Burkhart v. Coleman , 542 F.3d 684 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: CRAIG L. TIPPETT; 
CHRISTINE L. TIPPETT,
Debtors,
No. 06-15411
MICHAEL F. BURKART, Chapter 7
Trustee,  BAP No.
EC-05-01087-BMaS
Appellant,
OPINION
v.
SEITU O. COLEMAN; IRWIN
MORTGAGE COMPANY,
Appellees.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Brandt, Marlar, and Smith, Bankruptcy Judges, Presiding
Argued and Submitted
December 5, 2007—San Francisco, California
Filed September 4, 2008
Before: Betty B. Fletcher, William C. Canby, Jr., and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Canby
12141
12144 IN THE MATTER OF TIPPETT
COUNSEL
Gregory J. Hughes, Hughes & Pritchard, LLP, Roseville, Cal-
ifornia, for appellant.
Mary E. Olden, McDonough, Holland & Allen PC, Sacra-
mento, California, for appellees.
James A. Tiemstra, Oakland, California, for amicus curiae.
OPINION
CANBY, Circuit Judge:
After filing a joint Chapter 7 petition in bankruptcy and
without authorization, Craig L. Tippett and Christine L. Tip-
pett retained a realtor and sold their homestead in Sacramento
County, California to Seitu O. Coleman. The Trustee in bank-
ruptcy had not recorded the Tippetts’ Chapter 7 petition in the
office of the Sacramento County Recorder, and the Tippetts
did not reveal their bankruptcy to their realtor or to Coleman.
It is undisputed that Coleman is a bona fide purchaser under
California law. The Trustee filed an adversary proceeding
IN THE MATTER OF TIPPETT 12145
seeking, inter alia, to quiet title to the residence in the bank-
ruptcy estate. The bankruptcy court ruled in favor of the
Trustee. On appeal, the Bankruptcy Appellate Panel (“BAP”)
reversed and entered judgment in favor of Coleman and his
purchase-money lenders. We now hold that the Bankruptcy
Code does not preempt California’s bona fide purchaser stat-
ute as it applies to this transaction. In addition, we adhere to
the established proposition that the automatic stay triggered
by a debtor’s bankruptcy petition does not void transfers of
estate property initiated by the debtor. We therefore affirm the
BAP’s decision in favor of the bona fide purchaser and his
lenders.
BACKGROUND
In May 2001, the Tippetts filed a joint Chapter 7 petition.
Appellant Michael Burkart was appointed trustee. In their
petition, the Tippetts listed their residence as having a market
value of $140,000 and two liens against it totaling $134,958.
After amendment, the Tippetts claimed an exemption in the
residence of $1,530. No one recorded the Tippetts’ Chapter 7
petition or any notice of bankruptcy with the office of the
Sacramento County Recorder.
The Trustee did not abandon the bankruptcy estate’s inter-
est in the residence, and the Tippetts continued to occupy the
premises until the purported sale to Coleman. In November
2002, the Tippetts, without authorization and without disclos-
ing their bankruptcy, listed the residence for sale through a
real estate broker for $230,000. At about the same time, and
without knowing of these events, the Trustee wrote to the Tip-
petts’ attorney requesting their cooperation in marketing the
residence because he believed that there might be equity
available for unsecured creditors because of the general
appreciation in value of real estate in the area. He sent a copy
of his letter to the Tippetts. There is nothing in the record evi-
dencing any further communication between the Tippetts and
the Trustee.
12146 IN THE MATTER OF TIPPETT
In April 2003, Coleman, whom all parties agree is a bona
fide purchaser without notice of the bankruptcy proceedings,1
bought the residence for $225,000. Coleman signed a pur-
chase money note in favor of Irwin Mortgage Corporation for
$221,865, secured by a first deed of trust on the residence.
The deed of trust was duly recorded. In addition, Coleman
signed a second purchase money note in favor of California
Rural Home Mortgage Finance Authority in the amount of
$6,900. This deed of trust was also duly recorded. After
$130,557.90 in pre-petition encumbrances was paid from the
escrow account, the Tippetts received net proceeds of
$76,582.76, exceeding both their claimed homestead exemp-
tion and any other exemption available to them.
