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FILED

MAR 22 2017

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-15-1174-KuBS

)

THE ZUERCHER TRUST OF 1999, ) Bk. No. 3:12-bk-32747

)

Debtor. )

______________________________)

)

MONICA HUJAZI, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

E. LYNN SCHOENMANN, Chapter 7 )

Trustee; WIN WIN ALEXANDER )

UNION, LLC, )

)

Appellees. )

______________________________)

Argued and Submitted on January 19, 2017

at San Francisco, California

Filed – March 22, 2017

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable Hannah L. Blumenstiel, Bankruptcy Judge, Presiding

 

Appearances: Bradley Kass of Kass & Kass Law Offices argued for

appellant Monica Hujazi; Thomas F. Koegel of

Crowell & Moring LLP argued for appellee E. Lynn

Schoenmann, Chapter 7 Trustee; Elsa Horowitz of

Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP

argued for appellee Win Win Alexander Union, LLC.

 

*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.
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Before: KURTZ, BRAND and SPRAKER,** Bankruptcy Judges.

INTRODUCTION

On remand from a prior appeal of the bankruptcy court’s

order approving the sale of two apartment buildings, the

bankruptcy court found (for the second time) that the purchaser –

Win Win Alexander Union, LLC – was a good faith purchaser within

the meaning of § 363(m).1 Monica Hujazi, the former principal of

the debtor, now appeals from the bankruptcy court’s second good

faith finding.

Because that finding was not clearly erroneous, We AFFIRM.

FACTS

Most of the relevant facts pertaining to the bankruptcy

court’s sale order are set forth in this Panel’s prior decision,

Zuercher Trust of 1999 v. Kravitz (Zuercher Trust of 1999), 2014

WL 7191348 (Mem. Dec.) (9th Cir. BAP Dec. 17, 2014). There is no

need to reiterate most of those facts. Indeed, Hujazi’s opening

appeal brief adopted our prior factual recitation as her own. 

To briefly recap, the bankruptcy court entered on June 10,

2013, an order authorizing Peter Kravitz as chapter 11 trustee to

sell an apartment building on Union Avenue to Win Win based on

**Hon. Gary A. Spraker, Chief United States Bankruptcy Judge

for the District of Alaska, sitting by designation.

1Unless specified otherwise, all chapter and section

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

all "Rule" references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. All "Civil Rule" references are to

the Federal Rules of Civil Procedure.

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its initial credit bid of $2.7 million.2 The sale order further

authorized Kravitz to sell a second apartment building on

Alexandria Avenue to Vista Investment Group, LLC or its designee

for $6.8 million and also confirmed and authorized Win Win as the

backup purchaser of the Alexandria property based on its credit

bid of $4.5 million “in the event that the sale of the Alexandria

Property to Vista fails to close.” Additionally, the sale order

included a finding that both Win Win and Vista qualified as good

faith purchasers for purposes of § 363(m). Ultimately, Kravitz

consummated the sale of both properties to Win Win.

We issued our decision in the prior sale order appeal on

December 17, 2014. In that decision, we held: (1) the bankruptcy

court’s § 363(m) good faith finding was not clearly erroneous

based on the record available to the bankruptcy court at the time

the sale order was entered; (2) the bankruptcy court’s good faith

finding under § 363(m) precluded us from considering any of

appellant’s other issues challenging the sale and seeking

reversal of the sale order; (3) one lingering good faith issue

existed, which arose from appellant’s argument that certain postsale-order events evidenced the bad faith of Kravitz, Win Win and

Vista; and (4) consistent with our precedent, the lingering good

faith issue only could be properly addressed on remand to the

bankruptcy court.

Roughly two months after our remand, on February 19, 2015,

the bankruptcy court held a status conference to discuss the

2In the current appeal, appellee chapter 7 trustee E. Lynn

Schoenmann has appeared as Kravitz’s successor in interest.

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Panel’s remand. None of the parties have provided a transcript

