Jon Milby v. Patricia Templeton

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE CHARLENE M. MILBY, Nos. 16-60022 Debtor, 16-60023 BAP No. JON A. MILBY; D&J TRUCKING 15-1180 COMPANY, a California corporation; SANDRA HOLDER MILBY, an individual; SANJON, INC., a OPINION California corporation; 5TH STREET CONDO, LLC, California Limited Liability Company; CHARLENE M. MILBY; CHARLENE’S TRANSPORTATION, INC., a California corporation, Appellants/Cross-Appellees, v. PATRICIA A. TEMPLETON, individuals on behalf of the Bankruptcy Estate of Debtor Charlene M. Milby, and derivatively on behalf of Charlene’s Transportation, Inc.; G. CRESSWELL TEMPLETON, III, Bankruptcy Estate of Debtor Charlene M. Milby, and derivatively on behalf of Charlene’s Transportation, Inc., Appellees/Cross-Appellants. 2 IN RE MILBY Appeal from the Ninth Circuit Bankruptcy Appellate Panel Taylor, Faris, and Corbit, Bankruptcy Judges, Presiding Argued and Submitted September 1, 2017 Pasadena, California Filed November 21, 2017 Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit Judges, and Harvey Bartle III,* District Judge. Opinion by Judge Bybee SUMMARY** Bankruptcy The panel affirmed the judgment of the Bankruptcy Appellate Panel, which (1) reversed the bankruptcy court’s dismissal as time-barred of a bankruptcy estate’s claims seeking avoidance of fraudulent transfers and (2) affirmed the bankruptcy court’s dismissal of other claims based on transfers not made by the debtor. * The Honorable Harvey Bartle III, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. IN RE MILBY 3 Regarding the time bar, the bankruptcy court held that the bankruptcy estate’s delay in filing after discovering the transfers precluded equitable tolling of the statute of limitations. The BAP reversed, holding that such post- discovery delay is irrelevant to whether equitable tolling applies. The panel wrote that neither court correctly applied the law on equitable tolling. Under the correct standard, post- discovery delay does not preclude equitable tolling but is still relevant to assessing a party’s overall diligence. The panel affirmed the judgment of the BAP because the estate’s overall diligence, combined with extraordinary circumstances preventing earlier discovery of the transfers, warranted equitable tolling. The panel affirmed, for the same reasons stated in the BAP’s opinion, the BAP’s affirmance of the bankruptcy court’s dismissal of claims based on transfers that were made by individuals and entities other than the debtor and therefore could not serve as predicates for a claim under 11 U.S.C. § 544(b). The panel remanded the case to the bankruptcy court. COUNSEL Karen L. Grant (argued), Law Offices of Karen L. Grant, Santa Barbara, California; Janet K. McGinnis, Law Office of Janet K. McGinnis, Santa Barbara, California; for Appellants/Cross-Appellees. Daniel Joseph McCarthy (argued), Hill Farrer & Burrill LLP, Los Angeles, California, for Appellees/Cross-Appellants. 4 IN RE MILBY OPINION BYBEE, Circuit Judge: The bankruptcy estate of Debtor Charlene Milby discovered allegedly fraudulent transfers days before the statute of limitations on avoidance claims was set to expire. This action was not filed until almost a year ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals