NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: GLOBAL REACH INVESTMENT No. 12-60028
CORP.,
BAP No. 11-1187
Debtor,
MEMORANDUM*
HERMAN KWAI,
Appellant,
v.
ANDREA A. WIRUM, Trustee,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Hollowell, Dunn, and Saltzman, Bankruptcy Judges, Presiding
Argued and Submitted April 8, 2014
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BENAVIDES,** TALLMAN, and CLIFTON, Circuit Judges.
Herman Kwai appeals the decision of the Bankruptcy Appellate Panel
affirming the bankruptcy court’s order authorizing the sale of the debtor’s interest
in the stock of Starble International, Ltd. We review the decision of the
bankruptcy court independently, In re Kimura, 969 F.2d 806, 810 (9th Cir. 1992),
and affirm.
1. The bankruptcy court and BAP correctly found that the Trustee was
permitted to sell the debtor’s interest in the stock under 11 U.S.C. § 363(b). This
case is distinguishable from In re Popp, 323 B.R. 260 (B.A.P. 9th Cir. 2005),
because the debtor never disclosed any dispute over the stock ownership until the
Trustee attempted to sell the stock.
2. The bankruptcy court and BAP were also correct that the purchaser, the
designee of Burlingame Investment Corporation, was a good-faith purchaser under
11 U.S.C. § 363(m). Kwai does not allege any “fraud, collusion between the
purchaser and other bidders or the trustee, or an attempt to take grossly unfair
advantage of other bidders.” In re Ewell, 958 F.2d 276, 281 (9th Cir. 1992)
(internal quotation marks omitted). Nor is there an adverse claim to the property
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2
that was sold, as Kwai claims, because the Trustee sold only whatever interest
Global Reach owned.
3. The bankruptcy court did not err in denying Kwai’s motion for
reconsideration on the ground that the court failed to protect Kwai’s interest in the
Starble stock. See 11 U.S.C. § 363(e). Kwai did not allege any grounds for relief
under Rule 60(b). See Fed. R. Bankr. P. R. 9024; Fuller v. M.G. Jewelry, 950 F.2d
1437, 1442 (9th Cir. 1991). And, as Kwai conceded to the bankruptcy court,
Kwai’s claim for indemnification will not be destroyed if Global Reach’s interest
in Starble is sold.
4. The BAP was correct that, because BIC’s designee was a good-faith
purchaser under § 363(m), and Kwai did not obtain a stay of the sale pending
appeal, Kwai may not challenge the price for which Global Reach’s interest in the
stock was sold. See 11 U.S.C. § 363(m); In re R.B.B., Inc., 211 F.3d 475, 478–80
(9th Cir. 2000).
Kwai’s motion for judicial notice, filed on December 5, 2012, is granted.
AFFIRMED.
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