1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILED

APR 22 2015

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-14-1321-PaKiTa

) 

EDWARD E. ELLIOTT, ) Bk. No. SV 11-23855-VK

)

Debtor. ) Adv. No. SV 13-01118-VK

___________________________________)

)

)

EDWARD E. ELLIOTT, )

)

Appellant, )

)

v. ) O P I N I O N

)

DIANE C. WEIL, Chapter 7 ) 

Trustee, )

)

Appellee. ) 

___________________________________)

 Argued and Submitted on March 19, 2015

at Pasadena, California

Filed - April 22, 2015 ____________

Appeal from the United States Bankruptcy Court

for the Central District of California

Hon. Victoria S. Kaufman, U.S. Bankruptcy Judge, Presiding

 

Appearances: Andrew E. Smyth, Smyth Law Office, argued for

appellant Edward E. Elliott; Alla Tenina, Tenina

Law, Inc., argued for appellee Diane C. Weil,

Chapter 7 Trustee.

 

Before: PAPPAS, KIRSCHER, and TAYLOR, Bankruptcy Judges.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PAPPAS, Bankruptcy Judge:

Debtor Edward E. Elliot (“Debtor”) appeals the summary

judgment entered by the bankruptcy court in favor of chapter 71

trustee Diane C. Weil (“Trustee”) revoking Debtor’s discharge

pursuant to § 727(d)(1) and ordering that Debtor turn over a house

to Trustee pursuant to § 542(a). We conclude that Trustee’s

discharge revocation complaint was not timely filed as required by 

§ 727(e)(1) and, therefore, that the bankruptcy court erred in

revoking Debtor’s discharge. We thus VACATE that portion of the

judgment and REMAND this matter to the bankruptcy court with

instructions to dismiss Trustee’s § 727(d) claim. As a result, we

also VACATE the judgment of the bankruptcy court requiring

turnover of the house to Trustee and REMAND this matter for

further proceedings.

I. FACTS

Debtor, represented by counsel, filed a chapter 7 petition on

December 1, 2011. In his petition, Debtor listed his address as

Hiawatha Street, Granada Hills, California. On Schedules A and D,

Debtor did not list any real property in which he had an interest,

nor did he list any claims secured by real property. Debtor did

not schedule several creditors holding a money judgment against

him based on fraud and negligent misrepresentation (the “Judgment

Creditors”), who apparently had obtained a judgment lien pursuant

to California law. See Cal. Code Civ. Proc. § 697.310(a).

1 Unless otherwise indicated, all chapter, section and rule

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. 

-2-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

During his testimony at the initial § 341(a) meeting of

creditors, Debtor confirmed that his address was Hiawatha Street

and stated that the information in his bankruptcy petition,

schedules, and statement of financial affairs (“SOFA”) was true

and complete. Debtor further testified that he did not own any

real property and had not transferred or given away anything of

value in the last four years. Based on the information in

Debtor’s bankruptcy schedules, SOFA, and his § 341(a) meeting

testimony, Trustee filed a “No Distribution” report in the

bankruptcy case. Debtor received a discharge on March 8, 2012,

and the bankruptcy case was closed on March 13, 2012. 

On March 26, 2012, Lee Wong Investments, Inc. (“LWI”)

transferred certain real property located in Los Angeles (the

“Buckingham Property”) to Debtor by quitclaim deed as a gift. 

Debtor does not dispute that LWI is a Nevada corporation which he

organized and controlled. LWI was formerly known as Shilalee

Enterprise, Inc., but the name of the corporation was changed on

February 14, 2007. Juanita Jehdian, Debtor’s fiancee and LWI’s

president, signed the quitclaim deed. 

 Following the transfer of the Buckingham Property to Debtor,

he sent a letter to counsel for the Judgment Creditors, who were

never informed of the bankruptcy filing, advising counsel that

Debtor had acquired the Buckingham Property, and demanding that

the judgment liens be removed. This letter triggered an inquiry

by the Judgment Creditors and eventually Trustee, which revealed

the history of Debtor’s interest in the Buckingham Property

through numerous transfers of title. 

