                                                                 FILED
                                                                  APR 22 2015
 1
                                                              SUSAN M. SPRAUL, CLERK
                                                                U.S. BKCY. APP. PANEL
 2                                                              OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                             )   BAP No.   CC-14-1321-PaKiTa
                                        )
 6   EDWARD E. ELLIOTT,                 )   Bk. No.   SV 11-23855-VK
                                        )
 7                  Debtor.             )   Adv. No. SV 13-01118-VK
     ___________________________________)
 8                                      )
                                        )
 9   EDWARD E. ELLIOTT,                 )
                                        )
10                  Appellant,          )
                                        )
11   v.                                 )   O P I N I O N
                                        )
12   DIANE C. WEIL, Chapter 7           )
     Trustee,                           )
13                                      )
                    Appellee.           )
14   ___________________________________)
15
16                   Argued and Submitted on March 19, 2015
                            at Pasadena, California
17
                            Filed - April 22, 2015
18                               ____________
19             Appeal from the United States Bankruptcy Court
                   for the Central District of California
20
         Hon. Victoria S. Kaufman, U.S. Bankruptcy Judge, Presiding
21
22
23   Appearances:    Andrew E. Smyth, Smyth Law Office, argued for
                     appellant Edward E. Elliott; Alla Tenina, Tenina
24                   Law, Inc., argued for appellee Diane C. Weil,
                     Chapter 7 Trustee.
25
26
27   Before: PAPPAS, KIRSCHER, and TAYLOR, Bankruptcy Judges.
28
 1   PAPPAS, Bankruptcy Judge:
 2
 3        Debtor Edward E. Elliot (“Debtor”) appeals the summary
 4   judgment entered by the bankruptcy court in favor of chapter 71
 5   trustee Diane C. Weil (“Trustee”) revoking Debtor’s discharge
 6   pursuant to § 727(d)(1) and ordering that Debtor turn over a house
 7   to Trustee pursuant to § 542(a).      We conclude that Trustee’s
 8   discharge revocation complaint was not timely filed as required by
 9   § 727(e)(1) and, therefore, that the bankruptcy court erred in
10   revoking Debtor’s discharge.    We thus VACATE that portion of the
11   judgment and REMAND this matter to the bankruptcy court with
12   instructions to dismiss Trustee’s § 727(d) claim.     As a result, we
13   also VACATE the judgment of the bankruptcy court requiring
14   turnover of the house to Trustee and REMAND this matter for
15   further proceedings.
16                                  I.   FACTS
17        Debtor, represented by counsel, filed a chapter 7 petition on
18   December 1, 2011.    In his petition, Debtor listed his address as
19   Hiawatha Street, Granada Hills, California.     On Schedules A and D,
20   Debtor did not list any real property in which he had an interest,
21   nor did he list any claims secured by real property.     Debtor did
22   not schedule several creditors holding a money judgment against
23   him based on fraud and negligent misrepresentation (the “Judgment
24   Creditors”), who apparently had obtained a judgment lien pursuant
25   to California law.   See Cal. Code Civ. Proc. § 697.310(a).
26
27        1
             Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

