# Morton v. Kievit (In Re Vallecito Gas, LLC)

> United States Bankruptcy Court, N.D. Texas · July 19, 2011 · 461 B.R. 358

URL: https://www.frixlaw.com/law-library/cases/2201493

## Case

- **Full name:** In Re VALLECITO GAS, LLC, Debtor. Harvey L. Morton, as Chapter 11 Trustee of Vallecito Gas, LLC, Plaintiff, v. Tom D. Kievit, Et Al., Defendants
- **Court:** United States Bankruptcy Court, N.D. Texas
- **Decided:** July 19, 2011
- **Citations:** 461 B.R. 358; 179 Oil & Gas Rep. 239; 2011 Bankr. LEXIS 2864; 2011 WL 2970970
- **Precedential status:** Published
- **Opinion:** Opinion by Houser
- **Judges:** Barbara J. Houser
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2201493

## How later opinions describe it (automated extraction)

- finding lack of diligence where bankruptcy trustee failed to conduct title search that would have revealed duly recorded assignments

## Opinion text

MEMORANDUM OPINION
BARBARA J. HOUSER, Bankruptcy Judge.
The Court tried this adversary proceeding on May 9, 2011.
1
The Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 1334 and 157(b). This Memorandum Opinion contains the Court’s findings of fact and conclusions of law. Fed. R. Bankr.P. 7052.
This dispute has a complicated factual and procedural history, some of which is more fully set forth in (i) the Court’s Memorandum Opinion and Order dated August 29, 2008 in Adversary Proceeding No. 08-3132-BJH (the “Tiffany Adversary Proceeding”), (ii) the court-approved disclosure statement in the bankruptcy case filed by Vallecito Gas, L.L.C. (“Vallecito”) (Docket No. 203 in Case No. 07-35674-BJH-11), (iii) the Court’s Amended Order Relating to Order to Show Cause (Docket No. 351 in Case No. 07-35674-BJH-ll), (iv) the Court’s Memorandum Opinion and Order denying the Trustee’s motion for partial summary judgment on his claim against John Joel Pugh (“Pugh”) (Docket No. 116), and (v) the transcript of the Court’s oral ruling on December 21, 2010 on the Trustee’s motion for summary judgment against Briggs-Coekerham, LLC (“B-C”) (Docket No. 142). In addition and significantly, the parties stipulated to substantially all of the relevant facts in their Joint Pretrial Order, § II, ¶¶ 3-43, which facts the Court adopts herein as if they were restated in their entirety. However, an abbreviated recitation of some of the factual and procedural background of the present dispute is necessary, to which we now turn.
1. FACTUAL AND PROCEDURAL BACKGROUND
Prior to its bankruptcy filing, Vallecito purchased a mineral lease, located on the land of the Navajo Nation in San Juan County, New Mexico, from Tiffany Gas Co., LLC (“Tiffany”) known as the “Hogback Lease.” Suffice it to say that on the date of Valleeito’s bankruptcy filing, there were several competing claims to the Hogback Lease, asserted in litigation pending in other fora, and the status of Vallecito’s title to the Hogback Lease was less than clear. Most importantly to the resolution of this dispute, after it received the Hogback Lease from Tiffany but before its bankruptcy filing, Vallecito executed an assignment of the Hogback Lease to B-C, which entity held 100% of the membership interests in Vallecito.
2
The validity and/or effect of that assignment, which shall be referred to herein as the “B-C Assignment,” remains a primary issue before the Court. As detailed below, until the late fall/early winter of 2009 the Trustee, the Court, and all parties-in-interest in the Vallecito bankruptcy case believed that BC, while once claiming an interest in the Hogback Lease, had disclaimed any such interest in open court during the course of a Vallecito hearing, and thus, B-C no long
*365
er asserted any interest in the Hogback Lease.
