                                                            FILED
                                                             MAR 23 2016
 1                          NOT FOR PUBLICATION
                                                         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-15-1217-FDKu
                                   )
 6   PAUL PHILLIP BARDOS,          )       Bk. No.    6:10-bk-41455-SY
     DBA Cadmus Construction Co., )
 7                                 )
                    Debtor.        )
 8   _____________________________ )
                                   )
 9   MICHAEL D. ROGERS,            )
                                   )
10                  Appellant,     )
                                   )
11   v.                            )       MEMORANDUM*
                                   )
12   LESLIE T. GLADSTONE,          )
     Liquidating Agent for the     )
13   Estate of Paul Phillip Bardos,)
     DBA Cadmus Construction Co., )
14                                 )
                    Appellee.      )
15   ______________________________)
16                  Argued and Submitted on February 19, 2016
                             at Pasadena, California
17
                             Filed – March 23, 2016
18
                Appeal from the United States Bankruptcy Court
19                  for the Central District of California
20            Honorable Scott Ho Yun, Bankruptcy Judge, Presiding
21
     Appearances:      Appellant Michael D. Rogers argued pro se;
22                     Appellee Leslie T. Gladstone argued pro se.
23
24
25
26        *
            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, see
28   9th Cir. BAP Rule 8024-1.
 1   Before: FARIS, DUNN,** and KURTZ, Bankruptcy Judges.
 2                             INTRODUCTION
 3        Appellant Michael D. Rogers appeals the bankruptcy court’s
 4   order approving the sale of stock of chapter 111 debtor Paul
 5   Phillip Bardos’ company, Cadmus Construction, Inc. (“Cadmus
 6   Inc.”).   We AFFIRM.
 7                          FACTUAL BACKGROUND2
 8   A.   The Construction Contracts and State Court Litigation3
 9        Mr. Bardos was in the construction business.      He sometimes
10   did business as a sole proprietor under the name Cadmus
11   Construction Co. (“Cadmus Co.”).       He owned 100% of the shares of
12   Cadmus Inc., which was also engaged in the construction business.
13        Beginning in or around 2007, Mr. Bardos entered into a
14
          **
15          At oral argument held on February 19, 2016, Appellant
     raised potential grounds for the recusal of Judge Laura S.
16   Taylor. On February 23, Judge Taylor issued an order recusing
     herself from the Panel assigned to this appeal. Following the
17
     recusal, Judge Randall L. Dunn was assigned to the Panel for this
18   appeal in place of Judge Taylor. Judge Dunn has reviewed the
     briefs and records filed with respect to this appeal as well as
19   the recording of the oral argument.
20        1
            Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all
21
     “Rule” references are to the Federal Rules of Bankruptcy
22   Procedure, Rules 1001-9037, and all “Civil Rule” references are
     to the Federal Rules of Civil Procedure, Rules 1-86.
23
          2
            Mr. Rogers presents us with a deficient record. We have
24   exercised our discretion to review the bankruptcy court’s docket,
     as appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI,
25   Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008).
26        3
            The background facts of this section are drawn largely
27   from an earlier BAP appeal in this case. See Twenty-Nine Palms
     Enters. Corp. v. Bardos (In re Bardos), No. CC-13-1316-PaKuBl,
28   2014 WL 3703923 (9th Cir. BAP July 25, 2014) (“In re Bardos I”).

                                        2
 1   number of construction contracts with Twenty-Nine Palms Band of
 2   Mission Indians of California (the “Tribe”) to oversee
 3   development and construction projects undertaken by the Tribe and
 4   its corporate entity, Twenty-Nine Palms Enterprises Corporation
 5   (“Twenty-Nine Palms”).   In re Bardos I, 2014 WL 3703923, at *1.
 6   Mr. Bardos served as contractor for some or all of these
 7   projects, doing so under various names, including his sole
 8   proprietorship, Cadmus Co.   Id.
 9        In 2009, Twenty-Nine Palms filed a complaint in the
10   San Bernardino superior court against Cadmus Co.   Id.
11   Twenty-Nine Palms alleged that, because Cadmus Co. was not a
12   licensed contractor, it was in violation of the relevant state
13   licensing statutes.   Id.   It asked the court to order that Cadmus
14   Co. disgorge all of the fees Twenty-Nine Palms had paid it.     Id.
15   The superior court granted summary judgment in favor of
16   Twenty-Nine Palms and awarded it $917,043.09 plus pre-judgment
17   interest.   Id.
18   B.   The Individual Bankruptcy Case
19        On September 29, 2010, Mr. Bardos filed his chapter 11
20   bankruptcy petition (the “Individual Case”).   He listed
21   Twenty-Nine Palms as his largest creditor with a claim for
22   $917,043.09.   One of the assets of the estate is Mr. Bardos’
23   stock in Cadmus Inc., with its value listed as “unknown.”
24   C.   The Corporate Bankruptcy Case
25        A few months after Mr. Bardos filed his chapter 11 petition,
26   Cadmus Inc. also filed for chapter 11 bankruptcy (the “Corporate
27   Case”).   The Corporate Case was ultimately converted to
28   chapter 7, and Steven Speier was appointed as chapter 7 trustee.

