NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

THEOS FEDRO HOLDINGS, LLC,

Debtor.

BAP No. NC-22-1115-SGB

Bk. No. 21-30202

Adv. No. 22-03001

MEMORANDUM*

MALINKA TACUMA WADE MOYE,

Appellant,

v.

PENDER CAPITAL, INC.; PENDER 

CAPITAL ASSET LENDING FUND, I, 

LP; LABOR COMMISSIONER OF THE 

STATE OF CALIFORNIA,

Appellees.

Appeal from the United States Bankruptcy Court

for the Northern District of California

Dennis Montali, Bankruptcy Judge, Presiding

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

INTRODUCTION

Malinka Tacuma Wade Moye appeals from an order granting the 

motions to dismiss his adversary proceeding against defendants Pender 

Capital, Inc., Pender Capital Asset Lending, Fund 1, LP, (jointly, “Pender 

* 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.

FILED

DEC 12 2022

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
2

Capital”), and the Labor Commissioner for the State of California. Moye’s

complaint failed to state any cognizable claim for relief. Accordingly, we 

AFFIRM.

FACTS

In January 2022, Moye commenced his adversary proceeding in the 

chapter 111 bankruptcy of debtor Theos Fedro Holdings, LLC. His 

complaint is factually incomprehensible. It alleges that the debtor is a 

limited liability company with its principal place of business in San 

Francisco, while defendant Pender Capital is a “loan lending company” in 

Sacramento. Moye stated that he was a creditor “violated by defendants., 

with principal place of business in Sf & Sacramen, California under 

extortion. Assault. Attempted murder.” Moye also states that “Labor 

Commissioner attorneys have prior record of obstructing creditor.” The 

complaint includes numerous other statements and allegations of crimes by 

others dating back years.

The relationship of any of these defendants to the debtor and its 

bankruptcy is unclear. His caption identifies as defendants Pender Capital,

Labor Commissioner for the State of California, and Craft & Layne. There 

are scattered references in the five-page complaint to Pender Capital but no 

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.
3

mention of it in the prayer for relief. Craft & Layne is not mentioned in the 

complaint except its name was handwritten onto the caption as a 

defendant.

2 There are roughly three references to the Labor Commissioner 

but no explanation of what the Labor Commissioner allegedly did to harm 

Moye, or how it relates to the underlying bankruptcy. 

Moye alleged in his prayer for relief that the debtor “transferred & 

removed funds from United States of America to Greece, or permitted 

transfer & removal, of property of estate with the intent to delay, hinder, or 

defraud a creditor in violation of provisions of 11 USC 727(a)(2)(b) . . . .” 

Moye also references an alleged violation of § 727(a)(2)(A) in the title of his 

complaint and in passing within the body of the complaint. There are 

similar references to fraudulent transfers allegedly involving the debtor, its 

managing member Philip Achilles, and Pender Capital. At one point, Moye 

states: “2020: Pender Capital knowingly loan $3,000,000 unto Phillip 

[sic]Achilles who previously changed title on 819 Ellis St SF, ca 94109

[“Ellis Property”] to deter transfer unto creditor [Moye] filed claim in lower 

and northern district courts.”

This is the closest Moye gets to stating a coherent claim for relief that 

might have some link to debtor or its bankruptcy. There are no additional

factual allegations stated to support Moye’s barebones accusations. There 

are only the above-referenced conclusory statements. The remainder of the 

2 No entity known as Craft & Layne participated in the underlying adversary 

proceeding. Nor was Craft & Layne named as a party to this appeal.
4

complaint is a mélange of seemingly unconnected complaints and 

grievances against a host of third parties. Many of these same matters are 

referenced in the litigation he has unsuccessfully pursued in the state 

courts and in the federal district court. See In Re Moye, Case No. C-14-2533 

EMC (PR), 2014 WL 3750055, at *1-2 (N.D. Cal. July 28, 2014).

Both Pender Capital and the Labor Commissioner moved to dismiss

the adversary proceeding with prejudice. Both pointed out the defects in 

the complaint described above. The Labor Commissioner further pointed 

out that the bankruptcy court would lack jurisdiction over many of the 

grievances Moye attempted to raise because they appeared wholly 

unconnected to debtor’s bankruptcy case. Similarly, Pender Capital noted 

that most of the matters referenced in Moye’s complaint concerned alleged 

criminal conduct under California law that appears to have occurred years 

ago with no connection to debtor’s bankruptcy. Moye responded to the 

dismissal motions. But his response was largely incoherent. To the extent 

any sense can be made of it, it fails to address the critical issues raised in 

the motions to dismiss.

