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In Re Marciano

October 5, 2012

IN RE MARCIANO


Bk. Case No. 1:11-BK-10426-VK

The opinion of the court was delivered by: Present: The Honorable A. Howard Matz, U.S. District Judge

JS-6; O

CIVIL MINUTES - GENERAL

Stephen Montes Not Reported

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:

Proceedings: IN CHAMBERS (No Proceedings Held)

INTRODUCTION

Appellant-Debtor Georges Marciano appeals from several related bankruptcy court orders ruling that an IRA account was non-exempt property of the estate and allowing the Trustee to use those funds to retain a Canadian law firm. The bankruptcy court concluded that the account, which bore Marciano's name, was property of the estate and denied his claim of exemption based on a finding that Marciano had acted in bad faith. Because there is no reversible error in these determinations, this Court AFFIRMS the bankruptcy court's decisions.

BACKGROUND

Because the parties are well aware of the factual background of this case, the Court will therefore recite only the particular facts of relevance to this appeal. At the time of the events in question in the bankruptcy court, Marciano was residing in Montreal, Canada. Because the Trustee suspected that Marciano might be concealing assets there, he applied for the court's approval to hire Canadian counsel. The application stated that the Trustee would pay the Canadian firm a retainer paid from funds drawn from an IRA account in Marciano's name. Over Marciano's objection, the bankruptcy court granted the Trustee's application.

STANDARD OF REVIEW

The Court reviews the bankruptcy court's findings of fact for clear error. In re Palmdale Hills Property, LLC, 457 B.R. 29, 40 (9th Cir. BAP 2011); In re PW, LLC, 391 B.R. 25, 32 (9th Cir. BAP 2008). For a finding to be clearly erroneous, it must be illogical, implausible, or without support in the record. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc). A bankruptcy ...


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