3
Also prior to its bankruptcy filing, Val-lecito entered into several participation agreements with Arcturus Corporation (“Arcturus”) that involved certain of Val-lecito’s oil and gas properties (but not the Hogback Lease) and disputes had arisen between these parties. Specifically, Arcturus sued Vallecito and others in July of 2006 in the 298th Judicial District of Dallas County (the “Arcturus Litigation”). In April of 2007, the judge in the Arcturus Litigation entered a temporary injunction (the “Arcturus Injunction”) against Valleci-to and Briggs, an indirect principal of Val-lecito. The Arcturus Injunction provided that
Vallecito and Briggs, their affiliates, agents, servants, employees, and representatives are hereby commanded forthwith to desist and refrain from accessing, spending, diverting, selling, or transferring, or otherwise disposing of any of their assets (of any kind) and any funds within their actual or constructive possession or control ... and from altering, erasing, or otherwise destroying any and all records that relate to the $1,920,000 they received from Arcturus and its investors, such that all of Valleci-to’s and Briggs’ funds and assets are hereby frozen, and Vallecito and Briggs are hereby restrained from disposing of any of their funds and assets until the final trial on the merits in this case.
The Arcturus Injunction was still in place when Vallecito filed its bankruptcy case on November 14, 2007 (the “Petition Date”). As discussed more fully below, the Arcturus Injunction was still in place on each date that B-C purportedly assigned an overriding royalty interest in the Hogback Lease to each of the defendants in this adversary proceeding.
4
Shortly after the Petition Date, Arcturus moved for the appointment of a Chapter 11
*366
Trustee for Vallecito. After a hearing on that motion, the Trustee was appointed and took steps to marshal the assets of the Vallecito estate. In March of 2008, the Trustee filed a “Motion for' Contempt, Sanctions and Appointment of Receiver Against Michael Briggs, Individually” (the “Motion for Contempt”), that was ultimately heard on April 17, 2008. In addition, in order to resolve the competing claims to the Hogback Lease, the Trustee filed an agreed motion for mediation, that was agreed to by many of the competing claimants to the Hogback Lease.
5
See
Docket No. 117 in Case No. 07-35674-BJH-ll. At the April 16, 2008 mediation, a settlement was reached with many, but not all, of the parties claiming an interest in the Hogback Lease.
The Trustee also separately settled the dispute between Arcturus and Vallecito, conditioned upon confirmation of a Chapter 11 plan embodying the terms of his settlement and consummation of such a plan.
As noted earlier, the mediation did not resolve all disputes with all of the competing claimants to the Hogback Lease — specifically, it did not resolve disputes with BC and Briggs, who also claimed ownership of the Hogback Lease. Instead, the Motion for Contempt, which alleged various violations of both the Arcturus Injunction and the Bankruptcy Code, proceeded to hearing the day after the mediation (April 17, 2008). In the midst of that hearing, the parties requested a brief recess and, at the conclusion of the recess, announced that they had reached a settlement. The Trustee placed the terms of the settlement on the record. As is relevant here, one of the terms of the settlement was that “Mr. Briggs, Mr. Cockerham, Briggs-Coeker-ham, LLLC [sic] are releasing any and all claims they have to anything in the Valleci-to estate, including any claims to the Hogback lease and any sale can go forward without they [sic] objection. And they’re waiving all of their claims and any assets in Vallecito, including ones if we discover any.” Transcript 4/17/08, p. 74:12-18. This “disclaimer” was the source of the Trustee’s belief that B-C no longer claimed an interest in the Hogback Lease.
The results of the mediation, the settlement with Arcturus, and the settlement with and “disclaimer” by Briggs, Cocker-ham, and B-C were thought to remove a further, but not the last, impediment to a liquidation of the Hogback Lease for the benefit of Vallecito’s creditors. The last apparent impediment, a dispute with Tiffany over an alleged forfeiture of the Hogback Lease by Vallecito, matured in May of 2008 when Tiffany filed an adversary proceeding against the Trustee seeking a determination that Vallecito had forfeited its rights to the Hogback Lease. In short, Tiffany asserted that the purchase and sale agreement between the parties required Vallecito to obtain approval of the transfer from Tiffany to Vallecito by the Bureau of Indian Affairs (“BIA”) by a date certain, that Vallecito (now a Chapter 11 debtor) had failed to timely obtain such approval, and therefore Tiffany was entitled to a return of the Hogback Lease upon its repayment of the purchase price previously paid to it by Vallecito. On August 29, 2008, the Court entered its Memorandum Opinion and Order on the Trustee’s motion for summary judgment, in which the Court concluded, as a matter of contract interpretation, that Tiffany was not entitled to a forfeiture of the Hogback Lease. Tiffany appealed the Court’s
*367
Memorandum Opinion and Order (the “Tiffany Appeal”).