                                         -2-
 1        During his testimony at the initial § 341(a) meeting of
 2   creditors, Debtor confirmed that his address was Hiawatha Street
 3   and stated that the information in his bankruptcy petition,
 4   schedules, and statement of financial affairs (“SOFA”) was true
 5   and complete.   Debtor further testified that he did not own any
 6   real property and had not transferred or given away anything of
 7   value in the last four years.    Based on the information in
 8   Debtor’s bankruptcy schedules, SOFA, and his § 341(a) meeting
 9   testimony, Trustee filed a “No Distribution” report in the
10   bankruptcy case.   Debtor received a discharge on March 8, 2012,
11   and the bankruptcy case was closed on March 13, 2012.
12        On March 26, 2012, Lee Wong Investments, Inc. (“LWI”)
13   transferred certain real property located in Los Angeles (the
14   “Buckingham Property”) to Debtor by quitclaim deed as a gift.
15   Debtor does not dispute that LWI is a Nevada corporation which he
16   organized and controlled.   LWI was formerly known as Shilalee
17   Enterprise, Inc., but the name of the corporation was changed on
18   February 14, 2007.   Juanita Jehdian, Debtor’s fiancee and LWI’s
19   president, signed the quitclaim deed.
20        Following the transfer of the Buckingham Property to Debtor,
21   he sent a letter to counsel for the Judgment Creditors, who were
22   never informed of the bankruptcy filing, advising counsel that
23   Debtor had acquired the Buckingham Property, and demanding that
24   the judgment liens be removed.   This letter triggered an inquiry
25   by the Judgment Creditors and eventually Trustee, which revealed
26   the history of Debtor’s interest in the Buckingham Property
27   through numerous transfers of title.
28        In particular, shortly after the Judgment Creditors obtained

                                      -3-
 1   their judgment, Debtor, who then owned the Buckingham Property,
 2   deeded it to 1019 South Central Associates, Ltd. (“S. Central”).
 3   California Secretary of State records evidence that a son of
 4   Debtor’s deceased partner organized S. Central.   Shortly
 5   thereafter, S. Central transferred the Buckingham Property to LWI;
 6   LWI held title during Debtor’s bankruptcy case.   LWI conveyed
 7   title back to Debtor after he received his discharge.
 8        When the Judgment Creditors discovered Debtor’s longstanding
 9   connections to the Buckingham Property, they filed a motion to
10   reopen Debtor’s bankruptcy case, which the bankruptcy court
11   granted on January 7, 2013.   Trustee was reappointed to serve in
12   the reopened case.
13        After the case was reopened, Debtor amended his schedules to
14   disclose his interest in the Buckingham Property and to claim any
15   equity in the property exempt as his homestead.   Trustee objected
16   to this claim of exemption based upon Debtor’s bad faith in
17   failing to disclose his interest in the property, and the
18   bankruptcy court sustained Trustee’s objection and disallowed
19   Debtor’s exemption claim.   Debtor appealed and, on December 14,
20   2014, this Panel vacated the order of the bankruptcy court in
21   light of the recent decision of the Supreme Court in Law v.
22   Siegel, 134 S. Ct. 1188 (2014), and remanded the matter to the
23   bankruptcy court for further proceedings to determine if there was
24   any statutory basis to deny Debtor’s homestead exemption under
25   California law or under § 522(g)(1).   Elliott v. Weil (In re
26   Elliott), 523 B.R. 188, 197-98 (9th Cir. BAP 2014).
27        In the meantime, on June 4, 2013, Trustee filed an adversary
28   complaint against Debtor in which she asked the bankruptcy court

                                     -4-
 1   to determine that the Buckingham Property was property of the
 2   estate, to order Debtor to turn over the Buckingham Property to
 3   Trustee, and to revoke Debtor’s discharge.    Debtor retained new
 4   counsel to represent him in the reopened bankruptcy case and in
 5   litigation with Trustee.2
 6           Trustee conducted a continued § 341(a) meeting of creditors
 7   on November 18, 2013, at which time Debtor admitted that he lived
 8   at the Buckingham Property when he filed bankruptcy, that he
 9   considered it to be his home, and that he had purchased it in
10   1989.
11           On January 13, 2014, Trustee filed a motion for summary
12   judgment in the adversary proceeding seeking a revocation of
13   Debtor’s discharge and turnover of the Buckingham Property.       There
14   were several attachments to the motion, including a declaration by
15   Michael Kapulkin, one of the Judgment Creditors, who had obtained
16   a judgment against Debtor in May 2006; a copy of Debtor’s grant
17   deed conveying the Buckingham Property to S. Central dated August
18   14, 2006; a transcript of Debtor’s deposition taken on November
19   15, 2013; a copy of the grant deed transferring the Buckingham
20   Property from S. Central to LWI dated February 13, 2007; a copy of
21   the form changing the name of Debtor’s company from Shilalee
22   Enterprise, Inc. to LWI dated February 14, 2007; a copy of the
23   quitclaim gift deed from LWI to Debtor dated March 26, 2012; a
24
25           2
             As discussed more fully below, remarkably, although
     Trustee’s action to revoke Debtor’s discharge pursuant to § 727(d)
26   was commenced more than a year after Debtor received a discharge,
     and more than a year after Debtor’s case was closed, Debtor did
27   not argue in the bankruptcy court, and does not argue on appeal,
     that the discharge revocation action was time-barred under
28   § 727(e).

