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NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. NC-15-1044-TaDJu

)

FRANCISCO HERNANDEZ; ) Bk. No. 10-43381

JACQUELINE HERNANDEZ, )

) Adv. No. 14-04144

Debtors. )

______________________________)

)

FRANCISCO HERNANDEZ; )

JACQUELINE HERNANDEZ, )

)

Appellants, )

)

v. ) MEMORANDUM*

)

WELLS FARGO BANK, N.A., a/k/a )

Wachovia Mortgage, A Division )

of Wells Fargo Bank, N.A., )

f/k/a Wachovia Mortgage FSB, )

f/k/a World Savings Bank, )

)

Appellee. )

______________________________)

Argued and Submitted on October 23, 2015

at San Francisco, California

Filed – November 3, 2015

Appeal from the United States Bankruptcy Court

for the Northern District of California

Honorable William J. Lafferty, III, Bankruptcy Judge, Presiding

 

Appearances: Mark W. Lapham argued for appellants Francisco

Hernandez and Jacqueline Hernandez; Robert A.

Bailey of Anglin Flewelling Rasmussen Campbell &

Trytten LLP argued for appellee Wells Fargo Bank,

N.A.

FILED

NOV 03 2015

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(c)(2).
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Before: TAYLOR, DUNN, and JURY, Bankruptcy Judges.

INTRODUCTION

Chapter 131 debtors Francisco Hernandez and Jacqueline

Hernandez appeal from a bankruptcy court order dismissing their

adversary proceeding pursuant to Civil Rule 12(b)(6). 

Dismissal, based solely on the extreme deficiency of the

Debtors’ opening brief on appeal, is appropriate. A merits

review also yields no basis for reversal. Accordingly, we

AFFIRM the bankruptcy court.

FACTS2

In 2005, the Debtors obtained a purchase money loan from

World Savings Bank, FSB. Their related obligation was evidenced

by a promissory note (“Note”) and secured by a deed of trust

(“Trust Deed”) creating a lien against real property located in

Concord, California (the “Property”). 

The Debtors filed a chapter 13 petition in 2010. Their

schedules reflected their ownership interest in the Property and

that it was subject to two liens. Only the first position lien

is at issue in this appeal; that lien secured a debt of

1 Unless otherwise indicated, 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. All “Civil Rule” references are to the Federal Rules

of Civil Procedure.

2 We exercise our discretion to take judicial notice of

documents filed in the adversary proceeding and in the

underlying bankruptcy case for factual context. See Atwood v.

Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9

(9th Cir. BAP 2003).

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$453,048.27 owed to Wachovia Mortgage (“Wachovia”).

A chapter 13 plan was soon confirmed. The plan, a one page

form, provided for direct $1,322 monthly payments to Wachovia

outside of the plan. Two weeks later, Wells Fargo Bank, N.A.,

a/k/a Wachovia Mortgage, a division of Wells Fargo Bank, N.A.

and f/k/a Wachovia Mortgage, FSB (collectively hereafter, “Wells

Fargo”), filed a proof of claim alleging a claim secured by the

Property. The Debtors did not object to the proof of claim. 

A year and a half later, the Debtors defaulted on payments

under the Note; Wells Fargo moved for stay relief. Eventually,

the bankruptcy court entered an adequate protection order

(“APO”) providing for additional monthly payments to Wells Fargo

in the amount of $587.51, until the Debtors cured the postpetition arrears of $5,875.12. The APO was approved as to form

by Debtors’ then counsel. 

In 2014, led by new counsel, the Debtors changed course and

commenced an adversary proceeding against Wells Fargo. Reduced

to its essence, the complaint challenged Wells Fargo’s right to

enforce the Note. It alleged that chain of title had been

broken based on an unlawful assignment and that Wells Fargo had

failed to honor conditions precedent in the Trust Deed following

the Debtors’ default. It also challenged the validity of the

APO in the absence of a modified chapter 13 plan. The complaint

stated five claims for relief: (1) fraudulent transfer under

§ 548; (2) determination of the validity, priority, or extent of

the lien; (3) willful and malicious injury; (4) injunctive

relief; and (5) declaratory relief. 

