                                                          FILED
 1                         ORDERED PUBLISHED                 JUL 02 2013
                                                       SUSAN M SPRAUL, CLERK
 2                                                       U.S. BKCY. APP. PANEL
                                                         O F TH E N IN TH C IR C U IT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5
 6   In re:                        )      BAP No.    ID-11-1081-MkDJu
                                   )
 7   RAYMOND KEITH PRINGLE,        )      Bk. No.    09-41653
                                   )
 8                  Debtor.        )      Adv. No.   10-08023
     ______________________________)
 9                                 )
     JOLENE HASSE,                 )
10                                 )
                    Appellant,     )
11                                 )
     v.                            )           O P I N I O N
12                                 )
     GARY L. RAINSDON, Chapter 7   )
13   Trustee,                      )
                                   )
14                  Appellee.      )
     ______________________________)
15
16
17              Argued by Video Conference on November 17, 2011
                          Submitted on January 7, 2013
18
                              Filed – July 2, 2013
19
                 Appeal from the United States Bankruptcy Court
20                          for the District of Idaho
21            Honorable Jim D. Pappas, Bankruptcy Judge, Presiding
22
23   Appearances:     Clayne Zollinger, Jr., for appellant Jolene Hasse;
                      Daniel C. Green, of Racine, Olson, Nye, Budge &
24                    Bailey, Chartered, for appellee Gary L. Rainsdon.
25
26   Before:    MARKELL, DUNN and JURY, Bankruptcy Judges.
27
28
 1   MARKELL, Bankruptcy Judge:
 2
 3        Before the debtor, Raymond Pringle, filed his chapter 71
 4   bankruptcy, he transferred his house to Jolene Hasse.   The
 5   bankruptcy court found this transaction to be avoidable as a
 6   fraudulent transfer under 11 U.S.C. § 548.   Hasse appeals.   After
 7   finding that the bankruptcy court and this Panel have authority
 8   to decide the matters involved in this appeal, we AFFIRM.
 9                                I.   FACTS
10   A.   Prepetition Actions
11        Hasse and Pringle had a long-term relationship as boyfriend
12   and girlfriend.   They lived together in Pringle’s house (the
13   “Residence”) for at least eight years.
14        In April 2008, about a year and a half before he filed
15   bankruptcy, Pringle transferred the Residence to Hasse.   Pringle
16   used a form of gift deed to effectuate the transfer; on its face,
17   it recites that the transfer was being made “For Love and
18   Affection.”   Compl. (Feb. 23, 2010) at ¶ 1 and Ex. A; Answer
19   (Mar. 26, 2010) at ¶ 1.
20        At the time of the April 2008 transfer, the Residence was
21   not encumbered and was worth at least $35,000.   Also at that
22   time, Pringle had less than $5,000 in nonexempt assets.   His
23   liabilities were roughly $24,000 and were mostly in the nature of
24   credit card debt.
25
          1
26         Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   all “Rule” references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All “Civil Rule” references are to
28   the Federal Rules of Civil Procedure .

                                       2
 1   B.   Pringle Files Bankruptcy
 2        Pringle filed his chapter 7 bankruptcy case in October 2009.
 3   Appellee Gary Rainsdon (the “Trustee”) was appointed to serve as
 4   Pringle’s trustee.   In Pringle’s statement of financial affairs,
 5   he disclosed the transfer of the Residence to Hasse, and
 6   described the transfer as a gift, with no value received in
 7   exchange.
 8        The meeting of creditors pursuant to § 341(a) was held in
 9   December 2009.   At that time, the Trustee asked Pringle about the
10   transfer of his Residence, and Pringle testified that at the time
11   of the transfer he had a legal matter that was coming up and he
12   figured it would be better if the Residence was not in his name.
13   According to Pringle, he was being sued by a man named Jose Luna
14   for roughly $100,000 on account of an automobile accident, and
15   Pringle was concerned that Luna ultimately might try to take away
16   his Residence.   By the time of his bankruptcy filing, however,
17   Pringle did not list Luna as a creditor, and no one named Luna
18   filed a proof of claim.
19   C.   The Trustee Files the Fraudulent Transfer Action
20        Based on this information, in February 2010 the Trustee
21   filed a complaint against Hasse seeking to avoid Pringle’s
22   transfer of the Residence as a fraudulent transfer under § 5482
23
          2
24         The complaint stated a claim for relief alleging a
     “constructive” fraudulent transfer under § 548(a)(1)(B); that is,
25   an avoidable fraudulent transfer in which the mental state of the
26   transferor is irrelevant. There were no allegations in the
     complaint that Pringle transferred the Residence with the intent
27   to hinder, delay, or defraud his creditors, as required for
     avoidance of a transfer under § 548(a)(1)(A). At trial, however,
28                                                      (continued...)

                                      3
 1   and state law.3
 2        The Trustee’s complaint alleged that the bankruptcy court
 3   had jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(H).
 4   In her answer, Hasse admitted the Trustee’s jurisdictional
 5   allegations.   Both parties’ pleadings thus agreed that the matter
 6   was a core proceeding under 28 U.S.C. § 157(b)(2)(H).   As a
 7   likely consequence of this understanding, neither party included
 8   in their respective pleadings a statement as to whether they
 9   consented to the bankruptcy court’s entry of final judgment.   See
10   Rules 7008(a) and 7012(b).
11        After Hasse answered the Trustee’s complaint, the parties
12   engaged in discovery.   In response to the Trustee’s
13
14        2
           (...continued)
15   the bankruptcy court expressly found that Pringle had the
     requisite actual intent for liability under § 548(a)(1)(A).
16   Hasse challenges the finding of actual intent itself, but not the
     predicate issue of whether the § 548(a)(1)(A) claim was properly
17   before the bankruptcy court. Accordingly, we decline to address
     that predicate issue. See Golden v. Chicago Title Ins. Co. (In
18
     re Choo), 273 B.R. 608, 613 (9th Cir. BAP 2002); see also Moldo
19   v. Matsco, Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039,
     1045 n.3 (9th Cir. 2001) (declining to consider ramifications of
20   new argument, and deeming argument waived, when argument was
     raised for the first time on appeal). Essentially, however, the
21   bankruptcy court sua sponte amended the complaint to conform to
22   the evidence of actual intent introduced at trial — an action
     which neither party objected to. See Civil Rule 15(b)(2)
23   (incorporated by Rule 7015). The “amended” complaint thus pleads
     claims for relief under §§ 548(a)(1)(A) and (a)(1)(B).
24
          3
           There is no indication in the record that the bankruptcy
25   court ever disposed of the Trustee’s second cause of action
26   seeking to avoid the transfer of the Residence under Idaho
     fraudulent transfer law. Nonetheless, we may treat Hasse’s
27   notice of appeal as a motion for leave to appeal, and we hereby
     grant that leave. See Rule 8003(c); Magno v. Rigsby (In re
28   Magno), 216 B.R. 34, 38 (9th Cir. BAP 1997).

                                      4
 1   interrogatories, Hasse gave a different account of the reason why
 2   Pringle transferred the Residence to her:
 3        The transfer of the property was pursuant to a verbal
          agreement between the Defendant and the Debtor. The
 4        Defendant, Jolene Hasse, agreed to allow Mr. Pringle to
          stay in the home for the rest of his life. The
 5        Defendant assumed the responsibility for paying for the
          taxes, the utilities, and all the upkeep on the home.
 6        She also agreed to take care of Mr. Pringle for the
          rest of his life. Mr. Pringle suffers from diabetes
 7        and has limited vision and needs someone to help him
          and especially drive him as he is unable to drive at
 8        night.
 9   See Trustee’s Pretrial Memorandum (Dec. 2, 2010) at p. 2 (quoting
10   Hasse’s response to the Trustee’s Interrogatory No. 8).4
11   D.   The Nonjury Trial and the Bankruptcy Court’s Entry of a
12        Final Judgment
13        The bankruptcy court tried the case in December 2010.
14   Pringle was the only witness the Trustee called.   Pringle
15   acknowledged his prior testimony at the December 2009 meeting of
16   creditors, but at the same time maintained that he gave Hasse the
17   residence in exchange for Hasse’s oral agreement to continue to
18   take care of him and to let him continue to live there.
19        At the close of evidence, Hasse conceded that Pringle’s
20   transfer of the Residence rendered Pringle insolvent.
21   Regardless, Hasse maintained that the transfer could not be
22
23
          4
           Even though neither of the parties provided us with copies
24   of their pre- and post-trial briefs, we have obtained copies by
     accessing the bankruptcy court’s online adversary proceeding
25   docket and the imaged documents attached thereto. We can take
26   judicial notice of the filing and contents of these documents.
     See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887
27   F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase Manhattan
     Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP
28   2003).