                                       -5-
 1   transcript of Debtor’s second § 341(a) meeting; a copy of the
 2   Judgment Creditors’ state court complaint against Debtor; a copy
 3   of the judgment entered by the state court against Debtor dated
 4   May 4, 2006; and a copy of the letter from Debtor to the Judgment
 5   Creditors’ attorney in which he revealed that he had acquired the
 6   Buckingham Property after the entry of his discharge and demanded
 7   that the Judgment Creditors remove their judicial liens on that
 8   property.
 9        In response to Trustee’s summary judgment motion, Debtor
10   filed his own declaration.   He claimed that he had provided all
11   the information about LWI, his interest in the company, and the
12   Buckingham Property, to his bankruptcy attorney.   However, Debtor
13   averred, the attorney failed to include this information in his
14   bankruptcy schedules.   He also stated that, while he had read and
15   signed the bankruptcy petition and schedules, he did not
16   understand them.    In addition, Debtor claimed his attorney advised
17   him to answer Trustee’s questions the way he did in the initial
18   § 341(a) meeting.   Further, Debtor claimed that the bankruptcy
19   petition that he read at his attorney’s office listed the
20   Buckingham Property as his home address and that the address must
21   have been changed by his attorney before it was filed.   Finally,
22   Debtor stated that the quitclaim deed from LWI to Debtor “speaks
23   for itself,” and he, therefore, denied Trustee’s allegation that
24   he received the deed after his discharge.
25        Debtor asked that the motion for summary judgment be denied
26   because there were triable issues of fact.   Specifically, Debtor
27   argued that “[a]dvice of [an] attorney may excuse some types of
28   fraud.”   Debtor then filed a statement of “genuine issues in

                                      -6-
 1   response to summary judgment.”   Debtor identified three fact
 2   issues for trial: “1. Did [Debtor] list his residential address as
 3   [] Hiawatha St[reet] 2. Did [Debtor] state at the [§ 341(a)]
 4   hearing that he resided at [] Hiawatha St[reet] [and] 3. Were the
 5   errors and omissions in the bankruptcy schedules the result of
 6   [Debtor’s] reliance on his attorney.”
 7        The bankruptcy court conducted a hearing on Trustee’s motion
 8   for summary judgment on March 19, 2014, at which the parties
 9   appeared through counsel and argued their positions.     On April 7,
10   2014, the bankruptcy court granted Trustee’s summary judgment
11   motion and entered a “Judgment Vesting Property in Trustee and
12   Revocation of Discharge.”   In this judgment, the bankruptcy court
13   finds and concludes that the Buckingham Property was property of
14   the bankruptcy estate and ordered that it be turned over to
15   Trustee.   In addition, the Court found and concluded:
16              The Court finds [Debtor] knowingly and
                fraudulently failed to disclose a significant
17              asset in his schedules, i.e., [Debtor’s]
                interest in a corporation that held title to
18              his residence. For no consideration, less
                than three weeks after [Debtor] obtained his
19              discharge, [Debtor] obtained title to his
                residence from that corporation. [Debtor’s]
20              residence, a single family home, has a fair
                market value in excess of $600,000. [Debtor]
21              concealed his residence, and the debt secured
                by his residence, in his chapter 7 petition.
22              In his chapter 7 petition and at his initial
                meeting of creditors pursuant to [] § 341(a),
23              in order to conceal property of the estate,
                [Debtor] knowingly and fraudulently
24              misrepresented where he lived. [Trustee] did
                not know of [Debtor’s] fraud until after
25              granting of the debtor’s discharge.
                Therefore, [Debtor’s] bankruptcy discharge
26              shall be, and is, hereby revoked pursuant to
                [] § 727(d)(1) and (e)(1).
27
28        On April 15, 2014, Debtor, now acting pro se, filed a motion

