions for summary judgment. Good 15 contended her ORAP Lien constituted an "enforcement" lien under 16 California law and remained stayed by § 362 until the levied funds 17 were no longer property of the estate. Because she was not 18 allowed to continue with her enforcement efforts once Swintek 19 filed bankruptcy, Good argued that § 108(c) tolled the one-year 20 enforcement period of her ORAP Lien, citing Miner Corp. v. Hunters 21 Run Ltd. P'ship (In re Hunters Run Ltd. P'ship), 875 F.2d 1425 22 (9th Cir. 1989), In re Burns, 291 B.R. at 849, and S. Cal. Bank v. 23 Zimmerman (In re Hilde), 120 F.3d 950 (9th Cir. 1997). 24 Trustee contended that Good's ORAP Lien expired by its own 25 terms on June 30, 2011, before her adversary complaint was filed, 26 and that § 108(c) did not toll the one-year period. Trustee 27 argued that § 108(c) did not apply to an ORAP lien because it is 28 created by service and does not involve a "commencement" or a

-4- 1 "continuation" of a civil action, as § 108(c) requires. In 2 support of his position, Trustee noted a recent case, Wolfe v. 3 Palladino (In re Harris), Adv. No. 8:13-01125 (Bankr. C.D. Cal. 4 Apr. 29, 2014), wherein the same bankruptcy court determined that 5 an ORAP lien is not a "commencement" or "continuation" of a civil 6 action, but rather is an "anomalous lien" arising after judgment 7 has been entered and an ORAP properly served; thus, § 108(c) did 8 not toll an ORAP lien's one-year expiration period. 9 In ruling for Trustee, the bankruptcy court acknowledged that 10 no appellate court within the Ninth Circuit has addressed the 11 issue of whether § 108(c) tolls the one-year expiration period of 12 an ORAP lien. A split in persuasive authority also exists among 13 bankruptcy courts. Ultimately, the bankruptcy court decided to 14 adopt its prior ruling in Harris: § 108(c) does not toll the one- 15 year expiration period of an ORAP lien. Accordingly, because Good 16 had not renewed her ORAP Lien prior to the expiration date in June 17 2011, it had expired. Therefore, she had no claim against the 18 levied funds; summary judgment for Trustee was appropriate. 19 Good timely appealed. 20 II. JURISDICTION 21 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 22 and 157(a)(2)(K). We have jurisdiction under 28 U.S.C. § 158. 23 III. ISSUE 24 Did the bankruptcy court err in determining that § 108(c) did 25 not toll the one-year expiration period for an ORAP lien under CCP 26 § 708.110(d)? 27 IV. STANDARD OF REVIEW 28 We review the bankruptcy court's legal conclusions, including

-5- 1 its interpretation of the Code, de novo. Sachan v. Huh (In re 2 Huh), 506 B.R. 257, 262 (9th Cir. BAP 2014)(en banc). Likewise, 3 we review the bankruptcy court's order granting summary judgment 4 de novo. Centre Ins. Co. v. SNTL Corp. (In re SNTL Corp.), 380 5 B.R. 204, 211 (9th Cir. BAP 2007). 6 V. DISCUSSION 7 Trustee disputes and Good contends she held a valid ORAP lien 8 against Swintek at the time he filed his bankruptcy case. This 9 contention may involve a factual matter the bankruptcy court will 10 have to determine on remand. If valid, then it is undisputed the 11 one-year expiration period under CCP § 708.110(d) had not yet run 12 when Swintek filed his bankruptcy case, just two months after Good 13 allegedly served him with the ORAP. Therefore, the question 14 before us is whether § 108(c) tolled the running of the one-year 15 durational period. We conclude it did. 16 A. CCP § 708.110 and 708.120 17 In 1982, California enacted a comprehensive Enforcement of 18 Judgments Law governing the enforcement of all civil judgments in 19 California. CCP § 680.010-709.030. It reflects the legislative 20 intent to allow judgment creditors a "'speedy and inexpensive 21 means . . . to obtain priority over other creditors . . . .'" In 22 re Hilde, 120 F.3d at 954 (citation omitted)(emphasis in 23 original); In re Burns, 291 B.R. at 850. 24 Under CCP § 708.110, a judgment creditor may apply to the 25 court for an order requiring the judgment debtor to appear for an 26 examination "to aid [the creditor's] enforcement of the money 27 judgment." CCP § 708.110(a). Service of the ORAP on the judgment 28 debtor creates an enforceable lien on the debtor's personal