                                     5
 1   avoided because she had given reasonably equivalent value in
 2   exchange for the transfer.
 3        Hasse also argued that § 548 should not apply at all because
 4   the transfer could not have harmed Pringle’s creditors.   If
 5   Pringle had not transferred the Residence to her, Hasse reasoned,
 6   it would have been exempt.   He thus could have precluded his
 7   creditors from ever realizing the Residence’s value, a sort of
 8   “no harm, no foul” argument.
 9        Both sides filed post-trial briefs, and in January 2011, the
10   bankruptcy court reconvened the matter and orally stated its
11   findings of fact and conclusions of law on the record.    The court
12   apparently credited, at least in part, Hasse’s contention and
13   Pringle’s testimony that Hasse made certain promises in exchange
14   for the transfer of the Residence:
15        [Pringle], at some point in time, prior to April of
          2008, . . . reached an oral agreement with the
16        defendant that he would deed his home located, I
          believed it’s in Albion, Idaho, to her, in
17        consideration of her promise to maintain the home, pay
          the taxes on the home, and to allow him to live in the
18        home for the rest of his life with her and in exchange
          and consideration of her agreement to provide care and
19        comfort to him and particular with respect to caring
          for him as a result of his medical condition.
20
21   Hr’g Tr. (Jan. 4, 2011) at 4:20-5:3.   However, the court also
22   held that value for purposes of § 548 must result in economic
23   benefit to creditors.   He then found that “whatever value, real
24   value came out of [Hasse’s] promise was not reasonably equivalent
25   to the value that the debtor gave up in this exchange and that
26   was a $35,000 unencumbered house.”   Hr’g Tr. (Jan. 4, 2011) at
27   7:21-8:2.
28        In addition, the court rejected Hasse’s “no harm, no foul”

                                      6
 1   argument.    The court held that Fox v. Smoker (In re Noblit), 72
 2   F.3d 757 (9th Cir. 1995) and Trujillo v. Grimmett (In re
 3   Trujillo), 215 B.R. 200 (9th Cir. BAP 1997) aff’d, 166 F.3d 1218
 4   (9th Cir. 1999) (table) had rejected the argument, and that he
 5   was bound to follow both.    In expanding on the argument, the
 6   court noted that Hasse’s argument hinged on a false premise: that
 7   Pringle still was entitled to an exemption in the Residence after
 8   he voluntarily transferred the Residence to Hasse.    As the court
 9   stated:
10        Congress has, I think, made it pretty clear that if
          debtors want the benefit of an exemption they should
11        not transfer the property away to another before filing
          for bankruptcy. If they do so and the transfer’s
12        avoided, then under Section 522(g) the exemption can’t
          be claimed and if I were to honor the no harm, no foul
13        doctrine in a -- in a case like this, effectively I’d
          be allowing a debtor [to] escape the consequence of
14        that.
15   Hr’g Tr. (Jan. 4, 2011) at 9:18-25.
16        As an alternate basis for ruling in favor of the Trustee,
17   the court found that Pringle had made the transfer with the
18   intent to hinder and delay Luna, who was suing Pringle at the
19   time the transfer was made.
20        The court entered judgment in favor of the Trustee avoiding
21   Pringle’s transfer of the Residence to Hasse.    Hasse timely
22   appealed.
23                       II.   CONSTITUTIONAL AUTHORITY
24        Under Stern v. Marshall, 131 S. Ct. 2594 (2011), we have an
25   independent duty to consider whether the bankruptcy court had the
26   constitutional authority to determine the fraudulent transfer
27   claim.    This issue is reviewed de novo.   Cf. Rosson v. Fitzgerald
28   (In re Rosson), 545 F.3d 764, 769 n.5 (9th Cir. 2008); Cal.

                                        7
 1   Franchise Tax Bd. v. Wilshire Courtyard (In re Wilshire
 2   Courtyard), 459 B.R. 416, 423 (9th Cir. BAP 2011).
 3        This is not, however, an inquiry into subject matter
 4   jurisdiction, as the Ninth Circuit recently confirmed.    “Stern
 5   . . . made clear that § 157 ‘does not implicate questions of
 6   subject matter jurisdiction.’”   Executive Benefits Ins. Agency v.
 7   Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 567
 8   (9th Cir. 2012) (quoting Stern, 131 S. Ct. at 2607), cert.
 9   granted, 2013 WL 3155257 (U.S. June 24, 2013) (No. 12-1200).
10   Rather, what is implicated is whether “[s]ection 157
11   [constitutionally] allocates the authority to enter final
12   judgment[s] between the bankruptcy court and the district court.”
13   Stern, 131 S. Ct. at 2607 (emphasis supplied).
14        Here, it is beyond doubt that an Article III district court
15   would have had subject matter jurisdiction under 28 U.S.C.
16   § 1334(b), as a proceeding under § 548 “arises under” the Code.
17   What is at issue here is whether the referral authorized under
18   both 28 U.S.C. § 157(a) and the District of Idaho’s general order
19   of reference, Third Amended General Order No. 38 (D. Idaho, April
20   24, 1995), was constitutionally valid as applied in this case.5
21   A.   Bellingham
22        In December 2012, the Ninth Circuit decided Bellingham.
23   That case holds that, despite Congress’s designation of
24
          5
           At oral argument in November 2011, the Panel raised the
25   effect of Stern, and offered the parties the opportunity to brief
26   the issue, as Bellingham was then under consideration by the
     Ninth Circuit. Both sides submitted briefs. After Bellingham
27   was decided, the Panel offered the parties the opportunity to
     brief Bellingham’s effect on this appeal. Both sides again
28   submitted briefs.

                                      8
 1   fraudulent conveyance actions as core matters,6 bankruptcy courts
 2   do not have authority to unilaterally hear and determine them.
 3   702 F.3d at 565-66.   But more importantly to this appeal, the
 4   Ninth Circuit also held that, notwithstanding this lack of
 5   unilateral authority, a bankruptcy court could still hear and
 6   determine – and enter a final judgment – in such a proceeding
 7   with the parties’ consent.   702 F.3d at 567.7    It further held
 8   that such consent need not be express, but could be implied.        Id.
 9        Bellingham’s basic arguments are simple.     The congressional
10   allocation of authority in 28 U.S.C. § 157 recognizes that,
11   especially in matters “related to” a bankruptcy case, a non-
12   Article III judge may not unilaterally enter a final judgment.
13   That was the learning of Northern Pipeline Constr. Co. v.
14   Marathon Pipe Line Co., 458 U.S. 50 (1982).      702 F.3d at 566-67.
15        But Congress anticipated that concentrating decisionmaking
16   in one court for bankruptcy matters was desirable.     As noted by a
17   leading treatise, the broad scope of section 1334(b) of title 28
18
19
          6
           Section 157(b)(2)(H) designates proceedings to recover
20   “fraudulent conveyances” as core matters. This reference
     undoubtedly includes section 548 fraudulent transfers. As was
21   noted when the Uniform Fraudulent Transfer Act was promulgated in
22   1984:
          The Committee determined to rename the Act the Uniform
23        Fraudulent Transfer Act in recognition of its
          applicability to transfers of personal property as well
24        as real property . . . .”
     Prefatory Note, Uniform Fraudulent Transfer Act (1984), 7A, pt.
25   II, U.L.A. 5 (2006).
26        7
           The Sixth Circuit has adopted a contrary rule. Waldman v.
27   Stone, 698 F.3d 910 (6th Cir. 2012). The Supreme Court has
     granted certiorari in Bellingham and presumably will resolve the
28   split between the circuits.

