NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 17 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: EDWARD WILLIAMS CUTTER, No. 11-60005
II,
BAP No. 09-1393
Debtor,
MEMORANDUM*
EDWARD WILLIAMS CUTTER, II and
JOHN F. CUTTER, Guardian ad Litem for
Edward Williams Cutter aka Trip Cutter,
Appellants,
v.
DAVID SEROR, Ch 7 Trustee and
ZORAN VUJIC,
Appellees.
In re: EDWARD WILLIAMS CUTTER, No. 11-60010
II,
BAP No. 10-1022
Debtor,
DAVID SEROR,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellant,
v.
EDWARD WILLIAMS CUTTER, II; et
al.,
Appellees,
_____________________________,
ZORAN VUJIC,
and
UST - UNITED STATES TRUSTEE,
WOODLAND HILLS,
Trustee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Dunn, and Novack, Bankruptcy Judges, Presiding
Submitted December 5, 2011**
San Francisco, California
Before: ALARCÓN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Edward Williams Cutter, II (“Edward”), the debtor, and John F. Cutter
(“John”), as guardian ad litem for Trip Cutter (“Trip”), Edward’s son, appeal from
the opinion of the Bankruptcy Appellate Panel (“BAP”) affirming the Bankruptcy
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Court’s determination that certain real property located on Thurston Circle, Los
Angeles, was conveyed to Edward rather than Trip and therefore is within the
bankruptcy estate. David Seror, the Chapter 7 Trustee, cross-appeals from the
BAP’s affirmance of the Bankruptcy Court’s determination that Trip has a one-
third interest in certain property located on Whipple Street in North Hollywood.
We affirm the Bankruptcy Court.1
In Weisman v. Roberston (In re Weisman), 5 F.3d 417, 421 (9th Cir. 1993),
we stated that “[w]hether the circumstances are sufficient to require inquiry as to
another’s interest in property for the purposes of [California Civil Code] section 19
is a question of fact, even where there is no dispute over the historical facts,” thus
invoking a clear error standard of review. In Murray v. Bammer (In re Bammer),
131 F.3d 788, 791-92 (9th Cir. 1997) (en banc), we reiterated that the Bankruptcy
Court’s determination of historical facts are reviewed for clear error, but held that
mixed questions concerning the selection of the applicable legal rules and the
application of the facts to those rules are reviewed de novo.
1. Edward and John assert that the Bankruptcy Court failed to give proper
weight to the Declaration of John J. Ermatinger, which sets forth his intent to name
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
3
Trip as a grantee of the Thurston Circle property. The record shows that the
Bankruptcy Court properly considered Ermatinger’s declaration, but reasonably
determined that the property was conveyed to Edward based on a number of
relevant factors. The court noted that the name on the title was “Edward W.
Cutter, a Single Man” which coincides with Edward’s name and marital status. In
addition, the court considered that: (a) Trip was a minor, (b) the California
Uniform Transfer to Minors Act was not used to attempt to convey an interest to
Trip, (c) Edward financed the purchase of the property, and (d) Edward treated the
Thurston property as his own. Edward and John have not shown that the
Bankruptcy Court erred in determining that the Thurston Circle property was
conveyed to Edward.
2. Seror, the Chapter 7 Trustee, cross-appeals alleging that the Bankruptcy
Court erred in awarding a one-third interest in the Whipple property to Trip.
Specifically, the Trustee argues that the use of the language “Edward Williams
Cutter, Fils” did not place him on inquiry notice and that in any event, an inquiry
would not have revealed that Trip was the owner of a one-third interest.2 We agree
with the BAP that the evidence before the Bankruptcy Court presented “two
plausible interpretations of the facts, and its choice between them cannot be clearly
2
Seror’s request for judicial notice is granted.
4
erroneous.” In re Cutter, 2010 WL 6467694, at *16 (B.A.P. 9th Cir. 2010)
(unpublished) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573
(1985). Seror has not demonstrated that the Bankruptcy Court erred in determining
that Trip has a one-third interest in the Whipple property.
As neither appellants nor cross-appellee have shown that the Bankruptcy
Court erred in its rulings, its Judgment After Trial, filed and entered on October 30,
2009, is affirmed.
AFFIRMED.
5
FILED
In re Cutter, Case Nos. 11-60005 & 11-60010 JAN 17 2012
MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring: U.S. COURT OF APPEALS
I agree with the outcome of the majority’s Memorandum Disposition.
However, I write separately to highlight the appropriate standard of review. The
BAP applied the correct clearly erroneous standard of review and correctly found
that the bankruptcy court did not clearly err in its decisions. Cutter v. Seror (In re
Cutter), 2010 WL 6467694, *15–16 (B.A.P. 9th Cir. 2010). In their briefs, the
parties agree, proposing the clearly erroneous standard as the appropriate standard
of review.
This court has specifically addressed the proper standard of review when
California Civil Code Section 19 is determinative, and we face such a situation
here. “Whether the circumstances are sufficient to require inquiry as to another’s
interest in property for the purposes of section 19 is a question of fact, even where
there is no dispute over the historical facts.” Weisman v. Peters (In re Weisman), 5
F.3d 417, 421 (9th Cir. 1993). Questions of fact are reviewed for clear error.
United States v. Hinkson, 585 F.3d 1247, 1259–60 (9th Cir. 2009) (en banc);
Murray v. Bammer (In re Bammer), 131 F.3d 788, 791 (9th Cir. 1997) (en banc);
In re Weisman, 5 F.3d at 419. Therefore, the proper standard of review in this case
is the clearly erroneous standard. See In re Cutter, 2010 WL 6467694, *7, 15–16.
1
In In re Weisman, the court emphasized the underlying facts that must be
determined in order to decide if the trustee was on inquiry or constructive notice. 5
F.3d at 421 (“The essential dispute between the parties is whether Peters’ and
Neergaard’s possession of the house was consistent or inconsistent with the record
title in Peters’ and Weisman’s names.”). Similarly, here, the central dispute
involves the actions by the debtor and others and their consistency with the names
on the deeds. See Maj. Memo. at 3–5. Therefore, In re Weisman held that the
specific situation we face in this appeal is a question of fact, and thus any
presumption that this case should be reviewed de novo is overcome.
While language from In re Bammer may suggest that a de novo review is
appropriate in certain situations, its holding is narrow and does not overrule In re
Weisman here. In re Bammer considered whether the debtor’s fraudulent conduct
qualified as “malicious” under 11 U.S.C. § 523(a)(6) and did not suggest that
mixed questions are always reviewed de novo. 131 F.3d 791–92. Thus, because
the question at hand is essentially factual and In re Weisman recognized the factual
nature of this determination, see 5 F.3d at 421, the language in In re Bammer is
inapplicable.
2