-6- 1 property. CCP § 708.110(d).2 2 An ORAP lien exists from the date the order to appear is 3 served and is effective for one year unless extended or sooner 4 terminated by the court. CCP § 708.110(d). In other words, an 5 ORAP lien will expire by its own terms if it is not renewed before 6 the expiration of one year. Service of the ORAP is all that is 7 required to create and establish the priority of the ORAP lien. 8 In re Hilde, 120 F.3d at 953; In re Burns, 291 B.R. at 850. An 9 ORAP lien is allowed to be a "secret" or "hidden" lien; it is not 10 recorded or published. "'Other creditors are able to discover the 11 lien only if they know about the creditor's judgment and review 12 the court file.'" Morgan Creek Prods. v. Franchise Pictures LLC 13 (In re Franchise Pictures LLC), 389 B.R. 131, 141 (Bankr. C.D. 14 Cal. 2008) (quoting Hon. Alan M. Ahart, Cal. Prac. Guide: 15 Enforcing Judgments & Debts § 6:1306 (The Rutter Group 2007)). 16 See In re Hilde, 120 F.3d at 956 (public policy issues trustee has 17 with an ORAP lien being a "secret" lien is something for the 18 California Legislature to solve). 19 B. Section 108(c) 20 Section 108(c) provides that "if applicable nonbankruptcy law 21 . . . fixes a period for commencing or continuing a civil action 22 in a court other than a bankruptcy court on a claim against the 23 2 Specifically, CCP § 708.110(d) provides: 24 The judgment creditor shall personally serve a copy of the 25 order on the judgment debtor not less than 10 days before the date set for the examination. Service shall be made in the 26 manner specified in Section 415.10. Service of the order creates a lien on the personal property of the judgment 27 debtor for a period of one year from the date of the order unless extended or sooner terminated by the court. 28

-7- 1 debtor, . . . and such period has not expired before the date of 2 the filing of the petition, then such period does not expire until 3 . . . 30 days after notice of the termination or expiration of the 4 stay under section 362 . . . ." The "applicable nonbankruptcy 5 law" at issue here is CCP § 708.110(d). 6 C. The bankruptcy court erred in determining that the one-year expiration period for an ORAP lien is not tolled by § 108(c). 7 8 1. Preliminary matters 9 Before we begin our analysis, we make two preliminary 10 observations. We conclude that CCP § 708.110(d) is a statute of 11 duration as opposed to a statute of limitations. See Spirtos v. 12 Moreno (In re Spirtos), 221 F.3d 1079, 1080 (9th Cir. 2000)(ten- 13 year expiration period for renewing a judgment lien under CCP 14 § 683.110 is a statute of duration); In re Hunter's Run Ltd. 15 P'ship, 875 F.2d at 1426 (eight-month enforcement period in 16 Washington state mechanic's lien statute is a statute of 17 duration); see also Commission Comments to CCP § 708.110 which 18 states: "Subdivision (d) of Section 708.110 is amended to 19 prescribe a one-year duration for the lien created under this 20 section." (Emphasis added). Nonetheless, whether something is a 21 statute of limitations or a durational period matters not; 22 § 108(c) applies to either. In re Hunter's Run Ltd. P'ship, 875 23 F.2d at 1427; United States v. Valley Nat'l Bank (In re Decker), 24 199 B.R. 684, 688 (9th Cir. BAP 1996). 25 Second, the appeal is not moot based on Swintek's discharge. 26 Even though Swintek received a discharge in October 2012, which 27 effectively terminated the automatic stay as to him, the stay is 28 still in effect here because funds remain in the bankruptcy