                                      9
 1   “evidences the intent of Congress to bring all bankruptcy-related
 2   litigation within the purview of the district court, at least as
 3   an initial matter, irrespective of congressional statements to
 4   the contrary in the context of other specialized litigation.”
 5   1 COLLIER   ON   BANKRUPTCY ¶ 3.01[3] (Alan N. Resnick & Henry J.
 6   Sommer, eds., 16th ed. 2013).
 7        In this spirit, Congress also drafted the applicable
 8   bankruptcy jurisdictional statutes to allow bankruptcy courts to
 9   hear – but not determine – matters that they may not
10   constitutionally decide.        28 U.S.C. § 157(c)(1).   But Congress
11   went further: it allowed the bankruptcy court to determine those
12   disputes – that is, enter a final decision, subject only to
13   appellate and not de novo review – “with the consent of all the
14   parties to the proceeding.”        Id. § 157(c)(2).   See Mann v.
15   Alexander Dawson, Inc. (In re Mann), 907 F.2d 923, 926 (9th Cir.
16   1990).      Congress thus determined that parties could consent to a
17   non-Article III judge hearing and entering a final judgment in
18   matters in which that non-Article III judge could not
19   unilaterally act.
20        From this, Bellingham reasoned that “[i]f consent permits a
21   non-Article III judge to [finally] decide [] a non-core
22   proceeding, then it surely permits the same judge to decide a
23   core proceeding in which he would, absent consent, be disentitled
24   to enter final judgment.        The only question, then, is whether
25   [the party objecting to the bankruptcy court’s authority] did in
26   fact consent to the bankruptcy court’s jurisdiction [i.e.,
27
28

                                           10
 1   authority].”    702 F.3d at 567 (emphasis supplied).8
 2   B.   Sufficiency of Implied Consent
 3        Although Bellingham required consent, consent does not have
 4   a unitary meaning.    See generally Daniel J. Bussel & Kenneth N.
 5   Klee, Recalibrating Consent in Bankruptcy, 83 Am. Bankr. L.J. 663
 6   (2009).   Does it include “implied” consent, or must the consent
 7   be express?    And do there have to be procedural safeguards to
 8   ensure that it is informed?
 9        Bellingham made short work of the first question; it
10   rejected the argument that consent must be express.     This
11   rejection was based on two statutory arguments; one related to
12   the manner in which 28 U.S.C. § 157 deals with jury trials, and
13   one related to analogies to the Federal Magistrates Act.
14
15        8
           Although the Ninth Circuit referred to the lack of
16   “jurisdiction,” we understand that reference to be to the
     bankruptcy court’s ability under the Constitution to “determine”
17   a matter as contemplated by 28 U.S.C. § 157(b)(1): “[B]ankruptcy
     judges may hear and determine all cases under title 11 and all
18   core proceedings arising under title 11[.]” Id. (emphasis
19   supplied).
          Unfortunately, the imprecise use of “jurisdiction” is not
20   uncommon. As the Supreme Court has noted, “Courts, including
     this Court, it is true, have been less than meticulous in this
21   regard; they have more than occasionally used the term
     ‘jurisdictional’ to describe emphatic time prescriptions in rules
22
     of court. ‘Jurisdiction,’ the Court has aptly observed, ‘is a
23   word of many, too many, meanings.’” Kontrick v. Ryan, 540 U.S.
     443, 454 (2004) (quoting Steel Co. v. Citizens for Better Env’t,
24   523 U.S. 83, 90 (1998)). The “time prescriptions” reference is
     obviously irrelevant here, but the overall observation is
25   relevant.
26        As a result, although Bellingham uses “jurisdiction” to
     refer to the authority to determine a core proceeding, we refer
27   directly to the bankruptcy court’s “authority” to avoid any
     possible confusion stemming from the use of the word
28   “jurisdiction.”

                                      11
 1              1.   Jury Trial Analogy
 2         With respect to jury trials, Bellingham looked to 28 U.S.C.
 3   § 157(e), which permits bankruptcy judges to conduct jury trials
 4   only with “express” consent.   The court found meaning in the
 5   inclusion of the adjective “express,” finding that the omission
 6   of that adjective in 28 U.S.C. § 157(c)(2) was purposeful.
 7   Bellingham, 702 F.3d at 569.   Accordingly, Bellingham stated that
 8   “in cases like this one — in which the defendant was aware of its
 9   right to seek withdrawal of the reference but opted instead to
10   litigate before the bankruptcy court — consent is established.”
11   Id.
12              2.   Magistrate Analogy
13         The Ninth Circuit next analogized the bankruptcy consent
14   statute to the consent provision in the Federal Magistrates Act,
15   28 U.S.C. § 636(c)(1).9   Bellingham, 702 F.3d at 569.   The
16   Magistrate Act provides that a magistrate judge may order final
17   judgment “[u]pon the consent of the parties.”   28 U.S.C.
18
19         9
           This method of inquiry mirrors congressional thought at the
20   time of 28 U.S.C. § 157’s enactment. This is reflected in the
     remarks of Rep. Kindness, co-author of the amendment that became
21   28 U.S.C. § 157(c). 130 Cong. Rec. 6242-43 (1984) (“In
     Marathon-type suits, the bankruptcy judge will exercise the same
22
     powers as the magistrate.”). See also 1 COLLIER ON BANKRUPTCY ,
23   supra, at ¶ 3.03[2]:
          Section 157(c)(1) is drawn from 28 U.S.C. § 636(b)(1),
24        which is part of the United States Magistrate Judges
          Act and that contains analogous provisions for proposed
25        findings and recommendations to be made by magistrate
26        judges and submitted to district judges. The powers
          accorded magistrate judges under section 636(b)(1) have
27        passed constitutional muster, and the teachings of the
          case upholding that section apply directly to the
28        treatment contained in section 157(c)(1).

                                     12
 1   § 636(c)(1).    The Supreme Court has held that this language
 2   permits implied consent when the allegedly consenting party has
 3   “be[en] notified of [its] right to refuse and after being told
 4   that [the Magistrate Judge] intended to exercise case-dispositive
 5   authority.”    Roell v. Withrow, 538 U.S. 580, 586 (2003).    In this
 6   calculus, “notification of the right to refuse the magistrate
 7   judge is a prerequisite to any inference of consent.”       Id. at 587
 8   n.5.10
 9        Bellingham thus reasoned that “[l]ike the provision of the
10   Federal Magistrate Act at issue in Roell, the text of § 157(c)
11   only requires consent simpliciter.”    702 F.3d at 569.11
12   C.   Implied Consent, Waiver, and Forfeiture
13        As in Bellingham, Hasse actively participated in the
14   fraudulent transfer proceeding.    Her affirmative actions –
15   answering the complaint, participating in discovery, contesting
16   issues at trial – resemble the similar activities of EBIA – the
17   non-creditor defendant – in Bellingham.    But much of Bellingham
18   focuses on the “sandbagging” aspects of EBIA’s actions and how
19   those actions stood proxy for consent.    Id. at 568; see Stern,
20   131 S. Ct. at 2608 (“[T]he consequences of a litigant . . .
21
22        10
           The Court expressed concern over “the risk of a full and
23   complicated trial wasted at the option of an undeserving and
     possibly opportunistic litigant” — sandbagging, in other
24   words. Id. at 590.
25        11
           The text of the bankruptcy consent statute is nearly
26   identical to the relevant section of the Magistrate Act; the
     Magistrate Act confers authority “[u]pon the consent of the
27   parties,” 28 U.S.C. § 636(c)(1), whereas a bankruptcy judge may
     enter final orders in non-core matters “with the consent of all
28   the parties to the proceeding.” 28 U.S.C. § 157(c)(2).

