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UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-14-1569-KiTaKu

)

RICHARD JAMES SWINTEK, ) Adv. No. 8:13-01106-TA

)

Debtor. ) Bk. No. 8:10-22458-TA

) )

)

KAREN M. GOOD, )

)

Appellant, ) ) v. ) O P I N I O N

)

CHARLES W. DAFF, Chapter 7 )

Trustee, )

)

Appellee. )

______________________________)

Argued and Submitted on November 19, 2015, 

at Pasadena, California

Filed - December 18, 2015

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Theodor C. Albert, Bankruptcy Judge, Presiding

 

Appearances: Roya Rohani argued for appellant Karen M. Good;

Arjun Sivakumar of Brown Rudnick LLP argued for

appellee Charles W. Daff, Chapter 7 Trustee.

Before: KIRSCHER, TAYLOR and KURTZ, Bankruptcy Judges.

FILED

DEC 18 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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KIRSCHER, Bankruptcy Judge:

Appellant and judgment creditor Karen Good appeals an order

wherein the bankruptcy court determined that § 108(c)1 did not

toll or extend the one-year expiration period for Good's lien

under CAL. CODE CIV. P. ("CCP") § 708.110(d). This precise question

of law is a matter of first impression before the Panel. We hold

that § 108(c) tolled the one-year expiration period imposed under

CCP § 708.110. Therefore, we VACATE AND REMAND. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Prepetition events

In 2001, two law firms obtained money judgments totaling

approximately $300,000 against Richard J. Swintek, a former

certified public accountant, for unpaid legal fees. In 2009, Good

acquired the money judgments by assignment. She renewed the

judgments in 2010 and began collection efforts. 

On June 30, 2010, the state court issued an Application and

Order for Appearance and Examination ("ORAP") to Swintek pursuant

to CCP § 708.110. Good claims she personally served Swintek with

the ORAP on that same date. Swintek was ordered to appear for

examination on August 19, 2010. 

In July 2010, Good instructed the Orange County Sheriff to

levy upon several deposit accounts and certificates of deposit

held in the name of Swintek and/or his wife. The sheriff took

custody of approximately $67,000. 

1 Unless specified otherwise, all chapter, code and rule

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

the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

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Swintek failed to appear for the ordered examination,

resulting in the state court continuing it until October 14 and

issuing a bench warrant for his arrest. Good claims she served

Swintek with the new notice.

B. Postpetition events

Swintek filed a chapter 7 bankruptcy case on September 2,

2010. He identified Good as a secured creditor with an execution

lien valued at $2,900, and he identified her as an unsecured

creditor holding a claim for $310,000 for "attorney's fees." 

Notably, Good is Swintek's only creditor. Trustee Charles W. Daff

was appointed to Swintek's case. 

Trustee eventually acquired the $67,000 in levied funds. 

Good claimed all rights to them in her filed proof of claim. 

Thereafter, upon Swintek's motion under § 522(f), the bankruptcy

court avoided Good's execution lien to the extent it impaired

Swintek's allowed exemption of $21,725. Trustee was to hold the

balance of the levied funds, $45,274.79 plus any accrued interest.

1. Good's first adversary complaint

In 2013, Good filed an adversary complaint against Trustee

seeking a determination on the priority of her lien and

declaratory relief. Good alleged that upon serving Swintek with

the ORAP, she obtained a lien (the "ORAP Lien") on all of his

personal property assets for one year under CCP § 708.110. Good

alleged that all funds held by Trustee were subject to her ORAP

Lien, yet he was refusing to distribute them to her.

In his motion to dismiss, Trustee argued that Good's ORAP

Lien, issued on June 30, 2010, expired one year after the date of

the order; thus, any lien created by service of the ORAP expired

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on June 30, 2011. Trustee contended the one-year durational

period in CCP § 708.110(d) was not extended or tolled by § 108(c),

citing In re Gbadebo, 431 B.R. 222, 226 n.4 (Bankr. N.D. Cal.

2010). 

Rejecting the "dictum" in Gbadebo that § 108(c) did not apply

to ORAP liens and relying on Kipperman v. Proulx (In re Burns),

291 B.R. 846, 849 n.4 (9th Cir. BAP 2003), the bankruptcy court

ruled that § 108(c) applied to Good's ORAP Lien. Therefore,

because Good had stated a claim for declaratory relief, Trustee's

motion to dismiss was denied.

