NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ANA BEATRIZ BETANCOURT,

Debtor,

______________________________ ANA BEATRIZ BETANCOURT,

Appellant,

v. MATTHEW BALLMER,

Appellee. No. 17

- 60070
BAP No. 17

- 1016

MEMORANDUM *

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kurtz, Taylor, and Lafferty III, Bankruptcy Judges, Presiding

Submitted March 6, 2019 ** Pasadena, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN, *** Chief District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, sitting by designation. 

# FILED

MAR 8 2019
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Debtor

- Appellant Ana Beatriz Betancourt appeals the Ban kruptcy Appellate Panel’s (BAP ) affirmance of the bankruptcy court’s judgment that she engaged in
fraudulent transfers of real property with the intent to inflict willful and malicious injury upon Matthew Ballmer’s predecessor in interest Paul Ballmer (together, Ballmer) , within the meaning of 11 U.S.C. § 523(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1), and we affirm.
1. The bankruptcy court did not err in holding that Betancourt fraudulently transferred parcels of real property

. The bankruptcy court found that Betancourt’s
actions to “denude La Fe of all assets” in December 2004

— the same month as
Paul Ballmer’s state trial against her

— had the subjective intent to harm Ballmer.
The court also found that the transfer s of parcels 30

- 10 and 027

- 029 were without
consideration.
Th o se findings were not clearly erroneous

. Betancourt’s confusing and vague testimony before the bankruptcy court regarding the deed transfers , the timing of the deed recordations, and the lack of documentary evidence supported a finding of fraudulent intent. See In re Ezra , 537 B.R. 924, 930

– 31 (B.A.P. 9th Cir. 2015) (noti ng eleven non

- exclusive factors to determine whether fraudulent intent
existed under Cal. Civ. Code § 3439.04(b) ). Betancourt’s claim that the deeds
were delivered in 1998 and 2002 is contradicted by her earlier testimony that she maintained possession of the deeds for years after the deed transfers. Nothing in3

the record compels the conclusion that the bankruptcy court’s findings are illogical or implausible.
2. Betancourt next argues that Ballmer’s adversary proceeding was untimely.
That claim also f

ails. The bankruptcy court correctly held that the seven

- year statute of repose in Cal. Civ. Code § 3439.09(c) did not bar Ballmer’s action because Ballmer’s claim arose less than seven years before Betancourt filed her bankruptcy petition. See In re EPD Inv. Co., LLC , 523 B.R. 680, 692 (B.A.P. 9th Cir. 2015) (holding the time bar in Cal. Civ. Code 3439.09(c) yields to federal law and will not bar an action that has not yet expired on the petition date). Here, Betancourt filed for Chapter 7 bankruptcy in April 2010, and the deed recordations
occurred in December 2004. Thus, Ballmer's claim remained viable on the petition
date

. In addition, the bankruptcy court’s finding that Ballmer’s action was timely
because he had no reason to discover the fraudulent transfers prior to April 2009 was not clearly erroneous. Both Ballmers submitted declarations to the bankruptcy court averring that they did not have reason to know of the fraudulent transfers until July 2011, and Paul Ballmer detailed his acti ons and illness post

- judgment in
2005.
3. Lastly, Betancourt contends that the b ankruptcy court should not have4

granted Ballmer’s Rule 60(b) 1 motion for relief from judgment for the initial
failure to file a d eclaration by Matthew Ballmer. The Supreme C ourt has identified four factors for courts to weigh in determining whether the court may grant relief under Rule 60(b) for mistake or excusable neglect. Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. , 507 U.S. 380 , 395 (1993) (noting factors of prejud ice to non

- movant, length of delay, reason for delay, and good faith of movant). Here, the bankruptcy court weighed these factors and found the reason for delay to be the ambiguity in its own previous order. T he court’s ambiguous order alternatively ref

erred to "either of the Ballmers, " and "Paul and Matthew Ballmer " as the one(s) to submit evidence, and stated that the court would "review the evidence and determine whether a further evidentiary hearing is required ,” which
the court did not do. T he court’s finding that Ballmer’s error resulted from a misinterpretation of the order

— not a strategic decision

— is not clearly erroneous. Accordingly, the court did not abuse its discretion in granting the Rule 60(b)
motion.
AFFIRMED

.

1 References to Rule 60(b) are to the Fed eral Rules of Civil Procedure.