In particular, shortly after the Judgment Creditors obtained

-3-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

their judgment, Debtor, who then owned the Buckingham Property,

deeded it to 1019 South Central Associates, Ltd. (“S. Central”). 

California Secretary of State records evidence that a son of

Debtor’s deceased partner organized S. Central. Shortly

thereafter, S. Central transferred the Buckingham Property to LWI;

LWI held title during Debtor’s bankruptcy case. LWI conveyed

title back to Debtor after he received his discharge. 

When the Judgment Creditors discovered Debtor’s longstanding

connections to the Buckingham Property, they filed a motion to

reopen Debtor’s bankruptcy case, which the bankruptcy court

granted on January 7, 2013. Trustee was reappointed to serve in

the reopened case. 

After the case was reopened, Debtor amended his schedules to

disclose his interest in the Buckingham Property and to claim any

equity in the property exempt as his homestead. Trustee objected

to this claim of exemption based upon Debtor’s bad faith in

failing to disclose his interest in the property, and the

bankruptcy court sustained Trustee’s objection and disallowed

Debtor’s exemption claim. Debtor appealed and, on December 14,

2014, this Panel vacated the order of the bankruptcy court in

light of the recent decision of the Supreme Court in Law v.

Siegel, 134 S. Ct. 1188 (2014), and remanded the matter to the

bankruptcy court for further proceedings to determine if there was

any statutory basis to deny Debtor’s homestead exemption under

California law or under § 522(g)(1). Elliott v. Weil (In re

Elliott), 523 B.R. 188, 197-98 (9th Cir. BAP 2014).

In the meantime, on June 4, 2013, Trustee filed an adversary

complaint against Debtor in which she asked the bankruptcy court

-4-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to determine that the Buckingham Property was property of the

estate, to order Debtor to turn over the Buckingham Property to

Trustee, and to revoke Debtor’s discharge. Debtor retained new

counsel to represent him in the reopened bankruptcy case and in

litigation with Trustee.2 

Trustee conducted a continued § 341(a) meeting of creditors

on November 18, 2013, at which time Debtor admitted that he lived

at the Buckingham Property when he filed bankruptcy, that he

considered it to be his home, and that he had purchased it in

1989. 

On January 13, 2014, Trustee filed a motion for summary

judgment in the adversary proceeding seeking a revocation of

Debtor’s discharge and turnover of the Buckingham Property. There

were several attachments to the motion, including a declaration by

Michael Kapulkin, one of the Judgment Creditors, who had obtained

a judgment against Debtor in May 2006; a copy of Debtor’s grant

deed conveying the Buckingham Property to S. Central dated August

14, 2006; a transcript of Debtor’s deposition taken on November

15, 2013; a copy of the grant deed transferring the Buckingham

Property from S. Central to LWI dated February 13, 2007; a copy of

the form changing the name of Debtor’s company from Shilalee

Enterprise, Inc. to LWI dated February 14, 2007; a copy of the

quitclaim gift deed from LWI to Debtor dated March 26, 2012; a

2 As discussed more fully below, remarkably, although

Trustee’s action to revoke Debtor’s discharge pursuant to § 727(d)

was commenced more than a year after Debtor received a discharge,

and more than a year after Debtor’s case was closed, Debtor did

not argue in the bankruptcy court, and does not argue on appeal,

that the discharge revocation action was time-barred under

§ 727(e). 

-5-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

transcript of Debtor’s second § 341(a) meeting; a copy of the

Judgment Creditors’ state court complaint against Debtor; a copy

of the judgment entered by the state court against Debtor dated

May 4, 2006; and a copy of the letter from Debtor to the Judgment

Creditors’ attorney in which he revealed that he had acquired the

Buckingham Property after the entry of his discharge and demanded

that the Judgment Creditors remove their judicial liens on that

property.