                                      -7-
 1   requesting relief from the judgment.      On June 23, 2014, through
 2   new counsel, Debtor filed a notice of appeal.     The bankruptcy
 3   court denied Debtor’s motion on July 24, 2014.     Debtor did not
 4   amend the notice of appeal to include the bankruptcy court’s
 5   denial of Debtor’s motion for relief from the judgment.     Our
 6   motions panel determined that Debtor’s appeal of the summary
 7   judgment was timely filed because Debtor had filed a tolling
 8   motion.   We agree that the appeal is timely.
 9                              II.   JURISDICTION
10        Although not addressed by either the bankruptcy court or the
11   parties during the proceedings in the bankruptcy court, or in this
12   appeal, § 727(e) presents a jurisdictional impediment to the
13   resolution of the merits of this appeal, which the Panel is
14   compelled to address sua sponte.      See Kontrick v. Ryan, 540 U.S.
15   443, 455 (2004) (a challenge to a federal court’s subject matter
16   jurisdiction may be made at any stage of the proceeding, and the
17   court should raise the question sua sponte) (citing Mansfield, C.
18   & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).      We discuss the
19   subject matter jurisdiction issue below.
20        As to the judgment granting turnover to Trustee, the
21   bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
22   157(b)(2)(E).   We have jurisdiction over that aspect of the appeal
23   under 28 U.S.C. § 158.
24                                III.    ISSUES
25        Whether the bankruptcy court had jurisdiction to revoke
26   Debtor’s discharge pursuant to § 727(d)(1) and (e)(1).
27        Whether the bankruptcy court erred in granting turnover of
28   the Buckingham Property.

                                         -8-
 1                           IV.   STANDARDS OF REVIEW
 2           We review questions of subject matter jurisdiction de novo.
 3   Wilshire Courtyard v. Cal. Franchise Tax Bd. (In re Wilshire
 4   Courtyard), 729 F.3d 1279, 1284 (9th Cir. 2013) (citing Montana v.
 5   Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1193 (9th Cir.
 6   2005)); see also     Mangun v. Bartlett (In re Balboa Improvements,
 7   Ltd), 99 B.R. 966, 969 (9th Cir. BAP 1989) (citing Peter Starr
 8   Prod. Co. v. Twin Cont’l Films, Inc., 783 F.2d 1440, 1442 (9th
 9   Cir. 1986)).    “The burden of establishing subject matter
10   jurisdiction rests on the party asserting that the court has
11   jurisdiction.”    In re Wilshire Courtyard, 729 F.3d at 1284 (citing
12   McNutt v. GM Acceptance Corp., 298 U.S. 178, 182-83 (1936)).
13           We review a bankruptcy court’s grant of summary judgment de
14   novo.    Caneva v. Sun Cmty. Operating Ltd. P’ship (In re Caneva),
15   550 F.3d 755, 760 (9th Cir. 2008).       Summary judgment, according to
16   Civil Rule 56, as applicable to adversary proceedings pursuant to
17   Rule 7056, is appropriate if there is a showing “that there is no
18   genuine dispute as to any material fact and the movant is entitled
19   to judgment as a matter of law.”     Civil Rule 56(a); Celotex Corp.
20   v. Catrett, 477 U.S. 317, 322 (1986).       The evidence must be viewed
21   in the light most favorable to the nonmoving party.      In re Caneva,
22   550 F.3d at 760.    The movant bears the initial burden to
23   demonstrate absence of any genuine issue of material fact and that
24   the movant is entitled to judgment as a matter of law.      Id. at
25   761.    Once the moving party meets its burden the nonmoving party
26   must show that a genuine issue of fact remains for trial.      Id.
27           “Whether property is included in a bankruptcy estate and
28   procedures for recovering estate property are questions of law