of the status conference, so we don’t know specifically what was

said at the status conference. In any event, the court entered

an order the day after the status conference requiring the

Zuercher Trust or Hujazi, within thirty days, to file a motion

for relief from or reconsideration of the sale order to address

the good faith issue this Panel had remanded for consideration.3

Hujazi timely filed her motion for reconsideration or

relief. Hujazi asserted that Kravitz unilaterally decided not to

sell the Alexandria property to Vista for $6.8 million and

instead unilaterally and without court approval sold the

Alexandria property to Win Win based on its backup credit bid of

$4.5 million, thereby causing a loss to the estate of

$2.3 million. Hujazi maintained that the Alexandria sale to

Win Win contravened the court’s sale order because the sale order

permitted the trustee to sell the Alexandria property to Win Win

only if Vista refused to close. According to Hujazi, because

Kravitz backed out of the sale to Vista (as opposed to Vista

backing out), Kravitz was required to obtain a new or revised

sale order. Hujazi complained that it made no sense that Kravitz

3The bankruptcy court interpreted our December 2014 decision

as recognizing a lingering good faith issue only with respect to

the sale of the Alexandria property, so it stated in its

February 20, 2015 order that any motion asking for relief from or

reconsideration of the bankruptcy court’s prior good faith ruling 

should “address the [m]ovant’s concerns as to the sale of the

Alexandria Property only.” Hujazi’s appeal brief does not

contain any argument challenging this ruling of the bankruptcy

court, so we decline to address it. See Christian Legal Soc'y

Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487–88 (9th Cir.

2010); Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th

Cir. 2010).

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could not deliver clear title to Vista but could turn around and

deliver clear title to Win Win. Hujazi contended that fraud,

collusion and unfair advantage among Kravitz, Win Win and Vista

were demonstrated by the fact that Win Win turned around and

resold the Alexandria property to Vista for $6.8 million – the

same price Vista had agreed to purchase the property from Kravitz

for.

To support her arguments, Hujazi relied on declarations that

Kravitz and Win Win had filed with this Panel in the sale order

appeal. However, Hujazi did not present any new evidence. 

Moreover, the record suggests that Hujazi never requested any

discovery regarding the post-sale-order events, either before or

after this Panel’s remand. Nor did she ever file a motion

seeking an extension of time in order to conduct discovery.

Kravitz and Win Win both opposed the motion and filed

declarations offering explanations why the Kravitz-Vista sale

fell through, why no further court approval was necessary for

Kravitz to consummate the backup sale to Win Win and why Win Win

could and did resell the property to Vista for $6.8 million.

The court held a hearing on Hujazi’s motion on May 7, 2015.

After considerable discussion with the parties regarding what

could be inferred from the declarations submitted, the bankruptcy

court reaffirmed its prior good faith finding in light of the

evidence submitted regarding post-sale-order events. On that

evidence, the bankruptcy court found there was no fraud,

collusion or unfair advantage. The court further found that the

Kravitz-Vista sale could not close because a number of

unanticipated issues arose, and neither party was willing or able

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to bear the additional risk and expense associated with the

unanticipated issues. According to the court, in compliance with

the terms of the sale order, Kravitz then sold to Win Win based

on its backup bid because Win Win was willing to bear, and did

bear, the risks and costs of the unforeseen contingencies. The

court rejected Hujazi’s arguments that Kravitz unilaterally was 

unwilling to close the Vista sale and that the sale order did not

authorize Kravitz to close the Alexandria sale with Win Win as

the backup bidder unless Vista unilaterally and voluntarily

refused to close. As the court put it, Hujazi’s reading of this

aspect of the sale order was “so stilted and impractical and

inconsistent with decades of [bankruptcy] practice, as to be

mind-boggling, quite frankly.” Hr’g Tr. (May 7, 2015) at

33:12-14.

The bankruptcy court additionally found that the net

recovery to the bankruptcy estate resulting from either the Vista

sale or the Win Win sale was exactly the same. In fact, Hujazi

conceded this point during argument. Finally, the court found

that there was nothing nefarious about Win Win’s resale of the

Alexandria Property to Vista for $6.8 million. Rather, Win Win

wanted to resell the property as soon as possible so that it

could retire the debt it owed to East West Bank, and Win Win was

able to resell the property to Vista because Win Win could and

did assume a significant amount of additional expense and risk to

resolve the unforeseen contingencies, which had prevented the

Kravitz-Vista sale from closing.

The bankruptcy court entered its order denying Hujazi’s

motion on May 8, 2015, and Hujazi timely appealed. 

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JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(2)(N). Subject to the standing analysis set

forth below, we have jurisdiction under 28 U.S.C. § 158.

ISSUES

1. Does Hujazi have standing to appeal?

2. Did the bankruptcy court clearly err when it reaffirmed its

original good faith finding pursuant to § 363(m)?

STANDARDS OF REVIEW

We review appellate standing issues de novo. Menk v.

LaPaglia (In re Menk), 241 B.R. 896, 903 (9th Cir. BAP 1999).

The bankruptcy court’s good faith determination resolved a

question of fact that we review under the clearly erroneous

standard. Adeli v. Barclay (In re Berkeley Delaware Court, LLC),

834 F.3d 1036, 1041 (9th Cir. 2016); Thomas v. Namba

(In re Thomas), 287 B.R. 782, 785 (9th Cir. BAP 2002). A finding

of fact is not clearly erroneous unless it is illogical,

implausible, or without support in the record. Retz v. Samson

(In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).