In response to Trustee’s summary judgment motion, Debtor

filed his own declaration. He claimed that he had provided all

the information about LWI, his interest in the company, and the

Buckingham Property, to his bankruptcy attorney. However, Debtor

averred, the attorney failed to include this information in his

bankruptcy schedules. He also stated that, while he had read and

signed the bankruptcy petition and schedules, he did not

understand them. In addition, Debtor claimed his attorney advised

him to answer Trustee’s questions the way he did in the initial

§ 341(a) meeting. Further, Debtor claimed that the bankruptcy

petition that he read at his attorney’s office listed the

Buckingham Property as his home address and that the address must

have been changed by his attorney before it was filed. Finally,

Debtor stated that the quitclaim deed from LWI to Debtor “speaks

for itself,” and he, therefore, denied Trustee’s allegation that

he received the deed after his discharge. 

Debtor asked that the motion for summary judgment be denied

because there were triable issues of fact. Specifically, Debtor

argued that “[a]dvice of [an] attorney may excuse some types of

fraud.” Debtor then filed a statement of “genuine issues in

-6-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

response to summary judgment.” Debtor identified three fact

issues for trial: “1. Did [Debtor] list his residential address as

[] Hiawatha St[reet] 2. Did [Debtor] state at the [§ 341(a)]

hearing that he resided at [] Hiawatha St[reet] [and] 3. Were the

errors and omissions in the bankruptcy schedules the result of

[Debtor’s] reliance on his attorney.” 

The bankruptcy court conducted a hearing on Trustee’s motion

for summary judgment on March 19, 2014, at which the parties

appeared through counsel and argued their positions. On April 7,

2014, the bankruptcy court granted Trustee’s summary judgment

motion and entered a “Judgment Vesting Property in Trustee and

Revocation of Discharge.” In this judgment, the bankruptcy court

finds and concludes that the Buckingham Property was property of

the bankruptcy estate and ordered that it be turned over to

Trustee. In addition, the Court found and concluded:

The Court finds [Debtor] knowingly and

fraudulently failed to disclose a significant

asset in his schedules, i.e., [Debtor’s]

interest in a corporation that held title to

his residence. For no consideration, less

than three weeks after [Debtor] obtained his

discharge, [Debtor] obtained title to his

residence from that corporation. [Debtor’s]

residence, a single family home, has a fair

market value in excess of $600,000. [Debtor]

concealed his residence, and the debt secured

by his residence, in his chapter 7 petition. 

In his chapter 7 petition and at his initial

meeting of creditors pursuant to [] § 341(a),

in order to conceal property of the estate,

[Debtor] knowingly and fraudulently

misrepresented where he lived. [Trustee] did

not know of [Debtor’s] fraud until after

granting of the debtor’s discharge. 

Therefore, [Debtor’s] bankruptcy discharge

shall be, and is, hereby revoked pursuant to

[] § 727(d)(1) and (e)(1).

On April 15, 2014, Debtor, now acting pro se, filed a motion

-7-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

requesting relief from the judgment. On June 23, 2014, through

new counsel, Debtor filed a notice of appeal. The bankruptcy

court denied Debtor’s motion on July 24, 2014. Debtor did not

amend the notice of appeal to include the bankruptcy court’s

denial of Debtor’s motion for relief from the judgment. Our

motions panel determined that Debtor’s appeal of the summary

judgment was timely filed because Debtor had filed a tolling

motion. We agree that the appeal is timely.

II. JURISDICTION

Although not addressed by either the bankruptcy court or the

parties during the proceedings in the bankruptcy court, or in this

appeal, § 727(e) presents a jurisdictional impediment to the

resolution of the merits of this appeal, which the Panel is

compelled to address sua sponte. See Kontrick v. Ryan, 540 U.S.

443, 455 (2004) (a challenge to a federal court’s subject matter

jurisdiction may be made at any stage of the proceeding, and the

court should raise the question sua sponte) (citing Mansfield, C.

& L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). We discuss the

subject matter jurisdiction issue below.

