In re: Uc Lofts on 4th, LLC Uc Lofts on 5th, LLC Halifax Investments, LLC John Scafani

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: September 4, 2015
• Docket: SC-14-1287-JuKlPa SC-14-1320-JuKlPa (related appeals)
• Status: Unpublished

Opinion

FILED SEP 04 2015 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK 2 U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. SC-14-1287-JuKlPa ) BAP No. SC-14-1320-JuKlPa 6 UC LOFTS ON 4TH, LLC; UC LOFTS) (related appeals) ON 5TH, LLC; ) 7 ) Bk. No. 05-15409-CL7 Debtors. ) 8 ______________________________) Adv. No. 07-90139-CL LESLIE T. GLADSTONE, Chapter 7) 9 Trustee, ) ) 10 Appellant, ) ) 11 v. ) M E M O R A N D U M* ) 12 FRANK SCHAEFER; FRANK SCHAEFER) CONSTRUCTION CO.; FRANK ) 13 SCHAEFER CONSTRUCTION, INC. ) PENSION PLAN; SHEILA LEMIRE, ) 14 ) Appellees. ) 15 ______________________________) HALIFAX INVESTMENTS, LLC; ) 16 JOHN SCAFANI, ) ) 17 Appellants, ) ) 18 v. ) ) 19 LESLIE T. GLADSTONE, Chapter 7) Trustee, ) 20 ) Appellee.** ) 21 ______________________________) 22 Argued and Submitted on July 23, 2015 at Pasadena, California 23 24 * This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may 26 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8024-1. 27 ** NOTE TO CLERK: please change the caption to reflect the 28 above.

-1- 1 Filed - September 4, 2015 2 Appeal from the United States Bankruptcy Court for the Southern District of California 3 Honorable Christopher B. Latham, Bankruptcy Judge, Presiding 4 _________________________ 5 Appearances: Jeffry A. Davis of Mintz Levin Cohn Ferris Glovsky & Popeo argued for appellant/appellee 6 Leslie T. Gladstone, Chapter 7 Trustee; Gregg A. Johnson argued for appellant Halifax Investments, 7 LLC and appellant John Scafani; James Jay Stoffel of Beberman Stoffel & Beberman argued for 8 appellees Frank Schaefer, Frank Schaefer Construction Co., and Frank Schaefer 9 Construction, Inc. Pension Plan.*** ______________________________ 10 11 Before: JURY, Klein,**** and PAPPAS, Bankruptcy Judges. 12 Chapter 71 trustee, Leslie A. Gladstone (Trustee), filed an 13 adversary proceeding against Frank Schaefer, Frank Schaefer 14 Construction, Inc., Frank Schaefer Construction, Inc. Pension 15 Plan (collectively, the Schaefer Entities), John Scafani, Sheila 16 Lemire, Halifax Investments, LLC, and others,2 seeking to avoid 17 *** 18 Appellee Sheila Lemire has not participated in this appeal. 19 **** Hon. Christopher M. Klein, Chief United States 20 Bankruptcy Judge for the Eastern District of California, sitting by designation. 21 1 22 Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 23 “Rule” references are to the Federal Rules of Bankruptcy Procedure and “Civil Rule” references are to the Federal Rules of 24 Civil Procedure. 25 2 Trustee named others as defendants in the adversary 26 proceeding including Charles McHaffie who is mentioned below. On March 23, 2011, the bankruptcy court approved Trustee’s 27 settlement with James Warner and the Law Offices of James Warner, and with Broadsmore Capital, LLC, Centaur Construction, Matthew 28 (continued...)

-2- 1 several transfers arising out of a series of loan transactions 2 to finance the acquisition and initial development of real 3 property held by debtors, UC Lofts on 4th, LLC and UC Lofts on 4 5th, LLC (Debtors or UC Lofts). Trustee also asserted claims 5 against the Schaefer Entities seeking to avoid preferential 6 transfers and equitable subordination of the proof of claim 7 filed by Frank Schaefer Construction, Inc. (Schaefer 8 Construction). 9 The bankruptcy court bifurcated the issues for trial into 10 (1) insolvency; and (2) all others. The court held a trial in 11 February 2012 on insolvency and issued a memorandum decision 12 finding that Trustee failed to prove debtors were insolvent on 13 February 12, 2004.3 The bankruptcy court later conducted an 14 eight day bench trial in which it considered the issue of 15 Debtors’ insolvency at the time of the various transfers and all 16 remaining issues. 17 After trial, the court issued its findings of fact and 18 conclusions of law in a single judgment. The bankruptcy court 19 granted judgment in favor of the Schaefer Entities, Scafani, and 20 Lemire on the ground that Trustee had failed to meet her burden 21 of proof on all claims against them. As to Halifax, the 22 bankruptcy court awarded judgment in Trustee’s favor on the 23 24 2 (...continued) Gordon and Peter Kostopoulous. On October 24, 2011, the 25 bankruptcy court approved Trustee’s settlement with McHaffie 26 which included a stipulated judgment in the sum of $375,000. Other defendants were dismissed. 27 3 This decision was issued by Judge Meyers who has since 28 retired from the bench.

-3- 1 fraudulent transfer claim in the amount of $1,100,000 plus 2 $537,734.25 in prejudgment interest. 3 Trustee appeals from the bankruptcy court’s ruling in favor 4 of the Schaefer Entities, Scafani, and Lemire, contending that 5 the court erred in numerous ways relating to her various claims 6 (BAP No. 14-1287). Halifax appeals from the judgment against it 7 on the fraudulent transfer claim (BAP No. 14-1320). For the 8 reasons set forth below, we AFFIRM the judgment in all respects. 9 I. FACTS4 10 A. Charles McHaffie’s Purchase of Urban Coast 11 Urban Coast, LLC (“Urban Coast”) was the sole owner and 12 managing member of Debtors. The sole asset of each debtor was 13 contiguous real property near downtown San Diego, California 14 (Lofts Property), which was to be developed for mixed use and 15 known as the Atmosphere Project. McHaffie acquired 100% of the 16 membership interests of Urban Coast in two contemporaneous 17 transactions. 18 He purchased forty-nine percent of Urban Coast from Halifax 19 for $1,600,000 which was evidenced by a sale agreement (Halifax 20 Sale Agreement) and a promissory note secured by a deed of trust 21 on the Lofts Property. The Halifax Sale Agreement listed 22 McHaffie as the “Buyer,” Scafani as the “Broker,” Urban Coast as 23 the “Company” and Halifax as the “Seller.” The terms of the 24 sale agreement required McHaffie and Urban Coast to execute the 25 promissory note. McHaffie executed the promissory note on 26 27 4 We borrow heavily from the facts set forth in the 28 bankruptcy court’s memorandum decision entered March 27, 2014.

-4- 1 behalf of Urban Coast but did not sign in his individual 2 capacity. Although McHaffie pledged the Lofts Property as 3 collateral for the note, the UC Lofts entities were not parties 4 to the Halifax Sale Agreement. Halifax and Scafani promised to 5 refrain from recording the deed of trust until Urban Coast 6 obtained construction financing. McHaffie signed the deed of 7 trust against the Lofts Property but never delivered it to 8 Halifax, so it remained unrecorded. 9 Scafani, a licensed real estate broker, wholly owned and 10 managed Halifax. Under the terms of the sale agreement, Scafani 11 was to receive real estate brokerage representation rights in 12 connection with offering the finished condominium units for sale 13 and preferential rights in purchasing condominium units in the 14 Atmosphere Project. 15 A consortium known as the Broadsmore Group owned the 16 majority fifty-one percent interest in Urban Coast. McHaffie 17 paid $2,452,803 for the Broadsmore Group’s interests: 18 $1,899,625 in cash and $552,803 in a promissory note secured by 19 a deed of trust on real property held by La Bella Vida, L.P. 20 To fund the purchase of Urban Coast, McHaffie caused 21 Debtors to obtain a $4,000,000 loan from the Barth Family (Barth 22 Loan) which was evidenced by a promissory note and secured by a 23 first priority trust deed on the Lofts Property. Debtors also 24 obtained a loan from the Frank Schaefer Construction Inc. 25 Pension Plan (Schaefer Pension) in the amount of $1,750,000 26 which was evidenced by a promissory note and secured by a junior 27 trust deed on the Lofts Property (Schaefer Initial Loan). 28 McHaffie applied $4,527,600 from the Barth and Schaefer

-5- 1 Loans to purchase Urban Coast and pay various loan fees, 2 appraisal fees, commission, taxes and other expenses. He 3 deposited $1,222,400 into a fund control account (First Fund 4 Control) controlled by the Schaefer Pension. Around the same 5 time, the parties entered into an agreement to govern 6 disbursements out of the fund control account (Fund Control 7 Agreement). Under the agreement, funds would be disbursed to 8 McHaffie upon written order for payment of items relating to the 9 development of the Lofts Property. The $1,222,400 amount was 10 based on a proposed budget for the project which consisted of 11 various line item costs related to, among other things, shoring 12 and concrete, excavation, equipment rental, and the like. 13 When McHaffie acquired Urban Coast there were two deeds of 14 trust against the Lofts Property which were unrecorded. One 15 deed of trust allegedly secured a $3,400,000 obligation to Urban 16 Coast (UC DOT) and the other allegedly secured a $100,000 17 obligation to SD Lofts, LLC (SD Lofts DOT).5 Those debts were 18 not paid off with the Barth and Schaefer Loans. 19 McHaffie’s transactions for the purchase of Urban Coast 20 closed on February 12, 2004. At that time, Debtors’ total 21 assets were the Lofts Property and $1,224,900 held in the First 22 Fund Control account. 23 Between February 12, 2004 and April 2, 2004, Debtors made 24 numerous transfers from the First Fund Control: $20,000 on 25 February 23, 2004 to the Schaefer Pension Plan for 26 5 27 As further discussed below, whether or not these deeds of trust secured valid and enforceable obligations of Debtors was a 28 contested issue at trial relating to the issue of insolvency.