                                       13
 1   sandbagging the court — remaining silent about his objection and
 2   belatedly raising the error only if the case does not conclude in
 3   his favor — can be particularly severe.”) (internal quotation
 4   marks and citation omitted).
 5        This focus requires careful consideration as to whether
 6   “sandbagging” is necessary for implied consent, or whether it is
 7   merely sufficient.   Upon examination of Bellingham and Stern, and
 8   their treatment of “sandbagging,” we hold that while a showing of
 9   “sandbagging” may be sufficient for consent, it is not necessary.
10   There are other ways in which the parties may convey their
11   consent, including those present here.
12        In Bellingham, EBIA’s consent was found by and through its
13   actions in the bankruptcy court.      Bellingham, 702 F.3d at 570.
14   EBIA’s initial action was to move for a jury trial, which the
15   district court treated as a motion to withdraw the reference.
16   Id. at 568.   Instead of pursuing a hearing on the withdrawal
17   motion in an Article III court, EBIA petitioned the district
18   court to stay consideration of the motion until the bankruptcy
19   court decided the plaintiff’s motion for summary judgment.         Id.
20   When the bankruptcy court granted summary judgment to the
21   plaintiff, EBIA abandoned its motion to withdraw the reference
22   and separately appealed to the district court.      Id.   At the
23   district court, EBIA again failed to object to the bankruptcy
24   court’s authority.   Id.   EBIA even failed to raise the issue in
25   its briefing to the Ninth Circuit, only raising it in a motion to
26   dismiss shortly before oral argument.      Id.
27        In sum, EBIA had been alerted to the bankruptcy court’s
28   possible lack of authority, had ample opportunity to object,

                                      14
 1   affirmatively participated in litigation at the bankruptcy court
 2   and district court, and only objected once it had lost in both
 3   those courts.
 4        Because EBIA waited so long to object, and in light of
          its litigation tactics, we have little difficulty
 5        concluding that EBIA impliedly consented . . . . “No
          procedural principle is more familiar to this Court
 6        than that a constitutional right, or a right of any
          other sort, may be forfeited . . . by the failure to
 7        make timely assertion of the right before a tribunal
          having jurisdiction to determine it.”
 8
 9   Id. (quoting U.S. v. Olano, 507 U.S. 725, 731 (1993)) (internal
10   quotation marks and citation omitted).
11        Thus, under Bellingham, sandbagging can supply consent
12   through the knowing failure to object while purposefully
13   proceeding through the bankruptcy court system.
14   D.   Hasse’s Participation with Notice as Consent
15        But, as indicated before, Hasse’s case is different than
16   Bellingham.   There, the non-creditor defendant “sandbagged” the
17   court and its opponent in a way that belied its knowledge of
18   potential Stern problems.   The Ninth Circuit thus found consent
19   from the non-creditor’s conscious and knowing manipulation of the
20   process to its own perceived advantage.   This type of volitional
21   calculation squares with the level of consent necessary to confer
22   upon a non-Article III court the power to enter a final judgment,
23   as found in the magistrate cases relied upon by Bellingham.
24        Here, however, Hasse was not calculating; she and her
25   counsel were clueless.   It was only after this Panel raised the
26   issue that she even formulated an objection to the authority of
27   the bankruptcy judge to “determine” the matter and enter a final
28   order.   These facts thus present a variation on the consent

                                     15
 1   theme: the record here is devoid of facts that indicate any
 2   “sandbagging” or manipulation of the litigation process.    The
 3   record, however, is replete with instances of Hasse’s conscious
 4   engagement and use of the bankruptcy court and the services of
 5   this Panel to resolve the Trustee’s claim in her favor.    More
 6   importantly, these actions were undertaken against an almost
 7   unavoidable backdrop which called the bankruptcy court’s
 8   authority into question.   As stated previously, despite the
 9   background rumblings of Marshall v. Stern (In re Marshall), 600
10   F.3d 1037 (9th Cir. 2010) at the Ninth Circuit and Stern v.
11   Marshall at the Supreme Court, Hasse stood mute while the
12   bankruptcy court and this Panel endeavored to resolve the
13   dispute.   Under Bellingham, is that level of knowing inaction
14   sufficient?
15        To answer that question is to examine in detail what level
16   of consent is required.    Bellingham tells us that implied consent
17   works, but does not address whether that implied consent must be
18   accompanied by at least something akin to unexpressed
19   acquiescence – some acknowledgment of the issue coupled with
20   inaction – or whether simply participating in the court
21   proceeding without raising the issue is sufficient.
22        The issue of the proper basis for consent to a bankruptcy
23   court’s authority to enter a final judgment has a long history.
24   The Supreme Court has long held that simple participation by a
25   creditor in the claims resolution process constitutes consent to
26   the entry of a final order as to that claim.   Bryan v.
27   Bernheimer, 181 U.S. 188, 197 (1901) (consent to summary
28   jurisdiction by filing proof of claim); Katchen v. Landy, 382

                                      16
 1   U.S. 323, 334 (1966) (filing proof of claim confers summary
 2   jurisdiction on bankruptcy court over preference actions and
 3   actions to recover property filed by the bankruptcy trustee in
 4   claim disallowance action); Cline v. Kaplan, 323 U.S. 97, 99
 5   (1944) (dicta).   Cf. Alexander v. Hillman, 296 U.S. 222, 238-39,
 6   242-43 (1935) (claim filed in federal equity receivership submits
 7   claimant to court’s jurisdiction in respect of all defenses,
 8   objections, and counterclaims).
 9        It has also held that filing a proof of claim is a waiver of
10   the right to have a jury determine the existence and amount of
11   the claims against the estate, Langenkamp v. Culp, 498 U.S. 42,
12   44-45 (1990) (per curiam), and is also a waiver of any state
13   sovereign immunity otherwise protected by the Eleventh Amendment.
14   Gardner v. New Jersey, 329 U.S. 565, 573-74 (1947).
15        The main difference here, however, is that Hasse is not a
16   creditor of the estate.   Thus, the constitutional ability of
17   Congress to allocate final adjudicatory power over a claim for
18   relief to a non-Article III court is more limited.12   As a
19
          12
20         One of the most enduring definitions of Congress’s power
     under the Bankruptcy Clause is that the power:
21        extends to all cases where the law causes to be
          distributed, the property of the debtor among his
22
          creditors: this is its least limit. Its greatest, is a
23        discharge of the debtor from his contracts. And all
          intermediate legislation, affecting substance and form,
24        but tending to further the great end of the
          subject-distribution and discharge-are in the
25        competency and discretion of congress.
26   In re Klein, 42 U.S. (1 How.) 277, 281 (1843) (emphasis supplied)
     (Catron, J., sitting as circuit justice; case reported in a note
27   to Nelson v. Carland, 42 U.S. (1 How.) 265 (1843), inserted
     therein “as being of general interest”). Klein was indicated as
28                                                      (continued...)

                                       17
 1   consequence, those cases finding the power to decide exists
 2   because of mere participation, regardless of consent, are not
 3   particularly persuasive.
 4        The issue thus turns to whether Bellingham’s concept of
 5   consent requires waiver – the intentional relinquishment of a
 6   known right – or whether the required consent can be supplied
 7   through forfeiture.    Although the two doctrines are similar, the
 8   distinction between them is well-known: “Waiver is different from
 9   forfeiture.    Whereas forfeiture is the failure to make the timely
10   assertion of a right, waiver is the intentional relinquishment or
11   abandonment of a known right.”    Olano, 507 U.S. at 733 (internal
12   quotation marks and citation omitted).    That forfeiture might be
13   sufficient is foreshadowed by Bellingham itself, which quotes
14   Olano when describing the actions relevant there.    Bellingham,
15   702 F.3d at 568.
16        But we need not wade into this issue.    There is more
17   happening here than simple forfeiture.    Throughout, Hasse was
18   represented by counsel, who actively represented her interests
19   and who made all of the discretionary decisions such
20   representation entails.    These types of discretionary decisions
21   include the decision to challenge the authority of the court
22   hearing the matter.    Hasse’s counsel knew or should have known of
23   Stern.    The Ninth Circuit’s opinion in Marshall v. Stern was
24   issued one week before Hasse answered the adversary complaint and
25
26        12
           (...continued)
27   the source of one of the “oft-quoted” definitions of the
     bankruptcy power in Louisville Joint Stock Land Bank v. Radford,
28   295 U.S. 555, 588 n.18 (1935).