The bankruptcy court’s reaffirmation of its good faith

finding relied in part on its interpretation of its prior sale

order. “We accord substantial deference to the bankruptcy

court's interpretation of its own orders and will not overturn

that interpretation unless we are convinced it amounts to an

abuse of discretion.” Rosales v. Wallace (In re Wallace),

490 B.R. 898, 906 (9th Cir. BAP 2013).

We also review for an abuse of discretion Hujazi’s argument

that the bankruptcy court should have postponed the hearing on

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the good faith issue in order to give Hujazi additional time to

conduct discovery. See Orr v. Bank of Am., 285 F.3d 764, 783

(9th Cir. 2002); Hasso v. Mozsgai (In re La Sierra Fin. Servs.,

Inc.), 290 B.R. 718, 726 (9th Cir. BAP 2002).

The bankruptcy court abuses its discretion only if it

applied an incorrect legal rule or its findings of fact were

illogical, implausible or without support in the record. United

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). 

DISCUSSION

1. Appellate Standing Issue

Appellees argue that Hujazi lacks standing to appeal. Only

a “person aggrieved” has standing to appeal, which means that the

appellant must be “directly and adversely affected pecuniarily”

by the order on appeal. Fondiller v. Robertson

(In re Fondiller), 707 F.2d 441, 442 (9th Cir. 1983); see also

Cheng v. K & S Diversified Invs., Inc. (In re Cheng), 308 B.R.

448, 455 (9th Cir. BAP 2004), aff'd, 160 Fed.Appx. 644 (9th Cir.

2005).

According to appellees, Hujazi is not directly and adversely

affected pecuniarily because neither the Zuercher Trust

bankruptcy nor Hujazi’s personal bankruptcy have any realistic

chance of concluding with surplus estates. Absent surplus

estates, debtors typically lack standing to appeal orders

affecting the size of the bankruptcy estate. In re Fondiller,

707 F.2d at 442. Hujazi posits that the ultimate outcome of the

bankruptcy cases depends in part on the outcome of the myriad

appeals she has taken from the bankruptcy court’s orders.

We need not parse the parties’ complex appellate standing

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question, which arguably would require us to predict the likely

end results of various litigation and two bankruptcy cases. 

Instead, we rely on other facts to conclude that Hujazi has

standing to appeal. Namely, because Hujazi is personally liable

on the Alexandria and Union loans as a codebtor, she has an

ongoing personal stake in the sale of the properties which

secured those loans and how those sales affected her personal

liability. Cf. Zuercher Trust of 1999 v. Schoenmann

(In re Zuercher Trust of 1999), 2016 WL 721485, at *7 (Mem. Dec.)

(9th Cir. BAP Feb. 22, 2016) (holding that Hujazi’s codebtor

status gave her standing to appeal a different sale order).

In this Panel’s 2014 decision in the sale order appeal, we

noted that Hujazi was a codebtor on the Alexandria and Union

loans. See 2014 WL 7191348, at *1. In addition, Hujazi made

this same point during the post-remand hearing on her motion for

relief or reconsideration. The appellees never challenged

Hujazi’s assertion of codebtor status.

We acknowledge that Hujazi might receive a discharge in her

personal bankruptcy case, which in theory would end her personal

liability for the Union and Alexandria loans. Even so, whether

she ultimately will receive that discharge is debatable. The

deadline for objecting to her discharge has been continued from

time to time and currently is not set to expire until April 21,

2017. Furthermore, given Hujazi’s pending appeal concerning the

order for relief entered in her personal bankruptcy case and

given her aggressive opposition to the chapter 7 trustee’s

efforts to administer her personal bankruptcy estate, it is not

hard to imagine that she might never receive a discharge.

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In short, we conclude for appellate standing purposes that 

Hujazi is directly and adversely affected pecuniarily by the

bankruptcy court’s denial of her post-remand motion for relief or

reconsideration.

2. Reaffirmation of the Good Faith Finding

We should not and will not revisit the legal question of

what generally constitutes good faith under § 363(m). This

Panel’s prior decision in the sale order appeal, 2014 WL 7191348,

ably addressed that issue and its legal analysis is law of the

case. See generally Am. Express Travel Related Servs. Co. v.

Fraschilla (In re Fraschilla), 235 B.R. 449, 454 (9th Cir. BAP

1999) (explaining doctrine and its exceptions), aff'd, 242 F.3d

381 (9th Cir. 2000) (table).