                                        3
 1   D.    The Retention of Mr. Rogers’ Firm in the Individual Case
 2         On December 29, 2010, the court in the Individual Case
 3   approved Mr. Bardos’ application for the employment of
 4   Mr. Rogers’ law firm, Lambert & Rogers, APLC, as special counsel.
 5   Lambert & Rogers was retained to represent Mr. Bardos’ estate in
 6   the state-court litigation between Twenty-Nine Palms and Cadmus
 7   Co.   The law firm would be compensated based on an hourly rate.
 8         Mr. Rogers’ firm apparently completed its work in the
 9   Individual Case.   On October 18, 2012, Mr. Rogers applied for
10   final compensation in the amount of $58,066 plus expenses.     He
11   stated that $48,169.50 had been paid to date.     The court approved
12   and authorized payment of the requested compensation (a net
13   balance of $9,896.50) by order entered on November 14, 2012.
14   Mr. Rogers now claims that the compensation was never paid in
15   full and that the unpaid balance is $8,431.12.    Nothing in the
16   record corroborates this assertion, and there is no indication
17   that Mr. Rogers ever brought the issue to the court’s attention.
18   E.    The Retention of Mr. Rogers’ Firm in the Corporate Case
19         On March 21, 2014, the chapter 7 trustee in the Corporate
20   Case filed an application to employ Mr. Rogers’ law firm as
21   special litigation counsel.   The retainer agreement, which was
22   attached to Mr. Rogers’ declaration, provided for a contingency
23   fee as follows:
24                      CONTINGENCY FEE COMPENSATION
25              The CLIENT agrees to employ ATTORNEYS to defend
           and prosecute a lawsuit and arbitration and assigns to
26         them for their fee TWENTY-FIVE PERCENT (25%) of all
           amounts actually recovered by way of settlement,
27         compromise or otherwise prior to the filing of the
           Opening Brief with the California Court of Appeal, and
28         FORTY PERCENT (40%) of all amounts actually recovered

                                      4
 1        by way of settlement, compromise, judgment, order,
          award or otherwise after the filing of the Opening
 2        Brief, subject to the below and any Bankruptcy Court
          order (the “Compensation Terms”).
 3
 4   The retainer agreement also provided:
 5                         OTHER EMPLOYMENT TERMS
 6             In addition to the Compensation Terms, the
          Employment Terms includes all of the following:
 7
               (1) ATTORNEYS [Lambert & Rogers] and CLIENT [the
 8             chapter 7 trustee in the Corporate Case] have
               conferred and agree that no ownership interest in
 9             the DEBTOR [Cadmus Inc.] should [be] sold,
               transferred, or otherwise disposed of during the
10             pendency of the CASE and a prohibition against
               such a transfer should be included in any order
11             approving the engagement of ATTORNEYS by CLIENT as
               provided for herein.
12
               (2) In the event any ownership interest in Cadmus
13             Construction, Inc., is sold, transferred, or
               otherwise disposed of, and such transferral or
14             disposition causes a prejudicial impact on
               ATTORNEYS’ ability to obtain maximum recovery, the
15             above-stated contingency fees shall be applied to
               the actual cash proceeds of any such sale,
16             transferral, or disposition. The determination of
               “prejudicial impact” shall be made by ATTORNEYS in
17             their sole, unfettered discretion, subject to the
               right of the CLIENT in the reasonable exercise of
18             its duties to contest such a determination with
               the Court in the Case.
19
20   (Emphases added.)   Although the entire retainer agreement was
21   filed with the bankruptcy court, neither Mr. Rogers nor the
22   chapter 7 trustee called these unusual provisions to the
23   bankruptcy court’s attention.
24        The court granted the application and approved the
25   “compensation that is to be paid on a contingency fee basis as
26   set forth in the . . . Application.”
27   F.   The Stock Sale in the Individual Case
28        The bankruptcy court apparently confirmed a plan of

                                      5
 1   reorganization in the Individual Case that provided, among other
 2   things, that if Mr. Bardos was convicted in a pending criminal
 3   case, the court would immediately appoint a liquidating agent.
 4   After Mr. Bardos pleaded guilty to one count in the criminal
 5   case, the court appointed accounting firm Squar Milner as
 6   liquidating agent on April 4, 2014.      On July 23, the court
 7   approved the appointment of Appellee Leslie T. Gladstone
 8   (“Liquidating Agent”) as successor liquidating agent.
 9        When the Liquidating Agent took over, the estate in the
10   Individual Case had essentially no cash, making it very difficult
11   for the Liquidating Agent to do her job.      The bankruptcy court
12   permitted the Liquidating Agent to borrow $15,000 from
13   Twenty-Nine Palms to fund an investigation of potential claims.
14   In granting the request for approval of the advance, the
15   bankruptcy court cautioned the Liquidating Agent that, given the
16   doubtfulness of recovery, she “should be mindful that this case
17   should not linger or stay open.”
18        One of the assets of the estate in the Individual Case was
19   Mr. Bardos’ stock in Cadmus Inc.       It initially appeared that the
20   stock was worthless, but the Liquidating Agent negotiated an
21   agreement to sell the stock to Twenty-Nine Palms for $20,000.
22        On April 28, 2015, she filed a Motion to Approve Stock
23   Purchase Agreement (“Motion to Approve Stock Purchase”) under
24   § 363(b).   She stated that “[t]here are no liens against the
25   [Cadmus Inc.] Stock and [Cadmus Inc.] is a debtor in [a separate]
26   bankruptcy with no expected distribution to shareholders.”       She
27   argued that the sale of the stock was in the best interests of
28   the estate, since it had unpaid claims and no other source of