-6- 1 “Reimbursement–Management;” $5,000 on March 5, 2004 to James 2 Warner, Esq. for “Legal;” $20,000 on March 5, 2004 to 3 Charlemagne McHaffie6 for “Funds to Borrower;” $50,000 on 4 March 8, 2004 to Ron Bedell for “Commission;” and $20,000 on 5 April 1, 2004 to Charlemagne McHaffie with no stated purpose. 6 B. The Schaefer Construction April 2, 2004 loan for $1,200,000 7 On April 2, 2004, Debtors borrowed $1,200,000 from Schaefer 8 Construction (April 2, 2004 Loan) which was evidenced by a 9 straight note and secured by a third position deed of trust on 10 the Lofts Property. The UC and SD Lofts DOTs were subordinated 11 to the April 2, 2004 Loan. 12 McHaffie used the April 2, 2004 Loan proceeds to exercise 13 an option to purchase a Nevada limited liability company, 14 Tropicana Partners, LLC (Tropicana). Tropicana’s primary asset 15 was commercial real property in Las Vegas, Nevada. Debtors made 16 the following additional payments to acquire Tropicana: 17 $100,000 on May 20, 2004 to Santoro, Driggs for legal fees; 18 $1,000 on May 24, 2004 to Lawyer’s Title for title fees; $50,000 19 on May 26, 2004 to Fred Young for “Deposit, per borrower;” 20 $5,010 on June 17, 2004 to Santoro, Driggs for legal fees; 21 $10,000 on July 21, 2004 to Santoro, Driggs for legal fees; 22 $300,000 on July 21, 2004 to Joy Turner for “Deposit, per 23 borrower;” and $60,000 on July 21, 2004 to Santoro, Driggs for 24 legal fees. 25 During this time period, Debtors also made the following 26 transfers from the First Fund Control that were unrelated to the 27 28 6 Charlemagne was evidently Charles’ son.

-7- 1 Tropicana acquisition or the Atmosphere Project: $10,000 on 2 May 14, 2004 to James Warner for legal fees; $46,666.67 on 3 July 8, 2004 to Pacific Horizon Financial for “Interest payment, 4 1st TD;” and $20,416.67 on July 8, 2004 to Action Loan Servicing 5 for “Interest payment; 2nd TD.” The last two transfers went to 6 pay down interest on McHaffie’s personal residence. 7 On August 17, 2004, Debtors made a $36,000 interest payment 8 toward the April 2, 2004 Loan. 9 On August 20, 2004, Schaefer Construction initiated a 10 nonjudicial foreclosure on the Lofts Property by recording a 11 notice of default and sale. The notice of sale was subsequently 12 rescinded in January 2005. 13 C. The Schaefer Entities September 24, 2004 loan for $2,500,000 14 15 On September 24, 2004, the Schaefer Entities loaned Debtors 16 another $2,500,000 (Second Loan). The Second Loan was secured 17 by an assignment of the $3,400,000 UC DOT which was property of 18 Urban Coast, not Debtors. Frank Schaefer later testified that 19 there was no note in connection with the UC DOT: “[i]t was a 20 bogus deal. That note actually didn’t exist. The deed of trust 21 did, but there was no note. So there was nothing owing on it. 22 So I took something of no value.” 23 The Schaefer Entities initially funded the Second Loan 24 with $500,000 and charged $35,312 as a loan origination fee. 25 Debtors directed $100,000 of the Second Loan proceeds to pay 26 Hawkins & Hawkins Architects, Inc. to maintain the necessary 27 building permits on the Lofts Property and deposited the 28 remaining $365,688 into a second fund control account (Second

-8- 1 Fund Control). 2 After receiving the Second Loan proceeds, Debtors made the 3 following transfers from the First Fund Control: $37,000 on 4 October 8, 2004 to Charlemagne Ed. Trust for “Funds to 5 Borrower;” $35,000 on October 8, 2004 to WH-TH for “Funds to 6 Borrower;” $10,000 on October 8, 2004 to Charlemagne McHaffie 7 Trust for “Funds to Borrower;” and $4,097.83 on October 15, 2004 8 to the City of San Diego to fund a bond. After these transfers, 9 the First Fund Control was overdrawn by $2,179.50. 10 D. The Schaefer Entities November 19, 2004 loan for $4,000,000 and Halifax Settlement for $1,100,000 11 12 Scafani discovered that the Schaefer Entities trust deed in 13 relation to the April 2, 2004 Loan had been recorded on 14 April 10, 2004, making it senior to Halifax’s yet-to-be 15 delivered and recorded deed of trust. Because this was contrary 16 to the terms of the parties’ agreement, on June 25, 2004, 17 Halifax and Scafani filed a lawsuit against McHaffie and Urban 18 Coast for breach of contract and fraud seeking rescission of the 19 Halifax Sale Agreement. Halifax did not name Debtors as 20 defendants. Halifax and Scafani also recorded a lis pendens 21 against the Lofts Property in connection with the state court 22 lawsuit. 23 On November 18, 2004, McHaffie, Halifax, Scafani, Urban 24 Coast, the Schaefer Entities, and others entered into a 25 settlement agreement and mutual release (Halifax Settlement 26 Agreement). According to the settlement, Halifax and Scafani 27 agreed to dismiss the lawsuit against McHaffie and Urban Coast 28 and withdraw the lis pendens against Debtors. In exchange, they

-9- 1 would receive payment of $1,100,000 million which reflected a 2 $500,000 discount on the promissory note executed by McHaffie on 3 behalf of Urban Coast. 4 By mid-November 2004, the First Fund Control displayed a 5 negative balance, the Schaefer Entities had filed a notice of 6 default related to the April 2, 2004 Loan, and Debtors had no 7 other sources of capital. At the time, Schaefer and McHaffie 8 were negotiating the transfer of the Tropicana property to 9 satisfy the April 2, 2004 Loan and they also discussed a 10 possible new loan. Eventually, McHaffie agreed to assign the 11 interest in the Tropicana property to Schaefer Construction in 12 full payment and cancellation of the April 2, 2004 note executed 13 in the sum of $1,200,000. 14 These events converged to precipitate an immediate need for 15 capital. On November 19, 2004, Schaefer Construction loaned 16 Debtors an additional $4,000,000 (Third Loan), which was 17 evidenced by a promissory note and secured by the Lofts 18 Property. This loan was arranged by a licensed real estate 19 broker, Edward Spooner of Lending Associates, and funded in the 20 initial amount of $1,165,000. The escrow instructions routed 21 $1,100,000 of the loan proceeds directly to Halifax, charged a 22 $210,500 loan origination fee and charged $52,500 as an 23 extension fee for the Schaefer Initial Loan. Scafani testified 24 at trial that Halifax disbursed the $1,100,000 to its creditors. 25 The withdrawal of the lis pendens was also part of the escrow 26 agreement. When the funds were distributed by escrow, the 27 Notice of Withdrawal of the Notice of Pendency Of Action was 28 recorded.

-10- 1 The Third Loan also extinguished the Second Loan. Debtors 2 transferred $206,552.65 from the Second Fund Control and 3 $299,447.35 from the Third Loan proceeds to pay off the $500,000 4 funded under the Second Loan. This transfer left the Second 5 Fund Control with a zero balance. Schaefer Construction 6 advanced another $111,600 under the Third Loan on November 22, 7 2004 to replenish the deficiency. This left a $6,413.69 balance 8 in the Second Fund Control. After the Third Loan, the Schaefer 9 Entities made no new loans to Debtors. 10 On December 30, 2004, at McHaffie’s request, Schaefer 11 Construction assigned the April 2004 note and deed of trust to 12 Lemire.7 On April 18, 2005, Lemire executed and recorded a 13 Substitution of Trustee and Full Reconveyance of the April 2, 14 2004 deed of trust. 15 E. The April 2005 global settlement 16 In April 2005, Debtors and Schaefer Construction entered 17 into a workout agreement whereby Schaefer Construction agreed to 18 provide $1,130,000 in additional funding under the terms of the 19 Third Loan. The agreement reinstated and extended the Third 20 Loan’s maturity date and paid delinquent real property taxes. 21 Under the agreement, Debtors were also required to reconvey all 22 deeds of trust junior to the Third Loan, which included the 23 deeds of trust securing the $3,400,000 debt owed to Urban Coast, 24 the $100,000 debt owed to SD Lofts, and the April 2, 2004 Loan 25 deed of trust that Schaefer had assigned to Lemire. The only 26 7 27 Trustee argues that this assignment of the deed of trust made Lemire a subsequent transferee liable for $1,200,000 arising 28 out of the April 2, 2004 Loan.

-11- 1 advances that the Schaefer Entities made after April 15, 2004 2 under the Third Loan went to pay off the $1,750,000 Schaefer 3 Initial Loan. 4 F. The sale of Tropicana by Lemire 5 In September of 2005, Lemire paid Schaefer Construction 6 $70,000 for a lease option to purchase the Tropicana property. 7 In April 2006, after substantial work in repairing and releasing 8 the individual units, Lemire was able to generate approximately 9 $200,000 to $500,000 in net income on the sale of the Tropicana 10 property. 11 G. Involuntary Chapter 11 12 On October 25, 2005, three unsecured creditors of Debtors 13 filed involuntary chapter 11 petitions against them. Debtors 14 initially contested the petition. In January 2006, they 15 withdrew their answers to the involuntary petitions and an order 16 for relief was entered. 17 On April 17, 2006, Gladstone was appointed the chapter 11 18 trustee for both debtors. The bankruptcy court later entered an 19 order directing the joint administration of the related 20 chapter 11 cases. 21 In early September 2006, the bankruptcy court entered an 22 order terminating the automatic stay in favor of Schaefer 23 Construction. Schaefer Construction foreclosed on the Lofts 24 Property and became the owner. Schaefer then sold the Lofts 25 Property through an LLC to Alpha and Omega Development, LLC for 26 $6,000,000 and paid $5,312,330.37 out of escrow to First 27 National Bank, the successor beneficiary to the Barth note. The 28 Schaefer Pension Plan also made an additional $1,250,000 hard

-12- 1 money loan to Alpha and Omega Development, LLC secured behind a 2 purchase money loan from Dunham & Associates of $3,700,000 3 secured by a first deed of trust. Ultimately, the holder of the 4 first trust deed foreclosed out the Schaefer Entities’ interest 5 in the Lofts Property. 6 Schaefer Construction filed a secured proof of claim in 7 Debtors’ case alleging that the amount it was owed on account of 8 the Third Loan was $5,678,351.50. 9 On October 20, 2006, Debtors’ cases were converted to 10 chapter 7 and Gladstone was appointed the chapter 7 trustee. 11 H. The Adversary Proceeding 12 On April 2, 2007, Trustee filed the adversary complaint 13 which is the subject of this appeal. Trustee asserted claims 14 against the Schaefer Entities for: (1) avoidance and recovery of 15 fraudulent transfers; (2) avoidance and recovery of preferential 16 transfers; (3) aiding and abetting breach of fiduciary duty; 17 (4) declaratory relief that Frank Schaefer was a partner of 18 Debtors; (5) equitable subordination of Schaefer Construction's 19 claims; (6) breach of fiduciary duty to Debtors; and 20 (7) conversion.8 Trustee also sought to avoid allegedly 21 fraudulent transfers to, or for the benefit of, defendants 22 8 23 The Schaefer Entities filed a motion for summary judgment which was granted in part and denied in part. The bankruptcy 24 court granted summary judgment in their favor as to Trustee’s eleventh and thirteenth claims for relief on usury relating to 25 the first loan, first loan extensions and the third November 2004 26 loan of $4,000,000. Trustee withdrew the twelfth claim for usury in connection with the September 24, 2004 loan for $2,500,000 27 which was funded in the amount of $500,000. Trustee also withdrew her tenth claim for relief for alter ego prior to the 28 hearing on the motion for summary judgment.