-8- 1 estate, which Trustee has not abandoned. § 362(a)(3), (c)(1); In 2 re Spirtos, 221 F.3d at 1081 (so long as assets remain in the 3 estate the stay as to property of the estate remains in effect). 4 2. The bankruptcy court cases addressing this issue are split; the Ninth Circuit and BAP cases cited by the 5 parties do not resolve it. 6 Two California bankruptcy courts have addressed the precise 7 issue before us, but unfortunately neither court provided an 8 extensive analysis. They also reached different conclusions. In 9 Franchise Pictures LLC, the creditor obtained an ORAP lien in 10 March 2004; the debtor filed its bankruptcy case in August 2004, 11 before the lien had expired. 389 B.R. at 137. The debtor argued 12 that the creditor's ORAP lien had expired in March 2005, while the 13 bankruptcy case was pending, and was therefore invalid. Id. at 14 140. The issue involved whether the one-year duration of the ORAP 15 lien was tolled or extended under § 108(c) in order to avoid the 16 March 2005 expiration. Id. In determining that § 108(c) tolled 17 the one-year period and that the ORAP lien was still in force, the 18 bankruptcy court noted: 19 This section generally applies "to time periods within which a creditor must bring an action to enforce a lien 20 before the lien expires. It also applies to the time period to renew a judgment to maintain its 21 enforceability." Collier on Bankr., ¶ 108.04[2] (Alan N. Resnick & Henry J. Sommer, eds.-in-chief, 15th ed. rev. 22 2007)(footnotes omitted).3 23 Id. 24 The bankruptcy court in Gbadebo provided far less analysis on 25 the issue. There, a creditor had objected to the debtor's chapter 26 11 plan which classified the creditor's claim as unsecured. 431 27 3 The bankruptcy court also cited to In re Burns, supra, 28 which we discuss below.

-9- 1 B.R. at 225. The creditor argued he held a secured claim against 2 the debtor's personal property by virtue of an ORAP lien obtained 3 prior to the bankruptcy filing. Id. The bankruptcy court held 4 that the creditor's objection may have had merit when it was first 5 asserted, but the one-year ORAP lien had since expired. Id. at 6 226. To support its decision, the Gbadebo court stated in a 7 footnote: "The Court does not read 11 U.S.C. § 108 as extending 8 this period." Id. at 226 n.4. 9 Good argues that Burns and Hilde, while not addressing the 10 precise issue before us, have implicitly and necessarily held that 11 an ORAP lien is tolled by § 108(c). In Burns, the issue before 12 the Panel was whether service of an ORAP on the debtor only was 13 sufficient to create an ORAP lien in qui tam settlement monies 14 being held by the United States. 291 B.R. at 848-53. Tolling 15 under § 108(c) was not at issue on appeal, nor was it examined. 16 The only mention of tolling was in a footnote, where the Panel 17 stated: "The [bankruptcy] court also ruled that the one-year 18 duration of the ORAP Lien had been tolled by Burns' bankruptcy 19 filing, which occurred nine months after service of the ORAP." 20 Id. at 849 n.3. The Franchise Pictures LLC court relied upon the 21 Panel's statement in this footnote for its decision as well. 389 22 B.R. at 141. While one could view this as an "implicit" ruling by 23 the Panel that the tolling provision of § 108(c) applies to an 24 ORAP lien, we do not wish to speculate. We believe the Panel's 25 statement there was merely informational. 26 In Hilde, the issue was whether or not an ORAP lien requires 27 perfection. The Ninth Circuit, in reversing the Panel's decision, 28 held that it does not. 120 F.3d at 953-54. In the Panel's

