NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

PAUL A. MORABITO,

Debtor.

EDWARD BAYUK; SNOWSHOE

PROPERTIES, LLC,

Appellants,

v.

WILLIAM A. LEONARD, JR., Chapter 7

Trustee,

Appellee.

BAP No. NV-19-1267-GTaB

Bk. No. 3:13-bk-51237-GWZ

Adv. No. 3:16-ap-05041-GWZ

MEMORANDUM*

Appeal from the United States Bankruptcy Court

for the District of Nevada

Gregg W. Zive, Bankruptcy Judge, Presiding

Before: GAN, TAYLOR, and BRAND, Bankruptcy Judges.

INTRODUCTION

Appellants Edward Bayuk (“Bayuk”) and Snowshoe Properties, LLC

(“Snowshoe” and together “Appellants”) appeal the bankruptcy court’s

FILED

SEP 29 2020

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

*

 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.
order granting chapter 71

 trustee William A. Leonard, Jr.’s (“Trustee”)

motion for summary judgment on his adversary complaint to recover a

preference. Trustee asserted that prepetition, Bayuk owed debtor Paul A.

Morabito (“Debtor”) $1,617,050 and, in partial satisfaction of that debt,

Bayuk paid $732,124 to Bank of America, N.A., (“BofA”) to satisfy Debtor’s

obligation. The payment extinguished the guaranty liability of Snowshoe,

which was wholly owned by Bayuk through his trust. Trustee alleged that

Bayuk’s payment to BofA was a transfer of Debtor’s interest in property

which benefitted insiders Snowshoe and Bayuk.

Trustee argued that factual findings made by the Nevada state court

in related fraudulent transfer litigation were preclusive of issues asserted in

the preference litigation. Appellants did not dispute the facts alleged by

Trustee but instead argued that the bankruptcy court should not give

preclusive effect to the state court findings. Appellants have not

demonstrated that the bankruptcy court erred by granting summary

judgment. We AFFIRM.

FACTS

A. Prepetition Events

In September 2010, the Nevada state court rendered oral findings of

1

 Unless specified otherwise, all chapter and section references are to the

Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules

of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of

Civil Procedure.

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fact and conclusions of law, finding Debtor and Consolidated Nevada

Corporation (“CNC”) liable to JH, Inc, Jerry Herbst, and Berry-Hinckley

Industries (the “Herbst Parties”) in the amount of $85,871,364.75. After

further proceedings on claims for punitive damages and attorneys’ fees, the

state court entered final judgment against Debtor and CNC in the amount

of $149,444,777.80. Immediately after the oral ruling in the state court case,

Debtor engaged in a series of transactions to divest most of his assets.

Prior to the oral ruling, Debtor and Bayuk each owned a 50% interest

in a real estate holding company called Baruk Properties, LLC. In October

2010, Debtor transferred his 50% interest in Baruk Properties to Bayuk

pursuant to a Membership Interest Transfer Agreement (“Transfer

Agreement”). Baruk Properties held four real properties, including a

commercial property located at 570 Glenneyre, Laguna Beach, CA (“570

Glenneyre”). Based on the appraised values of the four properties, Debtor’s

50% interest in Baruk Properties had a value of at least $1,654,550. After the

transfer, Bayuk merged Baruk Properties into Snowshoe which was wholly

owned by the Edward William Bayuk Living Trust (the “Bayuk Trust”).

Under the terms of the Transfer Agreement, Bayuk was required to

deliver a promissory note to Debtor in the principal amount of $1,617,050

(the “Baruk Note”). There was no evidence that Bayuk made any payments

according to the terms of the Baruk Note.

In September 2012, Debtor and BofA entered into a settlement

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agreement to resolve Debtor’s defaults under a 2009 loan agreement. As

part of the settlement agreement, Snowshoe executed a limited guaranty,

secured by a first position deed of trust on 570 Glenneyre.

