                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 08 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In re: WILLIAM P. BENDER,                        No. 11-60006

              Debtor.                            BAP No. 10-1121


WILLIAM P. BENDER,                               MEMORANDUM *

              Appellant,

  v.

DIANE M. MANN, Chapter 7 Trustee;
THE WARREN AND ROSALIE
GUMMOW TRUST,

              Appellees.




In re: WILLIAM P. BENDER,                        No. 11-60007

              Debtor.                            BAP No. 10-1122


CONGREJO INVESTMENTS, LLC,

              Appellant,



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

DIANE M. MANN, Chapter 7 Trustee,

              Appellee.




                         Appeals from the Ninth Circuit
                           Bankruptcy Appellate Panel
              Pappas, Jury, and Bauer, Bankruptcy Judges, Presiding

                            Submitted April 16, 2012 **
                             San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and GRABER, Circuit Judges.

                                          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.



        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
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 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 Gummow 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 (1992).

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


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