-13- 1 Lemire, Scafani and Halifax. 2 The adversary proceeding was assigned to Judge James M. 3 Meyers. Judge Meyers bifurcated the trial, with the initial 4 session on whether Debtors were insolvent as of February 12, 5 2004 (the date McHaffie acquired 100% membership interest in 6 Urban Coast). At the trial on insolvency, Judge Meyers 7 concluded that the value of Debtors’ assets on that date was “in 8 the range of $8 million to $9.5 million,” and the liabilities 9 were $6,154,531. The bankruptcy court did not explain how it 10 reached its decision. In an April 17, 2012 status report, 11 Trustee requested the court to issue a supplemental decision 12 with specific findings regarding the value. No supplemental 13 decision was issued. Judge Meyers retired and the case was 14 reassigned to Judge Christopher Latham. 15 Following an eight day trial, the bankruptcy court issued 16 its memorandum decision on March 27, 2014. The court found that 17 the value of the Lofts Property was $7,366,306 as of April 2004, 18 and $8,225,954 as of November 24, 2004. The court also found 19 that the Schaefer Entities were not insiders of the Debtors. In 20 ruling on the fraudulent transfer claims, the court found that: 21 (1) after the April 2, 2004 Loan, Debtors’ liabilities were 22 $7,118,385.52 and, therefore, Debtors’ assets9 exceeded their 23 debts by $1,205,920.48; (2) the Third Loan and the $1,100,000 24 payment to Halifax ultimately rendered Debtors insolvent because 25 by November 22, 2004, Debtors’ liabilities greatly exceeded 26 27 9 Debtors’ assets also included monies in the First Control 28 Fund.

-14- 1 their assets and they were balance sheet insolvent by at least 2 $964,797.33; (3) the Third Loan and the $1,100,000 payment to 3 Halifax left Debtors with unreasonably small assets; 4 (4) transfers related to Tropicana and the April 2, 2004 Loan 5 were not fraudulent as to the Schaefer Entities; (5) transfers 6 related to the Second and Third Loans and Halifax payment were 7 not fraudulent as to the Schaefer Entities; (6) Trustee failed 8 to meet her burden that Lemire was a subsequent transferee of 9 the Tropicana property or that she did not provide reasonably 10 equivalent value; (7) the payment to Halifax was constructively 11 fraudulent and should be avoided; and (8) neither Scafani nor 12 Halifax provided reasonably equivalent value for the $1,100,000 13 transfer. 14 Trustee had also sought to avoid as preferential transfers 15 two payments totaling $506,000 made by Debtors to the Schaefer 16 Entities. The bankruptcy court found the Schaefer Entities were 17 not insiders and thus the extended preference period did not 18 apply. Therefore, the transfers were not recoverable as 19 preferences. 20 Finally, on the equitable subordination claim, the 21 bankruptcy court found Trustee had not met her burden to 22 equitably subordinate Schaefer Construction’s proof of claim. 23 Since the court found that none of the Schaefer Entities were 24 insiders or partners of Debtors, the burden remained with 25 Trustee to prove circumstances justifying subordination. In the 26 end, the court found that the evidence did not establish 27 inequitable conduct. 28 The bankruptcy court entered judgment on the adversary

-15- 1 complaint on the same date it issued its memorandum decision, 2 awarding judgment as to all claims in favor of the Schaefer 3 Entities, Scafani, and Lemire and awarding judgment against 4 Halifax in the amount of $1,100,000, plus interest. 5 Trustee filed a motion to amend the judgment on April 10, 6 2014. The Schaefer defendants filed a response. 7 On June 6, 2014, the bankruptcy court issued an order on 8 Trustee’s motion resulting in a two page revision of the 9 memorandum decision with no change in the judgment. On the same 10 day, Trustee filed her notice of appeal.10 On June 20, 2014, 11 Halifax filed its related appeal. 12 II. JURISDICTION 13 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 14 §§ 1334 and 157(b)(2)(A) and (H). We have jurisdiction under 15 28 U.S.C. § 158. 16 III. ISSUES 17 FRAUDULENT TRANSFER CLAIMS: SCHAEFER ENTITIES AND LEMIRE 18 1. Did the bankruptcy court err by considering parol 19 evidence to explain or construe the payment provision in the 20 November 2004 Halifax Settlement Agreement which stated that 21 Frank Schaefer Construction “shall pay” to Halifax the sum of 22 $1,100,000? 23 2. Did the bankruptcy court err by not including the 24 $3,400,000 Urban Coast obligation and $100,000 SD Lofts 25 obligation in its insolvency analysis as of April 2, 2004 when 26 27 10 Trustee subsequently filed two amended notices of appeal 28 with no substantive changes.

-16- 1 those obligations were “stipulated facts” in the pretrial order? 2 3. Did the bankruptcy court err by determining that 3 Schaefer Construction gave reasonably equivalent consideration 4 for the April 2, 2004 Loan? 5 4. Did the bankruptcy court err by failing to place the 6 burden of proof on Sheila Lemire to establish her good faith 7 defense as a subsequent transferee? 8 FRAUDULENT TRANSFER CLAIM: HALIFAX 9 1. Did the bankruptcy court err by determining that the 10 $1,100,000 payment from Debtors to Halifax was a fraudulent 11 transfer because Halifax was not a secured creditor based on the 12 filing of the lis pendens? 13 2. Did the bankruptcy court err in determining that 14 Halifax did not give reasonably equivalent value for the 15 $1,100,000 payment by releasing its $1,600,000 note, dismissing 16 its lawsuit, and withdrawing the lis pendens against the Lofts 17 Property? 18 3. Did the bankruptcy court err in determining that 19 Scafani was not liable for receiving a fraudulent transfer 20 because the entire $1,100,000 transfer went to Halifax’s 21 creditors and Scafani did not receive any of the funds? 22 AIDING AND ABETTING BREACH OF FIDUCIARY DUTY: SCHAEFER ENTITIES 23 Did the bankruptcy court err by finding that the Schaefer 24 Entities did not have actual knowledge of McHaffie’s 25 defalcations as they occurred for purposes of aiding and 26 abetting McHaffie’s breach of fiduciary duty under California 27 law? 28

-17- 1 PREFERENTIAL TRANSFER CLAIM: SCHAEFER CONSTRUCTION 2 Did the bankruptcy court err by determining that the 3 Schaefer Entities were not “insiders” within the meaning of 4 §§ 101(1) and 547? 5 EQUITABLE SUBORDINATION: SCHAEFER CONSTRUCTION 6 Did the bankruptcy court err by determining that the 7 Schaefer Entities had not engaged in inequitable conduct? 8 IV. STANDARDS OF REVIEW 9 We review findings of fact for clear error and conclusions 10 of law and mixed questions of law and fact de novo. Banks v. 11 Gill Distrib. Ctrs., Inc., 263 F.3d 862, 867 (9th Cir. 2001). 12 A bankruptcy court’s factual determination is clearly 13 erroneous if it is illogical, implausible, or without support in 14 the record. United States v. Hinkson, 585 F.3d 1247, 1261-62 & 15 n.21 (9th Cir. 2009) (en banc) (quoting Anderson v. City of 16 Bessemer City, N.A., 470 U.S. 564, 577 (1985)) (explaining that 17 the clearly erroneous standard of review is an element of the 18 clarified abuse of discretion standard). Where there is 19 admitted evidence in the record to support the bankruptcy 20 court’s fact findings, an appellate court cannot substitute its 21 views of the facts for those of the bankruptcy court. Anderson, 22 470 U.S. at 573. “Where there are two permissible views of the 23 evidence, the factfinder’s choice between them cannot be clearly 24 erroneous.” Id. at 574. 25 The determination of insider status is a question of fact 26 to be reviewed under the clearly erroneous standard. Friedman 27 v. Sheila Plotsky Brokers, Inc. (In re Friedman), 126 B.R. 63, 28 67 (9th Cir. BAP 1991).