As to the judgment granting turnover to Trustee, the

bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(2)(E). We have jurisdiction over that aspect of the appeal

under 28 U.S.C. § 158. 

III. ISSUES

Whether the bankruptcy court had jurisdiction to revoke

Debtor’s discharge pursuant to § 727(d)(1) and (e)(1).

Whether the bankruptcy court erred in granting turnover of

the Buckingham Property. 

-8-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV. STANDARDS OF REVIEW

We review questions of subject matter jurisdiction de novo. 

Wilshire Courtyard v. Cal. Franchise Tax Bd. (In re Wilshire

Courtyard), 729 F.3d 1279, 1284 (9th Cir. 2013) (citing Montana v.

Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1193 (9th Cir.

2005)); see also Mangun v. Bartlett (In re Balboa Improvements,

Ltd), 99 B.R. 966, 969 (9th Cir. BAP 1989) (citing Peter Starr

Prod. Co. v. Twin Cont’l Films, Inc., 783 F.2d 1440, 1442 (9th

Cir. 1986)). “The burden of establishing subject matter

jurisdiction rests on the party asserting that the court has

jurisdiction.” In re Wilshire Courtyard, 729 F.3d at 1284 (citing

McNutt v. GM Acceptance Corp., 298 U.S. 178, 182-83 (1936)).

We review a bankruptcy court’s grant of summary judgment de

novo. Caneva v. Sun Cmty. Operating Ltd. P’ship (In re Caneva),

550 F.3d 755, 760 (9th Cir. 2008). Summary judgment, according to

Civil Rule 56, as applicable to adversary proceedings pursuant to

Rule 7056, is appropriate if there is a showing “that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Civil Rule 56(a); Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The evidence must be viewed

in the light most favorable to the nonmoving party. In re Caneva,

550 F.3d at 760. The movant bears the initial burden to

demonstrate absence of any genuine issue of material fact and that

the movant is entitled to judgment as a matter of law. Id. at

761. Once the moving party meets its burden the nonmoving party

must show that a genuine issue of fact remains for trial. Id.

“Whether property is included in a bankruptcy estate and

procedures for recovering estate property are questions of law

-9-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

that we review de novo.” Newman v. Schwartzer (In re Newman), 487

B.R. 193, 197 (9th Cir. BAP 2013) (citing White v. Brown (In re

White), 389 B.R. 693, 698 (9th Cir. BAP 2008)). 

V. DISCUSSION

A. The bankruptcy court lacked subject matter jurisdiction

over Trustee’s claim to revoke Debtor’s discharge.

Subject matter jurisdiction is granted to the bankruptcy

courts via 28 U.S.C. § 1334 and § 157(b). In re Wilshire

Courtyard, 729 F.3d at 1284-85 (citing Celotex Corp. v. Edwards,

514 U.S. 300, 307 (1995); Battle Ground Plaza, LLC v. Ray (In re

Ray), 624 F.3d 1124, 1130 (9th Cir. 2010)). “Bankruptcy courts

have subject matter jurisdiction over proceedings ‘arising under

title 11, or arising in or related to cases under title 11.’” In

re Wilshire Courtyard, 729 F.2d at 1285 (quoting 28 U.S.C.

§ 1334(b) and citing 28 U.S.C. § 157(b)(1)). A proceeding “arises

under” title 11 if it “involve[s] causes of action created or

determined by a statutory provision of that title.” Id. (citing

Harris v. Wittman (In re Harris), 590 F.3d 730, 737 (9th Cir.

2000)). An action to revoke a debtor’s discharge is a core

proceeding. 28 U.S.C. § 157(b)(2)(J). 