                                      18
 1   nine months before trial.   The Supreme Court granted certiorari
 2   in Stern v. Marshall two months before trial.   Under Bellingham,
 3   this is notice of the issue.   Bellingham, 702 F.3d at 569 (citing
 4   Marshall v. Stern, 600 F.3d at 1037).
 5        The moment when such a decision is presented matters,
 6   because, to the extent the magistrate analogy relied upon by
 7   Bellingham holds, courts both before and after Roell have held
 8   that a represented party who participates without objection in
 9   proceedings before a magistrate judge has impliedly consented to
10   that judge’s authority to enter a final order or judgment.13
11   Stevo v. Frasor, 662 F.3d 880, 883–84 (7th Cir. 2011) (express
12   consent to first magistrate judge deemed implied consent to
13   authority of second magistrate judge where plaintiff had
14   proceeded through discovery and summary judgment without
15   objection); Heft v. Moore, 351 F.3d 278, 281 (7th Cir. 2003)
16   (implied consent found in participation in proceeding without
17   objection); Baker v. Socialist People’s Libyan Arab Jamahirya,
18   810 F. Supp. 2d 90, 98–99 (D.D.C. 2011) (implied consent found
19   where properly-served defendants, including the Syrian Arab
20   Republic, chose to “sit back and wait” and only moved to vacate a
21   default judgment after eight years of litigation because the
22   judgment was “not to their liking”); Warren v. Thompson, 224
23
          13
24          We do not reach the issue of whether unrepresented parties
     are inherently deemed unaware of the right to refuse consent and
25   demand an Article III forum. The Ninth Circuit, however, has
26   found that a pro se plaintiff who had expressly consented to the
     authority of one magistrate judge thereby impliedly consented to
27   the authority of a different magistrate judge upon case
     reassignment. Wilhelm v. Rotman, 680 F.3d 1113, 1119 (9th Cir.
28   2012).

                                     19
 1   F.R.D. 236, 238–39 (D.D.C. 2004) (plaintiff’s counsel
 2   participated in pre-trial and trial proceedings).14      Cf. U.S. v.
 3   Gamba, 541 F.3d 895, 900 (9th Cir. 2008) (consent of client to
 4   magistrate judge’s presiding over closing argument to jury could
 5   be vested in counsel alone, and not require client’s
 6   participation or express consent); 12 Charles Alan Wright, Arthur
 7   R. Miller & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE § 3071.2
 8   & n.19.3 (2d ed. 1997 & Supp. 2013); 14 JAMES WM . MOORE   ET AL .,

 9   MOORE’S FEDERAL PRACTICE ¶ 73.03[6] (3d ed. 2012).
10        Under this authority, passive and unwitting participation is
11   not sufficient for a finding of voluntary consent.      The Ninth
12   Circuit, for example, has rejected implied consent where a pro se
13   plaintiff’s initial act was to demand a hearing in the district
14   court; the plaintiff proceeded with the magistrate judge only
15   because she thought it was her only choice to obtain relief.
16   Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 919 (9th Cir.
17   2003).    Similarly, the Seventh Circuit held that neither the
18   plaintiff nor defendant had consented to bankruptcy court
19   jurisdiction simply because they had filed motions for abstention
20   and withdrawal of the reference, respectively.       Ortiz v. Aurora
21   Health Care, Inc. (In re Ortiz), 665 F.3d 906, 915 (7th Cir.
22   2011).    The Fifth Circuit held that a pro se state prisoner
23   plaintiff in a 42 U.S.C. § 1983 action did not impliedly consent
24
          14
           One bankruptcy court has reasoned that Roell and
25   Bellingham lead to the conclusion that a defendant in a
26   preference action impliedly consents to the entry of default
     judgment by failing to respond to a summons that states that such
27   failure might result in a default judgment. Exec. Sounding Bd.
     Assocs. Inc. v. Advanced Mach. & Eng’g Co. (In re Oldco M Corp.),
28   484 B.R. 598 (Bankr. S.D.N.Y. 2012).

                                       20
 1   where it was not shown that he “was notified of his right to
 2   withhold consent and retain his right to object to the magistrate
 3   judge’s findings before the district court.”    Donaldson v.
 4   Ducote, 373 F.3d 622, 624–25 (5th Cir. 2004).
 5        These cases distill into a relatively simple principle: once
 6   a party is alerted, or is held to be alerted, to the potential
 7   risks of failing to raise the issue of the tribunal’s authority,
 8   there is a rebuttable presumption that such failure to act was
 9   intentional, and that further purposeful proceeding in the forum
10   indicates consent.   If applicable, this presumption then shifts
11   the burden to the objecting party to show a lack of consent, a
12   burden that requires more than a simple statement after
13   litigation has been completed that consent had never been fully
14   given.15
15        In this case, there was early notice of the possible
16   infirmity.   Bellingham established that the Ninth Circuit opinion
17   in Marshall v. Stern, combined with the Supreme Court decision in
18   Granfinanciera, alerted the legal world to bankruptcy courts’
19   possible lack of authority to decide fraudulent transfer actions.
20   Bellingham, 702 F.3d at 569.   In this case, the Ninth Circuit
21   issued its opinion in Marshall v. Stern one week before Hasse
22   answered the Trustee’s complaint.
23        The continued participation in light of the infirmity in
24
25        15
            The same reasoning applies to the grant of default
26   judgments. The silence of a defendant who has been properly
     served is a waiver of the right to contest the factual
27   allegations in the complaint. See Rule 7055; 10A FEDERAL PRACTICE
     AND PROCEDURE , supra, at § 2682 (3d ed. 2012); cf. Televideo Sys.
28   Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987).

                                     21
 1   authority is also present.   Bellingham held that the non-
 2   creditor’s failure to object to the bankruptcy court’s authority
 3   until the appeal reached the Ninth Circuit — such objection
 4   relying on Stern and made more than one year after the Ninth
 5   Circuit issued Marshall v. Stern — amounted to a waiver of its
 6   right to have an Article III court determine the matter.     Id. at
 7   569–70.   Bellingham is thus consistent with those magistrate
 8   cases that find participation by represented parties involves the
 9   type of knowing engagement or purposeful availment that equates
10   with the required consent.
11        Against this background, Hasse’s conduct undoubtedly aligns
12   with those cases that find implied consent.    She was and is
13   represented by counsel, and we thus can assume that she was aware
14   of her right to refuse consent and demand an Article III forum.
15   The Ninth Circuit’s publication of Marshall v. Stern made, or
16   should have made, her counsel aware of the bankruptcy court’s
17   possible lack of constitutional authority.    Despite this
18   knowledge, Hasse extensively participated in litigation at the
19   bankruptcy court and on appeal without raising any challenge to
20   the bankruptcy court’s constitutional authority.16   To allow her
21   to now challenge the court’s authority to enter a final order on
22   the basis of lack of consent would be to ignore Bellingham’s
23   equating such participation with the voluntary acceptance of the
24   bankruptcy court’s ability to determine the matter and enter a
25
26        16
           In the permitted supplemental briefing, Hasse offered no
27   coherent or consistent explanation as to why her conduct did not
     constitute consent; indeed, Hasse never raised or discussed the
28   issue before this Panel raised it on its own.

