William Bender V.

Ninth Circuit

William Bender V.

480 F. App'x 445

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 8, 2012

Docket11-60006, 11-60007

StatusUnpublished

This text of 480 F. App'x 445 (William Bender V.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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William Bender V., 480 F. App'x 445 (9th Cir. 2012).

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Opinion

MEMORANDUM **

I

In No. 11-60007, Congrejo Investments, LLC challenges the bankruptcy court’s order avoiding the transfer of property from William P. Bender, Debtor, to Congrejo. The Trustee filed a motion to dismiss this appeal as moot because the property at issue has now been sold to a purchaser in good faith.

We deny the motion to dismiss. Though the sale of the property cannot be undone because no stay order was sought, see 11 U.S.C. § 363(m), relief could still be awarded in the form of damages, see, e.g., In re Berg, 45 B.R. 899, 902 (B.A.P. 9th Cir.1984), assuming that the estate contains additional property, see In re Filtercorp, Inc., 163 F.3d 570, 577-78 (9th Cir.1998).

On the merits, the bankruptcy court properly applied equitable tolling to *447 the Trustee’s avoidance action. The court found that Bender actively concealed his interest in and conveyance of the property, that the Trustee did not discover the conveyance until five months after the deed was executed, and that the Trustee diligently investigated the estate’s possible claim to the property. These findings are supported by the record and are not clearly erroneous. Applying equitable tolling in these circumstances is proper. See, e.g., In re Olsen, 36 F.3d 71, 73 (9th Cir.1994). Tolling rescues the Trustee’s otherwise time-barred claim, see Socop-Gonzalez v. INS, 272 F.3d 1176, 1193-95 (9th Cir.2001) (en banc), and the avoidance order must be affirmed.

II

In No. 11-60006, Bender appeals the bankruptcy court’s order overruling his objection to the William and Rosalie Gum-mow Trust’s proof of claim. Because Bender presents this appeal as contingent on the reversal of the avoidance order, which we instead affirm, we grant the motion to dismiss this appeal as moot. See Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).

No. 11-60007 is AFFIRMED and No. 11-60006 is DISMISSED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

I

In No. 11-60007, Congrejo Investments, LLC challenges the bankruptcy court’s order avoiding the transfer of property from William P. Bender, Debtor, to Congrejo. The Trustee filed a motion to dismiss this appeal as moot because the property at issue has now been sold to a purchaser in good faith.

We deny the motion to dismiss. Though the sale of the property cannot be undone because no stay order was sought, see 11 U.S.C. § 363(m), relief could still be awarded in the form of damages, see, e.g., In re Berg, 45 B.R. 899, 902 (B.A.P. 9th Cir.1984), assuming that the estate contains additional property, see In re Filtercorp, Inc., 163 F.3d 570, 577-78 (9th Cir.1998).

On the merits, the bankruptcy court properly applied equitable tolling to *447 the Trustee’s avoidance action. The court found that Bender actively concealed his interest in and conveyance of the property, that the Trustee did not discover the conveyance until five months after the deed was executed, and that the Trustee diligently investigated the estate’s possible claim to the property. These findings are supported by the record and are not clearly erroneous. Applying equitable tolling in these circumstances is proper. See, e.g., In re Olsen, 36 F.3d 71, 73 (9th Cir.1994). Tolling rescues the Trustee’s otherwise time-barred claim, see Socop-Gonzalez v. INS, 272 F.3d 1176, 1193-95 (9th Cir.2001) (en banc), and the avoidance order must be affirmed.

II

In No. 11-60006, Bender appeals the bankruptcy court’s order overruling his objection to the William and Rosalie Gum-mow Trust’s proof of claim. Because Bender presents this appeal as contingent on the reversal of the avoidance order, which we instead affirm, we grant the motion to dismiss this appeal as moot. See Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).

No. 11-60007 is AFFIRMED and No. 11-60006 is DISMISSED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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