In December 2012, Bayuk paid BofA $732,124.75 to satisfy Debtor’s

obligations under the BofA settlement agreement and to resolve

Snowshoe’s liability under the limited guaranty. Bayuk treated the

payment to BofA as a payment on the Baruk Note and Debtor admitted

that the payment to BofA reduced his claim against Bayuk on the Baruk

Note by $732,124.75.

B. The Bankruptcy and The SuperPumper Action

In June 2013, the Herbst Parties commenced an involuntary

bankruptcy petition against Debtor. The bankruptcy court denied Debtor’s

motion to dismiss the petition and in December 2014 granted summary

judgment against Debtor, adjudicating him a chapter 7 debtor. An interim

trustee was appointed in December 2014 and, in January 2015, Trustee was

elected.

In December 2013, the Herbst Parties filed a fraudulent conveyance

action in state court against SuperPumper, Inc., Debtor, Bayuk, Salvatore

Morabito, and Snowshoe Petroleum, Inc. (the “SuperPumper Action”). The

Herbst Parties sought to avoid several transfers including the transfer of

Debtor’s ownership interest in Baruk Properties.

In May 2015, the parties in the SuperPumper Action stipulated to

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remove the Herbst Parties and substitute Trustee as plaintiff. The parties

also stipulated to remove Debtor as a defendant. Trustee then filed an

amended complaint on behalf of the bankruptcy estate. The state court

conducted a six-day bench trial and entered its findings of fact and

conclusions of law in March 2019.

As part of the judgment, the state court avoided the transfer of

Debtor’s interest in Baruk Properties and awarded damages to the estate

and against Bayuk in the amount of $1,654,550. The court held that Debtor

transferred his interest in Baruk Properties with actual intent to hinder,

delay, or defraud creditors. In finding actual intent, the court relied on

multiple “badges of fraud,” including the court’s determination that Bayuk

was an insider of Debtor.

The state court determined that the transfer was not for reasonably

equivalent value because the Baruk Note was “illusory, and certainly did

not result in tangible assets available for [Debtor’s] creditors.”

C. The Preference Action

In December 2016, Trustee filed an adversary complaint alleging

avoidable preferences to Appellants resulting from Bayuk’s payment to

BofA. In January 2017, Bayuk filed a motion to dismiss. The parties

stipulated to allow Trustee to file an amended complaint, which he filed in

June 2017.

Appellants then filed a motion to dismiss the amended complaint.

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They asserted that Trustee had not alleged sufficient facts to state a prima

facie case and that neither Bayuk nor Snowshoe were insiders. Appellants’

attorney withdrew as counsel of record, and in March 2019, substitute

counsel filed an amended motion to dismiss on behalf of Appellants. In the

amended motion to dismiss, Appellants argued that because Bayuk had an

obligation to Debtor under the Baruk Note, he did not acquire any

indemnification rights by making the BofA payment and neither Bayuk nor

Snowshoe were insiders.

In April 2019, Trustee filed a motion for summary judgment. Trustee

provided a statement of facts which included stipulated facts from related

proceedings and the state court’s findings and conclusions in the

SuperPumper Action. Trustee also opposed the amended motion to dismiss

and argued that the state court’s findings conclusively decided the issue of

insider status. Trustee also argued that because the state court found that

the Baruk Note was a sham, Bayuk had recourse rights against Debtor.

Appellants opposed the motion for summary judgment and, for the

first time, argued that the bankruptcy court lacked constitutional authority

to enter a final order on the preference action under Stern v. Marshall, 564

U.S. 462 (2011). Appellants reiterated their arguments that they were not

insiders and that Bayuk lacked recourse against Debtor, and additionally

argued that there was a material issue of fact regarding whether BofA

received more than it would have under a hypothetical chapter 7.

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Appellants did not dispute any of the facts asserted by Trustee in the

statement of facts. Instead, they argued that the factual findings made by

the state court in the SuperPumper Action were not preclusive under

Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074 (9th Cir. 2000)

and that the state court judgment was entered without jurisdiction and in

violation of the automatic stay. They provided a declaration of their

attorney which stated that there was a question of fact about whether BofA

received more than it would have under a hypothetical chapter 7.