Wells Fargo moved to dismiss the complaint under Civil

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Rule 12(b)(6) and filed a request for judicial notice attaching

documents that showed its connection to Wachovia and World

Savings Bank. The Debtors opposed. 

At the hearing, the bankruptcy court granted the motion to

dismiss. It stated that a transfer fraudulent as to the Debtors

did not occur simply because of an internal transfer of assets

between World Savings, Wachovia, and Wells Fargo. It also

stated that the confirmed chapter 13 plan did not change Wells

Fargo’s rights and remedies; upon the Debtors’ default under the

Note, the bank was entitled to seek stay relief. Finally, the

bankruptcy court noted that a plan modification appeared

unnecessary in connection with the APO, but, in any event, the

Debtors failed to request this relief previously.

The bankruptcy court entered an order dismissing the

complaint with prejudice. The Debtors timely appealed. 

JURISDICTION

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

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

§ 158.

ISSUES3

1. Whether the bankruptcy court erred in dismissing the

adversary complaint pursuant to Civil Rule 12(b)(6).

3 As Wells Fargo noted in its responsive brief, the

Debtors identified seven issues on appeal. A majority of these

issues, however, were not addressed in the Debtors’ opening

brief and, thus, are deemed waived. This includes, for example,

that the bankruptcy court erred when it took judicial notice of

Wells Fargo’s documents evidencing the bank name change and

merger.

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2. Whether the bankruptcy court abused its discretion in

dismissing the adversary complaint without leave to amend.

STANDARDS OF REVIEW

We review dismissal of an adversary proceeding under Civil

Rule 12(b)(6) de novo. See Johnson v. Fed. Home Loan Mortg.

Corp., 793 F.3d 1005, 1007 (9th Cir. 2015). A dismissal without

leave to amend is reviewed for abuse of discretion. Tracht Gut,

LLC v. Cnty. of Los Angeles Treasurer & Tax Collector

(In re Tracht Gut, LLC), 503 B.R. 804, 810 (9th Cir. BAP 2014). 

A bankruptcy court abuses its discretion if it applies the wrong

legal standard, misapplies the correct legal standard, or if its

factual findings are illogical, implausible, or without support

in inferences that may be drawn from the facts in the record. 

See TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832

(9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247,

1262 (9th Cir. 2009) (en banc)).

We may affirm on any basis supported by the record. Heers

v. Parsons (In re Heers), 529 B.R. 734, 740 (9th Cir. BAP 2015).

DISCUSSION

A. The deficiency of the Debtors’ opening brief warrants

dismissal of the appeal.

Wells Fargo argues that blatant defects in the Debtors’ opening

brief warrant summary affirmance or dismissal of the appeal. It

contends that the brief falls far short of compliance with the

Federal Rules of Bankruptcy Procedure and, importantly, hinders

its ability to appropriately respond. 

An appeal may be involuntarily dismissed based on an

appellant’s failure to comply with the procedural rules

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governing the presentation of briefs on appeal. See Christian

Legal Soc. Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485

(9th Cir. 2010) (order); Williams v. Gerber Prods. Co., 552 F.3d

934, 937 (9th Cir. 2008); Sekiya v. Gates, 508 F.3d 1198, 1200

(9th Cir. 2007); see also N/S Corp. v. Liberty Mut. Ins. Co.,

127 F.3d 1145, 1146 (9th Cir. 1997) (“In order to give fair

consideration to those who call upon us for justice, we must

insist that parties not clog the system by presenting us with a

slubby mass of words rather than a true brief. Hence we have

briefing rules.”). 

We agree that the Debtors’ opening brief, much like the

adversary complaint, is poorly written and largely nonsensical. 

As pointed out by Wells Fargo, it also falls woefully short of

meeting the requirements of the Federal Rules of Bankruptcy

Procedure; this includes particularly Rule 8014(a), based on the

failures to incorporate: a jurisdictional statement; a concise

statement of the relevant standard of review for each issue

presented; a concise statement of the facts and procedural

history; and, in the “argument” section, if one is to be found

in the brief, citations to legal authority and the record that

are both correct and appropriate. The brief lacks these

necessary components.