2. Good's amended adversary complaint and the motions for

summary judgment

Good filed an amended complaint against Trustee and the 

parties filed multiple motions for summary judgment. Good

contended her ORAP Lien constituted an "enforcement" lien under

California law and remained stayed by § 362 until the levied funds

were no longer property of the estate. Because she was not

allowed to continue with her enforcement efforts once Swintek

filed bankruptcy, Good argued that § 108(c) tolled the one-year

enforcement period of her ORAP Lien, citing Miner Corp. v. Hunters

Run Ltd. P'ship (In re Hunters Run Ltd. P'ship), 875 F.2d 1425

(9th Cir. 1989), In re Burns, 291 B.R. at 849, and S. Cal. Bank v.

Zimmerman (In re Hilde), 120 F.3d 950 (9th Cir. 1997). 

Trustee contended that Good's ORAP Lien expired by its own

terms on June 30, 2011, before her adversary complaint was filed,

and that § 108(c) did not toll the one-year period. Trustee

argued that § 108(c) did not apply to an ORAP lien because it is

created by service and does not involve a "commencement" or a

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"continuation" of a civil action, as § 108(c) requires. In

support of his position, Trustee noted a recent case, Wolfe v.

Palladino (In re Harris), Adv. No. 8:13-01125 (Bankr. C.D. Cal.

Apr. 29, 2014), wherein the same bankruptcy court determined that

an ORAP lien is not a "commencement" or "continuation" of a civil

action, but rather is an "anomalous lien" arising after judgment

has been entered and an ORAP properly served; thus, § 108(c) did

not toll an ORAP lien's one-year expiration period. 

In ruling for Trustee, the bankruptcy court acknowledged that

no appellate court within the Ninth Circuit has addressed the

issue of whether § 108(c) tolls the one-year expiration period of

an ORAP lien. A split in persuasive authority also exists among

bankruptcy courts. Ultimately, the bankruptcy court decided to

adopt its prior ruling in Harris: § 108(c) does not toll the oneyear expiration period of an ORAP lien. Accordingly, because Good

had not renewed her ORAP Lien prior to the expiration date in June

2011, it had expired. Therefore, she had no claim against the

levied funds; summary judgment for Trustee was appropriate.

Good timely appealed.

II. JURISDICTION

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

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

III. ISSUE

Did the bankruptcy court err in determining that § 108(c) did

not toll the one-year expiration period for an ORAP lien under CCP

§ 708.110(d)?

IV. STANDARD OF REVIEW

We review the bankruptcy court's legal conclusions, including

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its interpretation of the Code, de novo. Sachan v. Huh (In re

Huh), 506 B.R. 257, 262 (9th Cir. BAP 2014)(en banc). Likewise,

we review the bankruptcy court's order granting summary judgment

de novo. Centre Ins. Co. v. SNTL Corp. (In re SNTL Corp.), 380

B.R. 204, 211 (9th Cir. BAP 2007).

V. DISCUSSION

Trustee disputes and Good contends she held a valid ORAP lien

against Swintek at the time he filed his bankruptcy case. This

contention may involve a factual matter the bankruptcy court will

have to determine on remand. If valid, then it is undisputed the

one-year expiration period under CCP § 708.110(d) had not yet run

when Swintek filed his bankruptcy case, just two months after Good

allegedly served him with the ORAP. Therefore, the question

before us is whether § 108(c) tolled the running of the one-year

durational period. We conclude it did.

A. CCP § 708.110 and 708.120

In 1982, California enacted a comprehensive Enforcement of

Judgments Law governing the enforcement of all civil judgments in

California. CCP § 680.010-709.030. It reflects the legislative

intent to allow judgment creditors a "'speedy and inexpensive

means . . . to obtain priority over other creditors . . . .'" In

re Hilde, 120 F.3d at 954 (citation omitted)(emphasis in

original); In re Burns, 291 B.R. at 850. 

Under CCP § 708.110, a judgment creditor may apply to the

court for an order requiring the judgment debtor to appear for an

examination "to aid [the creditor's] enforcement of the money

judgment." CCP § 708.110(a). Service of the ORAP on the judgment

debtor creates an enforceable lien on the debtor's personal

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property. CCP § 708.110(d).2 

An ORAP lien exists from the date the order to appear is

served and is effective for one year unless extended or sooner

terminated by the court. CCP § 708.110(d). In other words, an

ORAP lien will expire by its own terms if it is not renewed before

the expiration of one year. Service of the ORAP is all that is

required to create and establish the priority of the ORAP lien. 

In re Hilde, 120 F.3d at 953; In re Burns, 291 B.R. at 850. An

ORAP lien is allowed to be a "secret" or "hidden" lien; it is not

recorded or published. "'Other creditors are able to discover the

lien only if they know about the creditor's judgment and review

the court file.'" Morgan Creek Prods. v. Franchise Pictures LLC

(In re Franchise Pictures LLC), 389 B.R. 131, 141 (Bankr. C.D.