6
Thus, with the exception of the Tiffany Appeal, all of the apparent impediments to confirmation of a plan that would liquidate the Hogback Lease for the benefit of Vallecito’s creditors were thought to have been removed. Accordingly, the Trustee proposed the First Amended Plan of Liquidation for the Debtor (the “Plan”). Essentially, the Plan provided that the Hogback Lease would be sold to Vision Energy, LLC (“Vision”) in exchange for approximately $6.6 million in cash, subject to certain terms and conditions, with the proceeds to be distributed in accordance with the various settlements with the relevant parties, who agreed to disclaim their alleged interests in the Hogback Lease in order to permit the sale to Vision to occur. One of the conditions to the Plan becoming effective, and the closing of the sale to Vision, was that the Tiffany Appeal be resolved in the Trustee’s favor. Another was that the conveyance of the Hogback Lease would be finalized pursuant to an asset purchase agreement that would provide, among other things, for the sale of 100% of the working interest and net revenue interest in the Hogback Lease, subject only to the royalty interest of the Navajo Nation, and that except for the Navajo Nation, all other interests in the Hogback Lease, including but not limited to those of B-C, Briggs, Cockerham, Valleeito, and other named settling parties, would be extinguished upon the transfer of the Hogback Lease to Vision. The Plan was confirmed by Order entered on March 17, 2009 (the “Confirmation Order”). Due to the continued pendency of the Tiffany Appeal, the Plan was not consummated.
7
In December of 2009, another obstacle to consummation of the Plan and the sale to Vision became apparent. Specifically, the Trustee filed a pleading alleging that despite the April 17, 2008 “disclaimer” of any interest in the Hogback Lease by Briggs, Cockerham, and B-C, Briggs
acting on behalf of Briggs-Cockerham LLC, has purported to sell overriding royalty interests in the Hogback Lease (collectively the “ORRI Interests”) to third-parties. Briggs not only purported to sell previously undisclosed ORRI Interests in the Hogback Lease prior to the Valleeito Bankruptcy, but continued to do so post-petition. Even more disturbing, Briggs sold ORRI Interests and executed ORRI Interests months after he disclaimed any interest in the Hogback Lease in open court ... Based on information provided to the Trustee, it appears throughout 2008, after Briggs’ disclaimed all interest in the Hogback Lease, Briggs continued to communicate with, upon information and belief, approximately 30 people that may have purportedly purchased ORRI Interests in the Hogback Lease from Briggs-Cockerham LLC. In these communications, Briggs advised these individuals the Hogback Lease, among other things, was: (1) owned by Briggs-Cockerham
*368
LLC; (2) Briggs-Cockerham LLC was obtaining drilling permits for wells on the Hogback Lease; (3) Briggs-Cocker-ham LLC was days away from starting to drill on the Hogback Lease, even sending pictures of drilling rigs purportedly en route to New Mexico for drilling; (4) Briggs was making trips to Europe and China purportedly to obtain funding for the Hogback Lease development; and (5) Briggs allegedly had entered into contracts for production of Helium on the Hogback Lease.
Trustee’s Expedited Mot. For Order to Show Cause as to Why Michael Briggs, Briggs-Cockerham LLC and Joel Pugh Should Not be Held Contempt [sic] and Sanctioned (Docket No. 329 in Case No. 07-35674-BJH-ll)(the “Motion for Order to Show Cause”), pp. 2-3. The Court granted the Motion for Order to Show Cause, and issued its Order to Show Cause on December 23, 2009. See Docket No. 338 in Case No. 07-35674-BJH-ll.
At a hearing held on February 1, 2010 on the Order to Show Cause, Briggs did not appear.
8
The Trustee proceeded with his evidence, and after hearing the evidence, the Court found, among other things, that (i) the Arcturus Injunction “remains in force today and has at all times since April 27, 2007,” (ii) during the April 17, 2008 hearing, Briggs, Cockerham, and B-C “disclaimed any and all interest in Vallecito, including, but not limited to, any interest in the Hogback Lease,” (iii) Briggs received relevant notices of the Arcturus Injunction and the Plan, (iv) Briggs “made a myriad of transfers of interests in the Hogback Lease after the entry of the [Arcturus Injunction] purporting to transfer overriding royalty interests in the Hogback Lease,” and (v) the transfers were made in knowing and direct violation of the Arcturus Injunction. Amended Order Relating to Order to Show Cause (Docket No. 351 in Case No. 07-35674-BJH-ll), ¶¶ 9, 16, 21, 22 and 23.
