                                                           FILED
                                                           APR 11 2013
 1
                                                      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. EC-12-1379-DJuMk
                                   )
 6   FRANCISCO LUJAN GARCIA and    )       Bk. No. 08-14334
     LIDUVINA GARCIA GARCIA,       )
 7                                 )       Adv. No. 09-01104
                    Debtors.       )
 8   ______________________________)
                                   )
 9   J. TONY SERRA,                )
                                   )
10                  Appellant,     )
                                   )
11   v.                            )       M E M O R A N D U M1
                                   )
12   JAMES E. SALVEN,              )
     Chapter 7 Trustee,            )
13                                 )
                    Appellee.      )
14   ______________________________)
15                       Submitted without Oral Argument
                                on March 22, 2013
16
                             Filed - April 11, 2013
17
                 Appeal from the United States Bankruptcy Court
18                   for the Eastern District of California
19            Honorable W. Richard Lee, Bankruptcy Judge, Presiding
20
     Appearances:     Appellant J. Tony Serra, pro se, on brief; Trudi
21                    G. Manfredo, Esq. on brief for Appellee.
22
23   Before:    DUNN, JURY and MARKELL, Bankruptcy Judges.
24
25
26        1
            This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.
 1
          Shortly before filing their chapter 7 bankruptcy petition,
 2
     Francisco Lujan and Liduvina Garcia Garcia (“debtors”) paid
 3
     appellant, J. Tony Serra (“Serra”), in advance for his
 4
     representation of their son in a criminal case.2   The chapter 7
 5
     trustee (“Trustee”) initiated an adversary proceeding against
 6
     Serra seeking to avoid the payment as a fraudulent transfer under
 7
     § 548(a)(1)(B).   The bankruptcy court ruled in the Trustee’s
 8
     favor, finding that he met his burden of proof under
 9
     § 548(a)(1)(B).
10
          On appeal, Serra challenges only the bankruptcy court’s
11
     determinations as to whether the funds used to pay him were the
12
     debtors’ property and whether the debtors received “reasonably
13
     equivalent value” for the transfer to Serra.   We AFFIRM.
14
15
                                   FACTS3
16
          On May 1, 2008, the debtors’ son, Miguel Angel Garcia, was
17
     booked into Madera County jail on an attempted murder charge.      On
18
     May 15, 2008, the debtors paid $30,000 (“funds”) to Serra, an
19
     experienced criminal attorney, on their son’s behalf to represent
20
     him in the criminal case.   The debtors paid Serra by personal
21
22
23
24
          2
25          Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
27        3
            We have taken most of the facts from the memorandum
28   decisions of the bankruptcy court and the district court.

                                      2
 1   check from their joint bank account (“transfer”).4      Serra cashed
 2   the check the next day.   He later acknowledged in a letter, dated
 3   August 28, 2008, that he received the check from the debtors
 4   (“receipt letter”).
 5        The debtors filed their chapter 7 bankruptcy petition on
 6   July 22, 2008.    They did not disclose the transfer in their
 7   statement of financial affairs (“SOFA”) or their schedules.
 8        The debtors later amended their SOFA to disclose the
 9   transfer (“amended SOFA”).   They listed the transfer date as
10   May 16, 2008, and Serra as the transferee.   They also stated the
11   following:
12        Debtors’ son, Miguel Angel Garcia, was charged with a
          crime. Friends and family entrusted Debtors with
13        approximately $29,000.00 to pay criminal defense
          attorney, J. Tony Serra, on son’s behalf.
14
          Approx. $1,000.00 was transferred from son, Miguel
15        Angel Garcia, to debtors, to also pay attorney J. Tony
          Serra.
16
          Total for attorney fees was $30,000.    NO VALUE
17        RECEIVED.
18        Notably, the debtors did not amend their schedules to list
19   as creditors the friends and family members who allegedly
20   contributed portions of the funds.
21        The Trustee is the duly appointed trustee in the debtors’
22   chapter 7 case.   He initiated an adversary proceeding against
23   Serra by filing a complaint to avoid the transfer under
24
25
26
27        4
            Both of the debtors’ names appeared on the check, along
28   with their home address.