-18- 1 The bankruptcy court’s decision regarding equitable 2 subordination is reviewed for abuse of discretion. Paulman v. 3 Gateway Venture Partners III (In re Filtercorp, Inc.), 163 F.3d 4 570, 587 (9th Cir. 1998). A court abuses its discretion when it 5 fails to identify and apply “the correct legal rule to the 6 relief requested,” or if its application of the correct legal 7 standard was “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without 8 ‘support in inferences that may be drawn from the facts in the 9 record.’” Hinkson, 585 F.3d at 1262-63. 10 We may affirm the bankruptcy court’s decision on any ground 11 supported by the record. Olsen v. Zerbetz (In re Olsen), 12 36 F.3d 71, 73 (9th Cir. 1994). 13 V. DISCUSSION 14 A. Fraudulent Transfers: Schaefer Entities and Lemire 15 Section 544(b)(1) provides that a trustee “may avoid any 16 transfer of an interest of the debtor in property or any 17 obligation incurred by the debtor that is voidable under 18 applicable law by a creditor holding an unsecured claim . . . .” 19 Trustee, acting in her capacity as an unsecured creditor, seeks 20 to avoid certain transfers to the Schaefer Entities and Lemire 21 under California’s Uniform Fraudulent Transfer Act (UFTA). See 22 Cal. Civ. Code § 3439 et. seq.; see also Gen. Elec. Capital Auto 23 Lease, Inc. v. Broach (In re Lucas Dallas, Inc.), 185 B.R. 801 24 (9th Cir. BAP 1995) (noting that the California UFTA “only 25 confers standing upon a ‘creditor’ of the debtor” citing Cal. 26 Civ. Code § 3439.07(a)). 27 Under California’s UFTA, a transfer is constructively 28 fraudulent if the debtor made the transfer without receiving

-19- 1 reasonably equivalent value in exchange and the debtor either: 2 (1) was engaged or was about to engage in a business or a 3 transaction for which the remaining assets of the debtor were 4 unreasonably small in relation to the business or transaction; 5 or (2) intended to incur, or believed or reasonably should have 6 believed that he or she would incur, debts beyond his or her 7 ability to pay as they became due; or (3) was insolvent at the 8 time, or was rendered insolvent by the transfer or obligation. 9 Cal. Civ. Code §§ 3439.04(a), 3439.05. 10 1. The bankruptcy court did not err by considering parol evidence to construe the payment provision contained 11 in the November 2004 Halifax Settlement Agreement. 12 The Halifax Settlement Agreement provides in relevant part: 13 SETTLEMENT TERMS: CASH. In full and final settlement of all claims, whether or not said claims have been 14 set forth in the LITIGATION, SCHAFFER [sic] [Construction] shall pay to HALIFAX, in cash, the sum 15 of One Million One Hundred Thousand Dollars ($1,100,000). 16 17 “Schaefer” is defined in the settlement as “Frank Schaefer 18 Construction, Inc.” and the agreement contained an integration 19 clause. 20 Trustee contends on appeal, as she did at trial, that 21 Schaefer Construction did not pay the $1,100,000 as required 22 under the settlement agreement, instead requiring Debtors to use 23 proceeds from the Third Loan to pay Schaefer Construction’s 24 obligation. According to Trustee, because Debtors were 25 insolvent on the date of the transfer, the payment of $1,100,000 26 by Debtors to Halifax to satisfy the debt of Schaefer 27 Construction was fraudulent. In addressing these arguments, the 28 bankruptcy court found:

-20- 1 The Trustee contends that this provision shifts the obligations owed by Urban Coast and McHaffie under the 2 Halifax Sale Agreement onto Schaefer. The court disagrees. None of the Schaefer Entities was a party 3 to either the Halifax Sale Agreement or the lawsuit filed by Scafani and Halifax. Rather than imposing a 4 legal obligation on the Schaefer Entities, the court interprets this provision—which, like the rest of the 5 document, was quite loosely drafted—as merely recognizing the source of payment. 6 7 Trustee contends that the court’s ruling was erroneous because 8 an unambiguous contract is interpreted as a matter of law 9 without the use of parol evidence. Trustee argues that the 10 payment provision here was unambiguous and susceptible to only 11 one interpretation — Schaefer Construction was the party 12 obligated to pay the $1,100,000 — “pay means pay.” In finding 13 otherwise, the court had inappropriately relied on evidence not 14 on the face of the agreement. 15 The parol evidence rule has no applicability in this case 16 for two reasons. First, Trustee stepped into the shoes of an 17 unsecured creditor of the estate by invoking § 544(b). The 18 parol evidence rule does not apply to disputes with third 19 parties. 20 In an action between a party to a contract and a third party the rule that parol evidence cannot be received 21 to contradict or vary a written contract does not apply, as the estoppel on which the rule rests must be 22 mutual, and, since the third person is not bound by the contract as written, neither is his adversary in 23 the action. 24 Penberthy v. Vahl, 101 Cal.App.2d 1, 4 (1950); see also Alberts 25 v. HCA Inc. (In re Greater Se. Cmty. Hosp. Corp. I), 365 B.R. 26 315, 318–19 (Bankr. D.D.C. 2007) (noting that a creditor would 27 be “a third person, not a party to, nor representing a party to, 28 the act.”). Second, regardless of whether this rule applies in

-21- 1 this case, “the ‘very essence’ of a fraudulent transfer suit is 2 to identify the ‘true nature’ of a transaction, and ‘the parol 3 evidence rule can[not] function as a false prophet to preclude 4 consideration of evidence of the true nature of the transaction 5 in question.” In re Greater Se. Cmty. Hosp. Corp. I, 365 B.R. 6 at 318 (citing Gaudet v. Babin (In re Zedda), 103 F.3d 1195, 7 1206 (5th Cir. 1997) (holding that trustee could not use parol 8 evidence to exclude evidence in fraudulent conveyance suit 9 brought under § 548)). Accordingly, this assignment of error is 10 not grounds for reversal. 11 2. The bankruptcy court did not err by determining that Debtors’ assets exceeded their liabilities as of 12 April 2, 2004. 13 Under Cal. Civ. Code § 3439.02(a), “[a] debtor is insolvent 14 if, at fair valuations, the sum of the debtor’s debts is greater 15 than all of the debtor’s assets.” For purposes of the 16 fraudulent transfer claims, the bankruptcy court examined 17 Debtors’ financial condition from February 13, 2004 to 18 November 24, 2004 (Relevant Period).11 Regarding Debtors’ 19 liabilities, the bankruptcy court found: 20 Defendant Scafani testified credibly that no accompanying note existed to support the UC DOT. Nor 21 did Plaintiff provide any evidence of a signed note. Further, McHaffie signed for SD Lofts, LLC in all 22 relevant transactions. Ultimately, both the SD Lofts DOT and the UC DOT were reconveyed. Neither SD Lofts, 23 LLC nor Urban Coast ever demanded payment on these purported obligations during the relevant period 24 between February 13, 2004 and November 24, 2004. The court therefore finds that the UC DOT and SD Lofts DOT 25 were not liabilities owed by Debtors. Nevertheless, 26 11 27 This period starts the day after McHaffie’s purchase of 100% of Urban Coast closed and ends on the date the Schaefer 28 Entities made their last loan to Debtors.

-22- 1 to facilitate the First Loan transaction, Urban Coast and SD Lofts, LLC agreed to subordinate their 2 respective trust deeds. 3 Accordingly, the bankruptcy court did not include the UC or SD 4 Lofts debts when calculating Debtors’ liabilities at the time of 5 the April 2, 2004 Loan and found Debtors were solvent. 6 Trustee argues on appeal that the bankruptcy court’s 7 decision to exclude these debts from its solvency calculation 8 was based on her not producing any signed notes. Trustee 9 asserts that she did not need to produce the notes because the 10 pretrial order contained stipulated facts which conclusively 11 established the existence of both a loan and note in favor of 12 Urban Coast in the amount of $3,400,000 and a loan and note in 13 favor of SD Lofts in the amount of $100,000. Therefore, 14 according to Trustee, the bankruptcy court was required as a 15 matter of law to consider these obligations in its insolvency 16 analysis. Finally, Trustee maintains there was a “mountain of 17 evidence” establishing these debts. 18 The undisputed facts in the pretrial order relied upon by 19 Trustee are: 20 (10) On February 11, 2004, SD Lofts, LLC executed a Subordination Agreement, subordinating a note in its 21 favor in the sum of $100,000 dated October 16, 2003, in favor of Urban Coast and secured by the UC Lofts 22 Real Property to the Barth Note. 23 (11) On February 11, 2004, Urban Coast executed a subordination agreement, subordinating a note held by 24 it and secured by the UC Lofts Real Property in the amount of $3,400,000 dated August 1, 2003 to a 25 $4,000,000 [sic] by the Barths. 26 (12) On April 2, 2004, Schaefer Construction extended UC Lofts a loan in the amount of $1,200,000, secured 27 by a junior deed of trust on the UC Lofts Real Property . . . . 28

-23- 1 . . . . 2 (14) On April 13, 2004, Urban Coast executed a Subordination Agreement, subordinating a loan in the 3 amount of $3,400,000 dated August 1, 2003, in favor of Urban Coast and secured by UC Lofts Real Property, to 4 the April 2, 2004 Note in favor of Schaefer Construction. 5 (15) On April 13, 2004, SD Lofts executed a 6 Subordination Agreement, subordinating a loan in the sum of $100,000 dated as of October 16, 2003, in favor 7 of Urban Coast and secured by UC Lofts Real Property to the April 2, 2004 Note in favor of Schaefer 8 Construction. 9 Generally, “parties are bound by stipulated facts in a 10 pretrial order.” E.H. Boly & Son, Inc. v. Schneider, 525 F.2d 11 20, 23 n.5 (9th Cir. 1975) (citing Civil Rule 16). But here 12 the language used in the stipulated facts does not clearly show 13 that the parties agreed that there were underlying and 14 enforceable debts owed by Debtors to Urban Coast and SD Lofts. 15 Rather, under a plain language interpretation these stipulated 16 facts at most show that the parties acknowledged the four 17 recorded subordination agreements. Indeed, the pretrial order 18 preserved the issue of Debtors’ insolvency, and facts and 19 evidence supporting the parties’ positions were before the 20 bankruptcy court. Trustee had an opportunity to rebut the 21 evidence which refuted the existence of the UC and SD Lofts 22 obligations. Moreover, she did not refer us to any portion of 23 the record where she objected to the court’s consideration of 24 this evidence, asserting it was not relevant because the debt 25 was “admitted” in the pretrial order. Accordingly, nothing in 26 the record shows Trustee was relying on the pretrial order to 27 establish the existence of these obligations. 28 The record shows that Scafani testified that the