On May 24, 2022, the bankruptcy court entered an order granting the 

defendants’ motions to dismiss for the reasons they stated. The bankruptcy 

court additionally observed: “Plaintiff cannot obtain relief from this court 

regarding criminal law matters or disputes in other state judicial or

administrative proceedings. What limited relief he might be entitled to 

under the bankruptcy laws [does] not reach the moving parties or any 
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other named defendant.” Moye timely appealed.

3

JURISDICTION

The bankruptcy court has jurisdiction over Moye’s § 727 claim

pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(J). We have jurisdiction under 

28 U.S.C. § 158.

ISSUE

Did the bankruptcy court commit reversible error when it dismissed 

Moye’s complaint without leave to amend?

STANDARD OF REVIEW

We review de novo the bankruptcy court’s order granting the 

defendants’ Civil Rule 12(b)(6) motions. Barnes v. Belice (In re Belice), 461 

B.R. 564, 572 (9th Cir. BAP 2011). De novo review means we give no 

deference to the bankruptcy court’s decision. Francis v. Wallace (In re 

Francis), 505 B.R. 914, 917 (9th Cir. BAP 2014).

DISCUSSION

A. Civil Rule 12(b)(6) standards.

When we review an order granting a Civil Rule 12(b)(6) motion,

made applicable in adversary proceedings by Rule 7012, we consider the 

legal sufficiency of the plaintiff’s complaint. See Johnson v. Riverside 

Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008). This means that 

3 After the appeal was submitted on the briefs, Moye filed a document with two 

attachments from the California Department of Real Estate. This document was not part 

of the record before the bankruptcy court and shall not be considered on appeal. Castro 

v. Terhune, 712 F.3d 1304, 1316 n.5 (9th Cir. 2013).
6

we must assess whether the complaint presents a cognizable legal theory

and whether it contains sufficient factual allegations to support that theory.

Id. Thus, “for a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, 

must be plausibly suggestive of a claim entitling the plaintiff to relief.” 

Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. 

Iqbal, 556 U.S. 662, 677-78 (2009)).

A claim is facially plausible when it contains factual allegations that, 

if taken as true, would allow the court to reasonably infer that the 

defendant is liable to the plaintiff. Iqbal, 556 U.S. at 678. “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. Additionally, we do not accept as true mere 

legal conclusions; they cannot by themselves establish a plausible claim for 

relief. Id.

Determining whether a claim for relief is plausible is “a contextspecific task that requires the reviewing court to draw on its judicial 

experience and common sense.” Id. at 679. Plausibility “asks for more than 

a sheer possibility that a defendant has acted unlawfully.” Id. at 678. If a 

complaint contains factual allegations “that are merely consistent with a 

defendant’s liability, it stops short of the line between possibility and 

plausibility of entitlement to relief.” Id. (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 557 (2007)) (internal quotation marks omitted).

In considering the defendants’ motions to dismiss, the court can take 
7

into account matters subject to judicial notice, including the other papers

filed in the adversary proceeding and the underlying bankruptcy case. See 

Est. of Blue v. Cnty. of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997); Barron v. 

Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

B. The bankruptcy court did not err in concluding that Moye failed to 

state a claim.

Moye’s appeal brief reads similarly to the adversary complaint he 

filed in the bankruptcy court; it is impossible to follow. Having reviewed 

his complaint and his appeal brief, we agree that the complaint fails to state 

any legally cognizable claims for relief. Most of the matters referenced in 

the complaint are alleged to have happened long ago. Many of these 

matters were the subject of Moye’s unsuccessful litigation in the state court 

and in the federal district court—litigation claims he restated so often that 

both the state court and the federal district court declared him a vexatious 

litigant.

The complaint designated a single cause of action stating that

“defendant’s debts are not dischargeable Pursuant to 11 USC. 727(a)(b)(2)

[sic],” and the “Uniform Fraudulent Transfer Act.” Notably, any challenge 

to the debtor’s discharge needed to be directed against the debtor. But 

Moye failed to name the debtor as a defendant. Moye cannot state a viable

objection to discharge claim against the named defendants because they are 

not the debtor. Only the debtor in a bankruptcy case is potentially subject 
8

to the Bankruptcy Code’s discharge provisions. See §§ 727(a), 1141(d).

4

Moye also references a fraudulent transfer claim against Pender 

Capital. The only factual reference to Pender Capital is that it loaned debtor 

several million dollars and received in exchange a note and security 

interest in the Ellis Property. This does not state a legally viable fraudulent 

transfer claim. In the parlance of Iqbal, Moye’s allegations against Pender 

Capital are “threadbare” and “conclusory.” They are not entitled to any 

presumption of truth even in the context of a motion to dismiss under Civil 

Rule 12(b)(6). See Iqbal, 556 U.S. at 678. These allegations come nowhere 

close to permitting the bankruptcy court to infer that Moye plausibly might 

be entitled to any relief from Pender Capital. Twombly, 550 U.S. at 557.

