FILED NOT FOR PUBLICATION FEB 11 2020 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. CC-19-1101-STaL

MAGGIE LIU, Bk. No. 8:17-bk-12832-CB

Debtor.

VINCENT JUE,

Appellant,

v. MEMORANDUM*

MAGGIE LIU; RICHARD A. MARSHACK, Chapter 7 Trustee,

Appellees.

Argued and Submitted on October 24, 2019 at Pasadena, California

Filed – February 11, 2020

* This disposition is not appropriate for publication. 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 9th Cir. BAP Rule 8024-1. Appeal from the United States Bankruptcy Court for the Central District of California

Honorable Catherine E. Bauer, Bankruptcy Judge, Presiding

Appearances: Kathleen P. March of The Bankruptcy Law Firm, P.C. argued for appellant; David Edward Hays of Marshack Hays LLP argued for appellee Richard A. Marshack, chapter 7 trustee.

Before: SPRAKER, TAYLOR, and LAFFERTY, Bankruptcy Judges.

Memorandum by Judge Spraker Concurrence by Judge Taylor

INTRODUCTION

Vincent Jue appeals from an order granting chapter 71 debtor Maggie

Liu’s motion under § 522(f)(1)(A) to avoid an attachment lien as impairing

her homestead exemption in her residence. Jue also appeals from the denial

of his motion under Rule 9024 seeking relief from the court’s order

avoiding the lien.

Jue lacked standing to oppose a § 522(f) lien avoidance motion. Based

on our decision in Jue’s related appeals, Jue v. Liu, BAP Nos. CC-19-1039-

1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code,

, and all “Rule” references are to the Federal Rules of Bankruptcy Procedure.

2 STaF, and CC-19-1040-STaF (9th Cir. BAP Feb. 11, 2020), Jue has no interest

in the attachment lien. We have affirmed the judgment avoiding that lien

under § 547(b) and preserving it for the benefit of Liu’s bankruptcy estate

under § 551. Therefore, the attachment lien belongs to Liu’s bankruptcy

estate, and the chapter 7 trustee represents the interests of the bankruptcy

estate – not Jue. No party has challenged the homestead exemption, and

the trustee has stated that he does not oppose the relief sought. As one of

Liu’s unsecured creditors, Jue never sought, nor obtained, the trustee’s

agreement or the court’s permission to oppose Liu’s lien avoidance motion

on behalf of the estate.

Because Jue lacked standing, we AFFIRM the bankruptcy court’s lien

avoidance order and its order denying relief under Rule 9024.

FACTS

The facts essential to our disposition are few. Jue is a judgment

creditor of Liu.2 He obtained an attachment lien against Liu on June 5, 2017.

Shortly thereafter, on June 28, 2017, Liu stipulated to entry of a $480,000.00

judgment in favor of Jue. Liu commenced her chapter 7 case on July 17,

2017. In August 2018, the chapter 7 trustee commenced a preference action

against Jue to avoid and preserve the attachment lien for the benefit of the

2 For a fuller account of the history between Jue and Liu, please refer to this Panel’s decision in Jue v. Liu, BAP Nos. CC-19-1039-STaF & CC-19-1040-STaF (9th Cir. BAP Feb. 11, 2020).

3 bankruptcy estate. The bankruptcy court entered judgment on April 3,

2019, avoiding and preserving Jue’s attachment lien. Jue appealed, but we

affirmed the preference judgment.

Liu owned her residence in Newport Coast, California, which she

valued at $1,379,833.00 in her Schedule A/B when she filed her bankruptcy.

After obtaining bankruptcy court approval, the chapter 7 trustee sold the

residence in May 2018 for $1,075,000.00. At closing, the trustee paid the

outstanding tax liens, the first deed of trust, and the statutory homeowner’s

association lien. After payment of the costs of sale and the senior liens (as

indicated above), there remained $555,852.52. The remaining

encumbrances against the property included Jue’s attachment lien, another

judgment lien, and two junior deeds of trust in the following amounts and

priority:

Creditor Encumbrance Date Recorded Amount of Lien

Vincent Jue Attachment Lien 6/8/17 $ 140,371.16 Yu Huo Judgment Lien 6/21/17 $ 704,043.90 Mei-Ling Su 2nd Deed of Trust 6/27/17 $ 118,382.00 Qiang Li 3rd Deed of Trust 7/12/17 $ 400,000.00

The trustee has challenged each of these four junior encumbrances,

including Jue’s attachment lien. Because of the trustee’s challenges, the

remaining sale proceeds were held pending further court order. The trustee

has since avoided and preserved the third deed of trust, formerly held by

Liu’s brother, Qiang Li, and the two non-consensual liens. The preference

4 action seeking to avoid and preserve the second deed of trust is still

pending.