The Debtors only cite to the record in arguing alleged bad

faith conduct by Wells Fargo or pointing out that they did not

challenge securitization. We note that the latter argument is

not particularly helpful, as there is no evidence in the record

that the Note and Trust Deed were ever part of a securitization

transaction. 

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Where the brief does contain citation to authority, in many

instances it is either improper or inaccurate. In an appeal to

the BAP, the governing procedural rules are Part VIII of the

Federal Rules of Bankruptcy Procedure and the BAP Rules; where

those rules are silent as to a particular matter of practice,

the Federal Rules of Appellate Procedure and the Ninth Circuit

Rules apply. See 9th Cir. BAP R. 8026-1. In neither instance

are the California Rules of Court applicable, as included in the

table of authorities. The standards of review on a motion to

dismiss an adversary complaint are found in federal law, not

state law. And, while certainly persuasive in certain contexts,

decisions of the California courts of appeal are not binding on

this Panel, particularly with respect to a controversial case,

which is currently pending indirect review by the California

Supreme Court. 

The Debtors’ brief contains many other mischaracterizations

and inaccuracies. Facially, the brief reflects obvious “copied

and pasted” provisions from other cases. It includes a

paragraph discussing the Fair Debt Collection Practices Act

(FDCPA), 15 U.S.C. § 1692 et seq.; the adversary complaint,

however, did not allege an FDCPA claim. And the table of

authorities refers to rules and statutes that are not referenced

to or otherwise discussed in the body of the brief. 

The Debtors’ blatant disregard of the briefing rules is not

only irritating; here, it prevents us from ascertaining with any

degree of certainty their arguments on appeal. Instead, we are

left to speculate as to the substance of their arguments. Thus,

our exercise of discretion to strike the brief and dismiss the

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appeal is warranted. 

Dismissal of an appeal based on a deficient brief,

admittedly, is a harsh result, “especially as its application

could, if unwisely applied, leave a meritorious appellant

without a legal remedy when the fault lies solely with his or

her counsel.” Sekiya v. Gates, 508 F.3d at 1200. Here, insofar

as we can surmise the Debtors’ arguments on appeal, we are

convinced that their claims lack merit; they do not “cry out”

for reversal of the bankruptcy court’s decision to dismiss the

adversary complaint without leave to amend. See N/S Corp.,

127 F.3d at 1146. Thus, even if we review the merits of the

appeal, we are satisfied that the bankruptcy court did not

commit error when it dismissed the adversary complaint without

leave to amend.

B. The bankruptcy court’s dismissal of the adversary complaint

under Civil Rule 12(b)(6) was not erroneous.

A motion to dismiss under Civil Rule 12(b)(6) (incorporated

into adversary proceedings by Rule 7012(b)) challenges the

sufficiency of the allegations set forth in a complaint and “may

be based on either a lack of [: (1)] a cognizable legal theory

or . . . [(2)] sufficient facts alleged under a cognizable

legal theory.” Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks

and citation omitted). The court’s review is limited to the

allegations of material facts set forth in the complaint, which

must be read in the light most favorable to the non-moving

party, and together with all reasonable inferences therefrom,

must be taken as true. Pareto v. Fed. Dep’t Ins. Corp.,

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139 F.3d 696, 699 (9th Cir. 1998).

Consistent with Civil Rule 8(a)(2), the factual allegations

in the complaint must state a claim for relief that is facially

plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see

also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Thus,

based on the Iqbal/Twombly rubric, the bankruptcy court must

first identify bare assertions that “do nothing more than state

a legal conclusion—even if that conclusion is cast in the form

of a factual allegation,” and discount them from an assumption

of truth. See Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th

Cir. 2009). Then, if there remain well-pleaded factual

allegations, the bankruptcy court should assume their truth and

determine whether the allegations “and reasonable inferences

from that content” give rise to a plausible claim for relief. 

Id. “[D]etermining whether a complaint states a plausible claim

is context-specific, requiring the reviewing court to draw on

its experience and common sense.” 556 U.S. at 679. 

Fraud claims are subject to a heightened pleading standard. 