                                     22
 1   final judgment.    We thus hold that Hasse’s conduct constituted
 2   consent to the authority of the bankruptcy court to hear and
 3   determine – and enter a final judgment – in this case.      As a
 4   consequence of this holding, and despite Bellingham’s citation of
 5   Olano, we do not reach the issue of whether simple forfeiture – a
 6   failure to act without examination of the intent or motivation,
 7   if any, of that failure – can suffice for the type of consent
 8   Bellingham requires.17
 9                     III.   FRAUDULENT TRANSFER ANALYSIS
10   A.   The Bankruptcy Court’s Finding That Pringle Did Not Receive
11        Reasonably Equivalent Value Was Not Clearly Erroneous
12        The substantive issue on appeal is whether Pringle’s gift
13   deed of the Residence to Hasse is avoidable under § 548.      Section
14   548 allows a trustee in bankruptcy to set aside or avoid certain
15   “transfer[s] . . . of an interest of the debtor in property.”
16   § 548(a)(1).   Section 101(54)(D) defines a transfer as “each
17   mode, direct or indirect, absolute or conditional, voluntary or
18   involuntary, of disposing of or parting with–[¶] (i) property; or
19   [¶] (ii) an interest in property.”      In short, “a transfer is a
20   disposition of an interest in property.      The definition is as
21   broad as possible.”      Bernard v. Sheaffer (In re Bernard), 96 F.3d
22   1279, 1282 (9th Cir. 1996).
23        Here, under applicable Idaho law, the gift deed Pringle
24
          17
           In supplemental briefing, Hasse specifically requested
25   that a state court determine the matter. To the extent this is
26   an objection to this Panel’s authority, we simply point out that
     Hasse affirmatively sought appellate review before this Panel
27   when she could have opted out and appealed directly to the
     district court. 28 U.S.C. § 158(c)(1). That election surely
28   constitutes consent as contemplated by Bellingham.

                                        23
 1   signed and delivered conveyed all of his interest in the
 2   Residence to Hasse.   See Hawe v. Hawe, 89 Idaho 367, 406 P.2d 106
 3   (1965).   As such it was a “transfer” of his interest in the
 4   property.
 5        Once the requisite transfer exists, a trustee must show the
 6   following to avoid that transfer under § 548(a)(1)(B):
 7        a bankruptcy trustee must prove that: (1) the transfer
          involved property of the debtor; (2) the transfer was
 8        made within [two years] of the bankruptcy filing;
          (3) the debtor did not receive reasonably equivalent
 9        value for the property transferred; and (4) the debtor
          was insolvent, made insolvent by the transaction,
10        operating or about to operate without sufficient
          capital or unable to pay debts as they become due.
11
12   Spear v. Global Forest Prods. (In re Heddings Lumber & Bldg.
13   Supply, Inc.), 228 B.R. 727, 729 (9th Cir. BAP 1998) (citing Wyle
14   v. C.H. Rider & Family (In re United Energy Corp.), 944 F.2d 589,
15   594 (9th Cir. 1991)).18
16        On appeal, Hasse only challenges one of these elements as
17   found by the bankruptcy court: that Pringle did not receive
18   reasonably equivalent value in exchange for his transfer of the
19   Residence.
20        Even though the Bankruptcy Code does not define what
21   “reasonably equivalent value” means, it “is not an esoteric
22   concept: a party receives reasonably equivalent value . . . if it
23   gets roughly the value it gave.”     VFB LLC v. Campbell Soup Co.,
24
          18
           Spear was decided when the relevant time frame was one
25   year. The Bankruptcy Abuse Prevention and Consumer Protection
26   Act of 2005 (“BAPCPA”), Pub. L. 109-8, 119 Stat. 23., extended
     the coverage of § 548 to transfers occurring within two years of
27   the bankruptcy filing for all bankruptcy cases filed on or after
     April 21, 2006. See 5 COLLIER ON BANKRUPTCY , supra, at
28   ¶ 548.12[13].

                                     24
 1   482 F.3d 624, 631 (3rd Cir. 2007).        “Reasonably equivalent value”
 2   is a key concept in fraudulent transfer law.         As the underlying
 3   goal of § 548 is to preserve estate assets, courts assess
 4   reasonably equivalent value from the creditors’ perspective.           See
 5   In re United Energy Corp., 944 F.2d at 597; Greenspan v. Orrick,
 6   Herrington & Sutcliffe LLP (In re Brobeck, Phleger & Harrison
 7   LLP), 408 B.R. 318, 341-43 (Bankr. N.D. Cal. 2009).
 8        This examination requires the court to consider all of the
 9   circumstances surrounding the transfer, id., but “the focus is
10   whether the net effect of the transaction has depleted the
11   bankruptcy estate.”   Harman v. First Am. Bank of Maryland (In re
12   Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 485 (4th Cir.
13   1992).
14        An examination into reasonably equivalent value is comprised
15   of three inquiries: (1) whether value was given; (2) if value was
16   given, whether it was given in exchange for the transfer; and (3)
17   whether what was transferred was reasonably equivalent to what
18   was received.   In re Brobeck, Phleger & Harrison LLP, 408 B.R. at
19   341-43; Meeks v. Don Howard Charitable Remainder Trust (In re
20   Southern Health Care of Arkansas, Inc.), 309 B.R. 314, 319 (8th
21   Cir. BAP 2004); 5 COLLIER   ON   BANKRUPTCY , supra, ¶ 548.05[2][a].
22        “Value” is defined in the statute as: “property, or
23   satisfaction or securing of a present or antecedent debt of the
24   debtor, but does not include an unperformed promise to furnish
25   support to the debtor or to a relative of the debtor . . . .”
26   11 U.S.C. § 548(d)(2).      “Case law has embroidered this concept to
27   include ‘any benefit’ to the debtor, ‘direct or indirect’ as
28   value.   Indeed, with only limited exceptions, “any . . . kind of

                                          25
 1   enforceable executory promise is value for purposes of section
 2   548.”    5 COLLIER   ON   BANKRUPTCY , supra, ¶ 548.03[5].   Regardless of
 3   its form, the economic benefit must be real and quantifiable.
 4   Gold v. Marquette University (In re Leonard), 454 B.R. 444, 458-
 5   59 (Bankr. E.D. Mich. 2011); Zubrod v. Kelsey (In re Kelsey), 270
 6   B.R. 776, 781 (10th Cir. BAP 2001).
 7        Here, however, at least part of the value Hasse promised was
 8   for Pringle’s future care.          Section 548(d)(2) is explicit in its
 9   exclusion of that type of value from the reasonably equivalent
10   value calculus; value “does not include an unperformed promise to
11   furnish support to the debtor.”           To the extent Hasse’s value fell
12   into this category, it cannot factor into the reasonably
13   equivalent value calculation.           See, e.g., Simione v. Nationsbank
14   of Del., N.A. (In re Simione), 229 B.R. 329, 335 (Bankr. W.D. Pa.
15   1999).
16        But arguably some of the value given by Hasse consisted in
17   the satisfaction of Pringle’s obligations to Hasse for support
18   given or provided to Pringle before the transfer.             Although an
19   executory promise of future support is not value, the
20   satisfaction of an existing valid debt for past support is.             See
21   Schilling v. Montalvo (In re Montalvo), 333 B.R. 145, 149 (Bankr.
22   W.D. Ky. 2005) (spouse’s transfer of money to other spouse for
23   customary household and living expenses was for value in that it
24   satisfied spouse’s legal support obligation).
25        For that part of Hasse’s value not excluded by section
26   548(d)(2), the value to the estate must be reasonably equivalent
27   to the value given up – here as represented by the Residence’s
28   $35,000 value.       This equivalence need not be precise.        “By its