However, Appellants did not provide any testimony or documentary

evidence to demonstrate a genuine dispute of material fact on this issue or

any other.

After a hearing, the bankruptcy court denied the amended motion to

dismiss and granted the motion for summary judgment. The bankruptcy

court entered written findings of fact and conclusions of law in August

2019 in which it determined that issue preclusion applied to issues decided

in the SuperPumper Action. The bankruptcy court concluded that the state

court had jurisdiction over the SuperPumper Action and its order did not

violate the automatic stay. Based on the findings in the SuperPumper

Action and Trustee’s statement of facts, the bankruptcy court concluded

that Trustee had established Appellants were non-statutory insiders, and

because the Baruk Note was illusory, Bayuk maintained a right of

indemnification from Debtor. The bankruptcy court entered a written

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judgment on November 1, 2019. Appellants timely appealed.

JURISDICTION

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

157(b)(2)(F). We have jurisdiction under 28 U.S.C. § 158(a).2

ISSUE

Whether the bankruptcy court erred by granting Trustee’s summary

judgment motion.

STANDARD OF REVIEW

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

novo. Lewis v. Kaelin (In re Cresta Tech. Corp.), 583 B.R. 224, 227 (9th Cir. BAP

2018). We also review questions of issue preclusion de novo. Pike v. Hester,

2

 Appellants initially argued that the bankruptcy court lacked constitutional

authority to enter a final order under Stern v. Marshall, 564 U.S. 462 (2011). If the

preference action was a Stern claim and Appellants did not consent to entry of final

orders by the bankruptcy court, we would lack jurisdiction under 28 U.S.C. § 158(b). See

Exec. Benefits Ins. Agency v. Arkison, 573 U.S. 25, 36 (2014) (Stern claims are treated as

non-core matters); 28 U.S.C. § 157(c) (unless parties consent to entry of final orders,

bankruptcy court may only enter proposed findings of fact and conclusions of law on

non-core matters with any final order to be entered by the district court after de novo

review). Appellants arguably consented to the bankruptcy court’s entry of final orders

by failing to raise the issue in their motions to dismiss as required by Local Rule

7012(b). See Wellness Int’l Network, Ltd. v. Sharif, 135 S.Ct. 1932, 1949 (2015) (bankruptcy

court has constitutional authority to enter final orders with the express or implied

consent of all parties). Furthermore, by electing to have this Panel hear the appeal,

Appellants likely waived any right to review by an Article III court. See id. at 1944 (“The

entitlement to an Article III adjudicator is a ‘personal right’ and thus ordinarily ‘subject

to waiver.’”) (quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848

(1986)). Any question in this regard was resolved at oral argument when Appellants

expressly waived the Stern issue.

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891 F.3d 1131, 1137 (9th Cir. 2018). Under a de novo review, we look at the

matter anew, giving no deference to the bankruptcy court’s determinations.

In re Cresta Tech. Corp., 583 B.R. at 227.

DISCUSSION

Appellants argue that the bankruptcy court erred by granting

summary judgment because the bankruptcy court improperly applied

issue preclusion, and there were material issues of fact.

A. The Bankruptcy Court Did Not Err By Giving Preclusive Effect To

State Court Findings

“A bankruptcy court may rely on the issue preclusive effect of an

existing state court judgment as the basis for granting summary

judgment.” Plyam v. Precision Dev., LLC (In re Plyam), 530 B.R. 456, 462 (9th

Cir. BAP 2015). In determining the issue-preclusive effect of a state court

judgment, the bankruptcy court must apply the law of the court that

rendered judgment. Pike, 891 F.3d at 1138. Because the judgment was

entered by the Nevada state court, we apply Nevada law.

Under Nevada law, issue preclusion requires that (1) an issue be

identical; (2) the initial ruling was on the merits and final; (3) “the party

against whom the judgment is asserted” was a party in the prior case, or in

privity with a party in the prior case; and (4) the issue was actually and

necessarily litigated. Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev.