See Fed. R. Civ. P. 9(b) (incorporated into adversary

proceedings by Rule 7009). Civil Rule 9(b) provides that “[i]n

alleging fraud or mistake, a party must state with particularity

the circumstances constituting fraud or mistake.” Fed. R. Civ.

P. 9(b). Thus, a complaint alleging fraud must satisfy both

Civil Rules 8 and 9. Cafasso, U.S. ex rel. v. Gen. Dynamics C4

Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). Ultimately,

“the court reviews all allegations holistically, rather than in

isolation, to determine if a complaint is well-pleaded.” Petrie

v. Elec. Game Card, Inc., 761 F.3d 959, 970 (9th Cir. 2014).

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Here, the adversary complaint contains allegations that the

APO violated the confirmed chapter 13 plan. That is incorrect. 

The plan expressly provided for direct payments to Wells Fargo,

outside of the plan; the APO is consistent with this plan

provision. Moreover, we reject the suggestion that the APO

lacked validity in the absence of a modified chapter 13 plan. 

Wells Fargo was entitled to seek payments from the Debtors

following plan confirmation and to pursue stay relief upon their

default; the confirmed plan neither changed the Debtors’

obligation to Wells Fargo under the Note nor fixed the amount of

the monthly payment. If anything, the APO was an accommodation

allowing the Debtors to cure yet another default; a formal plan

modification was not required. 

Consistent with this determination, we also reject the

Debtors’ argument that Wells Fargo violated the automatic stay

by seeking payments from them without first pursuing plan

modification. The Debtors belatedly challenged Wells Fargo’s

right to payment on the Note - notwithstanding that they never

objected to Wells Fargo’s proof of claim, that the confirmed

plan identified Wachovia as the first position lien holder, and,

importantly, that they acquiesced to entry of the APO. But

their last ditch effort to thwart Wells Fargo’s exercise of

rights conferred by pre-petition contract and post-petition

agreement and claim, must fail; the automatic stay did not bar

Wells Fargo’s request that the Debtors honor their own plan. 

The Debtors also largely complain that the bankruptcy court

did not address the adversary complaint on a claim by claim

basis. The record shows, however, that the bankruptcy court

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adequately explained its reasoning for dismissing the complaint

at the hearing; it was not required to address each implausible

claim on a separate and detailed basis to the extent the Debtors

claim.

1. “Fraudulent Transfer” claim

The adversary complaint identifies the first claim in a

heading as “Fraudulent Transfer (FRBP 7001(1) §§ 548)).” 

Section 548 provides for the avoidance of a fraudulent transfer

of debtor’s property made within two years prior to the date of

the petition. A chapter 13 debtor has standing, concurrently

with the trustee, to exercise the avoiding powers under the

Bankruptcy Code. Getsey v. Eiler (In re Cohen), 305 B.R. 886,

899 (9th Cir. BAP 2004). 

The first claim fails for several reasons. First, the

adversary complaint does not allege particular facts as to a

fraudulent transfer, either under the Bankruptcy Code or

California law. Instead, it alleges that Wells Fargo committed

breach of contract based on an alleged breach of the Trust Deed. 

There are vague allegations of conspiracy, misrepresentations,

violations of state and federal law, bad faith, and unlawful

acts - but nothing more.

Second, a lender’s name changes and subsequent merger does

not result in actions constituting a “transfer” within the

meaning of § 548. In support of its motion to dismiss, Wells

Fargo submitted evidence showing that in 2007, World Savings

Bank, FSB changed its name to Wachovia Mortgage, FSB; then, in

2009, Wachovia Mortgage, FSB was “converted” to Wells Fargo Bank

Southwest, N.A., which then merged into Wells Fargo Bank, N.A. 

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The creditor’s name changes did not constitute transfer(s) of an

estate asset and, thus, were not subject to § 548.

Third, even if the adversary complaint contained a proper

§ 548 claim - which we determine it did not - it appears that

any such claim was time-barred by the two-year § 546(a) statute

of limitations, applicable to § 548 avoidance actions. The

Debtors commenced the adversary proceeding in October 2014 -

more than two years after the petition was filed. 

The adversary complaint failed to plead a plausible

fraudulent transfer claim. Thus, the bankruptcy court properly

dismissed the first claim. 