Cal. 2008) (quoting Hon. Alan M. Ahart, Cal. Prac. Guide: 

Enforcing Judgments & Debts § 6:1306 (The Rutter Group 2007)). 

See In re Hilde, 120 F.3d at 956 (public policy issues trustee has

with an ORAP lien being a "secret" lien is something for the

California Legislature to solve). 

B. Section 108(c)

Section 108(c) provides that "if applicable nonbankruptcy law

. . . fixes a period for commencing or continuing a civil action

in a court other than a bankruptcy court on a claim against the

2 Specifically, CCP § 708.110(d) provides: 

The judgment creditor shall personally serve a copy of the

order on the judgment debtor not less than 10 days before the

date set for the examination. Service shall be made in the

manner specified in Section 415.10. Service of the order

creates a lien on the personal property of the judgment

debtor for a period of one year from the date of the order

unless extended or sooner terminated by the court.

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debtor, . . . and such period has not expired before the date of

the filing of the petition, then such period does not expire until

. . . 30 days after notice of the termination or expiration of the

stay under section 362 . . . ." The "applicable nonbankruptcy

law" at issue here is CCP § 708.110(d).

C. The bankruptcy court erred in determining that the one-year

expiration period for an ORAP lien is not tolled by § 108(c).

1. Preliminary matters

Before we begin our analysis, we make two preliminary

observations. We conclude that CCP § 708.110(d) is a statute of

duration as opposed to a statute of limitations. See Spirtos v.

Moreno (In re Spirtos), 221 F.3d 1079, 1080 (9th Cir. 2000)(tenyear expiration period for renewing a judgment lien under CCP

§ 683.110 is a statute of duration); In re Hunter's Run Ltd.

P'ship, 875 F.2d at 1426 (eight-month enforcement period in

Washington state mechanic's lien statute is a statute of

duration); see also Commission Comments to CCP § 708.110 which

states: "Subdivision (d) of Section 708.110 is amended to

prescribe a one-year duration for the lien created under this

section." (Emphasis added). Nonetheless, whether something is a

statute of limitations or a durational period matters not;

§ 108(c) applies to either. In re Hunter's Run Ltd. P'ship, 875

F.2d at 1427; United States v. Valley Nat'l Bank (In re Decker),

199 B.R. 684, 688 (9th Cir. BAP 1996).

Second, the appeal is not moot based on Swintek's discharge. 

Even though Swintek received a discharge in October 2012, which

effectively terminated the automatic stay as to him, the stay is

still in effect here because funds remain in the bankruptcy

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estate, which Trustee has not abandoned. § 362(a)(3), (c)(1); In

re Spirtos, 221 F.3d at 1081 (so long as assets remain in the

estate the stay as to property of the estate remains in effect). 

2. The bankruptcy court cases addressing this issue are

split; the Ninth Circuit and BAP cases cited by the

parties do not resolve it. 

Two California bankruptcy courts have addressed the precise

issue before us, but unfortunately neither court provided an

extensive analysis. They also reached different conclusions. In

Franchise Pictures LLC, the creditor obtained an ORAP lien in

March 2004; the debtor filed its bankruptcy case in August 2004,

before the lien had expired. 389 B.R. at 137. The debtor argued

that the creditor's ORAP lien had expired in March 2005, while the

bankruptcy case was pending, and was therefore invalid. Id. at

140. The issue involved whether the one-year duration of the ORAP

lien was tolled or extended under § 108(c) in order to avoid the

March 2005 expiration. Id. In determining that § 108(c) tolled

the one-year period and that the ORAP lien was still in force, the

bankruptcy court noted:

This section generally applies "to time periods within

which a creditor must bring an action to enforce a lien

before the lien expires. It also applies to the time

period to renew a judgment to maintain its

enforceability." Collier on Bankr., ¶ 108.04[2] (Alan N.

Resnick & Henry J. Sommer, eds.-in-chief, 15th ed. rev.

2007)(footnotes omitted).3

Id.

The bankruptcy court in Gbadebo provided far less analysis on

the issue. There, a creditor had objected to the debtor's chapter

11 plan which classified the creditor's claim as unsecured. 431

3 The bankruptcy court also cited to In re Burns, supra, which we discuss below. 

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B.R. at 225. The creditor argued he held a secured claim against

the debtor's personal property by virtue of an ORAP lien obtained

prior to the bankruptcy filing. Id. The bankruptcy court held

that the creditor's objection may have had merit when it was first

asserted, but the one-year ORAP lien had since expired. Id. at

226. To support its decision, the Gbadebo court stated in a

footnote: "The Court does not read 11 U.S.C. § 108 as extending

this period." Id. at 226 n.4.

