NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: JAMES CHRISTOPHER PATOW,

Debtor,

------------------------------

RICHARD A. MARSHACK, Trustee,

Appellant,

v.

LINDA PATOW, as Trustee of the Alvin and

Linda Patow 2006 Trust; JAMES

CHRISTOPHER PATOW,

Appellees. No. 21

- 60051

BAP No. 20

- 1285

MEMORANDUM *

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Gan, Taylor, and Lafferty III, Bankruptcy Judges, Presiding

Argued and Submitted June 8, 2022

Pasadena, California

Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.

Bankruptcy trustee Richard Marshack appeals the Ban k ruptcy Appellate

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUN 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

Panel’s (“BAP”) de termination that debtor Jame s Patow disclaimed his interest in a

family trust when he signed a document waiving th at interest

. The parties’

underlying dispute turns on whether James actually “transferred” his interest to his

mother instead of disclaiming it , and therefore committed a fraudulent and voidable

transfer under the B ankruptcy C ode and California law. We have jurisdiction under

28 U.S.C. § 158(d) and affirm the BAP.

James Patow was a beneficiary of a trust (“Patow Trust”) created by his

parents Al vin and Linda Patow to efficiently transfer property when they died.

When Alvin died in 2007 , the Patow Trust provided that the trust estate w ould be

divided into two separate trusts: a revocable trust for Linda (“Survivor’s Trust”) and

a n irrevocable tru st meant for James and his sister Jennifer upon Linda’s death

(“Bypass Trust”). Seven years after Alvin’s death, Linda determined that the Bypass

Trust was no longer necessary for tax purposes, and wished to transfer all of the

assets in the Bypass Trust to the Survivor’s Trust. Although Linda believed she

already had the authority to transfer the assets, out of an abundance of caution she

asked James and Jennifer to sign a n agreement waiving their interests in the Bypass

Trust. After James filed for Chapter 7 bankruptcy, Marshack filed this adversary

proceeding and argued that when James signed the agreement waiv ing his interest

in the Bypass Trust, he committed a voidable fraudulent transfer because he

“transferred” his interest to Linda, to the detriment of James’s creditors.3

We affirm the BAP because James disclaimed his interest in the Bypass Trust

under California law when he waived “ any and all rights that [he] may have [ had ]

under the terms of the Trust.” The California Probate Code states that a “disclaimer”

is “any writing which declines, refuses, renounces, or disclaims any interest that

would otherwise be taken by a beneficiary.” Cal. Prob. Code § 265. A valid

disclaimer must be in writing, signed by the disclaimant, identify the creator o f the

interest, describe the interest to be disclaimed, and state the disclaimer and the extent

of the disclaimer. Id. § 278. Here, James satisfied all of the requirements for a

disclaimer under California law : he signed a “writing” before a notary, the writing

identified Alvin and Linda Patow as the creators of the interest, and he stated that he

agreed to “hereby waive any and all rights that [he] may have under the terms of the

T rust

, including

... [t] he right to receive the assets of [ the ] Bypass Trust upon the

death of Linda E. Patow.” 1 Interpreting the words as written, it is clear that James

unilaterally renounced his interest in the Bypass Trust when he “waived” all of his

rights in the Trust

. Because James satisfied California’s requirements for a valid

disclaimer

, signed a document disclaiming his interest in the Bypass Trust, and did

1 The BAP correctly explained that the consent document James also signed ( which

was attached to the a greement as an exhibit) is consistent with his intention to waive

his interest in the Bypass Trust because it merely evinces “a waiver of James’s right

to sue Linda for breach of trust” if she acted beyond her power as trustee.4

not accept or transfer th at interest before disclaiming it

, we affirm the BAP. 2

AFFIRMED.

2 And e ven if James had fa iled to disclaim his interest in the Bypass Trust, he could

not have transferred it to Linda

, because the Patow Trust explicitly states James

“ may not sell, transfer, assign, alienate, encumber, hypothecate, or otherwise dispose

o f [his] interest in trust income or princip al

, ” but could disclaim it. We need not

address Marshack’s contention that Linda waived the argument that the spendthrift

provision would have prevented any transfer by James because, even if waived, we

would exercise our discretion to reach the argument because it is a pure question of

law. See United States v. Alisal Water Corp. , 431 F.3d 643, 654 n.4 (9th Cir. 2005).