2. “Validity, Priority or Extent of Lien” claim

Citing California Code of Civil Procedure (“CCP”)

§ 526(a)(1), the adversary complaint alleges that the Debtors

are “entitled to the relief demanded [therein] including the

restraining and enjoining the continuance of seeking to

foreclose on the Property. [Wells Fargo has] intentionally

violated the Automatic Stay and abuse[d] the provisions of the”

APO. Then, citing to CCP § 526(a)(2), it further alleges that

“the continuance of foreclosure proceedings during this

litigation could produce irreparable harm to the [Debtors]

consisting of the loss of” the Property. 

California law permits a court to issue an injunction

where: (1) “it appears by the complaint that the plaintiff is

entitled to the relief demanded, and the relief, or any part

thereof, consists in restraining the commission or continuance

of the act complained of, either for a limited period or

perpetually;” or (2) “it appears by the complaint or affidavits

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that the commission or continuance of some act during the

litigation would produce waste, or great or irreparable injury,

to a party to the action.” Cal. Civ. Proc. Code

§ 526(a)(1)-(2). 

As Wells Fargo stated in its motion to dismiss (and

reiterates on appeal), there was no foreclosure proceeding

against the Property. In any event, the Debtors cannot

preemptively challenge a foreclosure proceeding. In California,

nonjudicial foreclosure is governed exclusively by the

California Civil Code. See Gomes v. Countrywide Home Loans,

Inc., 192 Cal. App. 4th 1149, 1155 (2011). And, the statutory

scheme does not permit a party to offensively challenge a

foreclosure sale. See id. (“[N]owhere does the statute provide

for a judicial action to determine whether the person initiating

the foreclosure process is indeed authorized, and we see no

ground for implying such an action.”). 

Even if the Debtors could challenge a prospective

foreclosure proceeding, the adversary complaint does not show

that the Debtors are entitled to the relief requested therein or

that Wells Fargo’s acts would cause them irreparable injury. As

stated, the adversary complaint does not plead facts giving rise

to a plausible fraudulent transfer claim. It is also unclear

how alleged violations of the automatic stay and the APO relate

to a claim to determine the validity, priority, or extent of

Wells Fargo’s lien. 

To the extent the Debtors seek to enjoin Wells Fargo from

seeking payment under the Note or exercising its rights and

remedies thereunder, we reject any such suggestion. Following

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their post-confirmation default, Wells Fargo was entitled to

seek payments from the Debtors pursuant to the APO. Other than

vague accusations, the adversary complaint fails to state with

particularity how Wells Fargo violated the provisions of the

APO. 

The adversary complaint failed to plead facts giving rise

to a plausible claim. Thus, the bankruptcy court properly

dismissed the second claim. 

3. “Willful and Malicious Injury” claim

The adversary complaint identifies the third claim in a

heading titled “Willful and malicious injury (FRBP 7001(6)).” 

Rule 7001(6), however, relates to a nondischargeability

proceeding. 

Citing California Civil Code (“CC”) § 3412, the adversary

complaint alleges that, based on the Debtors’ information and

belief, the “written instruments affecting [the Property] have

become a nullity and that if left outstanding they could cause

injury to [the Debtors], or may be used vexatiously against

them.” It states that the Debtors seek cancellation of the Note

and Trust Deed based on Wells Fargo’s fraudulent activity. 

Otherwise, it alleges, Wells Fargo will be unjustly enriched as

it does not have a right to payment on the Note. 

CC § 3412 provides that a court may order cancellation of

an invalid written instrument that is void or voidable. As

stated, the adversary complaint does not plead facts giving rise

to a plausible fraudulent transfer claim. Nor does it allege

other grounds supporting a plausible challenge to Wells Fargo’s

lien. Given that the adversary complaint does not allege a

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plausible quiet title claim, the bankruptcy court properly

dismissed the third claim. 

4. “Injunctive Relief” claim

Citing “CC § 2934(a)(1),” the adversary complaint next

alleges that non-judicial foreclosure is invalid when “the

trustee under the original deed of trust allegedly acting on

behalf of the encumbrancer of [the Debtors’] real property is

not properly substituted with a ‘recorded’ document.” As “all

beneficiaries, known and unknown, did not effectively execute

the Substitution of Trustee . . . any trustee’s sale is void.” 