                                        6
 1   funds.
 2        Mr. Rogers opposed the Motion to Approve Stock Purchase.     He
 3   pointed out that he had been employed since May 2014 as special
 4   litigation counsel in the Corporate Case.    He contended that,
 5   based on his retention agreement in that case, he is entitled to
 6   a lien on the stock owned by the estate in the Individual Case.
 7   Specifically, he argued that the contingency fee employment
 8   agreement in the Corporate Case entitles him “to 40% of the
 9   purchase money in the event of a transfer in ownership interest
10   of [Cadmus Inc.] . . . .    [He] will be entitled to $8,000 of the
11   purchase money.”   Mr. Rogers argued that: (1) the Liquidating
12   Agent had not properly evaluated the estate’s claims;
13   (2) “$20,000 seems a bit low, especially considering it is a net
14   of $12,000 after [Mr. Rogers’] cut” and even less after repayment
15   of the Tribe’s $15,000 loan and various fees; (3) he is pursuing
16   Cadmus Inc.’s claims against the Tribe, and the sale would mean
17   the he “will be, on some level, suing [his] own client”; (4) the
18   Liquidating Agent failed to demonstrate the fairness or
19   reasonableness of the purchase price; and (5) the Liquidating
20   Agent “has been bought and paid for” or “is, at the very least,
21   being played.”   Significantly, Mr. Rogers did not mention that he
22   was owed any unpaid fees for work done in the Individual Case.
23        Mr. Rogers failed to appear at the hearing on the Motion to
24   Approve Stock Purchase.    The court rejected his contentions,
25   reasoning that the chapter 7 trustee in the Corporate Case (i.e.,
26   Mr. Rogers’ client) had consented to the sale, and Mr. Rogers did
27   not have standing in the Individual Case.    It held:
28        I’m prepared to grant the motion and if Mr. Rogers was

                                       7
 1        here I was going to let him know that I really,
          although I do share some concerns that he has raised in
 2        his opposition, I don’t really think he has a right to
          object. I think his client, the Chapter 7 Trustee in
 3        the Cadmus case, as I can see from the e-mail exchange
          attached by Ms. Gladstone that Mr. Rogers’ client
 4        seemed to have consented to this transaction and too I
          think Mr. Rogers is mistaken. I think to the extent
 5        that he’s a professional and a potential admin creditor
          it’s in the Cadmus case, not in this case, so I don’t
 6        think he has the standing or the right to object to
          this transaction as a professional with a potential
 7        admin claim in this case.
 8        The court expressed its incredulity that anyone would want
 9   to purchase the stock, when “[t]here is no money in it” and there
10   likely will not “ever be money for equity.”   Nevertheless, the
11   Liquidating Agent had stated in her briefs that Twenty-Nine Palms
12   had approached her with an offer to buy the potentially worthless
13   stock for $5,000, which she later negotiated to $20,000.   She
14   represented that there were no negative tax consequences to the
15   estate.   The Liquidating Agent stated that the sale “is fair and
16   equitable and in the best interests of creditors.”
17        The court made clear that Twenty-Nine Palms’ stock purchase
18   would not terminate the litigation between Cadmus Inc. and
19   Twenty-Nine Palms, since Cadmus Inc.’s claims were property of
20   its bankruptcy estate under the control of the chapter 7 trustee
21   in the Corporate Case.   The court cautioned Twenty-Nine Palms
22   that it would have no ability to control the litigation against
23   it or otherwise influence the handling of the lawsuit by the
24   trustee in the Corporate Case.   Counsel for Twenty-Nine Palms
25   indicated that his client understood.
26        The bankruptcy court granted the Motion to Approve Stock
27   Purchase and entered the order to that effect on June 23, 2015.
28   Mr. Rogers timely appealed.