In this case, Trustee rests her claim against Debtor on

§ 727(d)(1), a Code provision which, under appropriate

circumstances, requires the bankruptcy court to revoke a debtor’s

chapter 7 discharge, and provides:

On request of the trustee, a creditor, or the

United States trustee, and after notice and a

hearing, the court shall revoke a discharge

granted under subsection (a) of this section

if —

(1) such discharge was obtained through the

-10-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

fraud of the debtor, and the requesting party

did not know of such fraud until after the

granting of such discharge[.] Under Rule 7001(2), a proceeding to revoke a debtor’s

discharge requires an adversary proceeding. Section 727(e)(1), in

turn, establishes the statutory deadline for commencement of the

adversary proceeding under § 727(d)(1) to revoke a debtor’s

discharge: “[t]he trustee, a creditor, or the United States

trustee may request revocation of a discharge — (1) under

subsection (d)(1) of this section within one year after such

discharge is granted[.]” In turn, Rule 9024(2) makes clear that

“a complaint to revoke a discharge in a chapter 7 liquidation case

may be filed only within the time allowed by § 727(e) of the

Code.” 

In contrast to § 727(d), there is no time prescribed in the

Code within which a party may request that a debtor be denied a

discharge under § 727(a). Instead, the deadline to file an action

to deny a discharge under § 727(a) is provided in Rule 4004(a). 

The Supreme Court has addressed whether the Rule 4004(a) time

limit constitutes a “jurisdictional” limitation on the authority

of the bankruptcy court to adjudicate an objection to discharge

under § 727(a). Kontrick, 540 U.S. at 455 (2004). In an action

filed after the time period specified in the Rule had expired, but

where the debtor did not timely raise the Rule as a defense, the

Court determined that Rule 4004(a) did not impose a jurisdictional

bar and, instead, held that the time period set out in the Rule

should be treated in the same fashion as affirmative defenses to

an action under § 727(a), any of which is subject to forfeiture if

not timely raised by the debtor. Id. at 456-57. “In short, the

-11-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

filing deadlines prescribed in Bankruptcy Rules 4004 and

9006(b)(3) are claim-processing rules that do not delineate what

cases bankruptcy courts are competent to adjudicate.” Id. at 454. 

Important in this case, in reaching its decision in Kontrick, the

Court found it significant that the time limit for a § 727(a)

action is set out in what it described as the “Court-prescribed”

rules, and that “[o]nly Congress may determine a [bankruptcy

court’s] subject-matter jurisdiction.” Id. at 452 (citing U.S.

CONST., Art. III, § 1).

The considerations in this case are distinctly different to

those addressed in Kontrick. Here, while Congress has provided a

statutory basis for the bankruptcy court to exercise subject

matter jurisdiction over “arising under” proceedings, such as one 

to revoke a debtor’s discharge, it has also imposed a temporal

limitation in the Code on the bankruptcy court’s ability to grant

such relief. In particular, the discharge granted by the

bankruptcy court in Debtor’s favor in this case was entered on

March 8, 2012, and the bankruptcy case was closed on March 13,

2012. Trustee’s adversary proceeding requesting the revocation of

that discharge was filed on June 4, 2013. Because Trustee’s

§ 727(d)(1) action was commenced after the expiration of the oneyear time limit provided by § 727(e)(1), we conclude that the

bankruptcy court lacked subject matter jurisdiction to grant any

relief as to that claim.

We have located no controlling Ninth Circuit authority

regarding whether § 727(e) limits the bankruptcy court’s 

jurisdiction to adjudicate a revocation of discharge claim. 

Indeed, the Panel has specifically declined to decide whether the

-12-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

failure to timely comply with § 727(e)(1) is an absolute bar to a

§ 727(d)(1) action. See Lopez v. Specialty Rest. Corp. (In re

Lopez), 283 B.R. 22, 27 n.8 (9th Cir. BAP 2002) (“We do not decide

this issue. The bankruptcy court stated ‘it appears’ the ability

to seek revocation of the discharge ‘has passed’ pursuant to

Section 727(e). We note that most courts appear to reject any

extension of the time limits in Section 727(e), although a

minority view would either extend the overall time or hold that

closing interrupts the running of that time period.”) (citations

omitted). 