On October 12, 2018, Liu filed a motion to avoid Jue’s attachment lien

under § 522(f)(1)(A) as impairing her $75,000 homestead exemption under

California law. Liu used the $1,075,000.00 sale price to establish the fair

market value of her residence. She also used the actual lien amounts paid

at closing as evidence of the senior liens, and took the amounts of the

junior deeds of trust and liens from her schedules. Based on these amounts,

Liu calculated that Jue’s judgment lien impaired her homestead exemption

by $80,088.75, as follows:

Value of Real Property $ 1,075,000.00

Orange County Tax Lien $ 26,743.64 Treasurer Amwest Funding 1st Deed of $ 390,055.40 Corp. Trust Ziani Homeowners Statutory $ 4,536.55 Ass'n Lien Mei-Ling Su 2nd Deed of $ 118,382.00 Trust Qiang Li 3rd Deed of $ 400,000.00 Trust Total Statutory Liens $ 939,717.59 & Deeds of Trust

Homestead $ 75,000.00 Exemption Total Liens and ( 1,014,717.59)

5 Exemption Equity Net of Liens and $ 60,282.41 Exemption Senior Judgment Lien ( 140,371.16) (Jue) Impairment of ( 80,088.75) Exemption

Jue opposed Liu’s motion to avoid his lien. He primarily attacked the

bona fides of the $400,000.00 third deed of trust formerly held by Qiang Li.

In response, Liu provided a declaration detailing more than $400,000.00 in

transactions which she claims comprised the monies loaned to her by

Qiang Li. Jue pointed out, however, that the documents attached to Liu’s

declaration showed that only $55,977.00 in funds were from someone other

than Liu herself. Jue argued that the third deed of trust must therefore be

limited to the $55,977.00 in funds that came from third persons.

Alternately, he argued that a junior deed of trust should not be counted for

purposes of determining whether the attachment lien impaired Liu’s

exemption within the meaning of § 522(f)(2)(A).3

3 Jue also argued that the bankruptcy court used the wrong amount as the fair market value of the property. Jue claims the fair market value was $1,379,833.00 as stated in Liu’s original schedules filed on July 17, 2018. But Liu filed amended schedules on October 29, 2018 stating that the fair market value was $1,075,000.00. Furthermore, the lesser amount was supported by the actual sale price the trustee obtained for the property when it was sold in May 2018 – roughly ten months after Liu commenced her bankruptcy case. The lesser amount also was supported by the declaration of the real estate agent the trustee retained to sell the residence, who opined that the value of the (continued...)

6 At the hearing on the motion to avoid the lien, the bankruptcy court

expressed considerable skepticism concerning the bona fides of the third

deed of trust. Ultimately, however, the bankruptcy court rejected Jue’s

arguments. The court effectively held that Jue could not question the

validity or the amount of the third deed of trust on the motion to avoid the

judgment lien. Among other things, the court also noted that, on October

31, 2017, the bankruptcy court entered an order approving a stipulation

between the trustee and Qiang Li for the avoidance, recovery, and

preservation of the third deed of trust for the benefit of Liu’s bankruptcy

estate. Additionally, the court concluded: “No objection to the debt

underlying the Li Deed of Trust was filed. Therefore, the debt secured by

the Li Deed of Trust is $400,000.”