                                      8
 1        The Liquidating Agent represents that the sale of the stock
 2   has closed and the stock has been transferred to Twenty-Nine
 3   Palms.    Under the stock purchase agreement, the entry of an order
 4   approving the sale and the expiry of the appeal period without an
 5   appeal being taken were conditions to the closing.4     The
 6   Liquidating Agent represents that Twenty-Nine Palms waived this
 7   condition.
 8                               JURISDICTION
 9        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
10   §§ 1334, 157(b)(1), and 157(b)(2)(K).      We have jurisdiction under
11   28 U.S.C. § 158.
12                                  ISSUES
13        (1) Whether this appeal is moot.
14        (2) Whether the bankruptcy court erred in approving the sale
15   of stock.
16                            STANDARDS OF REVIEW
17        We review de novo our own jurisdiction, including questions
18   of mootness.    Silver Sage Partners, Ltd. v. City of Desert Hot
19   Springs (In re City of Desert Hot Springs), 339 F.3d 782, 787
20   (9th Cir. 2003).
21
          4
              The Stock Purchase Agreement states:
22
23        The obligations of each Party to consummate the
          transactions contemplated by this Agreement shall be
24        subject to the fulfillment, at or prior to the Closing,
          of each of the following conditions: (a) The Bankruptcy
25        Court having jurisdiction over the Bankruptcy
26        Proceedings shall have approved this Agreement and the
          transactions contemplated by this Agreement by entry of
27        an order that is final for purposes of appeal, as to
          which the time for appeal, including any extensions,
28        has expired, and from which no appeal has been taken[.]

                                       9
 1        Similarly, standing is a legal issue that we review de novo.
 2   Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 61
 3   (9th Cir. 1994); Kronemyer v. Am. Contractors Indem. Co.
 4   (In re Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP 2009).
 5        We review for abuse of discretion an order approving a § 363
 6   sale.   Moldo v. Clark (In re Clark), 266 B.R. 163, 168 (9th Cir.
 7   BAP 2001).    We apply a two-part test to determine objectively
 8   whether the bankruptcy court abused its discretion, first
 9   determining de novo whether the court identified the correct
10   legal rule, and second examining the court’s factual findings
11   under the clearly erroneous standard.     Beal Bank USA v. Windmill
12   Durango Office, LLC (In re Windmill Durango Office, LLC),
13   481 B.R. 51, 64 (9th Cir. BAP 2012) (citing United States v.
14   Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc)).    A
15   bankruptcy court abuses its discretion if it applied the wrong
16   legal standard or its findings were illogical, implausible, or
17   without support in the record.    See TrafficSchool.com, Inc. v.
18   Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
19                                DISCUSSION
20   A.   This appeal is not moot.
21        We have requested that the parties address the issue of
22   mootness.    As we stated in the prior appeal in this case:
23        We cannot exercise jurisdiction over a moot appeal. A
          moot case is one where the issues presented are no
24        longer live, and no case or controversy exists. The
          test for mootness is whether an appellate court can
25        still grant effective relief to the prevailing party if
          it decides the merits in his or her favor. If a case
26        becomes moot while the appeal is pending, an appellate
          court must dismiss the appeal.
27
28   In re Bardos I, 2014 WL 3703923, at *6 (internal citations

                                      10
 1   omitted).    We recognize two types of mootness: constitutional
 2   mootness and equitable mootness.
 3        1.     Constitutional Mootness
 4        Constitutional mootness “occurs when an appellate court
 5   cannot give the appellant any relief whatsoever in the event that
 6   it decides in appellant’s favor.”     Id. (citing Felster Publ’g v.
 7   Burrell, 415 F.3d 994, 998 (9th Cir. 2005)).    Constitutional
 8   mootness is inapplicable in the present case, because we have the
 9   authority to grant the requested relief and undo the sale of
10   stock.
11        2.     Equitable Mootness
12        Equitable mootness requires “that practical and equitable
13   factors should be taken into consideration in determining if an
14   appeal is moot.”    In re Bardos I, 2014 WL 3703923, at *6; see
15   Onouli-Kona Land Co. v. Richards (In re Onouli-Kona Land Co.),
16   846 F.2d 1170, 1171 (9th Cir. 1988) (“[b]ankruptcy’s mootness
17   rule applies when an appellant has failed to obtain a stay from
18   an order that permits a sale of a debtor’s assets”).    Equitable
19   mootness arises when “appellants have failed and neglected
20   diligently to pursue their available remedies to obtain a stay of
21   the objectionable orders of the Bankruptcy Court, thus
22   ‘permitting such a comprehensive change of circumstances to occur
23   as to render it inequitable . . . to consider the merits of the
24   appeal.”    In re Bardos I, 2014 WL 3703923, at *6 (quoting Focus
25   Media, Inc. v. NBC (In re Focus Media, Inc.), 378 F.3d 916, 922
26   (9th Cir. 2004)).    The party asserting equitable mootness must
27   “demonstrate that the case involves transactions ‘so complex or
28   difficult to unwind’ that equitable mootness applies.”    Id. at *7

