DeNoce v. Neff, et. al. (In re Neff)

DeNoce v. Neff, et. al. (In re Neff), B.A.P. No. CC-13-1041 (9th Cir. B.A.P., February 4, 2014)
The Bankruptcy Appellate Panel of the Ninth Circuit affirmed the order of the Bankruptcy Court granting the Debtor partial summary judgment and holding that the one-year "lookback period" of Bankruptcy Code Section 727(a)(2)(A) (fraudulent transfer as ground for objection to discharge) constitutes a "statute of repose" and not a "statute of limitations" and is thus not subject to equitable tolling.
Procedural context:
Appeal from the Bankruptcy Court for the Central District of California (J. Kaufman), granting partial summary judgment in favor of Debtor and against creditor Appellant on his objection to the Debtor's discharge, reviewed de novo.
Appellee Ronald Neff ("Debtor") filed a Chapter 7 petition after having two successive Chapter 13 cases dismissed over the course of approximately 17 months. During the pendency of these Chapter 13 cases, it was discovered that he had transferred certain real property into a revocable living trust--a transfer that had not been listed on his Statement of Financial Affairs. In response to the Chapter 7 filing, creditor and appellant Douglas DeNoce ("DeNoce") filed an objection to the Debtor's discharge on account of the alleged fraudulent transfer, pursuant to Bankruptcy Code Section 727(a)(2). The Debtor argued that the provision was inapplicable, because the recording of the transfer occurred more than one year before the Chapter 7 filing, but DeNoce asserted that this period should be equitably tolled during the Chapter 13 cases. Pursuant to cross-motions for summary judgment, the Bankruptcy Court granted partial summary judgment to the Debtor, determining that the one-year "lookback period" of Section 727(a)(2)(A) is not subject to equitable tolling, because it is a "statute of repose" and not a "statute of limitations." Bankruptcy Code Section 727(a)(2)(A) does not contain the two required characteristics of a limitations period--it does not prescribe a period of time within which a plaintiff must pursue a claim, and it does not set forth a time period that commences when the claimant accrues a claim for relief.
Kirschner, Taylor and Dunn, Bankruptcy Judges.

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