The Trustee filed an adversary proceeding against the Tip-
petts, Coleman, and the lenders, seeking to recover the sale
proceeds under 11 U.S.C. § 542, avoid the lenders’ liens, and
quiet title. The Trustee also sought to revoke the Tippetts’ dis-
charge for knowingly and fraudulently selling an asset of the
estate and retaining the net proceeds under 11 U.S.C.
§ 727(d)(2).
The bankruptcy court bifurcated the quiet title and dis-
charge revocation proceedings. After trial of the quiet title
action on stipulated facts, the bankruptcy court held that the
Tippetts’ grant deed and the lenders’ liens were void ab initio
as violations of the automatic stay provided by 11 U.S.C.
§ 362. The court rejected other asserted alternatives and
1
Under California’s race-notice recording statute,
[e]very conveyance of real property . . . , other than a lease for
a term not exceeding one year, is void as against any subsequent
purchaser or mortgagee of the same property, or any part thereof,
in good faith and for a valuable consideration, whose conveyance
is first duly recorded, and as against any judgment affecting the
title, unless the conveyance shall have been duly recorded prior
to the record of notice of action.
Cal. Civ. Code § 1214.
IN THE MATTER OF TIPPETT 12147
defenses and quieted title in the Trustee. The bankruptcy
court, however, granted the lenders an equitable lien against
the residence in the amount of $130,557.90 to be paid out of
ultimate sale proceeds.
On appeal from the bankruptcy court’s final judgment, the
BAP held that the Tippetts’ unauthorized transfer of the Resi-
dence to Coleman did not violate the automatic stay. The
transfer therefore was not utterly void. The BAP pointed out
that a Trustee can avoid unauthorized transfers by debtors
under 11 U.S.C. § 549(a), but that this provision was of no
use to the Trustee here because it includes a defense for bona
fide purchasers. See § 549(c). Accordingly, the BAP reversed
the bankruptcy court’s judgment and remanded for entry of
judgment in favor of Coleman and his lenders. The Trustee
appealed.
DISCUSSION
We review de novo a decision of the BAP. Salazar v.
McDonald (In re Salazar), 430 F.3d 992, 994 (9th Cir. 2005).
Because the bankruptcy court tried this matter on a joint state-
ment of undisputed facts submitted by the parties, the only
disputed questions are legal. Accordingly, de novo review
applies to all questions before the court. The issues for deci-
sion are: (1) whether the Tippetts’ post-petition deed could
convey a property interest in the residence to Coleman; (2)
whether the federal Bankruptcy Code preempts the California
statute protecting bona fide purchasers as applied to purchas-
ers from a debtor in bankruptcy; and (3) whether the auto-
matic stay voids the Tippetts’ purported sale of the residence
to Coleman.
I. The Effectiveness of the Tippetts’ Deed to Coleman
[1] Upon the filing of a petition in bankruptcy, all of the
Tippetts’ property became vested in the bankruptcy estate.
See 11 U.S.C. § 541. From this unassailable principle, the
12148 IN THE MATTER OF TIPPETT
Trustee argues that the Tippetts’ deed to Coleman has no
effect because the Tippetts had no property to convey. This
argument misunderstands the operation of the California bona
fide purchaser statute. The design of this statute is to give
effect to a conveyance when the record owner’s title
is defective because of a prior unrecorded conveyance. The
statute renders an unrecorded conveyance void as to subse-
quent bona fide purchasers who record their title first. Cal.
Civ. Code § 1214. The transfer of the Tippetts’ residence to
the bankruptcy estate was just such an unrecorded convey-
ance, and is void as to Coleman, a good faith purchaser for
value who duly recorded his purchase. See id. There can be
no question, therefore, that, if the California statute applies,
the transfer to Coleman is effective, despite the absence of a
property interest in the Tippetts.
[2] Our conclusion is unaffected by two cases the Trustee
offers in support of his argument: Finalco Inc. v. Roosevelt
(In re Roosevelt), 87 F.3d 311, as amended, 98 F.3d 1169 (9th
Cir. 1996), and Palm v. Klapperman (In re Cady), 266 B.R.