                                      11
 1   (quoting Lowenschuss v. Selnick (In re Lowenschuss), 170 F.3d
 2   923, 933 (9th Cir. 1999)).
 3        “Equitable mootness requires the court to look beyond
 4   impossibility of a remedy to ‘the consequences of the remedy and
 5   the number of third parties who have changed their position in
 6   reliance on the order that is being appealed.’”   Clear Channel
 7   Outdoor, Inc. v. Knupfer (In re PW, LLC), 391 B.R. 25, 33 (9th
 8   Cir. BAP 2008) (quoting Darby v. Zimmerman (In re Popp), 323 B.R.
 9   260, 271 (9th Cir. BAP 2005)).   “In other words, equitable
10   principles may require dismissal of the appeal when the appellant
11   neglects to obtain a stay pending appeal and the rights of third
12   parties intervene.”   Zuercher v. Kravitz (In re Zuercher Trust of
13   1999), BAP No. NC-13-1299, 2014 WL 7191348, at *6 (9th Cir. BAP
14   Dec. 17, 2014) (citing Spirtos v. Moreno (In re Spirtos),
15   992 F.2d 1004, 1006 (9th Cir. 1993); In re Popp, 323 B.R. at
16   271).
17        Although the concept of equitable mootness is not new, the
18   Ninth Circuit recently endorsed standards for evaluating
19   equitable mootness:
20        We will look first at whether a stay was sought, for
          absent that a party has not fully pursued its rights.
21        If a stay was sought and not gained, we then will look
          to whether substantial consummation of the plan has
22        occurred. Next, we will look to the effect a remedy
          may have on third parties not before the court.
23        Finally, we will look at whether the bankruptcy court
          can fashion effective and equitable relief without
24        completely knocking the props out from under the plan
          and thereby creating an uncontrollable situation for
25        the bankruptcy court.
26   Motor Vehicle Cas. Co. v. Thorpe Insulation Co. (In re Thorpe
27   Insulation Co.), 677 F.3d 869, 881 (9th Cir. 2012).
28        Beginning with the first factor, in the present case,

                                      12
 1   Mr. Rogers never sought a stay of the order approving the stock
 2   sale.    He says that there was no need to seek a stay, since his
 3   appeal prevented the satisfaction of a condition to closing.      The
 4   Liquidating Agent says that Twenty-Nine Palms waived this
 5   condition.    Both the Stock Purchase Agreement and the bankruptcy
 6   court’s order approving that agreement contemplate possible
 7   waivers of the closing conditions.5   Mr. Rogers simply assumed
 8   that his notice of appeal would block the sale.   His assumption
 9   was unwarranted.    Therefore, Mr. Rogers did not diligently pursue
10   his rights to stay the sale.
11        However, our inquiry does not stop there.    While “failure to
12   seek a stay pending appeal, at least without an adequate excuse,
13   requires dismissal of an appeal[,]” In re Zuercher Trust of 1999,
14   2014 WL 7191348, at *7 (citing Rev Op Grp. v. ML Manager LLC
15   (In re Mortgs. Ltd.), 771 F.3d 1211 (9th Cir. 2014)), we recently
16   held that, even when an objector did not seek a stay, “there must
17   also be some subsequent event that would render consideration of
18   the issues on appeal inequitable, and thereby trigger an
19   equitable mootness analysis.”   In re Zuercher Trust of 1999,
20   2014 WL 7191348, at *7 (citations omitted).   In other words, even
21   where “[the objector] did not seek a stay of the Sale Order
22   pending appeal and has provided no satisfactory explanation for
23   the failure to do so, to complete our equitable mootness analysis
24
25        5
            Paragraph 2.1 of the agreement provides that the closing
26   will take place no later than three business days “after the last
     of the conditions to Closing set forth in Section 6 have been
27   satisfied or waived . . . .” (Emphasis added.) Paragraph 3 of
     the bankruptcy court’s order contains virtually the same
28   language.

                                      13
 1   we must consider whether [the objector’s] failure to seek a stay
 2   ‘creates a situation rendering it inequitable to reverse the
 3   orders appealed from.’”    Id. (quoting In re Mortgs., Ltd.,
 4   771 F.3d at 1216).    Thus, we continue with our analysis of the
 5   remaining Thorpe factors.
 6        The second factor described in Thorpe is whether the plan
 7   has been substantially consummated.    In re Thorpe Insulation Co.,
 8   677 F.3d at 882.6    Here, the Liquidating Agent represents that
 9   the stock sale has been completed, with the stock transferred to
10   Twenty-Nine Palms.    This weighs in favor of mootness.
11        The third Thorpe factor considers the effect of a reversal
12   on third parties who are not “before the court.”    See
13   In re Zuercher Trust of 1999, 2014 WL 7191348, at *8.     While it
14   is true that Twenty-Nine Palms is not a party to this appeal, it
15   is the largest creditor and a participant in both the Individual
16   Case and the Corporate Case.    Accordingly, we cannot say that
17   Twenty-Nine Palms is the type of third party that equitable
18   mootness is meant to protect.
19        Further, “the question is not whether it is possible to
20   alter a plan such that no third party interests are affected, but
21   whether it is possible to do so in a way that does not affect
22   third party interests to such an extent that the change is
23   inequitable.”   In re Thorpe Insulation Co., 677 F.3d at 882.      If
24   we conclude that the bankruptcy court erred, it would be
25
26        6
            In the context of a chapter 11 plan, § 1101(2) provides a
27   special statutory definition of the phrase “substantial
     consummation.” The phrase does not directly apply to an asset
28   sale, but a similar concept can be applied by analogy.