The bankruptcy court entered its order granting the motion to avoid

lien on April 10, 2019. Jue filed a motion under Rule 9024 for relief from the

lien avoidance order. Jue asserted that the order erroneously avoided the

attachment lien in its entirety. Additionally, Jue once again asserted that

the court should not have counted the third deed of trust in calculating the

extent the attachment lien impaired Liu’s homestead exemption. Jue

3 (...continued) residence as of the date Liu’s bankruptcy was filed was “near or at $1,075,000.00.” She based this opinion on the actual sale price for the property. Jue offered no competing evidence regarding the fair market value of the property. Nor is there anything in the record that would enable us to conclude that the bankruptcy court clearly erred when it found that the property was worth $1,075,000.00.

7 maintained that, per § 522(f)(2)(B), avoided liens should not be counted in

calculating the extent of impairment under § 522(f)(2)(A).

On April 22, 2019, the bankruptcy court entered an amended order

avoiding the attachment lien only to the extent of $80,088.75. The amended

order specified that the remaining balance of the lien, $60,282.41, remained

valid and enforceable as an unsecured debt. The bankruptcy court also

entered an order denying Jue’s motion for Rule 9024 relief. Jue timely

appealed both orders.

JURISDICTION

The bankruptcy court had jurisdiction under

and

157(b)(2)(A) and (O). Subject to the jurisdictional discussion set forth

below, we have jurisdiction under

.

ISSUE

Did Jue have standing to oppose Liu’s § 522(f)(1)(A) lien avoidance

motion and to seek relief under Rule 9024 from the order granting that

motion?

STANDARDS OF REVIEW

Standing issues generally are questions of law that we review de

novo. Harkey v. Grobstein (In re Point Ctr. Fin., Inc.),

(9th

Cir. 2018). But underlying factual issues are questions of fact reviewed

under the clearly erroneous standard. Palmdale Hills Prop., LLC v. Lehman

Commercial Paper, Inc. (In re Palmdale Hills Prop., LLC ),

(9th

8 Cir. 2011) (citing Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C.,

Inc.),

(9th Cir. 1999)).

When we conduct a de novo review, we consider the matter anew, as

if the bankruptcy court had not previously resolved it. Kashikar v. Turnstile

Capital Mgmt., LLC (In re Kashikar),

(9th Cir. BAP 2017).

A factual finding is not clearly erroneous unless it is illogical,

implausible or without support in the record. Retz v. Samson (In re Retz),

(9th Cir. 2010).

We may affirm on any ground supported by the record. Shanks v.

Dressel,

(9th Cir. 2008).

DISCUSSION

Standing is a threshold requirement that must be satisfied in every

federal case. Warth v. Seldin,

(1975). The party seeking

relief has the burden to establish its standing. Nat’l Fire Ins. Co. of Hartford v.

Thorpe Insulation Co. (In re Thorpe Insulation Co.),

(9th

Cir. 2010) (citing Lujan v. Defenders of Wildlife,

(1992)).

A. Statutory Standing – Generally.

There are a number of different aspects of standing doctrine

subsumed within the general standing inquiry. See Veal v. Am. Home Mortg.

Servicing, Inc. (In re Veal),

, 906–07 (9th Cir. BAP 2011).

But there is only one aspect of standing doctrine relevant to this appeal. It

frequently is referred to as statutory standing and asks: to whom does the

9 applicable statute give the right to be heard on the matter? See generally In

re Godon, Inc.,

(Bankr. E.D. Cal. 2002) (explaining at

length statutory standing).

B. The Trustee’s Avoidance Of The Attachment Lien Divested Jue Of Statutory Standing To Challenge Liu’s Motion To Avoid.

When the trustee prevailed in his preference action against Jue and

avoided his attachment lien, § 551 automatically preserved the lien for the

benefit of Liu’s bankruptcy estate. See generally Retail Clerks Welfare Trust v.

McCarty (In re Van de Kamp's Dutch Bakeries),

, 519 (9th Cir.

1990) (noting that “the legislative history stresses the automatic nature of

preservation under section 551”).4 Consequently, upon avoidance, the

trustee stepped into Jue’s shoes as the successor lienholder and enjoys the

same rights in the attachment lien as Jue enjoyed. Giovanazzi v. Schuette (In

re Lebbos), BAP No. EC–11–1735–KiDJu,

, at *14 (9th Cir.

BAP Dec. 31, 2012), aff'd,

(9th Cir. 2015) (citing Morris v.