As explained in our prior decision, we remanded for

consideration of the factual issue of whether post-sale-order

events evidenced any fraud, collusion or grossly unfair advantage

over other bidders that would justify reconsideration of the

bankruptcy court’s June 2013 good faith finding.

In their respective briefs and declarations filed in

opposition to Hujazi’s post-remand motion, Kravitz and Win Win

offered detailed explanations: (1) why Kravitz’s sale to Vista

fell through; (2) why no further court approval was necessary for

Kravitz to consummate the backup sale to Win Win; and (3) why Win

Win could and did resell the property to Vista for $6.8 million. 

Kravitz explained in his declaration that he attempted to

close the sale to Vista for roughly six weeks, but that a number

of unexpected issues arose when he attempted to procure title

insurance for the sale. For instance, he could not find any

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title insurer who was willing to issue a policy before the appeal

period ended or while the Zuercher Trust’s appeal from the sale

order was pending. Also, notwithstanding the sale free and clear

of liens and other interests language in the sale order, the

title insurers were unwilling to issue a policy unless certain

lien notices issued by the City of Los Angeles were released. In

addition, Kravitz learned during his closing attempts that a

$225,000 withholding tax was going to be incurred as a result of

the cash sale to Vista and would need to be paid out of escrow. 

Vista maintained that these and other sale costs were the

responsibility of the seller, but the estate had inadequate funds

to satisfy them. According to Kravitz, as a result of his

inability to resolve these unexpected issues, Vista declined to

close.

As explained by both Kravitz and Win Win, Win Win was

willing and able to close notwithstanding these additional

issues. Win Win agreed to move forward with the sale even though

no title insurance policy could be obtained. Also, because the

sale to Win Win was based on a credit bid and was not a cash

sale, the $225,000 withholding tax would not accrue.

Win Win also explained that it was motivated to close its

purchase from Kravitz and its sale to Vista because it needed to

retire the debt it owed to East West Bank. In fact, as Win Win

maintained, it would have been significantly better off if the

Kravitz-Vista sale had closed. In order for Win Win to close its

purchase from Kravitz and its sale to Vista, it had to assume a

number of additional risks and costs that it would not have

incurred if the Kravitz-Vista sale had closed. 

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In contrast, Kravitz’s $4.3 million sale to the backup

bidder Win Win (in lieu of closing its $6.8 million sale to

Vista) did not diminish the estate’s benefits from the sale or

increase its burdens. The estate still received all of the

benefits it bargained for before obtaining court approval. As

Kravitz stated:

Fortunately for the estate, by selling Alexandria to

Win-Win as the back-up bidder, I was able to preserve

the tremendous benefit to the estate that I had

negotiated under the original bid procedure terms. 

Specifically, Win-Win paid both $50,000.00 fees to the

estate for a total of $100,000.00 cash; Win-Win agreed

to cap its post-petition administrative claims

(estimated to be $1.2 million as of the sale date) to

no more than $50,000.00 and subject to my right to

object to such claims; Win-Win removed all its secured

liens from the Alexandria and Union properties

resulting in the removal of $15 million in secured

claims against the estate; and Win-Win’s claims against

the estate were reduced to unsecured claims of

approximately $5.3 million (down from the $15 million

plus in secured claims).

Kravitz Decl. (April 17, 2015) at ¶ 6.

As for the $2.5 million difference in sale price between the

aborted Vista sale and the completed Win Win sale, Kravitz

pointed out that all of the gross sale proceeds lost would have

been paid to Win Win on account of its secured claim and thus the

estate did not lose any net sale proceeds.

The findings of the bankruptcy court reflect that it

credited the declaration testimony the parties presented and that

it found Kravitz’s and Win Win’s explanations of the post-saleorder events credible. Also, the court inferred from those

explanations that there was no fraud, collusion or grossly unfair

advantage taken by or between Kravitz, Win Win or Vista.

Hujazi presented no controverting evidence. In essence, she

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asked the court to reject the appellees’ explanations and to

infer bad faith from the bare outline of the post-sale-order

events. Assuming without deciding that the bankruptcy court

could have inferred bad faith as Hujazi urged, the court’s choice

not to do so was not clearly erroneous. Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985) (“Where there are

two permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous.”). Put another way, we

cannot say that the bankruptcy court’s renewed finding of good

faith with respect to the Alexandria sale was illogical,

implausible or without support in the record.

Hujazi also argued that bad faith was apparent because

Kravitz’s backup sale to Win Win contravened the sale order. But

the bankruptcy court rejected this argument, reasoning that

Hujazi’s interpretation of the sale order was overly restrictive

and impractical. According to the bankruptcy court, Kravitz’s

sale to the backup bidder was contemplated by and in full 

compliance with the sale order.