                                      14
 1   relatively easy to restore the status quo ante: the Liquidating
 2   Agent could return the purchase price to Twenty-Nine Palms, and
 3   Twenty-Nine Palms could return the stock to the Liquidating
 4   Agent.   Thus, there is no evidence that Twenty-Nine Palms has
 5   irrevocably changed its position or cannot be made whole.
 6         At oral argument, the Liquidating Agent said that she
 7   already spent part of the sale proceeds on fees due to the United
 8   States Trustee and other administrative expenses, and she is
 9   unsure whether she can recall all or part of those funds.    But
10   the Liquidating Agent bears the burden of demonstrating that the
11   transaction cannot be undone; uncertainty about whether it can be
12   undone is not sufficient.   See id. at 880 (“The party moving for
13   dismissal on mootness grounds bears a heavy burden.” (citation
14   and quotation marks omitted)).
15        Finally, the inability of the Liquidating Agent to repay the
16   entire purchase price to Twenty-Nine Palms might not lead to an
17   inequitable result; after all, it was Twenty-Nine Palms that
18   chose to waive the closing condition and close the transaction
19   despite Mr. Rogers’ pending appeal.   It might not be inequitable
20   to require Twenty-Nine Palms to face the consequences of its
21   calculated risk.
22        “Fourth, and most importantly, we look to whether the
23   bankruptcy court on remand may be able to devise an equitable
24   remedy. . . .   Where equitable relief, though incomplete, is
25   available, the appeal is not moot.”   Id. at 883 (citing Paulman
26   v. Gateway Venture Partners III, L.P. (In re Filtercorp, Inc.),
27   163 F.3d 570, 578 (9th Cir. 1998)).   Aside from the fact that the
28   stock sale has been consummated, the Liquidating Agent has failed

                                      15
 1   to provide us with any evidence that the transaction is “so
 2   complex or difficult to unwind” that equitable mootness would
 3   prevent our reversal of the order granting the Motion to Approve
 4   Stock Purchase.
 5        Therefore, we hold that this appeal is not equitably moot.
 6   B.   Mr. Rogers failed to establish his standing in the
          Individual Case to object to the stock sale.
 7
 8        The Liquidating Agent argues that Mr. Rogers lacks standing
 9   to object to the stock sale in the Individual Case.    We agree
10   with the conclusion, but for slightly different reasons.
11        Mr. Rogers objected to the stock sale in the Individual Case
12   on the basis that it would impair his rights under the contingent
13   fee agreement.    But Mr. Rogers’ contingent fee agreement was with
14   the chapter 7 trustee in the Corporate Case.    The Liquidating
15   Agent in the Individual Case was not bound by that agreement, and
16   the agreement gave Mr. Rogers no rights in the Individual Case.
17   Indeed, the stock transfer restriction in his retention agreement
18   in the Corporate Case was completely ineffective, because Cadmus
19   Inc. did not own or control its own stock and had no power to
20   restrict transfers of that stock.7    The chapter 7 trustee in the
21   Corporate Case had no more power over the stock than Cadmus Inc.
22   As the Liquidating Agent correctly pointed out, “Steven Speier –
23   the client named in the Retainer Agreement and representative of
24   [Cadmus Inc.’s] estate – never owned the Stock and never had any
25
          7
26          The Liquidating Agent also argues that the creation of a
     lien on the stock in the Corporate Case would have violated the
27   automatic stay under § 362(a)(4). We decline to address it
     because it is unnecessary and because the Liquidating Agent
28   admittedly failed to raise it in the bankruptcy court.

                                      16
 1   authority whatsoever to encumber the Stock, which is property of
 2   the Shareholder bankruptcy estate.”    (Emphasis omitted.)
 3   Mr. Rogers has failed to provide any facts or authority to the
 4   contrary.    Therefore, the contingent fee agreement in the
 5   Corporate case gave Mr. Rogers no rights in the Individual Case.8
 6        Mr. Rogers argues for the first time on appeal that he has
 7   standing in the Individual Case because his approved final
 8   compensation for services rendered in that case was not paid in
 9   full.    He says that “[t]here wasn’t enough money in the estate to
10   pay [his] last fee bill; [he] is still owed $8,431.12.”      Nothing
11   in the record either corroborates or refutes this assertion.
12        More importantly, Mr. Rogers did not make this argument in
13   the bankruptcy court, and, because he did not attend the hearing
14   on approval of the stock sale, he was not available to address
15   the court’s concerns about his standing.    We decline to consider
16   this new argument on appeal.    See Ezra v. Seror (In re Ezra),
17   537 B.R. 924, 932 (9th Cir. BAP 2015) (“[F]ederal appellate
18   courts will not consider issues not properly raised in the trial
19   courts. . . .    An issue only is ‘properly raised’ if it is raised
20   sufficiently to permit the trial court to rule upon it.”
21   (internal citations omitted)).    Accordingly, Mr. Rogers lacks
22   standing to prosecute this appeal.
23
24
          8
            We are troubled by the fact that neither Mr. Rogers nor
25   counsel for the chapter 7 trustee specifically called the stock
26   transfer restrictions to the bankruptcy court’s attention when
     they asked the bankruptcy court to approve that agreement in the
27   Corporate Case. Although the agreement was filed with the court,
     most bankruptcy courts expect counsel to point out, explain, and
28   justify non-standard provisions such as these.