                                             26
 1   terms and application, the concept of ‘reasonably equivalent
 2   value’ does not demand a precise dollar-for-dollar exchange.”
 3   Advanced Telecomm. Network, Inc. v. Allen (In re Advanced
 4   Telecomm. Network, Inc.), 490 F.3d 1325, 1336 (11th Cir. 2007)
 5   (citation omitted).
 6        Even against this relatively relaxed standard, Hasse does
 7   not point to any particular error in the manner in which the
 8   bankruptcy court determined reasonably equivalent value; instead,
 9   Hasse contends that the services she promised to perform for
10   Pringle (Pringle’s care and allowing him to continue to live in
11   the Residence) were sufficient consideration to support the deed.
12   In support, she cites Baker v. Pattee, 684 P.2d 632, 635-36 (Utah
13   1984).
14        But Hasse’s reliance on Baker is misplaced.   Consideration
15   sufficient to support a simple contract is a different concept
16   than reasonably equivalent value under fraudulent transfer law.
17   Baker demonstrates this.   It upheld a trial court’s finding that
18   the defendant gave sufficient consideration to defeat an
19   equitable action under Utah law to cancel a deed for failure of
20   consideration.   It made no finding of the equivalence of
21   exchange, instead finding that the grantor had given “adequate
22   and substantial consideration” for the property, id. at 636, a
23   standard quite different from “reasonably equivalent value.”
24        Here, we are not dealing with a finding concerning the
25   sufficiency of consideration under state law, but rather with a
26   finding under § 548 that Pringle did not receive reasonably
27   equivalent value.   As the cases we cite above reflect, the
28   concept of reasonably equivalent value is markedly different from

                                     27
 1   the concept of sufficiency of consideration.    Moreover, Baker is
 2   based in large part on the “considerable deference” that the Utah
 3   Supreme Court gave to the trial court’s finding of sufficient
 4   consideration.   Id. at 634.   The bankruptcy court’s finding here,
 5   that Pringle did not receive reasonably equivalent value, also is
 6   entitled to considerable (if not even greater) deference under
 7   the applicable federal standard of review.    See Rule 8013; Forest
 8   Grove School Dist. v. T.A., 638 F.3d 1234, 1239 (9th Cir. 2011).
 9        The bankruptcy court did not specify what (if any) market
10   value it assigned to Hasse’s promises or to her past care, but we
11   know of no authority compelling it to do so under these
12   circumstances.   The court simply found: “whatever value, real
13   value came out of [Hasse’s] promise, was not reasonably
14   equivalent to the value that the debtor gave up in this exchange
15   and that was a $35,000 unencumbered house.”    Hr’g Tr. (Jan. 4,
16   2011) at 7:23-8:2.
17        We believe that the record was sufficient to support the
18   court’s finding.   A bankruptcy court’s determination of
19   reasonably equivalent value is a finding of fact that we review
20   under the clearly erroneous standard.    See Rule 8013; Decker v.
21   Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109-10 (9th Cir.
22   2010).   The clearly erroneous standard of review is difficult for
23   any appellant to overcome.     Under the clearly erroneous standard
24   we may not reverse based on the bankruptcy court’s factual
25   findings unless they are: “‘[1] illogical, [2] implausible, or
26   [3] without support in inferences that may be drawn from the
27   facts in the record.’”   Forest Grove School Dist, 638 F.3d at
28   1239 (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th

                                       28
 1   Cir. 2009) (en banc)).
 2        Hasse’s evidence on the nature, timing and extent of her
 3   promises was equivocal at best.19    Furthermore, even if we were
 4   to assume that Hasse’s promises and past care had substantial
 5   market value, a number of different concerns could have
 6   legitimately caused the bankruptcy court to discount that value.
 7   Those concerns include but are not limited to: the risk of future
 8   nonperformance, the nebulous/unquantifiable value of some aspects
 9   of what services were promised or rendered, the likelihood that
10   Hasse was willing to, and did, take care of Pringle even without
11   the transfer (based on their longstanding relationship), and
12   § 548’s express exception to the definition of value of
13   “unperformed promise[s] to furnish support.”
14        In short, on this record, we simply cannot conclude that the
15   bankruptcy court’s reasonably equivalent value finding was
16   “[1] illogical, [2] implausible, or [3] without support in
17   inferences that may be drawn from the facts in the record.”    See
18   Forest Grove School Dist., 638 F.3d at 1239 (internal quotation
19
          19
20         Indeed, on appeal, Hasse suggested that the value given in
     exchange included her prior care for Pringle (as much as her
21   promise to care for him in the future). And yet there was no
     evidence in the record indicating that Hasse ever intended to
22
     charge Pringle for the prior care he received, or that the
23   transfer of the Residence was quid pro quo for such prior care.
     See In re Brobeck, Phleger & Harrison LLP, 408 B.R. at 341 (“A
24   transfer is for value [for purposes of § 548] if one is the quid
     pro quo of the other.”); Slone v. Lassiter (In re Grove-Merritt),
25   406 B.R. 778, 806 (Bankr. S.D. Ohio 2009) (citing cases and
26   holding that the value must be given quid pro quo for the assets
     the debtor transferred). Hasse’s references to both prior care
27   and promises of future care further muddy the waters regarding
     what was agreed to and the value of what was received in exchange
28   for the Residence.

                                     29
 1   marks and citation omitted).        As a result, the bankruptcy court
 2   did not commit reversible error when it found that Pringle did
 3   not receive reasonably equivalent value in exchange for the
 4   transfer of the Residence.
 5   B.     The Bankruptcy Court Did Not Err When it Rejected as a
 6          Matter of Law Hasse’s “No Harm, No Foul” Argument
 7          Hasse argues that the transfer of the Residence does not
 8   constitute a fraudulent transfer because, if Pringle had not
 9   transferred it, he would have been able to claim an exemption in
10   the Residence in any event, so his creditors are no worse off as
11   a result of the transfer than they would have been absent the
12   transfer.        This is the so-called “no harm, no foul” argument.20
13          The Ninth Circuit rejected this argument in In re Noblit, 72
14   F.3d at 758-59.        In that case, before filing for bankruptcy, the
15   debtor had transferred a portion of the proceeds from the sale of
16   her house to Arlan and Donna Smoker to satisfy a preexisting
17   debt.        When the trustee sued the Smokers to avoid and recover the
18   transfer as a preference under § 547, the Smokers argued that, if
19   the debtor simply had kept the house, she would have been
20   entitled to claim a homestead exemption, so the debtor’s
21   creditors were no worse off as result of the transfer.        Id. at
22   758.     In rejecting this argument, Noblit reasoned that the
23   exemption was “personal to the debtor” and that when the debtor
24   made the transfer, she essentially waived any exemption that she
25
26           20
           As this is an interpretation of section 548 and the Code
27   generally, this argument raises a question of law which we review
     de novo. See Tavenner v. Smoot, 257 F.3d 401, 405-07 (4th Cir.
28   2001); In re Trujillo, 215 B.R. at 203.