                                        -9-
 1   that we review de novo.”   Newman v. Schwartzer (In re Newman), 487
 2   B.R. 193, 197 (9th Cir. BAP 2013) (citing White v. Brown (In re
 3   White), 389 B.R. 693, 698 (9th Cir. BAP 2008)).
 4                              V.   DISCUSSION
 5        A.    The bankruptcy court lacked subject matter jurisdiction
                over Trustee’s claim to revoke Debtor’s discharge.
 6
 7        Subject matter jurisdiction is granted to the bankruptcy
 8   courts via 28 U.S.C. § 1334 and § 157(b).    In re Wilshire
 9   Courtyard, 729 F.3d at 1284-85 (citing Celotex Corp. v. Edwards,
10   514 U.S. 300, 307 (1995); Battle Ground Plaza, LLC v. Ray (In re
11   Ray), 624 F.3d 1124, 1130 (9th Cir. 2010)).    “Bankruptcy courts
12   have subject matter jurisdiction over proceedings ‘arising under
13   title 11, or arising in or related to cases under title 11.’”   In
14   re Wilshire Courtyard, 729 F.2d at 1285 (quoting 28 U.S.C.
15   § 1334(b) and citing 28 U.S.C. § 157(b)(1)).   A proceeding “arises
16   under” title 11 if it “involve[s] causes of action created or
17   determined by a statutory provision of that title.”   Id. (citing
18   Harris v. Wittman (In re Harris), 590 F.3d 730, 737 (9th Cir.
19   2000)).   An action to revoke a debtor’s discharge is a core
20   proceeding.   28 U.S.C. § 157(b)(2)(J).
21        In this case, Trustee rests her claim against Debtor on
22   § 727(d)(1), a Code provision which, under appropriate
23   circumstances, requires the bankruptcy court to revoke a debtor’s
24   chapter 7 discharge, and provides:
25              On request of the trustee, a creditor, or the
                United States trustee, and after notice and a
26              hearing, the court shall revoke a discharge
                granted under subsection (a) of this section
27              if —
28              (1) such discharge was obtained through the

                                      -10-
 1             fraud of the debtor, and the requesting party
               did not know of such fraud until after the
 2             granting of such discharge[.]
 3        Under Rule 7001(2), a proceeding to revoke a debtor’s
 4   discharge requires an adversary proceeding.   Section 727(e)(1), in
 5   turn, establishes the statutory deadline for commencement of the
 6   adversary proceeding under § 727(d)(1) to revoke a debtor’s
 7   discharge: “[t]he trustee, a creditor, or the United States
 8   trustee may request revocation of a discharge — (1) under
 9   subsection (d)(1) of this section within one year after such
10   discharge is granted[.]”    In turn, Rule 9024(2) makes clear that
11   “a complaint to revoke a discharge in a chapter 7 liquidation case
12   may be filed only within the time allowed by § 727(e) of the
13   Code.”
14        In contrast to § 727(d), there is no time prescribed in the
15   Code within which a party may request that a debtor be denied a
16   discharge under § 727(a).   Instead, the deadline to file an action
17   to deny a discharge under § 727(a) is provided in Rule 4004(a).
18   The Supreme Court has addressed whether the Rule 4004(a) time
19   limit constitutes a “jurisdictional” limitation on the authority
20   of the bankruptcy court to adjudicate an objection to discharge
21   under § 727(a).   Kontrick, 540 U.S. at 455 (2004).    In an action
22   filed after the time period specified in the Rule had expired, but
23   where the debtor did not timely raise the Rule as a defense, the
24   Court determined that Rule 4004(a) did not impose a jurisdictional
25   bar and, instead, held that the time period set out in the Rule
26   should be treated in the same fashion as affirmative defenses to
27   an action under § 727(a), any of which is subject to forfeiture if
28   not timely raised by the debtor.   Id. at 456-57.     “In short, the