Equally significant, it is the bankruptcy estate, not individual 

creditors, that have standing to pursue the debtor’s fraudulent transfer 

claims. Est. of Spirtos v. One San Bernardino Cnty. Super. Ct. Case Numbered 

SPR 02211, 443 F.3d 1172, 1176 (9th Cir. 2006). In chapter 11 cases, it is the 

debtor-in-possession, or the chapter 11 trustee in this instance, that has 

standing to bring fraudulent transfer claims, unless other parties have been 

granted derivative standing to pursue such claims. See Liberty Mut. Ins. Co. 

4 Moye references § 727 in his complaint. Section 727 governs the denial of 

discharge in chapter 7 cases. The debtor remains in chapter 11, where discharge is 

governed by § 1141. The discharge of an entity such as the debtor is specifically 

controlled by § 1141(d)(3). See generally 8 Collier on Bankruptcy at 1141.05[4] (16th ed. 

2022). Moye’s complaint did not reference § 1141 or the requirements to deny a 

discharge to an entity under § 1141(d)(3).
9

v. Off. Unsecured Creditors' Comm. of Spaulding Composites Co. (In re 

Spaulding Composites Co.), 207 B.R. 899, 903 (9th Cir. BAP 1997) (citing

Hansen v. Finn (In re Curry & Sorensen, Inc.), 57 B.R. 824, 827–29 (9th Cir. 

BAP 1986)). Nothing in the record, Moye’s complaint, or his appeal brief

indicates that Moye obtained, or is capable of obtaining, the bankruptcy 

court’s authorization to pursue any fraudulent transfer claims on behalf of 

the debtor’s bankruptcy estate. Thus, as a matter of law, Moye lacked 

standing to assert a claim for fraudulent transfer.

C. Denial of leave to amend.

Under Civil Rule 15, made applicable in adversary proceedings by 

Rule 7015, “[i]n dismissing for failure to state a claim, a [bankruptcy] court 

should grant leave to amend even if no request to amend the pleading was 

made, unless it determines that the pleading could not possibly be cured 

by the allegation of other facts.” Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th 

Cir. 2016) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). A

bankruptcy court generally must grant leave to amend “unless it 

determines that the pleading could not possibly be cured by the allegation 

of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). This is 

true even if leave to amend was not requested. Id. at 1127; Cook, Perkiss and 

Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990).

Dismissal of a complaint without leave to amend is proper if 

amendment would be futile. Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 

1048, 1056 (9th Cir. 2007) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 
10

1149, 1160 (9th Cir. 1989)); Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 

Cir. 1990). Amendment is considered futile when allegation of other facts 

consistent with the existing pleading could not cure the deficiency. See

Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 846 (9th Cir. 2016) (citing

Reddy, 912 F.2d at 296–97); Schreiber Distrib. Co. v. Serv–Well Furniture Co., 

Inc., 806 F.2d 1393, 1401 (9th Cir. 1986).

Here, Moye never sought leave to amend, nor has he raised this issue 

on appeal. Arguably, he has forfeited this argument by not raising it on 

appeal. See Okwu v. McKim, 682 F.3d 841, 846 n.4 (9th Cir. 2012) (“Okwu

has waived the argument that she should be allowed to amend her 

complaint to re-style some of her § 1983 claims . . . under the Ex Parte 

Young exception . . . . She did not make that argument to the district court 

or in either of her briefs on appeal.” (citations omitted and emphasis 

added)); quoted with approval in City of San Juan Capistrano v. Cal. Pub. Utils.

Comm'n, 937 F.3d 1278, 1282 (9th Cir. 2019).

But even if we were to consider the issue on appeal, Moye cannot 

allege any set of facts to support a nondischargeability claim against

defendants who are not debtors in the underlying bankruptcy case. Nor

can we conceive of any set of alleged facts consistent with Moye’s existing 

complaint that would justify the bankruptcy court granting him authority 

to act as the estate’s representative in pursuing any fraudulent transfer 

claims. The remainder of Moye’s grievances, including those intimating at 

criminal conduct of others and raising prior nonbankruptcy proceedings, 
11

have nothing to do with the debtor’s bankruptcy or with claims within the 

jurisdiction of the bankruptcy court. We, therefore, agree with the 

bankruptcy court that dismissal with prejudice was warranted as granting 

leave to amend would have been futile.

CONCLUSION

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

dismissal with prejudice of Moye’s adversary proceeding.