                                      17
 1   C.   The bankruptcy court did not err when it approved the sale.
 2        Even assuming he has standing, Mr. Rogers has failed to show
 3   reversible error.
 4        1.   Mr. Rogers’ briefs do not identify any error.
 5        As a preliminary matter, we note that Mr. Rogers’ nebulous
 6   arguments, spanning approximately two pages of his opening brief,
 7   do not clearly identify any points of error or cite any error in
 8   the record.
 9        As a general rule, a party’s brief “must make specific
10   references to the relevant portions of the record.    Opposing
11   parties and the court are not obliged to search the entire
12   record, unaided, for error.”   Tevis v. Wilke, Fleury, Hoffelt,
13   Gould & Birney, LLP (In re Tevis), 347 B.R. 679, 686 (9th Cir.
14   BAP 2006) (internal citations omitted).   Moreover, we “will not
15   consider a matter on appeal that is not specifically and
16   distinctly argued in [an] appellant’s opening brief.”    Id. at 690
17   (citing Affordable Housing Dev. Corp. v. Fresno, 433 F.3d 1182,
18   1193 (9th Cir. 2006); Price v. Lehtinen (In re Lehtinen),
19   332 B.R. 404, 410 (9th Cir. BAP 2005)).
20        Mr. Rogers’ failure to “specifically and distinctly” argue
21   the alleged errors and provide “specific references” to the
22   record supports our decision to reject this appeal.
23        2.   The court may approve a sale in the best interest of
               the estate under § 363.
24
25        Section 363(b)(1) provides that “[t]he trustee, after notice
26   and a hearing, may use, sell, or lease, other than in the
27   ordinary course of business, property of the estate . . . .”
28   § 363(b)(1).   “The trustee (and, ultimately, the bankruptcy

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 1   court) must assure that the estate receives optimal value as to
 2   the asset to be sold.”   DeBilio v. Golden (In re DeBilio),
 3   BAP No. CC-13-1441-TaPaKi, 2014 WL 4476585, at *6 (9th Cir. BAP
 4   Sept. 11, 2014) (citing § 363(b)(1); Simantob v. Claims
 5   Prosecutor, LLC (In re Lahijani), 325 B.R. 282, 288-89 (9th Cir.
 6   BAP 2005)).   We also stated that, “[i]n the Ninth Circuit, a
 7   § 363(b)(1) sale does not require a good faith finding.”   Id.
 8   (citing Thomas v. Namba (In re Thomas), 287 B.R. 782, 785 (9th
 9   Cir. BAP 2002) (“While no bankruptcy judge is likely to approve a
10   sale that does not appear to be in ‘good faith,’ an actual
11   finding of ‘good faith’ is not an essential element for approval
12   of a sale under § 363(b).”)).
13        3.   The sale price was adequate.
14        Mr. Rogers’ basic argument is that the purchase price for
15   the stock was “a bit low.”   The bankruptcy court did not clearly
16   err when it rejected this factual contention.
17        In her motion for approval of the stock sale, the
18   Liquidating Agent declared that:
19        The Agreement is based on my sound business judgment,
          as it provides for payment of substantial funds to the
20        estate. I have also been advised that there are no
          adverse tax consequences to the estate. Thus, the
21        proposed Agreement is fair and equitable and in the
          best interests of creditors.
22
23        In his opposition, Mr. Rogers briefly described the claims
24   against Twenty-Nine Palms and declared that “[i]t does not seem
25   that [Liquidating Agent] has evaluated this before agreeing to a
26   sale of the stock for $20,000.”    He acknowledged, however, that,
27   “[o]f course, coming up with a methodology for calculating a sale
28   price that efficaciously incorporates the risk/return is

                                       19
 1   problematic and open to bias depending on the ‘experts’ canvassed
 2   for their opinion, but $20,000 seems a bit low, especially
 3   considering it is a net of $12,000 after my cut.”   He also
 4   attacked the Liquidating Agent personally.    He claimed that “she
 5   also has a conflict of interest in that she is the first one to
 6   get paid out of the $20,000” and “[i]t must be assumed that [the
 7   Liquidating Agent] has been bought and paid for.”
 8        In reply, the Liquidating Agent declared that the stock
 9   “does not have any other value to the Debtor’s estate” apart from
10   the proposed sale.   She emphasized her independence and stated
11   that Mr. Rogers was free to bid for the stock if he thought the
12   purchase price was too low.   She also provided e-mail
13   correspondence between herself and the chapter 7 trustee in the
14   Corporate Case, in which the trustee said, “I doubt there will be
15   a surplus in my case, but we will probably make a small
16   distribution to creditors.”
17        The bankruptcy court accepted the Liquidating Agent’s
18   evidence.   The court noted that “this is very unusual why [sic]
19   anybody would want to buy a privately held equity interest of a
20   Chapter 7 debtor.    There is no money in it and at least according
21   to [the chapter 7 trustee in the Corporate Case,] he doesn’t
22   think there will ever be money for equity.”   The court went on to
23   say, “I’m still mystified why anybody will want to buy a [sic]
24   out of the money equity privately held in a Chapter 7 case but it
25   generates money for this estate so I am willing to grant the
26   motion.”
27        The bankruptcy court did not commit clear error when it
28   rejected Mr. Rogers’ contention that the sale price was “a bit