                                      -11-
 1   filing deadlines prescribed in Bankruptcy Rules 4004 and
 2   9006(b)(3) are claim-processing rules that do not delineate what
 3   cases bankruptcy courts are competent to adjudicate.”    Id. at 454.
 4   Important in this case, in reaching its decision in Kontrick, the
 5   Court found it significant that the time limit for a § 727(a)
 6   action is set out in what it described as the “Court-prescribed”
 7   rules, and that “[o]nly Congress may determine a [bankruptcy
 8   court’s] subject-matter jurisdiction.”    Id. at 452 (citing U.S.
 9   CONST., Art. III, § 1).
10           The considerations in this case are distinctly different to
11   those addressed in Kontrick.     Here, while Congress has provided a
12   statutory basis for the bankruptcy court to exercise subject
13   matter jurisdiction over “arising under” proceedings, such as one
14   to revoke a debtor’s discharge, it has also imposed a temporal
15   limitation in the Code on the bankruptcy court’s ability to grant
16   such relief.    In particular, the discharge granted by the
17   bankruptcy court in Debtor’s favor in this case was entered on
18   March 8, 2012, and the bankruptcy case was closed on March 13,
19   2012.    Trustee’s adversary proceeding requesting the revocation of
20   that discharge was filed on June 4, 2013.    Because Trustee’s
21   § 727(d)(1) action was commenced after the expiration of the one-
22   year time limit provided by § 727(e)(1), we conclude that the
23   bankruptcy court lacked subject matter jurisdiction to grant any
24   relief as to that claim.
25           We have located no controlling Ninth Circuit authority
26   regarding whether § 727(e) limits the bankruptcy court’s
27   jurisdiction to adjudicate a revocation of discharge claim.
28   Indeed, the Panel has specifically declined to decide whether the

                                       -12-
 1   failure to timely comply with § 727(e)(1) is an absolute bar to a
 2   § 727(d)(1) action.   See Lopez v. Specialty Rest. Corp. (In re
 3   Lopez), 283 B.R. 22, 27 n.8 (9th Cir. BAP 2002) (“We do not decide
 4   this issue.   The bankruptcy court stated ‘it appears’ the ability
 5   to seek revocation of the discharge ‘has passed’ pursuant to
 6   Section 727(e).   We note that most courts appear to reject any
 7   extension of the time limits in Section 727(e), although a
 8   minority view would either extend the overall time or hold that
 9   closing interrupts the running of that time period.”) (citations
10   omitted).
11        While there is no appellate authority in this Circuit, a
12   persuasive discussion of this issue is found in the First Circuit
13   BAP’s opinion in The Cadle Co. v. Andersen (In re Andersen), 476
14   B.R. 668 (1st Cir. BAP 2012).   In that case, the panel determined
15   that § 727(e) is indeed a limit on a bankruptcy court’s subject
16   matter jurisdiction based upon Kontrick.   The panel held,
17   “[§] 727(e)(1)’s time requirement is not ‘a mere statute of
18   limitations, but an essential prerequisite to the discharge
19   revocation proceeding.’”   In re Andersen, 476 B.R. at 673 (quoting
20   Gonsalves v. Belice (In re Belice), No. 08-11927-WCH, 2011 WL
21   4572003, at *3 (1st Cir. BAP 2011) and citing Pelletier v. Donald
22   (In re Donald), 240 B.R. 141, 146 (1st Cir. BAP 1999)).   Further,
23   the panel rejected the argument that § 727(e) is subject to
24   equitable tolling and noted “[n]ot only does § 727(e) ‘announce an
25   absolute one year limit for discharge revocation actions,’ it
26   omits a provision for extension.”   Id. at 674 (quoting Murrietta
27   v. Fehrs (In re Fehrs), 391 B.R. 53, 67 (Bankr. D. Idaho 2008)).
28        In addition, several bankruptcy courts have also recognized