The sale order in relevant part provided as follows:

Win Win is confirmed as the back-up purchaser of the

Alexandria Property in the event that the sale of the

Alexandria Property to Vista fails to close. In such

event, Win Win or its designee is confirmed as the

purchaser, and the Trustee is authorized to sell and

transfer to Win Win the Alexandria Property pursuant to

the terms, including the original purchase price of

$4,500,000, as set forth in the Motion. If Vista fails

to close its purchase of the Alexandria Property, such

back-up sale can be consummated without further order

of this Court, but the parties may lodge an amended

order if and/or as necessary. 

Sale Order (June 10, 2013) at ¶ 5.

We give significant deference to the bankruptcy court's

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interpretation of its own orders. In re Wallace, 490 B.R. at 906 

(citing Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th

Cir. BAP 2011)). Hujazi has not offered any reasoned argument

why it was an abuse of discretion for the bankruptcy court to 

interpret the sale order in the manner it did, nor are we aware

of any such argument. In sum, we hold that the bankruptcy court

did not abuse its discretion when it ruled that the backup sale

to Win Win was in compliance with the sale order.

3. Denial of Additional Time for Discovery

Hujazi also argues on appeal that the bankruptcy court

should have extended the reconsideration motion proceedings to

permit additional time for discovery. Hujazi never filed a

motion requesting an extension of time; however, the bankruptcy

court apparently denied Hujazi’s oral request for more time at

the February 2015 post-remand status conference.

In order to determine whether bankruptcy courts have abused

their discretion in denying requests for more time to conduct

discovery, we typically look at all relevant facts and usually

focus on the following four considerations: (1) whether lack of

diligence necessitated the request; (2) whether the continuance,

if granted, would have satisfied the stated need for the

continuance; (3) the impact of the continuance on the court and

the adverse parties and (4) whether the requesting party was

prejudiced by the denial. In re La Sierra Fin. Serv., Inc.,

290 B.R. at 726; see also United States v. Pope, 841 F.2d 954,

956 (9th Cir. 1988); United States v. 2.61 Acres of Land,

791 F.2d 666, 671 (9th Cir. 1985). 

However, we need not look at those factors in order to

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uphold the bankruptcy court’s denial here. We cannot and will

not disturb a denial of a continuance sought for purposes of

discovery unless the appellant has made the “‘clearest showing’

of actual and substantial prejudice.” Martel v. County of Los

Angeles, 56 F.3d 993, 995 (9th Cir. 1995) (en banc).

Under Martel, Hujazi’s speculation that, if she had been

given additional time to take some unspecified discovery, she

might have uncovered some evidence tending to support her

unsubstantiated allegations of bad faith is patently insufficient

to meet her heavy burden of proof. Id. at 996-97. Moreover,

Hujazi’s lack of diligence by not requesting any discovery on the

good faith issue either before or after our remand and her

failure to file a written motion requesting a continuance for

discovery purposes further bolster our conviction that Hujazi has

not made the requisite showing of prejudice.4

4Nearly two years elapsed between the entry of the

bankruptcy court’s June 2013 sale order and the May 2015 hearing

on Hujazi’s motion seeking reconsideration of the good faith

issue. During that entire time, Hujazi knew or should have known

that the bankruptcy court’s § 363(m) good faith finding was a

substantial and likely fatal impediment to her obtaining

appellate review of the sale order. Hujazi also has known, since

at least August 2013, that the Kravitz-Vista sale never closed

and that the backup sale to Win Win took place. And Hujazi

further has known, since at least March 2014, that an affiliate

of Vista’s – Alex Court LLC – purchased the Alexandria property

from Win Win for $6.8 million. Yet there is nothing in the

record indicating that Hujazi ever made any effort to propound

discovery to flesh out her theory why the post-sale-order events

evidenced bad faith. There are a number of procedures that

Hujazi potentially could have employed at various times between

March 2014 and May 2015 to collect evidence regarding the good

faith issue. See, e.g., Rules 2004, 7027, 9014(c). We express

no opinion as to which of these discovery devices Hujazi

appropriately could have utilized. It suffices for us to say

(continued...)

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Consequently, there is no ground to reverse the bankruptcy

court’s denial of Hujazi’s oral request for additional time to

conduct discovery.

CONCLUSION

For the reasons set forth above, we conclude that the

bankruptcy court’s post-remand good faith finding was not clearly

erroneous, and we AFFIRM its order denying Hujazi’s post-remand

motion for relief or reconsideration.

4(...continued)

that Hujazi attempted none of them.

16