Opinion
No. 08-60052.
Argued and Submitted March 4, 2010.
Filed March 25, 2010.
Cynthia Futter, Esquire, Futter-Wells, PC, Santa Monica, CA, for Debtor.
Anne Wells, Futter-Wells, PC, Santa Monica, CA, for Appellant.
David S. Kupetz, Esquire, Bankruptcy Counsel, Sulmeyerkupetz, A. Professional Corporation, Beth Ann Young, Esquire, Levene Neale Bender Rankin Brill, LLP, Los Angeles, CA, Robert Dale Ginter, Kelly L. Pope, Downey Brand, LLP, Sacramento, CA, for Appellees.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel, Pappas, Klein, and Markell, Bankruptcy Judges, Presiding. BAP No. CC-08-1021-PaMkK.
Before: CANBY, GOULD and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction to review the decision of the Bankruptcy Appellate Panel under 28 U.S.C. § 158, and we affirm.
Branford Partners, LLC, was not required to plead in a separate adversary proceeding its avoidance powers under 11 U.S.C. § 544 and § 545 as a defense to All-Tex, Inc.'s alleged liens and interests in the property, and the bankruptcy court properly treated Branford's motion to dismiss as a motion for summary judgment. See Fed.R.Bankr.P. 7001, 7012, 7056; Chbat v. Tleel (In re Tleel), 876 F.2d 769, 770 (9th Cir. 1989); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532-33 (9th Cir. 1985).
A bona fide purchaser under California law would not have had constructive or inquiry notice of All-Tex's alleged liens and interests in the property because All-Tex did not record its interests in the title record, did not file a lis pendens, and did not have clear and open possession of the property in a manner that contradicted record title. See, e.g., Robertson v. Peters (In re Weisman), 5 F.3d 417, 420-21 (9th Cir. 1993); Nat'l Bank of Alaska, N.A. v. Erickson (In re Seaway Express Corp.), 912 F.2d 1125, 1128-29 (9th Cir. 1990); Tleel, 876 F.2d at 772. Neither the property's possible use as a landfill nor the reference to the contract in the city's files would have put a reasonably prudent purchaser on constructive or inquiry notice of the alleged liens and interests. See Probasco v. Eads (In re Probasco), 839 F.2d 1352, 1355 (9th Cir. 1988).
The bankruptcy court did not err in concluding that Branford could avoid All-Tex's alleged liens and interests in the property, and that All-Tex could not assert a separate claim for specific performance. See Weisman, 5 F.3d at 419-21; see also Sherwood Partners, Inc. v. Lycos, Inc., 394 F.3d 1198, 1204 (9th Cir. 2005); Aslan v. Sycamore Inv. Co. (In re Aslan), 909 F.2d 367, 370-71 (9th Cir. 1990).