                             NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                          MAR 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

In re: ANA BEATRIZ BETANCOURT,                  No.    17-60070

             Debtor,                            BAP No. 17-1016
______________________________

ANA BEATRIZ BETANCOURT,                         MEMORANDUM*

                Appellant,

 v.

MATTHEW BALLMER,

                Appellee.

                            Appeal from the Ninth Circuit
                             Bankruptcy Appellate Panel
            Kurtz, Taylor, and Lafferty III, Bankruptcy Judges, Presiding

                             Submitted March 6, 2019**
                               Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,***
Chief District Judge.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
      Debtor-Appellant Ana Beatriz Betancourt appeals the Bankruptcy Appellate

Panel’s (BAP) affirmance of the bankruptcy court’s judgment that she engaged in

fraudulent transfers of real property with the intent to inflict willful and malicious

injury upon Matthew Ballmer’s predecessor in interest Paul Ballmer (together,

Ballmer), within the meaning of 11 U.S.C. § 523(a)(6). We have jurisdiction

pursuant to 28 U.S.C. § 158(d)(1), and we affirm.

1.    The bankruptcy court did not err in holding that Betancourt fraudulently

transferred parcels of real property. The bankruptcy court found that Betancourt’s

actions to “denude La Fe of all assets” in December 2004—the same month as

Paul Ballmer’s state trial against her—had the subjective intent to harm Ballmer.

The court also found that the transfers of parcels 30-10 and 027-029 were without

consideration.

      Those findings were not clearly erroneous. Betancourt’s confusing and

vague testimony before the bankruptcy court regarding the deed transfers, the

timing of the deed recordations, and the lack of documentary evidence supported a

finding of fraudulent intent. See In re Ezra, 537 B.R. 924, 930–31 (B.A.P. 9th Cir.

2015) (noting eleven non-exclusive factors to determine whether fraudulent intent

existed under Cal. Civ. Code § 3439.04(b)). Betancourt’s claim that the deeds

were delivered in 1998 and 2002 is contradicted by her earlier testimony that she

maintained possession of the deeds for years after the deed transfers. Nothing in


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the record compels the conclusion that the bankruptcy court’s findings are illogical

or implausible.

2.      Betancourt next argues that Ballmer’s adversary proceeding was untimely.

That claim also fails. The bankruptcy court correctly held that the seven-year

statute of repose in Cal. Civ. Code § 3439.09(c) did not bar Ballmer’s action

because Ballmer’s claim arose less than seven years before Betancourt filed her

bankruptcy petition. See In re EPD Inv. Co., LLC, 523 B.R. 680, 692 (B.A.P. 9th

Cir. 2015) (holding the time bar in Cal. Civ. Code 3439.09(c) yields to federal law

and will not bar an action that has not yet expired on the petition date). Here,

Betancourt filed for Chapter 7 bankruptcy in April 2010, and the deed recordations

occurred in December 2004. Thus, Ballmer's claim remained viable on the petition

date.

        In addition, the bankruptcy court’s finding that Ballmer’s action was timely

because he had no reason to discover the fraudulent transfers prior to April 2009

was not clearly erroneous. Both Ballmers submitted declarations to the bankruptcy

court averring that they did not have reason to know of the fraudulent transfers

until July 2011, and Paul Ballmer detailed his actions and illness post-judgment in

2005.

3.      Lastly, Betancourt contends that the bankruptcy court should not have




                                          3
granted Ballmer’s Rule 60(b)1 motion for relief from judgment for the initial

failure to file a declaration by Matthew Ballmer. The Supreme Court has

identified four factors for courts to weigh in determining whether the court may

grant relief under Rule 60(b) for mistake or excusable neglect. Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993) (noting factors of

prejudice to non-movant, length of delay, reason for delay, and good faith of

movant).

        Here, the bankruptcy court weighed these factors and found the reason for

delay to be the ambiguity in its own previous order. The court’s ambiguous order

alternatively referred to "either of the Ballmers," and "Paul and Matthew Ballmer"

as the one(s) to submit evidence, and stated that the court would "review the

evidence and determine whether a further evidentiary hearing is required,” which

the court did not do. The court’s finding that Ballmer’s error resulted from a

misinterpretation of the order—not a strategic decision—is not clearly erroneous.

Accordingly, the court did not abuse its discretion in granting the Rule 60(b)

motion.

        AFFIRMED.




1
    References to Rule 60(b) are to the Federal Rules of Civil Procedure.

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