-24- 1 transaction that would have resulted in the $3,400,000 2 obligation was never consummated and the bankruptcy court found 3 his testimony credible. “When factual findings are based on 4 determinations regarding the credibility of witnesses, we give 5 great deference to the bankruptcy court’s findings, because the 6 bankruptcy court, as the trier of fact, had the opportunity to 7 note ‘variations in demeanor and tone of voice that bear so 8 heavily on the listener’s understanding of and belief in what is 9 said.’” Anderson, 470 U.S. at 575. We thus defer to the 10 bankruptcy court’s reasonable assessment of Scafani’s 11 credibility. In addition, although the Schaefer Entities 12 acknowledged the existence of the Urban Coast and SD Lofts debts 13 each time they made a loan to Debtor, this acknowledgment does 14 not show that such debts were valid. Frank Schaefer also 15 testified that there was no note in connection with the 16 $3,400,000 million Urban Coast obligation. In short, other than 17 the subordination agreements regarding the UC DOT, there is no 18 evidence in the record that refutes Scafani’s or Schaefer’s 19 testimony. 20 Trustee also points to no evidence in the record - other 21 than the subordination agreements - that establishes the 22 SD Lofts debt. The bankruptcy court noted that McHaffie had 23 signed the deed of trust on behalf of SD Lofts but there was no 24 demand for payment on the underlying note between February 12, 25 2004 and November 24, 2004. 26 Simply put, Trustee’s “mountain of evidence” is not in the 27 record. Accordingly, the bankruptcy court committed no clear 28 error by excluding the Urban Coast or SD Lofts debts when

-25- 1 calculating Debtors’ liabilities during the Relevant Period. 2 3. The transfer of the deed of trust in connection with the April 2, 2004 Loan was not fraudulent. 3 4 Under Cal. Civ. Code § 3439.04(a)(2)(A), “[a] transfer made 5 or obligation incurred by a debtor is fraudulent as to a 6 creditor . . . if the debtor made the transfer or incurred the 7 obligation [w]ithout receiving a reasonably equivalent value in 8 exchange for the transfer or obligation, and the debtor . . . 9 [w]as engaged or was about to engage in a business or a 10 transaction for which the remaining assets of the debtor were 11 unreasonably small in relation to the business or transaction.” 12 Trustee seeks to avoid as fraudulent transfers the deed of 13 trust Debtors gave to Schaefer Construction in connection with 14 the April 2, 2004 Loan and the later transfers of Tropicana to 15 Schaefer and Lemire. Trustee contends that because the loan 16 funds went to purchase Tropicana, the deed of trust given to 17 Schaefer Construction was a “transfer” of Debtors’ property for 18 no consideration and thus was fraudulent. Trustee further 19 asserts that “since proper recognition of the stipulated Urban 20 Coast and SD Lofts debts establishes that Debtors were insolvent 21 as of April 2, 2004, the granting of a deed of trust on the 22 Lofts Property was without question a fraudulent transfer that 23 should be avoided.” 24 As previously discussed, the bankruptcy court did not err 25 by omitting the Urban Coast and SD Lofts debts when determining 26 Debtors’ assets and liabilities at the time of the April 2, 2004 27 Loan. Therefore, as the bankruptcy court found, Debtors were 28 balance sheet solvent on and after the April 2, 2004 Loan and

-26- 1 were not left with unreasonably small assets as a result. 2 Because Trustee failed to prove an essential element of her 3 fraudulent transfer claim related to the April 2, 2004 Loan, the 4 claim fails and we need not resolve the other related elements, 5 including whether reasonably equivalent value existed. 6 Accordingly, there is no basis to reverse the bankruptcy court’s 7 judgment in favor of Schaefer Construction on this fraudulent 8 transfer claim. 9 4. The bankruptcy court did not err by misapplying the burden of proof with respect to the fraudulent 10 transfer liability of Lemire. 11 Cal. Civ. Code § 3439.08(a) states that “[a] transfer or an 12 obligation is not voidable under subdivision (a) of [Cal. Civ. 13 Code section] 3439.04, against a person who took in good faith 14 and for a reasonably equivalent value. . . .” Thus, a showing 15 of good faith and reasonably equivalent value is all that is 16 required to defeat a creditor’s action based on Cal. Civ. Code 17 § 3439.04(a). Obviously, if a transfer is made both in good 18 faith and for a reasonably equivalent value, then the transfer 19 is not a fraudulent transfer under Cal. Civ. Code § 3439.04(b) 20 either, since subdivision (b) applies only to transfers made 21 without receipt of reasonably equivalent value. Cal. Civ. Code 22 § 3439.08(b)(2) authorizes the creditor to obtain judgment 23 against a subsequent transferee. 24 In its memorandum decision, the bankruptcy court found: 25 The Trustee's remaining fraudulent transfer claim against Lemire derives from her claim against the 26 Schaefer Entities arising out of the Tropicana transaction. Specifically, the Trustee seeks to 27 recover whatever profit Lemire gained from her sale of the Tropicana property. 28

-27- 1 As noted above, the Tropicana LLC interests or the underlying real property never belonged to the 2 Debtors. Further, Lemire contributed value for the property. She paid $70,000 for an option to purchase 3 it from Schaefer. She then borrowed funds to improve the property and reduced the vacancy rate through her 4 own labors. Lemire sold the Tropicana real property for $5,750,000. But she could not state with 5 certainty the amount she received from the transaction after accounting for payments to Schaefer and the 6 liens against property. And the Trustee did not offer any evidence on the amount Lemire may have personally 7 profited from the sale. 8 The court therefore finds that the Trustee has failed to meet her burden of showing that Lemire was a 9 subsequent transferee of property of the Debtors or that she did not provide reasonably equivalent value. 10 The court will enter judgment in Lemire's favor. 11 As discussed above, Trustee asserted Debtors’ transfer of 12 the deed of trust to Schaefer Construction was fraudulent. 13 Schaefer Construction later assigned the April 2, 2004 note and 14 deed of trust to Lemire on December 30, 2004. Therefore, 15 Trustee contends that Lemire is a subsequent transferee who is 16 liable, the same as Schaefer Construction, for the fraudulent 17 transfer of the $1,200,000 trust deed. Trustee further argues 18 that Lemire had the defense, if she could establish it, that she 19 took the transfer for value and in good faith. Cal. Civ. Code 20 § 3439.08(b)(2). Trustee asserts that the bankruptcy court 21 improperly placed the burden on her, rather than Lemire, to 22 prove value and good faith. 23 The bankruptcy court found that the deed of trust recorded 24 on April 14, 2004, in connection with the April 2, 2004 Loan by 25 Schaefer Construction, could not be avoided as a fraudulent 26 transfer since Debtors were balance sheet solvent on and after 27 the April 2, 2004 Loan and were not left with unreasonably small 28 assets as a result. Thus, Trustee failed to prove an essential

-28- 1 element of her fraudulent transfer claim against Schaefer 2 Construction. If Trustee could not avoid the transfer of the 3 deed of trust as to Schaefer Construction on this ground, 4 Trustee could not recover from Lemire as a subsequent 5 transferee. It follows that there was no need for Lemire to 6 prove that she took the transfer for value and in good faith 7 when there was no fraudulent transfer in the first place. 8 Accordingly, to the extent the bankruptcy court misapplied the 9 burden of proof, it is harmless error. 10 B. Fraudulent Transfer - Halifax 11 Trustee successfully avoided the fraudulent transfer of 12 $1,100,000 from Debtors to Halifax as constructively fraudulent 13 under Cal. Civ. Code § 3439.04(a)(2), which Halifax challenges 14 on appeal. Under this section, there must be a transfer of 15 property of the debtor; constructive fraud is defined simply as 16 transactions in which the debtor receives less than reasonably 17 equivalent value for this transfer at a time when the debtor is 18 insolvent. Trustee bears the burden of proving all these 19 elements. 20 In its memorandum decision, the bankruptcy court found that 21 the $1,100,000 payment from Debtors to Halifax was 22 constructively fraudulent and should be avoided: “The Halifax 23 payment left the Debtors with [unreasonably small assets] and 24 rendered them insolvent. Moreover, neither Halifax nor Scafani 25 provided reasonably equivalent value for this transfer.” 26 1. The lis pendens did not make Halifax a fully secured creditor. 27 28 Halifax argues on appeal, as it did at trial, that it was

-29- 1 fully secured by virtue of recording the lis pendens. Thus, 2 because it received payment from Debtors as a fully secured 3 creditor, the transfer was not fraudulent under the holding in 4 Henry v. First All. Mortg. Co. (In re First All. Mortg. Co.), 5 471 F.3d 977, 1008 (9th Cir. 2006)(“‘[r]epayments of fully 6 secured obligations—where a transfer results in a dollar for 7 dollar reduction in the debtor’s liability—do not hinder, delay, 8 or defraud creditors because the transfers do not put assets 9 otherwise available in a bankruptcy distribution out of their 10 reach.’”). 11 Halifax offers no persuasive authority to support its 12 argument that its notice of lis pendens operated as an 13 “encumbrance” which made it a fully secured creditor. This is 14 not surprising since, under California law, a notice of lis 15 pendens does not make the person who recorded it a secured 16 creditor. Cal–Western Reconveyance Corp. v. Reed, 17 152 Cal.App.4th 1308, 1318-19 (2007) (citing Campbell v. Super. 18 Ct., 132 Cal.App.4th 904, 914 (2005) (“true purpose of the lis 19 pendens statute is to provide notice of pending litigation and 20 not to make plaintiffs secured creditors of defendants nor to 21 provide plaintiffs with additional leverage for negotiating 22 purposes.”)); see also Cal. Code Civ. Proc. § 405.20 (lis 23 pendens serves as notice that litigation regarding the property 24 is being pursued). 25 Halifax’s reliance on Hurst Concrete Products, Inc. v. Lane 26 (In re Lane), 980 F.2d 601 (9th Cir. 1992) is misplaced. The 27 facts in Lane are distinguishable. The issue in Lane was 28 whether the filing of a lis pendens was a transfer within the

-30- 1 definition of transfer set forth in § 547(e)(1)(A). The 2 question of whether the filing of a lis pendens creates a lien 3 is missing from the court’s analysis. 4 In sum, the filing of the lis pendens did not make Halifax 5 fully secured. Therefore, the rule espoused in In re First All. 6 Mortg. Co. has no applicability to this case. Accordingly, the 7 bankruptcy court did not err on this basis. 8 2. The bankruptcy court did not err in determining that Halifax did not give reasonably equivalent value for 9 payment of $1,100,000 by releasing its $1.6 million note, dismissing its lawsuit, and withdrawing the lis 10 pendens against the Lofts Property. 11 Under Cal. Civ. Code § 3439.04(a), a transfer is avoidable 12 if the debtor made the transfer without receiving a reasonably 13 equivalent value in exchange for the transfer and the debtor 14 intended to incur, or believed or reasonably should have 15 believed that it would incur debts beyond its ability to pay as 16 they became due. See also Cal. Civ. Code § 3439.05. 17 With respect to the reasonably equivalent value 18 requirement, the bankruptcy court found: 19 In this case, McHaffie, Urban Coast, Halifax and Scafani executed the Halifax Sale Agreement. One 20 component of this agreement required Urban Coast or McHaffie to pay $1,600,000 to Halifax. This secured 21 McHaffie's acquisition of Urban Coast and through it, the UC Lofts Real Property. McHaffie and Urban Coast 22 also owed brokerage rights and purchase options to John Scafani. The Debtors were not signatories to the 23 Halifax Sale Agreement. That the UC Lofts Real Property secured those obligations did not transform 24 them into the Debtors' liabilities. Nor is it apparent that the change in leadership from Scafani to 25 McHaffie provided any value to the Debtors to support granting a security interest in their property. Thus, 26 under the indirect benefit rule stated in Northern Merchandise and Pajaro Dunes, Defendants must 27 demonstrate that Debtor's received a direct, tangible benefit from paying Urban Coast and McHaffie's 28 obligation.