On March 9, 2010, the Trustee filed the above-captioned adversary proceeding against the Defendants as recipients of assignments of overriding royalty interests (“ORRIs” or “ORRI Assignments”) in the Hogback Lease. The complaint has been amended twice, and at issue for trial were Counts I-IV of the Trustee’s Second Amended Adversary Complaint (the “Complaint”).
9
The Trustee’s first cause of action seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 that Pugh’s ORRI is void or voidable on various grounds detailed below.
10
The Trustee’s second
*369
cause of action seeks a declaratory judgment that all ORRI Assignments recorded on March 20, 2008 (the holders of which will be referred to as the “March 20 Claimants”) are void and/or subject to avoidance. The Trustee’s third cause of action seeks the same declaration with respect to those ORRI Assignments recorded on April 15, 2009 (the holders of which will be referred to as the “April 15 Claimants”) and the Trustee’s fourth cause of action seeks a declaration “that the Purported Interest of Defendants Tom and Kyle Kievit Recorded June 7, 2007 is Void and/or Subject to Avoidance by the Trustee” (Tom and Kyle Kievit recorded their interest on June 7, 2007, pre-petition, and will be referred to collectively as “Kievit”).
As to Pugh, the March 20 Claimants, the April 15 Claimants, and Kievit, the Trustee alleges that (i) any assignment of the Hogback Lease requires the approval of both the Navajo Nation and the United States Secretary of the Interior (through the Bureau of Indian Affairs (the “BIA”)), and that an assignment is not valid without such approvals; (ii) as of June 18, 2008, the Trustee had obtained all necessary approvals for the assignment from Tiffany to Vallecito and, as a result, Vallecito owns the Hogback Lease; (iii) the pre-petition B-C Assignment was never submitted to, or approved by, either the Navajo Nation or the BIA and, therefore, the B-C Assignment is void ab initio as a matter of law; and (iv) Briggs’s transfers on behalf of B-C of ORRIs to the Defendants, which were done in violation of the Arcturus Injunction and/or the Vallecito automatic stay, are void and transferred no right, title or interest in the Hogback Lease, since B-C had no right, title or interest to transfer. Similarly, as to all four groups of Defendants, the Trustee alleges that their ORRI Assignments are void under § 605(a)(6) of Title 18 of the Navajo Nation Code, which provides that “[n]o overriding royalty maybe created by any transfer authorized hereby without the written consent of the Minerals Department of the Navajo Nation,” because the Trustee alleges that the Defendants did not obtain Navajo Nation consent to the creation of their ORRIs. As to Pugh, the March 20 Claimants and the April 15 Claimants (but not Kievit, whose interest was recorded pre-petition) the Trustee further alleges that their interests were recorded post-petition and are therefore subject to avoidance under 11 U.S.C. §§ 362 , 544 and/or 549.
11
As to Pugh, the Trustee alleges that Pugh had actual knowledge of the Vallecito bankruptcy case and the Confirmation Order, and is thus bound by its terms. Accordingly, for any or all of these reasons, the Trustee seeks a determination that the Defendants have no right, title or interest in the Hogback Lease.
In response, the Defendants argue that (i) their assignments are valid and enforceable against the relevant assignor, B-C in the case of the ORRI Assignments and Vallecito in the case of the B-C Assignment, (ii) they may still seek and obtain approval of their respective assignments from the Navajo Nation, (iii) the Trustee has a contractual obligation to assist B-C in seeking and obtaining approval of the B-C Assignment, which will inure to then-benefit as their assignor (B-C) will then be the owner of the Hogback Lease, (iv) the
*370
Hogback Lease does not constitute property of the Vallecito bankruptcy estate and thus the automatic stay does not apply to void their assignments and § 549 does not permit avoidance of their interests, (v) even assuming that the automatic stay and § 549 apply, they are good faith purchasers without knowledge of the commencement of Vallecito’s bankruptcy case and are entitled to the benefit of the defenses to avoidance provided by 11 U.S.C. §§ 549 (c) and 550(b)(1), and (v) the statute of limitations provided by 11 U.S.C. § 549 applies to preclude the Trustee from seeking to avoid the transfers identified on Exhibit A to the Joint Pre-Trial Order as ORRI Assignment Nos. 11-27.