-10- 1 reversed decision, the issue of tolling under § 108(c) was briefly 2 discussed in a footnote, which stated: "If the ORAP lien was 3 perfected, then its duration time would have been tolled by 4 § 108(c) . . . ." Zimmerman v. S. Cal. Bank (In re Hilde), 189 5 B.R. 776, 779 n.3 (9th Cir. BAP 1995), rev'd, 120 F.3d 950 (9th 6 Cir. 1997). However, the Panel conceded the lien's termination 7 was not at issue and it declined to raise the issue sua sponte. 8 Id. This footnote, which was not addressed by the Ninth Circuit, 9 appears to be only dicta. Moreover, the Ninth Circuit did not 10 discuss the issue of tolling, focusing entirely on the question of 11 perfection. 12 3. Spirtos controls this issue. 13 We conclude that Spirtos, a 2000 Ninth Circuit decision not 14 raised by the parties, resolves the issue before us. There, the 15 wife of the deceased debtor argued that the creditor's judgment 16 lien was void under the California statute of duration in CCP 17 § 683.020, which provides that a judgment lien becomes 18 unenforceable after ten years. 221 F.3d at 1080. The creditor 19 obtained the judgment in 1983, the debtor's bankruptcy case was 20 filed in 1987 and he received a discharge in 1996. Id. Thus, the 21 ten-year period to renew the judgment expired in 1993, after the 22 debtor filed for bankruptcy, but before he received his discharge. 23 Because the creditor failed to renew her judgment under CCP 24 § 683.110, the wife contended the claim should be disallowed. Id. 25 After reviewing the statutory language of § 108(c), the Ninth 26 Circuit held that the ten-year period during which the creditor 27 had to renew her judgment lien had not expired: 28 On its face, section 108(c) appears to cover our

-11- 1 situation. The California statute of duration is a nonbankruptcy law that applies to the Moreno judgment. 2 The statute fixes a ten-year period during which Moreno had to keep the judgment from expiring by filing for 3 renewal. Under section 108(c), then, the limitations period does not expire until 30 days after the end of the 4 automatic stay. 5 Id. at 1080-81. See also Morton v. Nat'l Bank of N.Y.C. (In re 6 Morton), 866 F.2d 561, 566 (2d. Cir. 1989)(holding same regarding 7 ten-year duration period to renew judgment liens in New York). 8 The Spirtos court also rejected the wife's argument that the 9 creditor could not avail herself of § 108(c) unless she was barred 10 by the automatic stay from renewing her judgment. 221 F.3d at 11 1081. "It is the creditor's inability to enforce the judgment for 12 a portion of the ten-year period that keeps the period of duration 13 open under section 108(c)." Id. 14 Although Spirtos did not specifically address an ORAP lien 15 under CCP § 708.110, we believe its holding controls by analogy. 16 We too are faced with a state statute of duration that fixes a 17 certain time period during which a creditor's ORAP lien is 18 effective but after which it will expire if not renewed by the 19 court. Similar to a judgment lien, an ORAP lien is an "other 20 lien[] created by [the] enforcement process," which attaches to 21 the judgment debtor's personal property. See CCP Art. 5 of Part 22 2, Title 9 Enforcement of Judgments, Div. 2, Ch. 2; CCP § 697.910. 23 Whether Good was unable to renew her ORAP Lien because of the 24 automatic stay is of no consequence. In re Spirtos, 221 F.3d at 25 1081. The fact remains that she was prohibited from enforcing the 26 ORAP Lien attaching Swintek's nonexempt personal property which 27 became, and remains, property of the estate. See id.; 28 § 362(a)(4).