                                       3
 1   §§ 548 and 5505 and to order Serra to turn over the transfer
 2   under § 542 (“complaint”).6   Representing himself, Serra answered
 3   the complaint with a general denial.
 4        The Trustee later moved for summary judgment (“summary
 5   judgment motion”).   He argued that no genuine issues of material
 6   fact existed because all of the elements to avoid the transfer
 7   under §§ 548 and 550 had been met.    To buttress his summary
 8   judgment arguments, the Trustee pointed out that he sent Serra a
 9   request for admissions (“admissions request”).     In the admissions
10   request, he asked Serra to confirm the check’s authenticity, the
11   date and the amount of the transfer and the purpose of the
12   transfer.   The Trustee contended that the admissions request was
13   deemed admitted when Serra failed to respond.
14        Serra did not answer the summary judgment motion but instead
15   filed his own motion for summary judgment (“cross-motion”),
16   asserting two affirmative defenses.    First, he contended that the
17   good faith exception under § 550(b)(1) applied.7    Second, Serra
18   argued that the debtors did receive reasonably equivalent value
19   for the transfer in the form of their son’s love, satisfaction
20
          5
21          In the complaint, the Trustee did not cite the specific
     subsection of § 548 under which he sought to avoid the transfer.
22   He did enumerate, however, all of the elements under
     § 548(a)(1)(B).
23
          6
24          The Trustee originally sought to avoid the transfer under
     §§ 544, 548 and 550. But in his summary judgment motion, he
25   sought to avoid the transfer under §§ 548 and 550 only.
26        7
            Under § 550(b)(1), a trustee cannot recover from a
27   secondary or subsequent transferee any funds taken by such
     transferee in good faith and without knowledge of the voidability
28   of the transfer to the initial transferee.

                                      4
 1   that they performed their moral and familial duties, and a
 2   “heightened self-esteem” brought about by increased respect from
 3   family and friends for their sacrifice.
 4        The Trustee opposed the cross-motion, contending that the
 5   good faith exception under § 550(b)(1) did not apply because
 6   Serra was the initial transferee.     He also pointed out various
 7   procedural defects, including Serra’s failure to provide a
 8   statement of undisputed facts and to serve a notice of hearing
 9   with the cross-motion.
10        On November 18, 2009, the bankruptcy court held a hearing on
11   the summary judgment motion and cross-motion (“summary judgment
12   hearing”).8   Serra did not appear personally at the summary
13   judgment hearing, but had another non-bankruptcy attorney appear
14   on his behalf.9    Serra’s attorney requested that the bankruptcy
15   court continue the summary judgment hearing to allow Serra to
16   find a bankruptcy attorney and to file a response to the summary
17   judgment motion.    Tr. of November 18, 2009 hr’g, 6:19-23,
18   7:23-25.   The bankruptcy court denied Serra’s request for a
19   continuance of the summary judgment hearing.    Tr. of November 18,
20   2009, 8:17.
21
          8
22          Neither the Trustee nor Serra provided a copy of the
     transcript of the summary judgment hearing. We reviewed a copy
23   from the bankruptcy court’s electronic adversary proceeding
24   docket. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,
     Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989)(the BAP may take
25   judicial notice of underlying bankruptcy records).
26        9
            Serra initially represented himself but later had two non-
27   bankruptcy attorneys represent him. The bankruptcy court
     repeatedly advised Serra over the course of the adversary
28   proceeding that he needed a bankruptcy attorney to represent him.