172 (B.A.P. 9th Cir. 2001), aff’d, 315 F.3d 1121 (9th Cir.
2003). In both cases the courts determined that a debtor
retained no interest in property following a particular property
transfer, but the determinations were made for wholly differ-
ent purposes and did not involve the validity of a transfer by
a debtor to a bona fide purchaser. These cases are not incon-
sistent with our decision today.2
2
In fact, the court in Roosevelt observed that the debtor, despite lacking
an interest in property, still “retain[ed] the ability to reconvey the real
estate to a bona fide purchaser, who [could] defeat the initial grantee’s
interest if she record[ed] before the grantee [did].” 87 F.3d at 319. We also
find no impediment to our decision is presented by our cases holding that
a debtor who has filed a Chapter 7 petition is stripped of standing to pur-
sue certain causes of action. See, e.g., Sierra Switchboard Co. v. Westing-
house Elec. Corp., 789 F.2d 705, 707-09 (9th Cir. 1986). Much like
Roosevelt and Cady, Sierra Switchboard and its progeny address exclu-
sively the property interests of debtors, not the rights of third-party bona
fide purchasers.
IN THE MATTER OF TIPPETT 12149
II. Federal Field-Preemption of California’s Bona
Fide Purchaser Statute
[3] We next consider whether the Bankruptcy Code occu-
pies the field of title transfers initiated by Chapter 7 debtors
and accordingly preempts California’s statute protecting bona
fide purchasers such as Coleman.3 We conclude that it does
not. In general, “[a]bsent explicit pre-emptive language, . . .
field pre-emption [occurs] where the scheme of federal regu-
lation is so pervasive as to make reasonable the inference that
Congress left no room for the States to supplement it.” Gade
v. Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98 (1992)
(internal quotation marks and citation omitted). As we
recently explained, “[t]here can be no doubt that federal bank-
ruptcy law is pervasive and involves a federal interest so dom-
inant as to preclude enforcement of state laws on the same
subject”—namely, the subject of bankruptcy. Sherwood Part-
ners, Inc. v. Lycos, Inc., 394 F.3d 1198, 1201 (9th Cir. 2005)
(internal quotation marks omitted). “At the same time, federal
law coexists peaceably with, and often expressly incorporates,
state laws regulating the rights and obligations of debtors (or
their assignees) and creditors.” Id. (citing 11 U.S.C.
§§ 522(b)(2), 544(b), 543(d)(2)).
To decide whether Coleman may claim the protection of
the California statute, then, we “must consider the essential
goals and purposes of federal bankruptcy law, and then deter-
mine whether [Cal. Civ. Code § 1214] is consistent with
them.” Id. at 1202. Throughout this inquiry, we are mindful
that “an essential state interest is at issue . . . in the security
of the titles to real estate” and that, consequently, “the federal
3
The Trustee argues that the federal bankruptcy scheme trumps Califor-
nia’s laws protecting bona fide purchasers as a matter of both field and
direct-conflict preemption. As the Trustee implicitly concedes, direct-
conflict preemption arises in this case, if at all, from the operation of the
automatic stay. Accordingly, the direct-conflict inquiry collapses into the
statutory analysis of the automatic stay provision that we set forth in Sec-
tion III of this opinion.
12150 IN THE MATTER OF TIPPETT
statutory purpose must be clear and manifest.” BFP v. Resolu-
tion Trust Corp., 511 U.S. 531, 544 (1994) (internal quotation
marks and citations omitted).
[4] We begin with the “essential goals and purposes of fed-
eral bankruptcy law.” As we recently noted, “chapter 7 of the
Bankruptcy Code . . . embodies two ideals: (1) giving the
individual debtor a fresh start, by giving him a discharge of
most of his debts; and (2) equitably distributing a debtor’s
assets among competing creditors.” Sherwood Partners, Inc.,
394 F.3d at 1203. In addition to the general principles identi-
fied in Sherwood, two relevant statutory “goals and purposes”
arise directly from the automatic stay provision in 11 U.S.C.
§ 362(a). As we have explained,
Section 362(a) has two broad purposes. First, it pro-
vides debtors with protection against hungry credi-
tors . . . .
