Elliott v. Weil (In re Elliott)

Citation:
Ninth Circuit Bankruptcy Appellate Panel Case No. CC-14-1321-PaKiTa (April 22, 2015)
Tag(s):
Ruling:
The Ninth Circuit Bankruptcy Appellate Panel ("BAP") vacated the bankruptcy court's summary judgment decision to revoke the debtor's discharge. Section 727(e) is a non-waivable statute of repose, and its time limits are not subject to tolling. Therefore, the bankruptcy court lacked jurisdiction since the commencement of the adversary pursuant to Section 727(d) was more than 1 year after the entry of the debtor's discharge. The BAP vacated and remanded the bankruptcy court's judgment to turnover the real property. In a separate appeal, the BAP remanded the bankruptcy court's order denying the Debtor's asserted homestead exemption; therefore, further proceedings related to the turnover are necessary to determine whether the real property is sufficiently consequential.
Procedural context:
Debtor appeals bankruptcy court's summary judgment decision revoking the Debtor's discharge pursuant to 11 U.S.C. Sec. 727(d)(1) and (e)(1), and turnover of real property pursuant to 11 U.S.C. Sec. 542(a).
Facts:
The Debtor filed Chapter 7 petition on December 1, 2011. The petition provides that the Debtor's address was Hiawatha Street, Granada Hills, California. However, the Debtor's Schedules A and D did not list any real property owned by the Debtor or any claims secured by real property. The Debtor also did not schedule various creditors who held money judgment against the Debtor pursuant to state law. At the meeting of creditors, the Debtor testified that all of the information provided in the petition, schedules, and statement of financial affairs were true and complete; and, testified he did not own any real property. The trustee filed their no distribution report, and the debtor receive his discharge on March 8, 2012. Approximately 18 days later, Lee Wong Investments ("LWI") transferred real property to the Debtor ("Buckingham Property"). Debtor organized and controlled LWI. Debtor sent letters to the various judgment creditors requesting their judgment liens be removed from the Buckingham Property. As a result these creditor sought to have the Chapter 7 case reopened. On June 4, 2013, Trustee commenced an adversary against the Debtor seeking (1) turnover of the Buckingham Property as property of the estate and (2) revocation of the Debtor's discharge. At the continued meeting of creditors, the Debtor further testified that he resided in the Buckingham Property and had purchased it in 1989. In response to the Trustee's request for summary judgment in the adversary, the Debtor filed his own declaration asserting that he had provided information related to the Buckingham Property to his prior counsel, although he reviewed the bankruptcy schedules he did not understand them, and there were triable issues of fact. The bankruptcy court entered summary judgment in favor of the Trustee concluding that the Buckingham Property was property of the estate, the Debtor knowingly and fraudulently failed to disclose a significant asset in his schedules, and the Trustee did not learn of the fraud until after the discharge was entered.
Judge(s):
PAPPAS, KIRSCHER, and TAYLOR, Bankruptcy Judges.

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