-12- 1 In reaching its decision, the bankruptcy court focused on the 2 phrase in § 108(c) "commencing or continuing a civil action." 3 Relying on a California Bankruptcy Journal article, the bankruptcy 4 court reasoned that an ORAP lien is neither a "commencement" nor a 5 "continuation" of a civil action, but rather is an "anomalous 6 lien" arising after a judgment has been entered and an ORAP 7 properly served. In the aforementioned article, the authors 8 opined: 9 [T]o find that 11 U.S.C. § 108(c) tolls the time a judgment creditor has to renew an ORAP lien seems to 10 require that a mere request to "extend" (as expressly stated in CCP § 708.110) the life of an ORAP lien be 11 deemed the equivalent to the "commencement" or "continuation" of a civil action, an analogy which some 12 may find conceptually hard to swallow, particularly when one considers that it is the service of the ORAP is what 13 creates the initial lien. 14 32 Cal. Bankr. J. 473, 476 (2013)(emphasis in original). Not 15 surprisingly, Trustee focuses on the same phrase in § 108(c) to 16 argue that it does not apply to an ORAP lien. We disagree. 17 The Spirtos court did not analyze whether renewing a judgment 18 lien under CCP § 683.110 was a "commencement" or a "continuation" 19 of a civil action; it merely opined that § 108(c) applied. The 20 words "commencing" or "continuing" are not defined in the Code. 21 Arguably, the Ninth Circuit must have considered such lien 22 renewals a "continuation" of a civil action. We see nothing 23 different here. Good held money judgments that were obtained 24 through civil actions in the California state court. She then 25 took the steps necessary to obtain the ORAP from that same court, 26 which gave her the right to examine Swintek about his assets 27 available to satisfy the judgments. She then, as she alleges, 28 properly served Swintek with the ORAP thereby creating the ORAP

-13- 1 Lien on his nonexempt personal property. 2 Trustee contends that because only service is needed to 3 create an ORAP lien, it is not a "commencement" or a 4 "continuation" of a civil action. Trustee overlooks the fact that 5 while an ORAP lien is created by proper service, obtaining an ORAP 6 itself is not just some random, unconnected act. 7 An ORAP is a means by which a judgment creditor can examine 8 the judgment debtor to discover property and apply it toward the 9 satisfaction of the original money judgment. Imperial Bank v. Pim 10 Elec., Inc., 33 Cal. App. 4th 540, 546-47 (1995). A judgment 11 debtor's examination is a "supplemental proceeding attendant to 12 the [original] case." United States v. Feldman, 324 F. Supp.2d 13 1112, 1117 (C.D. Cal. 2004). Even though the initial civil action 14 may be complete, an application for an ORAP is generally filed in 15 the same court where the original money judgment was entered. CCP 16 § 708.160(a). The order is docketed in the same civil action. We 17 fail to see how an ORAP and the attendant lien to enforce the 18 money judgment is not a "continuation" of the initial civil 19 action. See In re Lobherr, 282 B.R. 912, 916 (Bankr. C.D. Cal. 20 2002)(renewal of a judgment, which is a judicially noticed process 21 and not merely a procedural act, constitutes a "continuation" of a 22 proceeding as contemplated by § 362(a)(1) and violated the 23 automatic stay). 24 Moreover, although proper service is all that is necessary to 25 obtain an ORAP lien initially, court intervention is required to 26 extend it. A party generally files a noticed motion in the 27 initial civil action requesting the extension, which the judge 28 considers and grants or denies. See Bank of Montreal v. SK Foods,

-14- 1 LLC, Case No. 11-80133, Dkt. Nos. 84 & 89 (N.D. Cal. 2013)(Notice 2 of Motion and Motion to Extend Duration of ORAP Lien and Order). 3 Thus, the renewal of an ORAP lien is clearly a "continuation" of 4 the initial civil action, if not a "commencement" of an action 5 within the initial civil action. 6 Accordingly, we hold that § 108(c) tolls the one-year 7 expiration period imposed by CCP § 708.110(d). To hold otherwise 8 "not only would create a substantial inequity, but also would give 9 the debtor the power to eliminate certain secured claims simply by 10 filing for bankruptcy at the appropriate time and then allowing 11 the limitation period to run while it remained under the 12 protection of the automatic stay. Exactly this type of inequity 13 congress [sic] sought to remedy by enacting § 108(c)[.]" In re 14 Morton, 866 F.2d at 567. Therefore, Good's ORAP Lien, assuming 15 the bankruptcy court finds it is valid upon remand, will not 16 expire until 30 days after she receives notice of the termination 17 of the automatic stay. As a result of our holding, we also 18 conclude the bankruptcy court erred in granting Trustee's renewed 19 motion for summary judgment on the basis that Good's ORAP Lien had 20 expired and so she had no claim to the levied funds. 21 VI. CONCLUSION 22 For the foregoing reasons, we VACATE and REMAND. 23 24 25 26 27 28

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