                                       5
 1        The bankruptcy court also denied the cross-motion “as being
 2   in improper form and not supported by evidence.”      Tr. of
 3   November 18, 2009 hr’g, 4:21-23.       It further noted that the
 4   cross-motion had not been served with a notice of hearing.         Tr.
 5   of November 18, 2009 hr’g, 4:23.
 6        The bankruptcy court went on to grant the Trustee’s summary
 7   judgment motion concluding that no triable issues of material
 8   fact existed.   It determined that the debtors made the transfer
 9   two months prepetition.   The bankruptcy court also determined
10   that the debtors did not receive consideration for the transfer,
11   i.e., that they did not “receive[] anything in return that
12   enhanced the bankruptcy estate.”       Tr. of November 18, 2009 hr’g,
13   8:24-25.   It acknowledged that though the debtors “were trying in
14   good faith to help their son . . . the measure of consideration
15   here [under § 548 was] not good will and good feelings . . . it
16   [was] whether the estate received anything back of value that
17   could be used to pay creditors.”       Tr. of November 18, 2009 hr’g,
18   9:11-16.   It also determined that the debtors were insolvent at
19   the time they made the transfer: that there was “substantially
20   more debt when they filed bankruptcy than they have assets and no
21   evidence of anything that would cause the decrease in the assets
22   in the two months prior to the filing of the bankruptcy.”      Tr. of
23   November 18, 2009 hr’g, 9:4-7.
24        Serra appealed to the district court, which affirmed the
25   bankruptcy court on all but one of its determinations.      The
26   district court found that the bankruptcy court did not rule on
27   the issue of whether the funds were the debtors’ property.         The
28   district court concluded that it was unclear “whether the

                                        6
 1   [Trustee] established this element pursuant to summary judgment
 2   standards, and whether the bankruptcy court considered the
 3   evidence in the record.”     Order on Bankruptcy Appeal, 17:7-9.
 4   The district court remanded that single issue to the bankruptcy
 5   court for its determination.
 6          The bankruptcy court held a trial on the remanded issue on
 7   June 1, 2012.     Two days before the trial, Serra filed a document
 8   titled, “Defendant’s Submission.”       In it, he advised the
 9   bankruptcy court that he waived both his appearance at and
10   participation in the trial.10
11          Counsel for the Trustee appeared at the trial, but Serra did
12   not.    At the outset of the trial, the bankruptcy court noted that
13   Serra had waived his appearance at and participation in the
14   trial.      Tr. of June 1, 2012 hr’g, 3:13-22.
15          The Trustee’s counsel requested that the bankruptcy court
16   enter all of the Trustee’s exhibits as evidence, including copies
17   of the check, the receipt letter and the debtors’ bankruptcy
18   schedules.     Tr. of June 1, 2012 hr’g, 4:9-20.   The bankruptcy
19   court admitted all of the exhibits into evidence with no
20   opposition from Serra.     Tr. of June 1, 2012 hr’g, 4:19-20.
21          At the close of argument, the bankruptcy court pointed out
22   that Serra did not provide any evidence regarding the
23   contributions made by the debtors’ friends and family to the
24
            10
25          Serra also advised the bankruptcy court that he intended
     to appeal the district court’s decision. He made good on his
26   intent, filing a notice of appeal on October 24, 2011. The Ninth
27   Circuit dismissed his appeal for lack of jurisdiction on the
     ground that the district court’s decision was not a final
28   judgment under 28 U.S.C. § 1291.

