                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 27 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

In re JIM L. SHETAKIS DISTRIBUTING               No. 09-15944
CO., dba Shetakis Wholesalers, Inc.,
                                                 D.C. No. 2:08-cv-00832-RLH-
          Debtor.                                GWF
_________________

HUNT, ORTMANN, BLASCO, PALFFY                    MEMORANDUM*
& ROSSELL, INC., a California
corporation,

             Appellant,

  v.

JIM L. SHETAKIS DISTRIBUTING CO.,
a Nevada corporation, dba Shetakis
Wholesalers, Inc.; et al.,

             Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Chief District Judge, Presiding

                      Argued and Submitted October 7, 2010
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD and GRABER, Circuit Judges, and CARNEY,** District
Judge.

      Appellant Hunt, Ortmann, Blasco, Palffy & Rossell, Inc. (“Hunt Ortmann”),

a creditor, appeals the district court’s decision affirming the bankruptcy court’s

grant of summary judgment in an adversary proceeding arising from the re-opened

Chapter 11 bankruptcy case of Appellee Jim L. Shetakis Distributing Co., dba

Shetakis Wholesalers, Inc. (“Shetakis”). In the adversary proceeding, Hunt

Ortmann sought to recover a lease and option to purchase a property that Shetakis,

the debtor, had transferred to Appellee NV Lease Option, LLC (“NVLO”), prior to

the bankruptcy court’s confirmation of the reorganization plan. Hunt Ortmann

sought a declaration that the transfer was void because it was made without the

notice and hearing required by 11 U.S.C. § 363(b)(1) or, alternatively, to set aside

the transfer under 11 U.S.C. § 549.1 We review the bankruptcy court’s grant of

summary judgment de novo and any of its factual findings for clear error. Zurich

Am. Ins. Co. v. Int’l Fibercom, Inc. (In re Int’l Fibercom, Inc.), 503 F.3d 933, 940

(9th Cir. 2007). We affirm.



          **
             The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
      1
      Unless otherwise noted, all statutory references are to the United States
Bankruptcy Code, 11 U.S.C. §§ 101–1532.

                                          2
      The bankruptcy court correctly determined that Shetakis’ transfer of the

lease and option to NVLO was voidable, rather than void. Unauthorized transfers

of property initiated by the debtor are voidable by the trustee under § 549. Such

transfers are not void like transfers of the debtor’s property by creditors or other

third parties. Burkart v. Coleman (In re Tippett), 542 F.3d 684, 691–92 (9th Cir.

2008). The automatic stay provisions of § 362 void transfers of the debtor’s

property by creditors and other third parties in order to protect the debtor from all

collection efforts while it attempts to regain its financial footing. Schwartz v.

United States (In re Schwartz), 954 F.2d 569, 572 (9th Cir. 1992). Such protection

is obviously not necessary for transfers initiated by the debtor itself. See Tippett,

542 F.3d at 691.

      The bankruptcy court also correctly determined that Hunt Ortmann’s claim

to avoid the transfer of the lease and option under § 549 was barred by the two-

year statute of limitations. It was undisputed that Shetakis transferred the lease and

option to NVLO in March 2001 and that Shetakis’ bankruptcy case was closed in

July 2002. Section 549 required Hunt Ortmann to assert its claim to avoid the

transfer within two years of the transfer or before the close of the bankruptcy case,

whichever was earlier. See 11 U.S.C. § 549(d). Hunt Ortmann, however, did not

bring its claim until July 2007. This was several years too late.


                                           3
      Finally, the bankruptcy court correctly concluded that the two-year statute of

limitations was not equitably tolled until November 2006, when Hunt Ortmann

claimed that it finally knew enough about the transfer to NVLO and its

implications to bring its adversary proceeding. It was undisputed that by

November 2004 Hunt Ortmann knew about Shetakis’ bankruptcy and Shetakis’

transfer of the lease and option to NVLO, because its own lawyer asked questions

about these issues in a deposition of Shetakis’ Chief Financial Officer. Despite this

knowledge, Hunt Ortmann did nothing to investigate the transfer for almost three

years. A party cannot invoke equitable tolling when it fails to investigate its claim

in a reasonable, diligent manner. Mangum v. Action Collection Serv., Inc., 575

F.3d 935, 946 (9th Cir. 2009). Had Hunt Ortmann acted with reasonable diligence

in November 2004, it would have discovered that Shetakis improperly transferred

the lease and option without notifying the bankruptcy court. The two-year statute

of limitations is not tolled beyond November 2004, so the district court properly

determined that Hunt Ortmann’s July 2007 action to set aside the transfer is time-

barred.

      AFFIRMED.




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