Good argues that Burns and Hilde, while not addressing the

precise issue before us, have implicitly and necessarily held that

an ORAP lien is tolled by § 108(c). In Burns, the issue before

the Panel was whether service of an ORAP on the debtor only was

sufficient to create an ORAP lien in qui tam settlement monies

being held by the United States. 291 B.R. at 848-53. Tolling

under § 108(c) was not at issue on appeal, nor was it examined. 

The only mention of tolling was in a footnote, where the Panel

stated: "The [bankruptcy] court also ruled that the one-year

duration of the ORAP Lien had been tolled by Burns' bankruptcy

filing, which occurred nine months after service of the ORAP." 

Id. at 849 n.3. The Franchise Pictures LLC court relied upon the

Panel's statement in this footnote for its decision as well. 389

B.R. at 141. While one could view this as an "implicit" ruling by

the Panel that the tolling provision of § 108(c) applies to an

ORAP lien, we do not wish to speculate. We believe the Panel's

statement there was merely informational. 

In Hilde, the issue was whether or not an ORAP lien requires

perfection. The Ninth Circuit, in reversing the Panel's decision,

held that it does not. 120 F.3d at 953-54. In the Panel's

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reversed decision, the issue of tolling under § 108(c) was briefly

discussed in a footnote, which stated: "If the ORAP lien was

perfected, then its duration time would have been tolled by

§ 108(c) . . . ." Zimmerman v. S. Cal. Bank (In re Hilde), 189

B.R. 776, 779 n.3 (9th Cir. BAP 1995), rev'd, 120 F.3d 950 (9th

Cir. 1997). However, the Panel conceded the lien's termination

was not at issue and it declined to raise the issue sua sponte. 

Id. This footnote, which was not addressed by the Ninth Circuit,

appears to be only dicta. Moreover, the Ninth Circuit did not

discuss the issue of tolling, focusing entirely on the question of

perfection.

3. Spirtos controls this issue.

We conclude that Spirtos, a 2000 Ninth Circuit decision not

raised by the parties, resolves the issue before us. There, the

wife of the deceased debtor argued that the creditor's judgment

lien was void under the California statute of duration in CCP

§ 683.020, which provides that a judgment lien becomes

unenforceable after ten years. 221 F.3d at 1080. The creditor

obtained the judgment in 1983, the debtor's bankruptcy case was

filed in 1987 and he received a discharge in 1996. Id. Thus, the

ten-year period to renew the judgment expired in 1993, after the

debtor filed for bankruptcy, but before he received his discharge. 

Because the creditor failed to renew her judgment under CCP

§ 683.110, the wife contended the claim should be disallowed. Id.

After reviewing the statutory language of § 108(c), the Ninth

Circuit held that the ten-year period during which the creditor

had to renew her judgment lien had not expired:

On its face, section 108(c) appears to cover our

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situation. The California statute of duration is a

nonbankruptcy law that applies to the Moreno judgment. 

The statute fixes a ten-year period during which Moreno

had to keep the judgment from expiring by filing for

renewal. Under section 108(c), then, the limitations

period does not expire until 30 days after the end of the

automatic stay.

Id. at 1080-81. See also Morton v. Nat'l Bank of N.Y.C. (In re

Morton), 866 F.2d 561, 566 (2d. Cir. 1989)(holding same regarding

ten-year duration period to renew judgment liens in New York).

The Spirtos court also rejected the wife's argument that the

creditor could not avail herself of § 108(c) unless she was barred

by the automatic stay from renewing her judgment. 221 F.3d at

1081. "It is the creditor's inability to enforce the judgment for

a portion of the ten-year period that keeps the period of duration

open under section 108(c)." Id. 

Although Spirtos did not specifically address an ORAP lien

under CCP § 708.110, we believe its holding controls by analogy. 

We too are faced with a state statute of duration that fixes a

certain time period during which a creditor's ORAP lien is

effective but after which it will expire if not renewed by the

court. Similar to a judgment lien, an ORAP lien is an "other

lien[] created by [the] enforcement process," which attaches to

the judgment debtor's personal property. See CCP Art. 5 of Part

2, Title 9 Enforcement of Judgments, Div. 2, Ch. 2; CCP § 697.910. 

Whether Good was unable to renew her ORAP Lien because of the

automatic stay is of no consequence. In re Spirtos, 221 F.3d at

1081. The fact remains that she was prohibited from enforcing the

ORAP Lien attaching Swintek's nonexempt personal property which

became, and remains, property of the estate. See id.;

§ 362(a)(4). 