-31- 1 Defendants offered substantial testimony emphasizing that Scafani agreed to relinquish his purchase options 2 and brokerage rights and that Halifax agreed to a $500,000 reduction on its note. But the testimony 3 from Warner and Schaefer established that they believed the lis pendens was improperly recorded and 4 could have been expunged for a fraction of the settlement price. The court accepts this 5 characterization. Thus, the Debtors can hardly be said to have received reasonably equivalent value by 6 paying $1,100,000 for its removal. Moreover, the upstream benefit Urban Coast and McHaffie received by 7 being relieved from obligations under the Halifax Sale Agreement did not provide a sufficiently tangible 8 benefit to the Debtors to allow the court to conclude they received reasonably equivalent value. 9 10 Halifax challenges these findings on appeal and argues that 11 we should review these findings under a de novo standard of 12 review rather than a clearly erroneous standard. In support of 13 this contention, Halifax relies on Maddox v. Robertson 14 (In re Prejean), 994 F.2d 706, 708 (9th Cir. 1993). 15 In Prejean, the Ninth Circuit considered whether California 16 case law which held that the release of time-barred debt was 17 consideration to avoid a fraudulent transfer was abrogated in 18 light of California’s recent adoption of the California 19 Fraudulent Transfer Act (CFTA). The CFTA substituted the term 20 “reasonably equivalent value” for “fair consideration.” As 21 noted by the Ninth Circuit, the facts in Prejean were 22 undisputed. Id. at 707. Ursula Maddox lent her brother, Joseph 23 Prejean, $40,000 between 1968 and 1971 to assist him in 24 attending medical school. The two did not memorialize the loan 25 in writing. Between 1974 and 1984, Maddox also cared for 26 Prejean’s child. Nothing was set down in writing during that 27 period either to value those services or to establish terms of 28 payment. Maddox and Prejean agreed in 1985 upon a figure of

-32- 1 $200,000 as representing the aggregate value of the child care 2 services and the loan. They did not record that figure in 3 writing. In September 1987, Prejean gave Maddox a $100,000 note 4 that he secured with a deed of trust upon his home. The deed 5 was recorded in January 1988. 6 Seventeen months later Prejean filed a chapter 7 bankruptcy 7 petition. The trustee brought an action in the bankruptcy court 8 to set aside the transfer of the interest in Prejean's home 9 under § 544. The trustee alleged that the transfer of the home 10 violated the CFTA. The primary issue was whether the 11 satisfaction of a time-barred debt was “reasonably equivalent 12 value” for a transfer, thus precluding the transfer from being 13 avoidable under Cal. Civ. Code § 3439.04. 14 The bankruptcy court refused to set aside the transfer. It 15 found that the note and transfer had been made in good faith, 16 and that finding was not challenged on appeal. Citing United 17 States Fid. & Guar. Co. v. Postel, 64 Cal.App.2d 567 (Cal. Ct. 18 App. 1944), the bankruptcy court reasoned that the discharge of 19 a moral obligation is “reasonable consideration” for a new 20 promise to repay a time-barred debt. In United States Fidelity, 21 the California Court of Appeal determined that the payment of an 22 antecedent debt that is partially time-barred is “fair 23 consideration.” United States Fidelity had been decided under 24 the California Fraudulent Conveyance Act, the predecessor of the 25 CFTA. 26 The BAP reversed the judgment of the bankruptcy court. It 27 held, among other things, that United States Fidelity was no 28 longer good law. Analogizing Cal. Civ. Code § 3439.04 to § 548,

-33- 1 the federal “strong-arm” statute that contains “reasonably 2 equivalent value” language, the BAP said: 3 The switch from ‘fair consideration’ to ‘reasonably equivalent value’ directs attention away from what is 4 fair as between the parties and instead measures consideration in terms of its objective worth to all 5 the transferor’s creditors. 6 Maddox appealed. On appeal the Ninth Circuit couched the 7 issues as legal ones requiring de novo review. The court first 8 considered the question whether California’s recent adoption of 9 the UFTA, which substituted “reasonably equivalent value” for 10 “fair consideration,” implied a rejection of the rule set forth 11 in United States Fidelity. The Ninth Circuit held that the 12 Panel had read United States Fidelity too narrowly: 13 We discern nothing in the language or history of the CFTA that would lead us to conclude that a time-barred 14 debt that was a ‘fair equivalent’ from the viewpoint of the creditors under the prior law is not also 15 ‘reasonably equivalent value’ under the CFTA. There has been no showing that the California legislature 16 intended to abrogate the rule of United States Fidelity in enacting the current statute. 17 18 The Ninth Circuit noted that under both prior law and the CFTA 19 reasonably equivalent value must be determined from the 20 creditors’ standpoint, not the debtor’s. 21 The court observed that Prejean gave Maddox a security 22 interest in satisfaction of an antecedent obligation, arising 23 from cash loans and valuable services, that, but for the statute 24 of limitations, was enforceable. Therefore, since United States 25 Fidelity remained good law, the court concluded that the 26 transfer satisfied the requirement of “reasonably equivalent 27 value” contained in the CFTA and reversed the Panel’s decision. 28 As this recitation shows, the issue before the Ninth

-34- 1 Circuit in Prejean was not a factual one where consideration for 2 a transfer was to be weighed, but rather was a determination of 3 whether a type of consideration — release of time-barred debt — 4 was still to be considered of value after a change in California 5 law. The Ninth Circuit appropriately applied de novo review to 6 its determination of this legal issue. However, we are not 7 persuaded that the Ninth Circuit held that a factual 8 determination of reasonably equivalent value requires de novo 9 review. See Ehrenberg v. Tenzer (In re Heartbeat of the City, 10 N.W., Inc.), 2006 WL 6810939, at *5 (9th Cir. BAP April 6, 2006) 11 (stating that there was no clear statement in the Ninth Circuit 12 case law concerning whether determining if reasonably equivalent 13 value has been given for a transfer for purposes of § 548 is a 14 question of law). 15 Indeed, the Ninth Circuit later applied the clearly 16 erroneous standard of review to the bankruptcy court’s 17 determination of reasonably equivalent value in Decker v. 18 Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir. 2010). 19 In JTS, after the district court reversed the bankruptcy court’s 20 determination that the defendant had paid reasonably equivalent 21 value when purchasing real property, the Ninth Circuit found 22 error in the District Court’s ruling. It determined that the 23 bankruptcy court’s finding of reasonably equivalent value “was 24 not clearly erroneous” since the evidence supported that 25 conclusion, clearly applying this deferential standard of review 26 27 28

-35- 1 to the trial court’s factual finding. Id. at 1109-10.12 2 Accordingly, because we are not convinced otherwise, we 3 follow the clearly erroneous standard adopted in JTS and the 4 weight of authority in other circuits and consider the issue a 5 question of fact. In re Heartbeat of the City, 2006 WL 6810939, 6 at *5 n.8 (noting that eight other circuits and a leading 7 treatise consider the issue a question of fact).13 8 We now reach the merits of Halifax’s various arguments. 9 Halifax contends that the $1,100,000 payment it received matched 10 more than a dollar for dollar benefit to Debtors. Halifax 11 asserts that in addition to having the $1,600,00 lien against 12 the Lofts Property extinguished, “they” obtained a discount of 13 14 12 California case law is in accord. See Patterson v. 15 Missler, 238 Cal.App.2d 759, 766-67 (Cal. Ct. App. 1966). 13 16 Tex. Truck Ins. Agency v. Cure (In re Dunham), 110 F.3d 286, 288–89 (5th Cir. 1997) offered the following survey of 17 circuit cases determining whether reasonable equivalency is a question of law, subject to de novo review, or a question of 18 fact: Consove v. Cohen (In re Roco Corp.), 701 F.2d 978, 982 19 (1st Cir. 1983) (factual issue to be reviewed for clear error); Klein v. Tabatchnick & Emmer, 610 F.2d 1043, 1047 (2nd Cir. 1979) 20 (fairness of consideration is generally a question of fact); Morrison v. Champion Credit Corp. (In re Dewey Barefoot), 21 952 F.2d 795, 800 (4th Cir. 1991)(factual determination that can only be set aside if clearly erroneous); Bundles v. Baker 22 (In re Bundles), 856 F.2d 815, 825 (7th Cir. 1988)(great 23 deference to the district court); Jacoway v. Anderson (In re Ozark Rest. Equip. Co., Inc.), 850 F.2d 342, 344 (8th Cir. 24 1988) (question of fact reversible only if clearly erroneous); Clark v. Sec. Pac. Bus. Credit, Inc. (In re Wes Dor, Inc.), 25 996 F.2d 237 (10th Cir. 1993)(suggesting fact question); and 26 Nordberg v. Arab Banking Corp. (In re Chase & Sandborn Corp.), 904 F.2d 588, 593 (11th Cir. 1990)(fair consideration is largely 27 a question of fact). The Dunham court noted that in the Ninth Circuit, according to Prejean, reasonable equivalency is subject 28 to de novo review.