While there is no appellate authority in this Circuit, a

persuasive discussion of this issue is found in the First Circuit

BAP’s opinion in The Cadle Co. v. Andersen (In re Andersen), 476

B.R. 668 (1st Cir. BAP 2012). In that case, the panel determined

that § 727(e) is indeed a limit on a bankruptcy court’s subject

matter jurisdiction based upon Kontrick. The panel held,

“[§] 727(e)(1)’s time requirement is not ‘a mere statute of

limitations, but an essential prerequisite to the discharge

revocation proceeding.’” In re Andersen, 476 B.R. at 673 (quoting

Gonsalves v. Belice (In re Belice), No. 08-11927-WCH, 2011 WL

4572003, at *3 (1st Cir. BAP 2011) and citing Pelletier v. Donald

(In re Donald), 240 B.R. 141, 146 (1st Cir. BAP 1999)). Further,

the panel rejected the argument that § 727(e) is subject to

equitable tolling and noted “[n]ot only does § 727(e) ‘announce an

absolute one year limit for discharge revocation actions,’ it

omits a provision for extension.” Id. at 674 (quoting Murrietta

v. Fehrs (In re Fehrs), 391 B.R. 53, 67 (Bankr. D. Idaho 2008)). 

In addition, several bankruptcy courts have also recognized

-13-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the jurisdictional nature of the § 727(e)(1) deadline. See Clarke

Cnty. State Bank v. Scott (In re Scott), No. 12-30052-als, 2014 WL

1048550 (Bankr. D. Iowa Mar. 18, 2014) (collecting cases); Romano

v. Defusco (In re Defusco), 500 B.R. 664, 667 (Bankr. D. Mass.

2013) (citing In re Andersen and noting the “clear majority view”

that § 727(e) provides a bankruptcy court with a limit on its

subject matter jurisdiction over § 727(d) causes of action).

We agree with the First Circuit BAP that, based upon the

logic of the Supreme Court’s decision in Kontrick, § 727(e) is

both Congress’s grant to, and limitation on, a bankruptcy court’s

subject matter jurisdiction over discharge revocation actions.

Section 727(e) is a non-waivable statute of repose, and its time

limits are not subject to tolling such that the failure to

commence a § 727(d) adversary proceeding within the time period

specified in § 727(e) deprives the bankruptcy court of

jurisdiction to adjudicate that action.3 Because Trustee’s action

was not timely commenced, that portion of the bankruptcy court’s

3

 The Supreme Court has explained that “[s]tatutes of

limitations, but not statutes of repose, are subject to equitable

tolling, a doctrine that ‘pauses the running of, or “tolls,” a

statute of limitations when a litigant has pursued his rights

diligently but some extraordinary circumstance prevents him from

bringing a timely action.’” CTS Corp. v. Waldburger, 134 S. Ct.

2175, 2183 (2014) (quoting Lozano v. Montoya Alvarez, 134 S. Ct.

1224, 1231-32 (2014)). However, a statute of repose, unlike a

statute of limitation, “mandates that there shall be no cause of

action beyond a certain point, even if no cause of action has yet

accrued.” Id. at 2187; see also DeNoce v. Neff (In re Neff), 505

B.R. 255, 263 (9th Cir. BAP 2014) (“In other words, a statute of

limitations sets a time limit for bringing an action; a statute of

repose sets a time period in which an event giving rise to a claim

for relief must occur.”). 

-14-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

summary judgment revoking Debtor’s discharge must be vacated.4 On

remand, the bankruptcy court is instructed to enter an order

dismissing Trustee’s § 727(d) discharge revocation claim. 

B. The bankruptcy court erred in granting Trustee turnover

of the Buckingham Property.

Read charitably Debtor’s opening brief also argues the

bankruptcy court erred in granting turnover to Trustee of the

Buckingham Property. While Debtor’s summary approach to this

issue is regrettable, we agree that the bankruptcy court must

revisit its turnover order.