                                     -13-
 1   the jurisdictional nature of the § 727(e)(1) deadline.   See Clarke
 2   Cnty. State Bank v. Scott (In re Scott), No. 12-30052-als, 2014 WL
 3   1048550 (Bankr. D. Iowa Mar. 18, 2014) (collecting cases); Romano
 4   v. Defusco (In re Defusco), 500 B.R. 664, 667 (Bankr. D. Mass.
 5   2013) (citing In re Andersen and noting the “clear majority view”
 6   that § 727(e) provides a bankruptcy court with a limit on its
 7   subject matter jurisdiction over § 727(d) causes of action).
 8        We agree with the First Circuit BAP that, based upon the
 9   logic of the Supreme Court’s decision in Kontrick, § 727(e) is
10   both Congress’s grant to, and limitation on, a bankruptcy court’s
11   subject matter jurisdiction over discharge revocation actions.
12   Section 727(e) is a non-waivable statute of repose, and its time
13   limits are not subject to tolling such that the failure to
14   commence a § 727(d) adversary proceeding within the time period
15   specified in § 727(e) deprives the bankruptcy court of
16   jurisdiction to adjudicate that action.3   Because Trustee’s action
17   was not timely commenced, that portion of the bankruptcy court’s
18
19
20
21        3
             The Supreme Court has explained that “[s]tatutes of
22   limitations, but not statutes of repose, are subject to equitable
     tolling, a doctrine that ‘pauses the running of, or “tolls,” a
23   statute of limitations when a litigant has pursued his rights
     diligently but some extraordinary circumstance prevents him from
24   bringing a timely action.’” CTS Corp. v. Waldburger, 134 S. Ct.
     2175, 2183 (2014) (quoting Lozano v. Montoya Alvarez, 134 S. Ct.
25   1224, 1231-32 (2014)). However, a statute of repose, unlike a
     statute of limitation, “mandates that there shall be no cause of
26   action beyond a certain point, even if no cause of action has yet
     accrued.” Id. at 2187; see also DeNoce v. Neff (In re Neff), 505
27   B.R. 255, 263 (9th Cir. BAP 2014) (“In other words, a statute of
     limitations sets a time limit for bringing an action; a statute of
28   repose sets a time period in which an event giving rise to a claim
     for relief must occur.”).

                                    -14-
 1   summary judgment revoking Debtor’s discharge must be vacated.4   On
 2   remand, the bankruptcy court is instructed to enter an order
 3   dismissing Trustee’s § 727(d) discharge revocation claim.
 4        B.     The bankruptcy court erred in granting Trustee turnover
                 of the Buckingham Property.
 5
 6        Read charitably Debtor’s opening brief also argues the
 7   bankruptcy court erred in granting turnover to Trustee of the
 8   Buckingham Property.   While Debtor’s summary approach to this
 9   issue is regrettable, we agree that the bankruptcy court must
10   revisit its turnover order.
11        The bankruptcy court’s judgment requiring Debtor to turn over
12   the Buckingham Property to Trustee rests upon § 542(a), which
13   provides:
14               Except as provided in subsection (c) or (d) of
                 this section, an entity, other than a
15               custodian, in possession, custody, or control,
                 during the case, of property that the trustee
16               may use, sell, or lease under section 363 of
                 this title, or that the debtor may exempt
17               under section 522 of this title, shall deliver
                 to the trustee, and account for, such property
18
19
          4
             At oral argument, when asked to address this predicament,
20   Trustee’s counsel argued that the bankruptcy court’s summary
     judgment could have, perhaps should have, been based upon
21   § 727(d)(2), not § 727(d)(1), and therefore, any jurisdiction
     issue is avoided. This argument misses the mark for several
22   reasons. First, it ignores that the bankruptcy court’s judgment,
     drafted by Trustee’s counsel, expressly recites that it is based
23   upon § 727(d)(1) and (e)(1). And second, the argument is of no
     moment because a request for relief under § 727(d)(2) was also
24   untimely according to § 727(e)(2), which provides: “[t]he trustee,
     a creditor, or the United States trustee may request a revocation
25   of a discharge — . . . (2) under subsection (d)(2) or (d)(3) of
     this section before the later of — (A) one year after the granting
26   of such discharge; and (B) the date the case is closed.” As noted
     above, the discharge in this case was entered on March 8, 2012,
27   the bankruptcy case was closed on March 13, 2012, and Trustee’s
     § 727(d) action was commenced in June, 2013. In other words,
28   Trustee’s action was tardy regardless of which § 727(e) trigger
     date is applicable.