-36- 1 $500,000 on the lien, and the withdrawal of the lis pendens 2 which allowed Debtors to resume development of the Lofts 3 Property. 4 Halifax also maintains that the only defect in the lis 5 pendens was that it was recorded against the property of a 6 non-party. However, James Warner testified unequivocally that 7 this minor defect could be corrected by amending the complaint 8 to add Debtors as named defendants, an amendment which the trial 9 judge would “never, never” deny. Halifax points out that Warner 10 was the attorney of record for Debtors at the time of the 11 Halifax Settlement Agreement and thus he was in a position to 12 value the settlement and agreed that withdrawing the lis pendens 13 and discounting the note constituted valuable consideration to 14 Debtors. 15 Contrary to Halifax’s assertion, we discern no error with 16 the bankruptcy court’s analysis. The reasonably equivalent 17 value analysis “is directed at what the debtor surrendered and 18 what the debtor received irrespective of what any third party 19 may have gained or lost.” Wyle v. C.H. Rider & Family 20 (In re United Energy Corp.), 944 F.2d 589, 597 (9th Cir. 1991); 21 see also Frontier Bank v. Brown (In re N. Merch., Inc.), 22 371 F.3d 1056, 1059 (9th Cir. 2004)(the “primary focus . . . is 23 on the net effect of the transaction on the debtor’s estate and 24 the funds available to the unsecured creditors.”); Roosevelt v. 25 Ray (In re Roosevelt), 176 B.R. 200, 206 and 208 (9th Cir. BAP 26 1994) (same). 27 “Beyond looking at what is exchanged in a quid pro quo 28 transaction, it is important to examine the value of all

-37- 1 benefits inuring to a debtor by virtue of the transaction in 2 question, directly or indirectly.” In re Fox Bean Co., Inc., 3 287 B.R. 270 (Bankr. D. Idaho 2002)(citing Pummill v. 4 Greensfelder, Hemker & Gale (In re Richards & Conover Steel, 5 Co.), 267 B.R. 602, 612–13 (8th Cir. BAP 2001); see also 6 In re N. Merch., Inc., 371 F.3d at 1058 (“It is well settled 7 that reasonably equivalent value can come from one other than 8 the recipient of the payments, a rule which has become known as 9 the indirect benefit rule.”). “Under [the indirect benefit 10 rule], some clear and tangible benefit to the debtor must still 11 consequently result from the payment by the transferee.” Pajaro 12 Dunes Rental Agency, Inc. v. Spitters (In re Pajaro Dunes Rental 13 Agency, Inc.), 174 B.R. 557, 579 (Bankr. N.D. Cal. 1994). 14 There is a two step process required to determine whether a 15 debtor received a reasonably equivalent value. Greenspan v. 16 Orrick (In re Brobeck, Phleger, & Harrison, LLP, 408 B.R. 318, 17 341 (Bankr. N.D. Cal. 2009). First, it must be determined that 18 the debtor received value. Id. Value is defined under Cal. 19 Civ. Code § 3439.03 as follows: 20 Value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is 21 transferred or an antecedent debt is secured or satisfied, but value does not include an unperformed 22 promise made otherwise than in the ordinary course of the promisor’s business to furnish support to the 23 debtor or another person. 24 Value is similarly defined for purposes of § 548. Id. (citing 25 In re United Energy Corp., 944 F.2d at 595). Second, the court 26 must determine whether that value was reasonably equivalent to 27 what the debtor gave up. Id. Reasonable equivalence can 28 include the elimination of claims or litigation. In re United

-38- 1 Energy, 944 F.2d at 595-96. Finally, the determination of 2 reasonable equivalence must be made as of the time of the 3 transfer. BFP v. Resolution Trust Corp., 511 U.S. 531, 546 4 (1994). Trustee had the burden of showing that Debtors did not 5 receive reasonably equivalent value in exchange. In re Pajaro 6 Dunes Rental Agency, Inc., 174 B.R. at 578. 7 Here, the bankruptcy court considered what Debtors received 8 and what they gave up when determining whether there was 9 reasonably equivalent value. As noted by the bankruptcy court, 10 Debtors were not obligated on the underlying note. Therefore, 11 reducing the amount owed on the note by $500,000 cannot be said 12 to have benefitted Debtors directly or indirectly. Generally 13 speaking, a debtor’s payment of the debt of another does not 14 constitute a reasonably equivalent value when the debtor is not 15 obligated on the debt. Wood v. Delury, Pomares & Co. 16 (In re Fair Oaks, Ltd.), 168 B.R. 397, 402 (9th Cir. BAP 1994). 17 Further, while the $1,100,000 payment to Halifax satisfied 18 the lien against the Lofts Property, the bankruptcy court found 19 that Debtors had received no value in connection with the 20 transfer of the deed of trust in the first place; i.e., they 21 were not obligated on the loan. Additionally, the court found 22 no indirect benefit to Debtors since the transfer in leadership 23 from Scafani to McHaffie did not provide any value for the 24 security obligation. Halifax does not point to any evidence in 25 the record that would contradict the bankruptcy court’s finding 26 of no value. 27 Further, although Debtors transferred $1,100,000 to Halifax 28 in settlement of the litigation, Debtors were not named as

-39- 1 defendants in the litigation. It follows that none of the 2 claims were asserted against them. Nor is it apparent from the 3 record that Debtors’ future was dependent upon the resolution of 4 the lawsuit rather than on the withdrawal of the lis pendens. 5 Although the withdrawal of the lis pendens was beneficial to 6 Debtors so they could resume development, the bankruptcy court 7 quantified that benefit as being worth at most $10,000. Thus, 8 Debtors payment of $1,100,000 to Halifax for that benefit cannot 9 be reasonably equivalent. See BFP, 511 U.S. at 540 n.4 (“. . . 10 the phrase ‘reasonably equivalent’ means ‘approximately 11 equivalent,’ or ‘roughly equivalent.’”). Accordingly, the 12 bankruptcy court properly found that Debtors did not receive 13 reasonably equivalent value for the $1,100,000 payment and that 14 finding was not clearly erroneous. 15 3. The bankruptcy court did not err in determining that John Scafani was not liable for receiving a fraudulent 16 transfer because the entire $1,100,000 transfer went to Halifax’s creditors and Scafani did not receive any 17 of the funds. 18 Scafani’s unrebutted testimony was that the $1,100,000 19 payment from Debtors to Halifax went to Halifax’s creditors. 20 Trustee did not trace the funds nor has she pointed out any 21 evidence in the record showing otherwise. See In re Pajaro 22 Dunes Rental Agency, Inc., 174 B.R. at 583 (“Tracing of funds 23 has often been a part of fraudulent transfer litigation.”). 24 Accordingly, the bankruptcy court’s finding that Scafani did not 25 receive any of the $1,100,000 from Debtors was supported by 26 inferences drawn from the facts in the record. We thus discern 27 no error. 28

-40- 1 C. Aiding and abetting breach of fiduciary duty: Schaefer Entities 2 3 In connection with Trustee’s claim against the Schaefer 4 Entities for aiding and abetting McHaffie’s breach of fiduciary 5 duty, the bankruptcy court found: 6 Under California law, “[l]iability may ... be imposed on one who aids and abets the commission of an 7 intentional tort if the person ... knows the other's conduct constitutes a breach of a duty and gives 8 substantial assistance or encouragement to the other to so act.'” In re First All. Mortg Co., 471 F.3d at 9 993 (quoting Casey v. U.S. Bank Nat'l Assn., 127 Cal.App. 4th 1138, 1144 (2005)); see also Fiol v. 10 Doellstedt, 50 Cal.App. 4th 1318, 1325–26 (1996). “[A]iding and abetting liability ... requires a 11 finding of actual knowledge, not specific intent.” In re First All. Mortg. Co., 471 F.3d at 993. 12 In First Alliance Mortgage, a jury found Lehman 13 Brothers, Inc. and its subsidiary (“Lehman”) liable for aiding and abetting the debtor's fraudulent 14 lending practices. Id. at 983. The finding relied on Lehman’s eventual relationship as the debtor's only 15 lender, its intimate knowledge of the debtor's lending practices and its substantial assistance in furthering 16 the scheme by continuing to lend. Id. at 986–87, 994–95. In fact, Lehman warned the debtor that if it 17 did “not change its business practices, it [would] not survive scrutiny.” Id. at 994. 18 Here, the Schaefer Entitles, like Lehman, at some 19 point became the Debtors' only source of financing such that they provided substantial assistance. 20 Further, it is apparent that Schaefer at least had the opportunity to scrutinize each disbursement from the 21 fund controls. But distinct from the situation in First Alliance, Schaefer credibly testified that his 22 primary, if not sole, focus was the equity in the property—not the Debtors’ progress on the Atmosphere 23 Project. Moreover, the Fund Control Agreement gave him the contractual right to presume that each 24 disbursement request was actually what the borrower requested and related to the project. Finally, the 25 proposed budget negotiated between the Schaefer Entities and McHaffie contemplated management and 26 contingency line items, for which they allotted over $400,000. 27 Thus, the court cannot conclude that the Schaefer 28 Entities had actual knowledge of McHaffie's

-41- 1 defalcations as they occurred. The Trustee has therefore failed to meet her burden on this claim, and 2 judgment for the Schaefer Entities is appropriate. 3 Trustee argues that the bankruptcy court’s finding that the 4 Schaefer Entities did not have actual knowledge of McHaffie’s 5 defalcations as they occurred was clear error. According to 6 Trustee, the court’s conclusion ignores “substantial amounts of 7 uncontroverted evidence and the court’s own findings.” 8 Specifically, the court found that “the Schaefer Entities 9 possessed a significant degree of control over the Debtors” and 10 “Schaefer had the opportunity to scrutinize each disbursement 11 from the fund controls.” These findings, Trustee argues, show 12 that Schaefer could not have been unaware that $570,000 or more 13 taken out of the First Fund Control account was misdirected 14 towards Tropicana. Trustee also asserts that the Fund Control 15 Agreement does not allow the Schaefer Entities to avoid 16 liability. The agreement provides: 17 Control shall conclusively presume that any written order of an authorized person is (1) given for the 18 purposes stated in the order; and (2) authorized by the owner and contractor. 19 20 Because Schaefer failed to produce any written order for the 21 misdirected payments, Trustee argues that he may not rely upon 22 any presumption that these payments were intended for completion 23 of the Atmosphere Project. 24 We disagree that this constitutes error. The bankruptcy 25 court’s finding that the Schaefer Entities had no actual 26 knowledge of McHaffie’s breach of fiduciary duty is plausible in 27 light of the evidence presented. Although the court found that 28 the Schaefer Entities exercised a significant degree of control