                                          30
 1   otherwise might have claimed.      Id.   After all, the debtor thereby
 2   gained the use of the proceeds of the transfer.      Noblit further
 3   reasoned that the Smokers, as the transferees who had received
 4   the preference, had no standing to raise any such exemption as a
 5   defense against the trustee’s preference avoidance action.      Id.
 6          In In re Trujillo, 215 B.R. at 205, we followed Noblit in
 7   rejecting a similar argument under § 548.      We also rejected an
 8   alternate argument based on the same “no harm, no foul” theory
 9   that, even if the subject transfer was a fraudulent transfer
10   under § 548, the transfer should not be avoided because the
11   transfer did not diminish the debtor’s bankruptcy estate.       Id. at
12   204.    We acknowledged that this no-diminishment-of-the-estate
13   argument had validity prior to the 1978 enactment of the
14   Bankruptcy Code because, under the Bankruptcy Act of 1898, exempt
15   property did not qualify as property of the estate.      See id. at
16   205.    In contrast, we pointed out that the Bankruptcy Code treats
17   the debtor’s property subject to exemptions as property of the
18   estate.    Id.    In other words, unless and until the debtor
19   actually claims an exemption in the subject property and that
20   exemption is allowed, the subject property remains property of
21   the estate.      Id.   We further noted that the no-diminishment-of-
22   the-estate argument cannot be reconciled with § 522(g), which in
23   relevant part effectively prohibits a debtor from claiming an
24   exemption in property recovered by the trustee to the extent the
25   debtor voluntarily transferred away that property.      215 B.R. at
26   205.
27          A handful of cases since the enactment of the Bankruptcy
28   Code have accepted the no harm, no foul argument.      See, e.g.,

                                         31
 1   Kapila v. Fornabaio (In re Fornabaio), 187 B.R. 780, 782-83
 2   (Bankr. S.D. Fla. 1995); Jarboe v. Treiber (In re Treiber), 92
 3   B.R. 930, 932 (Bankr. N.D. Okla. 1988).   But the majority of
 4   courts addressing the issue have rejected the argument for
 5   essentially the same reasons that Noblit and Trujillo rejected
 6   it.   See, e.g., Tavenner, 257 F.3d at 406-07; Sullivan v. Welsh
 7   (In re Lumbar), 457 B.R. 748, 754 (8th Cir. BAP 2011).
 8   Regardless of contrary authority outside the circuit, binding
 9   authority within the circuit has not changed.   Following Noblit
10   and Trujillo, as we must, we conclude that the bankruptcy court
11   did not err when it rejected Hasse’s no harm, no foul argument.
12   C.    The Bankruptcy Court Did Not Commit Reversible Error When it
13         Found That Pringle Made the Transfer with the Intent to
14         Hinder or Delay Luna and That Pringle Was Indebted to Luna
15         for Purposes of § 548
16         Hasse also challenges the bankruptcy court’s alternate
17   determination that the transfer of the residence constituted an
18   intentional fraudulent transfer under § 548(a)(1)(A).21   Here
19
20
           21
           Unlike the Uniform Fraudulent Transfer Act, “reasonably
21   equivalent value” is not a defense to avoidance with respect to a
     transfer made with the actual intent to hinder, delay, or
22
     defraud. Compare Unif. Fraudulent Transfer Act § 8(a) (“A
23   transfer or obligation is not voidable under [the provision
     related to transfers made with the intent to defraud] against a
24   person who took in good faith and for a reasonably equivalent
     value or against any subsequent transferee or obligee.”) with 11
25   U.S.C. § 548(c) (“[A] transferee or obligee of such a transfer or
26   obligation that takes for value and in good faith has a lien on
     or may retain any interest transferred or may enforce any
27   obligation incurred, as the case may be, to the extent that such
     transferee or obligee gave value to the debtor in exchange for
28   such transfer or obligation.”).

                                     32
 1   again, given the inherent factual nature of these questions, we
 2   review the bankruptcy court’s findings that Pringle intended to
 3   hinder or delay Luna and that Pringle was indebted to Luna at
 4   that time for error under the clearly erroneous standard.          See
 5   Rule 8013; Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34
 6   F.3d 800, 805 (9th Cir. 1994).
 7        Because direct evidence of intent is rare, courts tend to
 8   infer the existence of an intentional fraudulent transfer from
 9   the circumstances surrounding the transfer.          In re Acequia, Inc.,
10   34 F.3d at 805-06.
11        Among the more common circumstantial indicia of
          fraudulent intent at the time of the transfer are:
12        (1) actual or threatened litigation against the debtor;
          (2) a purported transfer of all or substantially all of
13        the debtor’s property; (3) insolvency or other
          unmanageable indebtedness on the part of the debtor;
14        (4) a special relationship between the debtor and the
          transferee; and, after the transfer, (5) retention by
15        the debtor of the property involved in the putative
          transfer.
16
          The presence of a single badge of fraud may spur mere
17        suspicion; the confluence of several can constitute
          conclusive evidence of actual intent to defraud, absent
18        "significantly clear" evidence of a legitimate
          supervening purpose.
19
20   Id. at 806 (quoting Max Sugarman Funeral Home, Inc. v. A.D.B.
21   Investors, 926 F.2d 1248, 1254-55 (1st Cir. 1991)).          See also
22   Unif. Fraudulent Transfer Act § 4(b)(1)-(11) (listing badges of
23   fraud); 5 COLLIER   ON   BANKRUPTCY , supra, ¶ 548.04[1][b][i].
24        The record contains uncontroverted evidence of virtually all
25   of Acequia’s indicia of fraudulent intent.         The Residence
26   constituted most if not all of Pringle’s net worth.          The transfer
27   was to a long-term companion, and Pringle remained in possession.
28   Finally, and as a sockdolager, Pringle admitted that he

                                           33
 1   transferred the Residence in part because of his concern over
 2   Luna’s lawsuit.
 3         Hasse has not disputed any of these facts.   She argues,
 4   however, that there was insufficient evidence from which the
 5   court could have concluded that Pringle was indebted to Luna.
 6   Again, the clearly erroneous standard requires a strong showing
 7   of error: we cannot dismiss the bankruptcy court’s factual
 8   finding of the existence of a claim unless that finding was
 9   “[1] illogical, [2] implausible, or [3] without support in
10   inferences that may be drawn from the facts in the record.”
11   Forest Grove School Dist., 638 F.3d at 1239 (internal quotation
12   marks and citation omitted).
13         Hasse has not met this standard.   As noted above, Pringle
14   admitted at trial that, at the time of the transfer, Luna was
15   suing him for roughly $100,000 on account of an automobile
16   accident.   This was more than sufficient evidence to support the
17   court’s finding that Pringle was indebted to Luna within the
18   meaning of § 548.    While Congress did not define the word
19   “indebted” either in § 548 or elsewhere in the Bankruptcy Code,
20   “indebted” commonly and unambiguously refers to the condition of
21   being in debt.22    In turn, the Bankruptcy Code defines “debt” as
22   “liability on a claim,” § 101(12), and broadly defines “claim”
23   as:
24         (A) right to payment, whether or not such right is
           reduced to judgment, liquidated, unliquidated, fixed,
25
26         22
           See Oxford English Dictionary, Online edition,
27   http://www.oed.com/view/Entry/94198?redirectedFrom=indebted#eid
     (last visited July 2, 2013) (stating that “indebted” means “Under
28   obligation on account of money borrowed; owing money; in debt.”).

                                       34
 1        contingent, matured, unmatured, disputed, undisputed,
          legal, equitable, secured, or unsecured; or
 2
          (B) right to an equitable remedy for breach of
 3        performance if such breach gives rise to a right to
          payment, whether or not such right to an equitable
 4        remedy is reduced to judgment, fixed, contingent,
          matured, unmatured, disputed, undisputed, secured, or
 5        unsecured.
 6   § 101(5).
 7        In light of the definitions of “claim” and “debt,” the
 8   bankruptcy court reasonably inferred that Luna’s $100,000 claim
 9   against Pringle constituted a debt under § 101(12) – albeit an
10   unliquidated and disputed one.         Pringle was thus “indebted” to
11   Luna within the meaning of § 548(a)(1)(A).          The bankruptcy
12   court’s finding was not clearly erroneous.
13        In addition, given the admission of intent as to Luna, and
14   the other badges of fraud evident here, the bankruptcy court
15   could have inferred that Pringle had a general intent to defraud
16   his present or future creditors at the time of the transfer.         See
17   5 COLLIER   ON   BANKRUPTCY , supra, at ¶ 548.04[1] (stating that
18   “general intent to hinder, delay or defraud present or future
19   creditors” is sufficient; “proof of the target’s identity is not
20   required.”).
21        Against this background, the bankruptcy court did not commit
22   reversible error when it found that Pringle made the transfer of
23   the Residence with the intent to hinder or delay Luna and that
24   Pringle was indebted to Luna for purposes of § 548(a)(1)(A).
25                                  IV.   CONCLUSION
26        For the reasons set forth above, the judgment of the
27   bankruptcy court is AFFIRMED.
28

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