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In reaching its decision, the bankruptcy court focused on the

phrase in § 108(c) "commencing or continuing a civil action." 

Relying on a California Bankruptcy Journal article, the bankruptcy

court reasoned that an ORAP lien is neither a "commencement" nor a

"continuation" of a civil action, but rather is an "anomalous

lien" arising after a judgment has been entered and an ORAP

properly served. In the aforementioned article, the authors

opined:

[T]o find that 11 U.S.C. § 108(c) tolls the time a

judgment creditor has to renew an ORAP lien seems to

require that a mere request to "extend" (as expressly

stated in CCP § 708.110) the life of an ORAP lien be

deemed the equivalent to the "commencement" or

"continuation" of a civil action, an analogy which some

may find conceptually hard to swallow, particularly when

one considers that it is the service of the ORAP is what

creates the initial lien. 

32 Cal. Bankr. J. 473, 476 (2013)(emphasis in original). Not

surprisingly, Trustee focuses on the same phrase in § 108(c) to

argue that it does not apply to an ORAP lien. We disagree.

The Spirtos court did not analyze whether renewing a judgment

lien under CCP § 683.110 was a "commencement" or a "continuation"

of a civil action; it merely opined that § 108(c) applied. The

words "commencing" or "continuing" are not defined in the Code. 

Arguably, the Ninth Circuit must have considered such lien

renewals a "continuation" of a civil action. We see nothing

different here. Good held money judgments that were obtained

through civil actions in the California state court. She then

took the steps necessary to obtain the ORAP from that same court,

which gave her the right to examine Swintek about his assets

available to satisfy the judgments. She then, as she alleges,

properly served Swintek with the ORAP thereby creating the ORAP

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Lien on his nonexempt personal property. 

Trustee contends that because only service is needed to

create an ORAP lien, it is not a "commencement" or a

"continuation" of a civil action. Trustee overlooks the fact that

while an ORAP lien is created by proper service, obtaining an ORAP

itself is not just some random, unconnected act. 

An ORAP is a means by which a judgment creditor can examine

the judgment debtor to discover property and apply it toward the

satisfaction of the original money judgment. Imperial Bank v. Pim

Elec., Inc., 33 Cal. App. 4th 540, 546-47 (1995). A judgment

debtor's examination is a "supplemental proceeding attendant to

the [original] case." United States v. Feldman, 324 F. Supp.2d

1112, 1117 (C.D. Cal. 2004). Even though the initial civil action

may be complete, an application for an ORAP is generally filed in

the same court where the original money judgment was entered. CCP

§ 708.160(a). The order is docketed in the same civil action. We

fail to see how an ORAP and the attendant lien to enforce the

money judgment is not a "continuation" of the initial civil

action. See In re Lobherr, 282 B.R. 912, 916 (Bankr. C.D. Cal.

2002)(renewal of a judgment, which is a judicially noticed process

and not merely a procedural act, constitutes a "continuation" of a

proceeding as contemplated by § 362(a)(1) and violated the

automatic stay). 

Moreover, although proper service is all that is necessary to

obtain an ORAP lien initially, court intervention is required to

extend it. A party generally files a noticed motion in the

initial civil action requesting the extension, which the judge

considers and grants or denies. See Bank of Montreal v. SK Foods,

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LLC, Case No. 11-80133, Dkt. Nos. 84 & 89 (N.D. Cal. 2013)(Notice

of Motion and Motion to Extend Duration of ORAP Lien and Order). 

Thus, the renewal of an ORAP lien is clearly a "continuation" of

the initial civil action, if not a "commencement" of an action

within the initial civil action.

Accordingly, we hold that § 108(c) tolls the one-year

expiration period imposed by CCP § 708.110(d). To hold otherwise

"not only would create a substantial inequity, but also would give

the debtor the power to eliminate certain secured claims simply by

filing for bankruptcy at the appropriate time and then allowing

the limitation period to run while it remained under the

protection of the automatic stay. Exactly this type of inequity

congress [sic] sought to remedy by enacting § 108(c)[.]" In re

Morton, 866 F.2d at 567. Therefore, Good's ORAP Lien, assuming

the bankruptcy court finds it is valid upon remand, will not

expire until 30 days after she receives notice of the termination

of the automatic stay. As a result of our holding, we also

conclude the bankruptcy court erred in granting Trustee's renewed

motion for summary judgment on the basis that Good's ORAP Lien had

expired and so she had no claim to the levied funds. 

VI. CONCLUSION

For the foregoing reasons, we VACATE and REMAND. 

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