-42- 1 over Debtors and that they had the opportunity to scrutinize 2 each disbursement from the fund control accounts, the bankruptcy 3 court also relied on Schaefer’s testimony in making its ruling. 4 Schaefer testified that his primary focus was on the equity in 5 the Lofts Property and not Debtors’ progress on the completion 6 of the Atmosphere Project. Thus, even if Schaefer was aware 7 that McHaffie was not using the April 2, 2004 loan proceeds for 8 the development of the Lofts Property, a reasonable inference 9 from his testimony is that he did not make a conscious choice to 10 make loans to Debtors knowing that McHaffie was engaging in 11 improper conduct. See Lomita Land & Water Co. v. Robinson, 12 154 Cal. 36, 47 (1908) (The defendant must have acted to aid the 13 primary tortfeasor “with knowledge of the object to be 14 attained.”). Moreover, “[m]ere knowledge that a tort is being 15 committed and the failure to prevent it does not constitute 16 aiding and abetting.” Fiol v. Doellstedt, 50 Cal.App.4th 1318, 17 1326 (1996). 18 In short, the bankruptcy court was free to accept 19 Schaefer’s testimony and draw any reasonable inferences 20 therefrom to support its ruling. It is not the province of the 21 appellate court to reweigh the evidence and choose between 22 competing inferences. See Anderson, 470 U.S. at 573–74 (“[i]f 23 the [trial] court’s account of the evidence is plausible in 24 light of the record viewed in its entirety, the court of appeals 25 may not reverse it even though convinced that had it been 26 sitting as the trier of fact, it would have weighed the evidence 27 differently”). Despite Trustee’s argument to the contrary, we 28 see nothing that requires a difference result.

-43- 1 D. Preferential Transfer Claim: Schaefer’s Insider Status 2 Section 547(b) authorizes a trustee to avoid preferential 3 transfers made by a debtor within certain periods of time before 4 the bankruptcy filing. Miller v. Schuman (In re Schuman), 5 81 B.R. 583, 585 (9th Cir. BAP 1987). Where a creditor is an 6 insider, the preference period is one year. Id. 7 Trustee seeks to recover a $506,000 payment on the Second 8 Loan to Schaefer Construction within one year of the 9 commencement of the bankruptcy case. The trustee bears the 10 burden of proof to establish each and every element under 11 § 547(b) in order to avoid a transfer as a preference. Batlan 12 v. TransAmerica Commercial Fin. Corp. (In re Smith’s Home 13 Furnishings, Inc.), 265 F.3d 959, 963 (9th Cir. 2001). 14 The bankruptcy court found: 15 The court accepts Schaefer's testimony as credible in all respects and finds that neither he nor Frank 16 Schaefer Construction, Inc. nor Frank Schaefer Construction, Inc. Pension Plan was an insider of the 17 Debtors. The Schaefer Entities exerted considerable control over Debtors and McHaffie. But this control 18 never extended beyond that of a secured lender-to-borrower relationship. 19 Significantly, the court notes that Schaefer 20 faithfully acted according to the terms of the various promissory notes and deeds of trust. He also never 21 refused a disbursement request from McHaffie. And with the exception of the Halifax payment, Schaefer 22 did not advocate that the Debtors pay certain creditors or forego payments to others. Ultimately, 23 the evidence did not establish that Schaefer was ever able to pressure Debtors in such a way as to 24 substitute his own decision making power for McHaffie’s. 25 26 Trustee challenges these findings, contending that the 27 bankruptcy court applied the wrong legal test for determining 28 non-statutory insider status. According to Trustee, there are

-44- 1 different legal standards applied when considering statutory 2 insiders under § 101(31) and non-statutory insiders. While the 3 “person in control” test may apply to statutory insiders, 4 Trustee argues that with non-statutory insiders actual control 5 is not required: “it is not necessary that a non-statutory 6 insider have actual control; rather the question is whether 7 there is a close relationship [between debtor and creditor] and 8 . . . anything other than closeness to suggest that any 9 transactions were not conducted at arm’s length.” See Shubert 10 v. Lucent Techs. Inc. (In re Winstar Comm’ns, Inc.), 554 F.3d 11 382, 396-97 (3d Cir. 2009). 12 First of all, we are not bound by Third Circuit case law, 13 but by Ninth Circuit case law and our own prior decisions. See 14 State v. Rowley (In re Rowley), 208 B.R. 942, 944 (9th Cir. BAP 15 1997) (stating that we are bound by prior Panel decisions). 16 Second, our reading of the relevant legal authorities indicates 17 that the bankruptcy court did not apply the wrong legal test as 18 demonstrated below. 19 The Bankruptcy Code provides a definition of insider that 20 varies based on the type of debtor and includes different 21 individuals who are insiders depending on whether the debtor is 22 a person, corporation, partnership, or municipality. 23 § 101(31).14 However, “the respective insider definitions do not 24 25 14 Section (31) provides in relevant part: 26 The term “insider” includes-- (A) if the debtor is an individual-- 27 (i) relative of the debtor or of a general partner of the debtor; 28 (continued...)

-45- 1 attempt or purport to be all inclusive.” In re Friedman, 2 126 B.R. at 69. An insider can either fall into one of these 3 per se classifications listed in the statute, or be a 4 non-statutory insider who has a “professional or business 5 relationship with the debtor . . . where such relationship 6 compels the conclusion that the individual or entity has a 7 relationship with the debtor, close enough to gain an advantage 8 attributable simply to affinity rather than to the course of 9 business dealings between the parties.” Id. at 70. A 10 non-statutory insider is one “who has a sufficiently close 11 relationship with the debtor that his conduct is made subject to 12 closer scrutiny than those dealing at arms [sic] length with the 13 14 14 (...continued) 15 (ii) partnership in which the debtor is a general partner; 16 (iii) general partner of the debtor; or (iv) corporation of which the debtor is a director, 17 officer, or person in control; (B) if the debtor is a corporation-- 18 (i) director of the debtor; 19 (ii) officer of the debtor; (iii) person in control of the debtor; 20 (iv) partnership in which the debtor is a general partner; 21 (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, 22 or person in control of the debtor; 23 (C) if the debtor is a partnership-- (i) general partner in the debtor; 24 (ii) relative of a general partner in, general partner of, or person in control of the debtor; 25 (iii) partnership in which the debtor is a general 26 partner; (iv) general partner of the debtor; or 27 (v) person in control of the debtor;

28 . . . .

-46- 1 debtor.” Vill. at Lakeridge, LLC v. United States Bank N.A. 2 (In re Vill. at Lakeridge, LLC), 2013 WL 1397447, at *5 (9th 3 Cir. BAP Apr. 5, 2013) (citing In re Friedman, 126 B.R. at 70); 4 see also Miller Ave. Prof’l & Promotional Servs. v. Brady 5 (In re Enter. Acquisition Partners, Inc.), 319 B.R. 626, 631 6 (9th Cir. BAP 2004) (citing Wilson v. Huffman, 712 F.2d 206, 210 7 (5th Cir. 1983)). 8 In determining whether a creditor qualifies as a 9 non-statutory insider, courts look at “the closeness of the 10 parties and the degree to which the transferee is able to exert 11 control or influence over the debtor.” In re Vill. at 12 Lakeridge, LLC, 2013 WL 1397447, at *5 (citing In re Enter. 13 Acquisition Partners, Inc., 319 B.R. at 626 and Miller v. 14 Schuman (In re Schuman), 81 B.R. 583, 586 (9th Cir. BAP 1987)). 15 The primary test of a non-statutory insider is whether the 16 creditor “exercises such control or influence over the debtor as 17 to render their transaction not arms-length.” Id. 18 Here, the bankruptcy court implicitly applied the legal 19 test for determining whether the Schaefer Entities were non- 20 statutory insiders espoused in our precedent. The court 21 determined that there was “closeness” because the Schaefer 22 Entities exerted considerable control over Debtors. However, 23 the bankruptcy court quantified that control by stating that it 24 never extended beyond a secured lender to borrower relationship. 25 In addition, the court implicitly found no other evidence to 26 suggest the transactions were not conducted at arm’s length: 27 (1) Schaefer faithfully acted according to the terms of the 28 various promissory notes and deeds of trust; (2) Schaefer never

-47- 1 refused a disbursement request from McHaffie; and (3) with the 2 exception of the Halifax payment, Schaefer did not advocate that 3 the Debtors pay certain creditors or forego payments to others. 4 Again, the bankruptcy court’s findings came down to Schaefer’s 5 credibility: “[w]hen factual findings are based on 6 determinations regarding the credibility of witnesses, we give 7 great deference to the bankruptcy court’s findings . . . .” 8 Anderson, 470 U.S. at 575. Accordingly, we discern no error in 9 the bankruptcy court’s decision that the Schaefer Entities were 10 not insiders for purposes of § 547. 11 E. Equitable subordination of Schaefer Construction’s proof of claim 12 13 “The subordination of claims based on equitable 14 considerations generally requires three findings: ‘(1) that the 15 claimant engaged in some type of inequitable conduct, (2) that 16 the misconduct injured creditors or conferred unfair advantage 17 on the claimant, and (3) that subordination would not be 18 inconsistent with the Bankruptcy Code.’” In re First All. 19 Mortg. Co., 471 F.3d at 1006. “Where non-insider, non-fiduciary 20 claims are involved, as is the case here, the level of pleading 21 and proof is elevated: gross and egregious conduct will be 22 required before a court will equitably subordinate a claim.” 23 Id. “Although equitable subordination can apply to an ordinary 24 creditor, the circumstances are ‘few and far between.’” Id. 25 Here, the bankruptcy court found no inequitable conduct. 26 The Schaefer Entities were not insiders and the relationship 27 between Debtors and the Schaefer Entities never extended beyond 28 those of a borrower-lender relationship. Furthermore, because

-48- 1 the Halifax payment was not an obligation of the Schaefer 2 Entities, Trustee did not show how their conduct depleted or 3 otherwise adversely impacted Debtors’ assets. Trustee points to 4 no evidence in the record which the bankruptcy court allegedly 5 overlooked which would demonstrate an abuse of discretion. 6 Accordingly, there is no basis for reversal on this assignment 7 of error. 8 VI. CONCLUSION 9 For the reasons stated above, we AFFIRM the judgment in all 10 respects. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -49-