CC § 2934 does not contain subsections. It provides that

an assignment of the beneficial interest under a deed of trust

may be recorded and the effects of recordation on priority. 

The adversary complaint does not identify the requested

injunctive relief. Notwithstanding, the claim is not

justiciable. As stated, Wells Fargo never commenced the

foreclosure process against the Property. The bankruptcy court

could not grant relief based upon an event that had yet to

occur, nor could it issue an advisory opinion on an unripe

issue. And, as noted, the Debtors are precluded from

preemptively challenging a foreclosure proceeding. See Gomes,

192 Cal. App. 4th at 1155. 

Given that the fourth claim for relief failed to state a

claim upon which relief could be granted, the bankruptcy court

properly dismissed it. 

5. “Declaratory Relief” claim

Finally, the adversary complaint identifies the fifth claim

in a heading titled “declaratory relief (FRBP 7001(9)).” It

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alleges that the proceeding “is an action for declaratory

relief” pursuant to CCP § 1060 and that Wells Fargo “commenced

an illegal foreclosure action” on the Property. Contradicting

this allegation, it then alleges that Wells Fargo “will

subsequently schedule a Trustee’s (foreclosure) Sale of the

Property (or will commit an illegal and fraudulent Trustee’s

Sale)” and, thus, the Debtors seek a declaration of their rights

so that they “do not continue to suffer at the hands” of Wells

Fargo. Emphasis added. 

CCP § 1060 provides for a right of action to “[a]ny person

interested under a written instrument, excluding a will or a

trust, or under a contract, . . . in cases of actual controversy

relating to the legal rights and duties of the respective

parties . . . .” Cal. Civ. Proc. Code § 1060. 

Here, the fifth claim fails for the same reasons as the

fourth; the claim is not justiciable. And, again, the Debtors

are precluded from preemptively challenging a foreclosure

proceeding. See Gomes, 192 Cal. App. 4th at 1155. There is no

question that the Debtors’ obligations under the Note and Trust

Deed continued post-petition and after plan confirmation. 

Instead, the allegations made in connection with this claim

are blatantly duplicated from another case. The adversary

complaint challenges whether “American” is the present holder in

due course or trust deed beneficiary. And it refers to a

substitution of trustee recorded in Sacramento County on

November 2, 2010, which “purported” substitution of Alliance

Title Co. as trustee of the deed of trust dated November 14,

2007. The Debtors’ challenge involved Wells Fargo, not

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“American.” The Trust Deed was executed in 2005, not in 2007. 

And the trustee under the Trust Deed was Golden West Savings

Association Service Co., not Alliance Title Co.

Again, given that the fifth claim for relief failed to

state a claim upon which relief could be granted, the bankruptcy

court properly dismissed it.

C. The bankruptcy court did not abuse its discretion by

dismissing the adversary complaint without leave to amend.

Dismissal of a complaint under Civil Rule 12(b)(6) is done

typically without prejudice, giving the plaintiff an opportunity

to amend. The bankruptcy court, however, may dismiss an

adversary complaint with prejudice upon determining that any

amendment would be futile. In re Tracht Gut, LLC, 503 B.R. at

815. There is no abuse of discretion if it is clear that the

adversary complaint is beyond rescue by an amendment. 

 That is the case here. The bankruptcy court determined

that dismissal without leave to amend was warranted, as it did

not believe that a transfer of assets resulting from a bank name

change and merger constituted a § 548 fraudulent transfer. Nor

did it believe that Wells Fargo committed a violation of the

stay or that the APO or plan confirmation changed the calculus. 

At oral argument, Debtors’ counsel had no response to what

potential amendment could be made to the adversary complaint. 

On this record and for the reasons already discussed, the

bankruptcy court did not abuse its discretion in determining

that leave to amend was not warranted. And, to the extent we

can discern any other alleged basis for asserted relief, it is

inconsistent with the Debtors’ schedules, position in their

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plan, and the APO and seeks a result unavailable under the

relevant law. 

CONCLUSION

Based on the foregoing, we AFFIRM the bankruptcy court.

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