The bankruptcy court’s judgment requiring Debtor to turn over

the Buckingham Property to Trustee rests upon § 542(a), which

provides: 

Except as provided in subsection (c) or (d) of

this section, an entity, other than a

custodian, in possession, custody, or control,

during the case, of property that the trustee

may use, sell, or lease under section 363 of

this title, or that the debtor may exempt

under section 522 of this title, shall deliver

to the trustee, and account for, such property

4

 At oral argument, when asked to address this predicament,

Trustee’s counsel argued that the bankruptcy court’s summary

judgment could have, perhaps should have, been based upon 

§ 727(d)(2), not § 727(d)(1), and therefore, any jurisdiction

issue is avoided. This argument misses the mark for several

reasons. First, it ignores that the bankruptcy court’s judgment,

drafted by Trustee’s counsel, expressly recites that it is based

upon § 727(d)(1) and (e)(1). And second, the argument is of no

moment because a request for relief under § 727(d)(2) was also

untimely according to § 727(e)(2), which provides: “[t]he trustee,

a creditor, or the United States trustee may request a revocation

of a discharge — . . . (2) under subsection (d)(2) or (d)(3) of

this section before the later of — (A) one year after the granting

of such discharge; and (B) the date the case is closed.” As noted

above, the discharge in this case was entered on March 8, 2012,

the bankruptcy case was closed on March 13, 2012, and Trustee’s

§ 727(d) action was commenced in June, 2013. In other words,

Trustee’s action was tardy regardless of which § 727(e) trigger

date is applicable. 

-15-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

or the value of such property, unless such

property is of inconsequential value or

benefit to the estate.

See also In re Newman, 487 B.R. at 198-99. While the bankruptcy

court’s judgment contains no fact findings concerning whether the

Buckingham Property “is of inconsequential value or benefit to the

[bankruptcy] estate,” we presume that, given the court’s prior

decision to disallow Debtor’s homestead exemption, it concluded

that the house had significant liquidation value. However, the

bankruptcy court’s decision disallowing Debtor’s homestead

exemption has been vacated by the Panel. As a result, to grant

relief to Trustee pursuant to § 542(a), the bankruptcy court is

obliged to reconsider whether the bankruptcy estate’s interest in

the Buckingham Property is sufficiently consequential. Therefore,

we must also vacate the bankruptcy court’s turnover judgment and

remand this matter to the bankruptcy court to conduct further

proceedings consistent with this decision.5

VI. CONCLUSION

Because Trustee’s claim was not timely under § 727(e), the

5

 According to its docket, on March 19, 2015, the same day

as the oral argument in this appeal, the bankruptcy court

apparently conducted a further hearing concerning the homestead

exemption issue pursuant to this Panel’s remand. In a tentative

decision entered on the docket, the bankruptcy court determined

that Debtor was not entitled to a homestead exemption pursuant to

§ 522(g)(1) because the court had granted Trustee a judgment under

§ 542(a) to turn over the Buckingham Property. The tentative

decision cites to our prior decision in In re Elliott for the

proposition that, in this case, § 522(g)(1) would be “an important

limitation on [Debtor’s] claimed homestead exemption for the

bankruptcy court to consider on remand.” 523 B.R. at 198. On

April 8, 2014, an order was entered by the bankruptcy court

denying Debtor’s homestead exemption pursuant to § 522(g)(1). We

leave it to the bankruptcy court to consider on remand of

Trustee’s turnover claim, any impact this decision may have on the

vitality of the court’s latest order disallowing Debtor’s

homestead exemption. 

-16-
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

bankruptcy court lacked jurisdiction to revoke Debtor’s discharge

under § 727(d). We therefore VACATE the bankruptcy court’s

summary judgment revoking Debtor’s discharge and REMAND this

matter to the bankruptcy court with instructions that it enter an

order dismissing Trustee’s § 727(d) claim. 

We also VACATE the bankruptcy court’s summary judgment

granting Trustee turnover of the Buckingham Property under

§ 542(a). We REMAND this matter to the bankruptcy court for

further proceedings concerning this claim for relief. 

-17-