St. John Nat'l Bank (In re Haberman),

(10th Cir. 2008)); see

4 The trustee relies on In re Van de Kamp's Dutch Bakeries for a much broader proposition. According to the trustee, once a lien is avoided and preserved for the benefit of the estate under § 551, it is wholly insulated from any challenge to its validity or amount. We do not necessarily read Van de Kamp's so broadly. The Van de Kamp's decision more narrowly decided whether a lien avoided as a fraudulent transfer and preserved for the benefit of the estate was subject to attack by junior secured creditors on state law fraudulent transfer grounds. Van de Kamp's held that Congress enacted § 551, in part, to protect the estate from such attacks. Id. at 519-20. In any event, we need not decide the breadth of Van de Kamp's holding in order to resolve this appeal on statutory standing grounds. That issue is for another day.

10 also DeGiacomo v. Traverse (In re Traverse),

(1st Cir. 2014)

(noting that § 551 automatically puts the trustee “in the shoes of the

creditor whose lien is avoided.”).

Thus, under § 541(a)(4), the attachment lien became property of Liu’s

bankruptcy estate. As specified in § 323(a), the trustee is the sole

representative of the bankruptcy estate. Because the attachment lien was

property of the estate, only the trustee had standing to assert legal claims

and defenses pertaining to the attachment lien. See Estate of Spirtos v. One

San Bernardino Cnty. Superior Court Case,

, 1176 (9th Cir. 2006)

(holding that trustee has exclusive standing to assert legal claims with

respect to estate property); DiSalvo v. DiSalvo (In re DiSalvo),

(9th Cir. 2000) (citing Cable v. Ivy Tech State College,

(7th Cir. 1999), and noting that in chapter 7 cases, only the trustee has

standing to assert estate claims).

The Ninth Circuit has recognized an exception to this rule, which

permits a creditor, with the trustee’s agreement and the court’s approval, to

pursue actions on behalf of the estate. See Avalanche Mar., Ltd. v. Parekh (In

re Parmetex, Inc.),

(9th Cir. 1999) (citing Hansen v. Finn

(In re Curry and Sorensen),

(9th Cir. BAP 1986)). But Jue

neither sought nor obtained the trustee’s agreement or the bankruptcy

court’s approval. Nor did Jue take any other affirmative action in the

bankruptcy court to the extent he believed that the trustee was failing to

11 perform his duties by not opposing the § 522(f)(1)(A) lien avoidance

motion. See Estate of Spirtos, 443 F.3d at 1176 (“if the trustee is guilty of

malfeasance, the proper remedy is removal under section 324(a).”).

In short, § 323(a) permits only the trustee to represent the estate’s

interests in chapter 7 cases with respect to estate property. Consequently,

Jue had no standing to take any action in the bankruptcy court pertaining

to the attachment lien once it was avoided and preserved for the estate’s

benefit under § 551.5

C. Jue’s Appeal Of The Preference Judgment Does Not Give Him Standing To Oppose Liu’s Motion To Avoid The Attachment Lien.

Jue disputes his lack of statutory standing. He concedes that the

bankruptcy court avoided his interest in the attachment lien and preserved

it for the benefit of the estate. But he argues that the effect of that order is

not binding on him so long as he has not exhausted his appeal rights. Jue is

simply wrong. Even when subject to a pending appeal, federal judgments

5 Our analysis is consistent with Rule 4003(d), which sets forth the procedures governing motions for relief under § 522(f). Rule 4003(d) and the accompanying Advisory Committee Notes indicate that the lienholder is the party who has the right to oppose a motion brought under § 522(f). Rule 4003(d) refers to “affected creditors,” and the Advisory Committee Notes accompanying the Rule’s 2008 amendments more specifically refer to “a creditor with a lien on property.” In contrast, the Rules more broadly give standing to trustees and all parties in interest to object to exemption claims. See Rule 4003(b). The broader standing under Rule 4003(b) makes sense. Exemption claims are much more likely to affect the economic interests of individual creditors than would a § 522(f) motion, which only directly affects the rights of lienholders.

12 and orders are immediately effective and enforceable absent a stay pending

appeal. Bennett v. Gemmill (In re Combined Metals Reduction Co.),

(9th Cir. 1977). Jue has not obtained a stay of the preference

judgment in any of his appeals.

