In Re Raymond L. Olsen, et al.

Case No. A91-779 Civ. (consolidated)

By: THE HONORABLE JAMES K. SINGLETON

Deputy Clerk: Marvel Hansbraugh, Case Management: 271-5575*

PROCEEDINGS: ORDER FROM CHAMBERS

This Court has addressed most of the issues in this case in two prior omnibus orders. See Docket Nos. 100 & 101 and Order at Docket No. 1 02. The only remaining issues involve the appeal by John Olsen. See Order at Docket No. 11 6. The Court has reviewed the parties' appellate briefs at Docket Nos. 11 8, 11 9, and 121. 1 conclude that further oral argument would not be helpful. See Local General Rule 5(C). Specifically, I find that the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. See Fed. R. App. P. 34(a).

John Olsen's appeal concerns an allegedly fraudulent conveyance of property, in the bankruptcy estate, by the debtors Raymond and Gladys Olsen to their son and daughter-in-law, John and Olivia Olsen. There is no question that the transfer was for inadequate consideration. The Olsens argue that the trustee's action to set aside the transfer was untimely. The trustee concedes that the action was a few months tardy, but argues that the statute was equitably tolled because of the Olsen's conduct. The bankruptcy judge agreed. The Olsens heap invective on Judge Ross and the trustee, but do not seem to dispute the historical facts upon which Judge Ross relies. Their legal argument is that statutes of limitations in bankruptcy law are strict and cannot be tolled. That does not appear to be the law. See Smith v. Mark Twain Nat'l Bank, 8O5 F.2d 278, 293 (8th Cir. 1986). I conclude that the Ninth Circuit will follow the Eighth, if and when the issue is before it, and will hold that the debtor's conduct may toll the statute of limitations in an appropriate case. I therefore reject the Olsen's legal argument.

We must now look to the facts. The Olsens are proceeding pro se and will be given the benefit of any doubt. I have no doubts as to the facts of this case, however, since Judge Ross repeatedly asked the Olsens to provide evidence that they had given the trustee actual notice of the transfers and they did not. It appears undisputed that the trustee did not learn of the transfers within two years of filing suit. It does not matter whether we conclude, as Judge Ross did, that the statute began to run at the time of the transfers but was equitably tolled while the fact of the transfers was concealed by the Olsens; or whether we conclude, as both the Alaska Supreme Court and the Ninth Circuit would probably conclude, that the statute did not begin to run until the trustee knew, or should have known, of the transfers. Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1306-08 (9th Cir. 1992)(adopting discovery rule); Cameron v. State, 822 P.2d 1362, 1364-67 (Alaska 1991)(same). When a person knew, or should have known, of the facts necessary to establish her cause of action is a question of fact. Nevada Power Co., 955 F.2d at 1307.⁽¹⁾ Judge Ross' conclusion, that the trustee did not have knowledge of the transfers, is not clearly erroneous. Therefore, Judge Ross properly denied the Olsen's motion to dismiss and properly granted the trustee's motion for summary judgment. It would also appear that Judge Ross correctly concluded that the trustee's action was not barred by the doctrine of laches. There is no evidence that the delay harmed the Olsens in any significant way.⁽²⁾       3 ABR 160 

THE DECISION OF THE BANKRUPTCY COURT IN ADVERSARY NO. 5-84-00009-005 IS AFFIRMED. THE APPEAL OF JOHN OLSEN IS DISMISSED FOR LACK OF MERIT. THE COMPLAINT IN CASE NO. A92-387, WHICH MERELY REPEATS THE CONTENTIONS ADDRESSED AND REJECTED IN THIS DECISION, IS DISMISSED WITH PREJUDICE.

The Court has carefully considered the responses to this Court's former orders, which Raymond and Gladys Olsen have made, at Docket Nos. 112 and 117. Treating those pleadings as motions for rehearing or reconsideration or for relief from judgment, the motions are DENIED.

No new matter has been presented. The Court has rejected the Olsen's statute of limitation defenses. The Court has reviewed the bank's status report at Docket No. 113 and agrees that all issues have now been decided and that final judgment as to all claims on appeal may be entered. John Olsen has appealed at Docket No. 103, and Raymond Olsen has appealed at Docket No. 104. The Ninth Circuit may consider those appeals premature because this Court has not entered the certifications required by Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1292. Final judgment is now entered. The Olsens should feel free to address any orders of this Court, whenever issued, with which they disagree, in a single omnibus appeal.

JUDGMENT IS HEREBY ENTERED IN FAVOR OF ALL DEFENDANTS AND AGAINST RAYMOND OLSEN, GLADYS OLSEN, JOHN OLSEN AND OLIVIA OLSEN, AS TO ALL CLAIMS ON APPEAL TO THIS COURT FROM THE BANKRUPTCY COURT WHICH ARE IDENTIFIED IN THIS DECISION AND IN THE ORDERS AT DOCKET NOS. 100 AND 101.

Entered at the direction of the Honorable James K. Singleton, United States District Court Judge, by Ms. A. Susan Buenafe-Bamba, secretary to Judge Singleton.

* ALL INQUIRIES REGARDING THE SCHEDULING OR CALENDARING OF THIS CASE SHOULD BE DIRECTED TO THE ABOVE-INDICATED CASE MANAGER.

C.F. No. 1

N O T E S:

      3 ABR 159  1. A person has actual knowledge of a fact when she knows of its existence. She has "inquiry" notice of a fact when she is aware of facts which would lead a reasonable person to undertake an investigation which, if pursued, would disclose the fact in issue. I understand Judge Ross to have concluded that there was no evidence that the trustee had actual or inquiry notice of the transfers more than two years before he filed suit to set them aside.

      3 ABR 159  2. The Olsens may be arguing that the trustee had constructive knowledge of the quit claim deeds at the time they were recorded. In the absence of some evidence that the trustee had reason to search the land records to discover conveyances, constructive knowledge is not relevant.