                                         7
 1   funds; no evidence was given “as to when that was done, when it
 2   was put in [the debtors’] account, how long it was there, whether
 3   it was commingled with other money.”    Tr. of June 1, 2012 hr’g,
 4   8:1-3.   The bankruptcy court stressed that it was “not prepared
 5   to find, based on that representation alone, that the debtors
 6   were just a conduit for this money.”    Tr. of June 1, 2012 hr’g,
 7   8:4-6.   It found that the check was the debtors’ property.     Tr.
 8   of June 1, 2012 hr’g, 8:17-18.   It thus ruled in the Trustee’s
 9   favor.   Tr. of June 1, 2012 hr’g, 8:22.
10        The bankruptcy court issued a minute order requiring the
11   Trustee to submit factual findings and legal conclusions by
12   June 14, 2012.   Civil Minute Order.   It allowed Serra until
13   June 21, 2012, to file an opposition.   Id.
14        Serra timely filed his opposition, arguing that the evidence
15   did not support the bankruptcy court’s ruling.   Defendant’s
16   Objection to Court’s Ruling of June 1, 2012.    He contended that
17   the sole issue before the bankruptcy court was whether the
18   debtors were a conduit for the funds paid to him.   Serra argued
19   that the check did not address this issue; no evidence had been
20   presented as to “the origin of [the funds;] whether it was
21   provided by others; whether it was a loan to Debtors; when it was
22   put into the account[;] whether it was derived from multiple
23   deposits, and from multiple checks from others.”    Defendant’s
24   Objection to Court’s Ruling of June 1, 2012, 2:4-7.   He further
25   noted that the debtors had not been examined.    Defendant’s
26   Objection to Court’s Ruling of June 1, 2012, 2:7-8.
27        The bankruptcy court issued its memorandum decision on
28   July 17, 2012.   It found that the Trustee met his burden in

                                      8
 1   demonstrating that the funds were the debtors’ property.      It
 2   determined that the evidence showed that the debtors wrote a
 3   personal check in the amount of $30,000, payable to Serra from
 4   their joint bank account.    It further noted that Serra had
 5   acknowledged in the receipt letter that the check came directly
 6   from the debtors.
 7        The bankruptcy court reasoned that because the debtors’
 8   names appeared on the check,
 9        it follow[ed] that Debtors had control over the
          associated bank account along with any funds in that
10        account, including the $30,000 that was later
          transferred. Given this control, the Debtors
11        presumably had an ownership interest in the funds
          located in their bank account immediately before the
12        Debtors transferred them to Serra via a personal check.
          [Citation omitted].
13
14   Memorandum Decision after Trial, 5:21-25.
15        It noted that Serra did not introduce any evidence
16   “rebutting this presumption and showing that the $30,000 can be
17   traced to another source other than from the Debtors.”
18   Memorandum Decision after Trial, 6:2-3.   Because he did not
19   appear at or participate in the trial, Serra failed to introduce
20   any evidence to rebut this presumption.
21        Because it already formally decided the other elements of
22   the Trustee’s fraudulent transfer claim, the bankruptcy court
23   ruled in his favor.    It entered judgment against Serra on
24   October 5, 2012.11    Serra appealed.
25
26        11
            The judgment provided that the funds were the debtors’
27   property “immediately prior to the transfer to Serra.” It
     further provided that the transfer was avoidable under § 548, as
28                                                      (continued...)

                                       9
 1                            JURISDICTION12
 2        The bankruptcy court had jurisdiction under 28 U.S.C.
 3   §§ 1334 and 157(b)(2)(E) and (H).   We have jurisdiction under
 4   28 U.S.C. § 158.
 5
 6                                ISSUES
 7        1) Did the bankruptcy court err in determining that the
 8   funds were the debtors’ property?
 9        2) Did the bankruptcy court err in determining that the
10
          11
11         (...continued)
     all of the other elements of the Trustee’s claim had been decided
12   on summary judgment. Id.
13        12
            Under Stern v. Marshall, 131 S. Ct. 2594 (2011), a
14   bankruptcy court generally lacks authority to enter a final
     judgment on an action to avoid a fraudulent transfer under § 548.
15   However, under Executive Benefits Ins. Agency v. Arkison
     (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 566-69 (9th
16
     Cir. 2012), a party waives or forfeits his right to a final
17   judgment from an Article III court by failing to object timely to
     the bankruptcy court’s jurisdiction or by participating in
18   litigation before the bankruptcy court. Within the Ninth
19   Circuit, such actions constitute implied consent. Bellingham
     Ins. Agency, Inc., 702 F.3d at 567-69.
20        Here, the Trustee asserted in the complaint that the
     bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
21   157. Serra filed an answer to the complaint on June 23, 2009.
22        We cannot access his answer to the complaint, however,
     because it was placed under seal, and neither he nor the Trustee
23   has provided a copy of the answer in the record before us.
     Notably, Serra has not challenged on appeal the bankruptcy
24
     court’s authority to enter the judgment on the Trustee’s
25   fraudulent transfer claim. Because Serra has not raised the
     issue of the bankruptcy court’s jurisdiction over the Trustee’s
26   fraudulent transfer claim, he has waived or forfeited his right
27   to adjudication by an Article III court. See Bellingham Ins.
     Agency, Inc., 702 F.3d at 568-69. We therefore proceed with our
28   analysis.