Jue focuses on the issue preclusive effect of a judgment or order

subject to appeal. According to him, under California law, a California

judgment is not final for issue preclusion purposes until all appeals are

exhausted. This is a true statement of California law. See Lumbermans

Acceptance Co. v. Secured Inv. of Marysville, Ltd. (In re Lumbermans Mortg.

Co.),

(9th Cir. 1983) (citing People ex. rel. Gow v. Mitchell

Bros.' Santa Ana Theater,

(1980)). Here, however,

we are dealing with a federal judgment imposed under federal law –

avoiding and preserving a lien pursuant to § 547 of the Bankruptcy Code.

Under federal law, a federal judgment is considered final for issue

preclusion purposes even before the appeals process has been completed.6

6 In light of our affirmance of the preference judgment, we are bound by its effect under the law of the case doctrine. As we previously have explained:

Under the law of the case doctrine, a court is barred from reconsidering an issue that already has been decided in the same court or in a higher court in the same case. For the law of the case doctrine to apply, the issue must have been decided, either expressly or by necessary implication. However, even if the law of the case doctrine applies, a court may decide, in its discretion, to revisit the issue if: “(1) the first decision was clearly erroneous and would result in manifest injustice; (2) an intervening (continued...)

13 See Frye v. Excelsior College (In re Frye), BAP No. CC–08–1055–PaMkK,

, at *5 n.12 (9th Cir. BAP Aug. 19, 2008); see also Robi v. Five

Platters, Inc.,

(9th Cir. 1988) (holding that a pending

appeal does not vitiate the preclusive effect of a federal district court

judgment).

In sum, because Jue no longer held the attachment lien avoided and

preserved by the trustee, it was not his lien that was subject to Liu’s motion

to avoid. The attachment lien, therefore, did not provide Jue with standing

to oppose the relief sought by Liu.

D. Jue’s Status As An Unsecured Creditor Is Irrelevant To The Motion To Avoid The Lien Under § 522(f).

Jue alternately argues that, even if he no longer was entitled to assert

the rights of a lienholder, he nonetheless had a sufficient interest in the

attachment lien as an unsecured creditor to oppose the § 522(f) lien

avoidance motion. Jue points to Rule 4003(b), which broadly gives standing

6 (...continued) change in the law has occurred; or (3) the evidence on remand [is] substantially different.”

FDIC v. Kipperman (In re Commercial Money Ctr., Inc.),

, 832–33 (9th Cir. BAP 2008) (citing Milgard Tempering, Inc. v. Selas Corp. of Am.,

(9th Cir. 1990)). This doctrine is discretionary, but we typically follow it unless one of the above-referenced exceptions applies. Am. Express Travel Related Servs. Co. v. Fraschilla (In re Fraschilla),

(9th Cir. BAP 1999), aff'd,

(9th Cir. 2000) (citing United States v. Garcia,

(9th Cir. 1996)). None of the exceptions apply here.

14 to trustees and any “party in interest” to object to exemption claims.

Section 522(l) similarly acknowledges the right of parties in interest to

object to a debtor’s claim of exemptions. This has been construed to mean

that unsecured creditors have a right to object to the debtor’s exemption

claims. See In re Anderson,

(Bankr. D. Kan. 2008), aff’d,

(D. Kan. 2009).

Here, however, there is no objection to Liu’s homestead exemption

claim, and the time to object to that claim has passed. See generally Taylor v.

Freeland & Kronz,

(1992). Jue never filed an objection to

Liu’s exemptions. Nor did Jue attempt to challenge the validity of the

exemption as part of his defense against the lien avoidance motion.7 In

short, standing to object to exemption claims is not at issue herein.

It is not Rule 4003(b) that applies in this instance. Rule 4003(d) details

who may oppose a § 522(f) lien avoidance motion. As set forth above, the

language used in Rule 4003(d) is significantly more restrictive than the

“parties in interest” language contained in Rule 4003(b). Instead of

referring to “parties in interest,” Rule 4003(d) refers to “affected creditors.”

