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 2010-03

Branford Partners, LLC v. All-Text, Inc. , 371 F. App'x 858 ( 2010 )


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  •                            NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS                            FILED
FOR THE NINTH CIRCUIT                              MAR 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: BRANFORD PARTNERS, LLC,                   No. 08-60052
Debtor,                             BAP No. CC-08-1021-PaMkK
MEMORANDUM *
ALL-TEX, INC.,
Appellant,
v.
BRANFORD PARTNERS, LLC; BERT F.
FORNACIARI, individually and as co-
trustee of the Fornaciari Family Revocable
Truste Dated January 15, 2002; LINDA
COX FORNACIARI, individually and as
co-trustee of the Fornaciari Family
RevocableTrust dated January 15, 2003;
CALIFORNIA ENVIRONMENTAL
REDEVELOPMENT FUND; MCOM,
LLC,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pappas, Klein, and Markell, Bankruptcy Judges, Presiding
Argued and Submitted March 4, 2010
Pasadena, California
Before: CANBY, GOULD and IKUTA, Circuit Judges.
We have jurisdiction to review the decision of the Bankruptcy Appellate
Panel under
    28 U.S.C. § 158
    , and we affirm.
Branford Partners, LLC, was not required to plead in a separate adversary
proceeding its avoidance powers under
    11 U.S.C. § 544
     and § 545 as a defense to
All-Tex, Inc.’s alleged liens and interests in the property, and the bankruptcy court
properly treated Branford’s motion to dismiss as a motion for summary judgment.
See Fed. R. Bankr. P. 7001, 7012, 7056; Chbat v. Tleel (In re Tleel),
    876 F.2d 769
    ,
770 (9th Cir. 1989); Grove v. Mead Sch. Dist. No. 354,
    753 F.2d 1528
    , 1532–33
(9th Cir. 1985).
A bona fide purchaser under California law would not have had constructive
or inquiry notice of All-Tex’s alleged liens and interests in the property because
All-Tex did not record its interests in the title record, did not file a lis pendens, and
did not have clear and open possession of the property in a manner that
contradicted record title. See, e.g., Robertson v. Peters (In re Weisman),
    5 F.3d 417
    , 420–21 (9th Cir. 1993); Nat’l Bank of Alaska, N.A. v. Erickson (In re Seaway
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Express Corp.),
    912 F.2d 1125
    , 1128–29 (9th Cir. 1990); Tleel,
    876 F.2d at 772
    .
Neither the property’s possible use as a landfill nor the reference to the contract in
the city’s files would have put a reasonably prudent purchaser on constructive or
inquiry notice of the alleged liens and interests. See Probasco v. Eads (In re
Probasco),
    839 F.2d 1352
    , 1355 (9th Cir. 1988).
The bankruptcy court did not err in concluding that Branford could avoid
All-Tex’s alleged liens and interests in the property, and that All-Tex could not
assert a separate claim for specific performance. See Weisman,
    5 F.3d at 
    419–21;
see also Sherwood Partners, Inc. v. Lycos, Inc.,
    394 F.3d 1198
    , 1204 (9th Cir.
2005); Aslan v. Sycamore Inv. Co. (In re Aslan),
    909 F.2d 367
    , 370–71 (9th Cir.
1990).
AFFIRMED.
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