                                    10
 1   debtors did not receive reasonably equivalent value for the
 2   transfer?
 3                           STANDARDS OF REVIEW
 4        We review the bankruptcy court’s factual findings for clear
 5   error and its legal conclusions de novo.   Decker v. Tramiel
 6   (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir. 2010).
 7        A factual finding is clearly erroneous if it is “illogical,
 8   implausible or without support in the record.”   Retz v. Samson
 9   (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).    Where there
10   is admitted evidence in the record to support the bankruptcy
11   court’s fact findings, an appellate court cannot substitute its
12   views of the facts for those of the bankruptcy court.   Anderson
13   v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).      “Where
14   there are two permissible views of the evidence, the factfinder’s
15   choice between them cannot be clearly erroneous.”    Id. at 574.
16
17                                 DISCUSSION
18   A)   Property of the debtor
19        To avoid a transfer as fraudulent under § 548(a)(1)(B), a
20   bankruptcy trustee must demonstrate that: 1) the transfer
21   involved the debtor’s property; 2) the transfer was made within
22   two years of filing the bankruptcy petition; 3) the debtor
23   received less than reasonably equivalent value in exchange for
24   the transfer; and 4) the debtor was insolvent at the time of the
25   transfer or became insolvent because of it.   Wyle v. C.H. Rider &
26   Family (In re United Energy Corp.), 944 F.2d 589, 594 (9th Cir.
27   1991).   The bankruptcy trustee bears the burden of proof by a
28   preponderance of the evidence.    See, e.g., Western Wire Works,

                                       11
 1   Inc. v. Lawler (In re Lawler), 141 B.R. 425, 428 (9th Cir. BAP
 2   1992)(“[T]he preponderance of the evidence standard applies in
 3   all bankruptcy proceedings grounded in allegations of fraud.”)
 4   (citing Grogan v. Garner, 498 U.S. 279, 286-87 (1991)).    See also
 5   5 Collier on Bankruptcy ¶ 548.11[1][b](Alan N. Resnick & Henry J.
 6   Sommer, eds., 16th ed. rev. 2012)(stating that because the
 7   bankruptcy trustee will be the plaintiff in a § 548(a) action, he
 8   has the burden of establishing his case).
 9        On appeal, Serra disputes the bankruptcy court’s
10   determination as to whether the funds were the debtors’ property.
11   He argues that the bankruptcy court mistakenly relied on the bank
12   statement, which only demonstrated that the funds came from the
13   debtors’ bank account.   The bank statement did not show the
14   actual source of the funds.    Serra contends that there was no
15   evidence showing whether the funds were the debtors’ own or an
16   accumulation of funds from different people.
17        Although “the term ‘property of the debtor’ is not defined
18   in the Bankruptcy Code,” it is defined broadly.   Danning v. Bozek
19   (In re Bullion Reserve of North America), 836 F.2d 1214, 1217
20   (9th Cir. 1988).   Generally, property belongs to the debtor “if
21   its transfer will deprive the bankruptcy estate of something
22   which could otherwise be used to satisfy the claims of
23   creditors.”   Id. (defining “property of the debtor” within the
24   context of § 547(b)).    See also In re Kimura, 969 F.2d 806, 810
25   (9th Cir. 1992)(defining property as “an aggregate of rights;
26   ‘the right to dispose of a thing in every legal way, to possess
27   it, to use it, and to exclude everyone else from interfering with
28   it.’”)(quoting Black’s Law Dictionary 1095 (5th ed. 1979)).