                                      20
 1   low” and instead agreed with the Liquidating Agent’s evidence.
 2        4.   We decline to take judicial notice of a state court
               decision that postdated the bankruptcy court’s order.
 3
 4        Mr. Rogers submits that the Panel should take judicial
 5   notice of a recent, unpublished opinion in which the California
 6   Court of Appeals held that the arbitration provisions in the
 7   various construction contracts were valid.
 8        We decline to take judicial notice of the opinion.    Our job
 9   is to determine whether the bankruptcy court erred based on the
10   evidence before it, which in turn depends in part on whether the
11   Liquidating Agent properly exercised her business judgment based
12   on the facts known at the time.    Neither the bankruptcy court nor
13   the Liquidating Agent had the appellate opinion before them, and
14   neither of them is charged with perfect foresight.    Therefore,
15   that opinion is not relevant to this appeal.
16        5.   The bankruptcy court properly addressed the effects of
               the stock sale on Mr. Rogers and the Corporate Case.
17
18        Mr. Rogers argues that, if Twenty-Nine Palms owns 100% of
19   Cadmus Inc.’s stock, then he “will be, on some level, suing his
20   own client.”   Mr. Rogers posits that this “could cause problems
21   down the road.”
22        In the first place, his premise is wrong.    As the bankruptcy
23   court correctly observed, and as Twenty-Nine Palms’ counsel
24   confirmed, the chapter 7 trustee of Cadmus Inc., not the
25   shareholder of Cadmus Inc., is Mr. Rogers’ client and will
26   control the prosecution of the claims.
27        Further, the conclusion does not follow.    The Liquidating
28   Agent’s duty in the Individual Case was to take steps which, in

                                       21
 1   her judgment, advanced the interests of Mr. Bardos’ estate and
 2   creditors.    She had no duty to protect Cadmus Inc.’s estate and
 3   creditors or to protect Mr. Rogers’ contingent fee.     Put simply,
 4   even if it were true that the sale of the stock put Mr. Rogers in
 5   a difficult position in the Corporate Case, that would not be the
 6   concern of the Liquidating Agent or the bankruptcy court in the
 7   Individual Case.
 8        6.     Lahijani and Fitzgerald are inapplicable.
 9        Mr. Rogers argues that “it would seem to be appropriate to
10   use the analysis set forth in In re Fitzgerald, 428 B.R. 872,
11   883-884 (9th Cir. BAP 2010) and In re Lahijani, 325 B.R. 282,
12   289-290 (9th Cir. BAP 2005).”    We disagree.
13        Fitzgerald and Lahijani both considered the sale of
14   litigation claims to a person against whom those claims might be
15   asserted.    Both decisions rest on the common-sense proposition
16   that a “sale” of claims to a defendant has the same effect as a
17   settlement of those claims, so such “sales” should be evaluated
18   both as sales and as settlements.     Lahijani holds that:
19        when a cause of action is being sold to a present or
          potential defendant over the objection of creditors, a
20        bankruptcy court must, in addition to treating it as a
          sale, independently evaluate the transaction as a
21        settlement under the prevailing ‘fair and equitable’
          test, and consider the possibility of authorizing the
22        objecting creditors to prosecute the cause of action
          for the benefit of the estate, as permitted by
23        § 503(b)(3)(B).
24   In re Lahijani, 325 B.R. at 284.      Fitzgerald expands on Lahijani,
25   holding that “it is not enough for Trustee to have stopped his
26   inquiry when he determined that the sale price was adequate as
27   long as it covered administrative expenses and the claims of
28   non-insider creditors.”    In re Fitzgerald, 428 B.R. at 884.

                                      22
 1        Lahijani and Fitzgerald are inapplicable to this case
 2   because the Liquidating Agent was not selling claims; rather, she
 3   was selling stock.   The claims about which Mr. Rogers was
 4   concerned belonged to the corporation, not to the bankruptcy
 5   estate in the Individual Case which the Liquidating Agent was
 6   administering.   Moreover, the bankruptcy court carefully
 7   confirmed that the sale of the corporation’s stock would not have
 8   any effect on the claims of the Cadmus Inc. estate against third
 9   parties.
10                               CONCLUSION
11        For the reasons set forth above, we AFFIRM.
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