The Advisory Committee Notes accompanying the 2008 amendments to

Rule 4003 further clarify that only “a creditor with a lien on property” may

7 This Panel has held that lienholders who do not timely object to a debtor’s exemption claim still may challenge the validity of the exemption claim as part of defending against a § 522(f) lien avoidance motion. Morgan v. Fed. Deposit Ins. Corp. (In re Morgan),

(9th Cir. BAP 1993).

15 object to a lien avoidance motion.

We construe this narrower language to mean that only the affected

lienholder has standing to oppose a § 522(f) lien avoidance motion. In this

instance, that is the chapter 7 trustee who avoided and has preserved the

attachment lien.

Jue’s argument that he had standing to object to the § 522(f) lien

avoidance motion as an unsecured creditor rings hollow. There being no

objection to Liu’s homestead exemption, there is no scenario where Liu is

not paid her homestead exemption. Rather, Jue advocates for limiting, or

eliminating, the third deed of trust. But this should not impact the

distribution to the unsecured creditors in this case as the trustee has

avoided, and preserved, both judicial liens and Li’s third deed of trust for

the benefit of the estate.

If the third deed of trust were eliminated, then there would be a

greater distribution to the judicial liens. Jue’s attachment lien would not

impair the exemption and could be paid in full. Huo’s judgment lien would

then only partially impair the homestead exemption, and it would be paid

a substantial amount of the balance due. But ultimately, the same amount

of monies would go to the estate, because it holds not only the third deed

of trust, but also both judicial liens. In short, Jue’s arguments should have

no effect on the unsecured creditors’ recovery. They will receive the same

amount however the impairment is calculated. Jue’s arguments only affect

16 whether the trustee recovers under Jue’s attachment lien or through the

avoided judgment lien.

It is clear from his arguments, both on appeal and in the bankruptcy

court, that Jue is not interested in protecting his interests as an unsecured

creditor. He seeks merely to preserve full payment on the attachment lien

in the event that he prevails in his appeals of the preference judgment.

Thus, the legal positions Jue has taken well illustrate why a narrow

construction of standing in this context is practical, logical, and promotes

the more efficient administration of the chapter 7 estate.

Accordingly, Jue lacked standing to oppose Liu’s § 522(f) lien

avoidance motion or to seek relief under Rule 9024 from the order granting

that motion. On that basis, we AFFIRM both orders appealed.8

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy court’s

orders granting the lien avoidance motion and denying the motion for

8 We are aware of California Code of Civil Procedure (“C.C.P.”) § 493.030(b). This statute automatically terminates attachment liens when they are created within ninety days of a bankruptcy filing. See Wind Power Sys., Inc. v. Cannon Financial Group, Inc. (In re Wind Power Sys., Inc.),

, 293 (9th Cir. 1988) (“The purpose of [C.C.P. § 493.030(b)] is to have a lien of attachment declared void without court action”). Even so, this California statute did not render this appeal moot. Similar to § 551 of the Bankruptcy Code, California automatically preserves for the bankruptcy estate attachment liens terminated by operation of C.C.P. § 493.030(b). See C.C.P. § 493.060 (“Upon the filing of a petition commencing a case under Title 11 of the United States Code (Bankruptcy), a lien terminated pursuant to this chapter is preserved for the benefit of the estate.”).

17 relief under Rule 9024.

Concurrence begins on next page.

18 TAYLOR, Bankruptcy Judge, concurring:

I write separately not because I disagree with the well-reasoned

analysis of my colleagues but because I believe that the lien at issue was set

aside under California law and that Ms. Liu’s motion to set aside the lien

under § 522(f), thus, was unnecessary. Previously, we dismissed an appeal

of the bankruptcy court’s order denying a § 109(g)(2) dismissal of Ms. Liu’s

bankruptcy case. See Jue v. Liu (In re Liu), BAP Nos. CC-19-1039-STaF and

CC-19-1040-STaF (9th Cir. BAP February 11 2020). As a result, as explained

in more detail in my concurrence in a companion appeal of the bankruptcy

court’s summary judgment in favor of the trustee in a preference action,

Mr. Jue’s attachment lien terminated as a matter of state law. See id. As a

result, there was no lien to set aside under § 522(f).

I, thus, agree with my colleagues that this matter is moot and that we

cannot grant effective relief. I write separately only to emphasize that I do

so for a different reason.

1