                                      12
 1        Here, the Trustee presented evidence demonstrating that the
 2   debtors owned the funds.   At the trial, his counsel submitted a
 3   copy of the check made out to Serra; the check listed the names
 4   of both debtors and their home address.   Counsel for the Trustee
 5   also submitted a copy of the debtors’ schedules, which listed a
 6   checking account with Wells Fargo Bank from which the check was
 7   issued.    She also submitted a copy of the receipt letter wherein
 8   Serra acknowledged that the debtor, Francisco Lujan Garcia, had
 9   paid him by check.   Serra did not challenge the admissibility of
10   these documents.
11        Serra complains about the lack of evidence but he himself
12   did not proffer any evidence to counter that proffered by the
13   Trustee.    Serra waived his right to present evidence by expressly
14   declining to appear at and participate in the trial.   He cannot
15   now cavil the bankruptcy court’s finding.
16        Based on the record before us, we determine that the Trustee
17   satisfied his burden of proof by providing evidence demonstrating
18   that the funds paid to Serra were the debtors’ property.   Serra
19   did not offer any evidence to rebut the Trustee’s evidence.   We
20   thus conclude that the bankruptcy court did not err in ruling in
21   the Trustee’s favor on the § 548(a)(1)(B) claim against Serra.
22
23   B)   Reasonably equivalent value
24        Serra also appeals the bankruptcy court’s determination that
25   the debtors did not receive reasonably equivalent value for the
26   transfer.   The district court affirmed the bankruptcy court’s
27   determination of this issue on summary judgment.   Although Serra
28   appealed the district court’s ruling, the Ninth Circuit dismissed

                                      13
 1   his appeal because, in light of the district court’s decision and
 2   remand, the disposition of the adversary proceeding was not
 3   final.      See infra n.10.
 4          The district court resolved the reasonably equivalent value
 5   issue in its decision on Serra’s first appeal.   If Serra seeks
 6   further review of that issue, he must take his arguments to the
 7   Ninth Circuit in a further appeal.13   See 28 U.S.C. § 158(a) and
 8   (b).
 9
10                                 CONCLUSION
11          Based on the foregoing discussion and analysis, we AFFIRM.
12
13
14
15
16
17
            13
            We note that Serra did not present to the bankruptcy
18   court any evidence demonstrating that the debtors received any
19   “reasonably equivalent value” for their own benefit and,
     consequently, for the benefit of the estate. See Frontier Bank
20   v. Brown (In re N. Merch., Inc.), 371 F.3d 1056, 1059 (9th Cir.
     2004)(stating that “the primary focus of Section 548 is on the
21   net effect of the transaction on the debtor’s estate and the
22   funds available to the unsecured creditors”); Gough v. Titus
     (In re Christian & Porter Aluminum Co.), 584 F.2d 326, 337 (9th
23   Cir. 1978)(“Transfers made to benefit third parties are not made
     for ‘fair’ consideration. ‘A general assignment of a debtor’s
24
     property must be considered fraudulent if not made solely for the
25   benefit of creditors . . . .’”)(quoting 4 Collier on Bankruptcy,
     ¶ 67.33). See also Maddox v. Robertson (In re Prejean), 994 F.2d
26   706, 708-09 (9th Cir. 1993)(“reasonably equivalent value” under
27   the California Fraudulent Transfer Act, which adopted the Uniform
     Fraudulent Transfer Act, is “determined from the standpoint of
28   the creditors.”).

                                       14