2008).

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For preclusion purposes, it is not relevant that the prior decision was

appealed, Edwards v. Ghandour, 159 P.3d 1086, 1090 (Nev. 2007) abrogated on

other grounds by Five Star Capital Corp., 194 P.3d 709, or wrongly decided.

Holt v. Reg’l Tr. Servs. Corp., 266 P.3d 602, 608 (Nev. 2011). Issue preclusion

applies to both issues of law and fact. Univ. of Nev. v. Tarkanian, 879 P.2d

1180, 1191 (Nev. 1994).

Appellants do not dispute that the requisite elements of issue

preclusion were present in this case. Instead, they argue that the findings

are not binding because the state court lacked subject matter jurisdiction

and Trustee lacked standing to pursue the claims. They also argue that the

bankruptcy court failed to conduct the necessary preclusion analysis.

1. The State Court Had Jurisdiction

Appellants argue that the state court findings are not binding on the

bankruptcy court under the holding of In re Gruntz, 202 F.3d 1074. In

Gruntz, the Ninth Circuit held that a state court judgment entered in

violation of the automatic stay was not binding on the bankruptcy court

because the state court did not have the power to modify or dissolve the

automatic stay. Id. at 1087. General preclusion rules do not apply to state

court judgments involving matters that come within the bankruptcy court’s

exclusive jurisdiction. Odd-Bjorn Huse v. Huse-Sporsem, A.S. (In re Birting

Fisheries, Inc.), 300 B.R. 489, 498 (9th Cir. BAP 2003).

In the SuperPumper Action, Trustee asserted fraudulent transfer

10
claims under Nevada law. These claims were not within the exclusive

jurisdiction of the bankruptcy court, and the state court’s jurisdiction over

state law claims was not preempted by Congress’s grant of “original but

not exclusive jurisdiction” to the bankruptcy court. See 28 U.S.C. § 1334(b);

Hopkins v. Plant Insulation Co., 349 B.R. 805, 812 (N.D. Cal. 2006) (holding

that state courts retain concurrent jurisdiction over claims brought

pursuant to § 544(b)). The state court had subject matter jurisdiction over

the state law fraudulent transfer claims.

Appellants have not provided any credible argument that Trustee

lacked standing to pursue the fraudulent transfer claims. Appellants’

reliance on Williams v. California 1st Bank, 859 F.2d 664 (9th Cir. 1988) is

misplaced. The Williams court held that a bankruptcy trustee does not have

standing to assert general causes of action on behalf of individual creditors.

Id. at 667. Here, Trustee asserted the fraudulent transfer claims, not on

behalf of individual creditors, but on behalf of the estate. Section 544(b)

empowers Trustee to assert state law avoidance actions on behalf of the

estate, and § 541(a)(3) provides that recovery on such claims becomes

property of the estate.

Although the Herbst parties initiated the SuperPumper Action, once

Trustee was appointed, he intervened as the plaintiff and filed an amended

complaint asserting claims on behalf of the estate. Appellants did not object

to Trustee’s standing and instead stipulated to substitution of Trustee as

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plaintiff. Therefore, they waived the issue. See Contrail Leasing Partners, Ltd.

v. Exec. Serv. Corp., 688 P.2d 765, 767 n.2 (Nev. 1984) (lack of standing must

be affirmatively pleaded and failure to do so constitutes waiver).

2. The Bankruptcy Court Properly Applied Issue Preclusion

Appellants argue that the bankruptcy court improperly applied

“offensive” issue preclusion and failed to conduct the analysis required by

Weddell v. Sharp, 350 P.3d 80 (Nev. 2015), where the parties in the present

action were not identical to those in the SuperPumper Action.

Offensive issue preclusion “occurs when the plaintiff seeks to

foreclose the defendant from litigating an issue the defendant has

previously litigated unsuccessfully in an action with another party.”

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.4 (1979). The

bankruptcy court did not apply offensive issue preclusion here because

Trustee was the plaintiff in both actions.