....
Second, the stay assures creditors that the debtor’s
other creditors are not racing to various courthouses
to pursue independent remedies to drain the debtor’s
assets . . . .
Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755-56 (9th
Cir. 1995) (citing H.R. Rep. No. 595, 95th Cong., 1st Sess.,
at 340 (1977)).
[5] Of these goals and purposes, the only one that conceiv-
ably can apply to the situation before us is the equitable distri-
bution of the debtor’s assets among creditors. Several
considerations persuade us that California’s bona fide pur-
chaser statute is wholly consistent with this congressional
goal. First, in the typical case in which the debtor “transfers”
title to a bona fide purchaser through an unauthorized convey-
IN THE MATTER OF TIPPETT 12151
ance, the proceeds of the sale become part of the estate.4 Thus,
neither the total value of the assets available to the creditors
through the estate nor the equity of the distribution among
creditors is markedly affected.
[6] We are also impressed by the fact that Congress recog-
nized and protected the interests of bona fide purchasers in a
highly analogous situation. Under 11 U.S.C. § 549(a), a
trustee may avoid unauthorized transfers of property of the
bankruptcy estate. As the BAP pointed out, however, the
same statute provides a defense to bona fide purchasers. See
§ 549(c). That is undoubtedly one reason why the Trustee
here does not rely on his powers under § 549, but instead
maintains that the Tippetts’ transfer was void from the begin-
ning.5 Even though § 549 is not in issue, however, it does sug-
gest that Congress is sufficiently comfortable with the
protection of bona fide purchasers within the bankruptcy
scheme that an implied preemption is not in order.
[7] Finally, we note that the Trustee can easily protect the
estate and its creditors from unforeseen or unknown convey-
ances by recording the debtor’s Chapter 7 petition (or a notice
of bankruptcy) in the recorder’s office of the counties where
the debtor owned real property.6
4
Where, as in this case, pre-petition encumbrances on the real property
are paid off when escrow closes, the fairness of the distribution among the
remaining creditors is unaffected: a mortgage holder would ordinarily
recover dollar-for-dollar on the trustee’s liquidation of the property to the
extent the debt is secured. See 11 U.S.C. § 506(a); St. Angelo v. Victoria
Farms, Inc., 38 F.3d 1525, 1534-35 (9th Cir. 1994) (mortgage liens give
rise to secured claims in the bankruptcy context).
5
Because the Trustee does not rely on § 549(a) to avoid the Tippetts’
transfer, the protections of bona fide purchasers provided by § 549(c) is
of no use to Coleman. His title stands or falls under California law.
6
The facts of this case are illustrative: the Trustee could have recorded
a notice of the Tippetts’ bankruptcy petition in Sacramento County, but
simply failed to do so.
12152 IN THE MATTER OF TIPPETT
[8] In sum, there is no meaningful inconsistency between
the federal bankruptcy scheme and California’s protection of
bona fide purchasers of real property. We therefore reject the
Trustee’s preemption argument.
III. Section 362 Automatic Stay and the Tippetts’ Sale
of the Residence
Finally, the Trustee argues that the automatic stay triggered
by the Tippetts’ petition rendered their deed to Coleman a
nullity ab initio, which conveyed nothing to Coleman despite
his status as a bona fide purchaser. Although the Trustee’s
argument reflects a surface plausibility, it is irreconcilable
with our controlling case law and with the structure of the
Bankruptcy Code.
In relevant part, the automatic stay provision states that a
Chapter 7 petition “operates as a stay, applicable to all enti-
ties, of . . . any act to . . . exercise control over property of
the estate.” 11 U.S.C. § 362(a)(3). “[V]iolations of the auto-
matic stay [are] void, not voidable.” Schwartz v. United States
(In re Schwartz), 954 F.2d 569, 571 (9th Cir. 1992); see also
Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d
1074, 1082 (9th Cir. 2000) (en banc). From these two propo-
sitions, the Trustee argues that the Tippetts’ conveyance is
void because debtors must be included in “all entities” to
which the automatic stay applies. We are convinced, however,
that Congress intended neither the meaning, nor the result,
that the Trustee urges for the automatic stay provision.