                                      -15-
 1             or the value of such property, unless such
               property is of inconsequential value or
 2             benefit to the estate.
 3   See also In re Newman, 487 B.R. at 198-99.    While the bankruptcy
 4   court’s judgment contains no fact findings concerning whether the
 5   Buckingham Property “is of inconsequential value or benefit to the
 6   [bankruptcy] estate,” we presume that, given the court’s prior
 7   decision to disallow Debtor’s homestead exemption, it concluded
 8   that the house had significant liquidation value.   However, the
 9   bankruptcy court’s decision disallowing Debtor’s homestead
10   exemption has been vacated by the Panel.    As a result, to grant
11   relief to Trustee pursuant to § 542(a), the bankruptcy court is
12   obliged to reconsider whether the bankruptcy estate’s interest in
13   the Buckingham Property is sufficiently consequential.   Therefore,
14   we must also vacate the bankruptcy court’s turnover judgment and
15   remand this matter to the bankruptcy court to conduct further
16   proceedings consistent with this decision.5
17                            VI.   CONCLUSION
18        Because Trustee’s claim was not timely under § 727(e), the
19
          5
20           According to its docket, on March 19, 2015, the same day
     as the oral argument in this appeal, the bankruptcy court
21   apparently conducted a further hearing concerning the homestead
     exemption issue pursuant to this Panel’s remand. In a tentative
22   decision entered on the docket, the bankruptcy court determined
     that Debtor was not entitled to a homestead exemption pursuant to
23   § 522(g)(1) because the court had granted Trustee a judgment under
     § 542(a) to turn over the Buckingham Property. The tentative
24   decision cites to our prior decision in In re Elliott for the
     proposition that, in this case, § 522(g)(1) would be “an important
25   limitation on [Debtor’s] claimed homestead exemption for the
     bankruptcy court to consider on remand.” 523 B.R. at 198. On
26   April 8, 2014, an order was entered by the bankruptcy court
     denying Debtor’s homestead exemption pursuant to § 522(g)(1). We
27   leave it to the bankruptcy court to consider on remand of
     Trustee’s turnover claim, any impact this decision may have on the
28   vitality of the court’s latest order disallowing Debtor’s
     homestead exemption.

                                    -16-
 1   bankruptcy court lacked jurisdiction to revoke Debtor’s discharge
 2   under § 727(d).   We therefore VACATE the bankruptcy court’s
 3   summary judgment revoking Debtor’s discharge and REMAND this
 4   matter to the bankruptcy court with instructions that it enter an
 5   order dismissing Trustee’s § 727(d) claim.
 6        We also VACATE the bankruptcy court’s summary judgment
 7   granting Trustee turnover of the Buckingham Property under
 8   § 542(a).   We REMAND this matter to the bankruptcy court for
 9   further proceedings concerning this claim for relief.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

                                     -17-