To the extent that Appellants argue issue preclusion can only be used

as a defense under Nevada law, we disagree. Other than the Weddell court’s

discussion of the “defenses” of claim preclusion and issue preclusion,

Appellants cite no authority to support their position. Contrary to

Appellants’ argument, the Ninth Circuit, applying Nevada law, has held

that issue preclusion may be asserted by a plaintiff. See Pike, 891 F.3d at

1138.

Appellants’ argument that the bankruptcy court was required to

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conduct a “Weddell analysis” is equally inapposite. In Weddell, the Nevada

Supreme Court modified Nevada law to allow non-mutual claim

preclusion where a defendant was not a party or in privity with a

defendant in the prior action. 350 P.3d at 85. Under the holding of Weddell,

a defendant who was not a party or in privity with a party in a prior suit

can still use claim preclusion to bar subsequent litigation if it can show that

it should have been included as a defendant in the prior suit and the

plaintiff fails to provide a good reason for not having done so. Id.

The analysis required by Weddell is not applicable here because

Appellants were parties, or in privity with parties, in the SuperPumper

Action.

Nevada law “limit[s] the application of issue preclusion to those who

were a party in the prior case or who were in privity with a party in the

prior case.” Bower v. Harrah’s Laughlin, Inc., 215 P.3d 709, 717 (Nev. 2009)

(citing Paradise Palms Cmty. Ass’n v. Paradise Homes, 505 P.2d 596, 598-99

(Nev. 1973)). “To be in privity, the person must have ‘acquired an interest

in the subject matter affected by the judgment through . . . one of the

parties, as by inheritance, succession, or purchase.’” Id. at 718 (quoting

Paradise Palms Cmty. Ass’n, 505 P.2d at 599).

Bayuk and the Bayuk Trust were parties in the SuperPumper Action.

Snowshoe acquired an interest in the subject matter affected by the

judgment through Bayuk and the Bayuk Trust, and therefore was in privity

13
with those parties under Nevada law. The bankruptcy court did not err in

its application of issue preclusion.

B. The Bankruptcy Court Did Not Err By Granting Summary

Judgment

Civil Rule 56(a), made applicable by Rule 7056, provides that

summary judgment is appropriate when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of

law.” We must view the evidence in the light most favorable to the

non-moving party and draw all justifiable inferences in favor of the

non-moving party. Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d

1119, 1125 (9th Cir. 2014) (citing Cty. of Tuolumne v. Sonora Cmty. Hosp., 236

F.3d 1148, 1154 (9th Cir. 2001); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986)). “A fact is ‘material’ only if it might affect the outcome of the

case, and a dispute is ‘genuine’ only if a reasonable trier of fact could

resolve the issue in the non-movant’s favor.” Fresno Motors, 771 F.3d at

1125.

Appellants argue that there were disputed material facts about

whether BofA received more than it would have under a hypothetical

chapter 7, and whether Bayuk’s obligation under the Baruk Note prevented

his preference liability under the holding of Stahl v. Simon (In re Adamson

Apparel, Inc.), 785 F.3d 1285 (9th Cir. 2015).

Although the question of whether BofA received more than it would

14
have under a liquidation is a question of fact, Appellants did not provide

any evidence to demonstrate a genuine dispute. The “mere existence of

some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment.” Anderson,

477 U.S. at 247-48. Appellants were required to provide “sufficient

evidence favoring the nonmoving party for a jury to return a verdict for

that party.” Id. at 249. Without providing some evidence to contravene

Trustee’s factual assertions, Appellants did not demonstrate a genuine

issue of material fact on the question of whether BofA received more than it

would have under a hypothetical liquidation.

Additionally, the bankruptcy court rejected Appellants’ argument

that the Baruk Note prevented liability under Adamson Apparel by giving

preclusive effect to the state court’s determination that the Baruk Note was

illusory. Because the bankruptcy court properly applied issue preclusion

on this issue, there was no genuine dispute of material fact.

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy court’s

entry of summary judgment against Appellants.

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