[9] In interpreting 11 U.S.C. § 362(a), we do not write on
a clean slate. In Schwartz, we addressed the question whether
violations of the automatic stay by creditors were void ab ini-
tio or simply voidable. 954 F.2d at 570-71. We concluded that
the purpose of the provision—namely, broad protection of
debtors from creditors—could be vindicated only if all viola-
tions were rendered void, not merely voidable. Id. at 571. As
we recognized in a key passage of Schwartz, however, hold-
IN THE MATTER OF TIPPETT 12153
ing all violations of an automatic stay void did raise an “im-
portant potential conflict” with 11 U.S.C. § 549. Id. at 573.
Section 549(a) provides that “the trustee may avoid a transfer
of property of the estate . . . that occurs after the commence-
ment of the case; and . . . that is not authorized under [the
Bankruptcy Code] or by the court.” We summarized the
potential conflict as follows:
First, the expansive definition of “transfer” [in
§ 549] means that sections 362 and 549, at times,
cover the same transactions. Second, section 549
implies that some of these overlapping transactions
will be valid unless affirmatively challenged by the
trustee. Therefore, some argue that section 362 can-
not be interpreted to void these overlapping transac-
tions, for doing so would render section 549 moot.
Schwartz, 954 F.2d at 573 (citation omitted). We concluded,
however, that the two provisions could be reconciled with
each other and with our holding that transfers in violation of
the automatic stay were void. We noted that “[i]n most cir-
cumstances, section 549 applies to transfers in which the
debtor is a willing participant.” Id. at 574 (citation omitted).
In contrast, “[s]ection 362’s automatic stay does not apply to
sales or transfers of property initiated by the debtor. Thus,
section 549 has a purpose in bankruptcy beyond the potential
overlap with section 362.” Id. (emphasis added). In a recent
case, we left undisturbed this basic Schwartz principle—that
the automatic stay provision is designed to protect the debtor
against his creditors, whereas § 549(a) is designed to protect
creditors against unauthorized transfers by the debtor. See
40235 Wash. Street Corp. v. Lusardi, 329 F.3d 1076, 1081-82
(9th Cir. 2003); see alsoValue T. Sales, Inc. v. Mitchell (In re
Mitchell), 279 B.R. 839, 843 (B.A.P. 9th Cir. 2002). Applying
this principle to our case, the transfer from the Tippetts to
Coleman was not rendered void by the automatic stay.
[10] The Trustee dismisses as “dictum” the principle we
announced in Schwartz and asks us to reach the opposite con-
12154 IN THE MATTER OF TIPPETT
clusion. Basic considerations of stare decisis prevent us from
doing so. “[W]here a panel confronts an issue germane to the
eventual resolution of the case, and resolves it after reasoned
consideration in a published opinion, that ruling becomes the
law of the circuit, regardless of whether doing so is necessary
in some strict logical sense.” United States v. Johnson, 256
F.3d 895, 914 (9th Cir. 2001) (en banc). There is no question
that the analysis and conclusion in Schwartz that the auto-
matic stay did not apply to transfers by debtors was an impor-
tant and focused part of the panel’s reasoning; “it is clear that
a majority of the panel has focused on the legal issue pre-
sented by the case.” Id. at 916 (Kozinski, J., concurring); see
also Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.
2003) (per curiam) (quoting Johnson); Miller v. Gammie, 335
F.3d 889, 901 (9th Cir. 2003) (en banc) (Kozinski, J., concur-
ring). Thus, that conclusion in Schwartz is the law of the cir-
cuit. See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir.
2005) (en banc).
Schwartz therefore controls this case and requires that we
reject the Trustee’s contention that the automatic stay provi-
sion rendered the Tippetts’ deed void. In applying Schwartz
as controlling law, we do not mean to imply that we would
decide this case otherwise in its absence. We find the reason-
ing of Schwartz persuasive, and the Trustee’s attacks upon its
reasoning unconvincing.
CONCLUSION
For the foregoing reasons, the judgment of the Bankruptcy
Appellate Panel of the Ninth Circuit is
AFFIRMED.