12
11. LEGAL ANALYSIS
As admitted by the Trustee’s counsel during closing arguments, to dispose of this adversary proceeding, the Court must consider and resolve five overarching legal issues. First, is the Hogback Lease property of the Vallecito bankruptcy estate? Second, are the B-C Assignment and the ORRI Assignments void due to the absence of Navajo Nation and BIA approval in the case of the B-C Assignment and Navajo Nation approval in the case of the ORRI Assignments? Third, if not, (a) is it possible for B-C and/or the ORRI Assignment holders to seek such approval now, given confirmation of the Plan, and (b) what obligation, if any, does Vallecito have to assist B-C and/or the ORRI Assignment holders in this process? Fourth, assuming that Vallecito had a sufficient interest in the Hogback Lease on the Petition Date such that the automatic stay applied to the ORRI Assignments, (a) are those assignments void as having been taken in violation of the automatic stay, and (b) are the Defendants good faith purchasers entitled to assert the defenses provided by §§ 549(c) and 550(b)(1) of the Bankruptcy Code. Fifth, is the Trustee is barred by the statute of limitations set forth in § 549 from seeking to avoid certain of the transfers to certain of the Defendants?
A. Is the Hogback Lease Property of the Vallecito Bankruptcy Estate; Are the B-C Assignment and the ORRI Assignments Void due to a Lack of BIA and Navajo Nation Approval?
Many of the arguments respecting the status of the Hogback Lease as property of the estate, and the validity of the B-C Assignment, have been raised and adjudicated before. Some further background about this Court’s prior rulings is required. Specifically, on July 12, 2010, the Trustee filed a motion for partial summary judgment against Pugh (the “Pugh MSJ”) on Count I of the Complaint, which was asserted solely against Pugh and which sought an order declaring that Pugh had no interest in the Hogback Lease. The Trustee argued in connection with the Pugh MSJ that the Hogback Lease was property of the Vallecito bankruptcy estate on the Petition Date and that the B-C Assignment was void because neither the Navajo Nation nor the BIA had approved it. According to the Trustee, because B-C had no interest in the Hogback Lease (since the B-C Assignment was void for lack of Navajo Nation/BIA approval), B-C could transfer nothing to Pugh. Pugh responded that the B-C Assignment was
*371
fully enforceable between the parties to
it
— ie., Vallecito and B-C — and, when that assignment was accorded its proper effect, the Hogback Lease was not property of the Vallecito bankruptcy estate on the Petition Date.
The starting point in the Trustee’s analysis was Vallecito’s interest in the Hogback Lease on the Petition Date. The parties agreed that Vallecito purchased the Hogback Lease from Tiffany prior to the Petition Date. The Trustee argued that although Vallecito had not yet received BIA approval on the Petition Date, Valleci-to had an interest in the Hogback Lease on the Petition Date subject to the satisfaction of one
contingency
— ie., BIA approval (which was received post-petition).
13
Looking to the broad definition of the phrase “property of the estate” in § 541 of the Bankruptcy Code, and the case law indicating that the phrase is to be given the “broadest possible definition,” the Trustee argued that, at a minimum, Vallec-ito had an equitable interest in the Hogback Lease on the Petition Date. The Trustee also argued that the B-C Assignment (executed pre-petition from Vallecito to B-C) did not change this result because it was void for lack of either BIA or Navajo Nation approval.
14
Pugh responded that Navajo Nation and/or BIA approval was not required in order to make the assignment valid as between the parties to it. The Court entered its Memorandum Opinion and Order on November 17, 2010 (the “November Opinion”) and ultimately agreed with Pugh, as explained below.
The Court first noted that the Secretary of the Interior and Commissioner of Indian Affairs are statutorily charged with the management of all Indian affairs. 25 U.S.C. §§ 1 , 2. Section 2102 of title 15, United States Code, provides that any Indian tribe, subject to the approval of the Secretary of the Interior, may enter into leases for the development of mineral resources on Indian land, and § 2107 provides that the Secretary of the Interior shall promulgate rules and regulations to facilitate the implementation of that right. One such regulation provides that
an assignment of a minerals agreement, or any interest therein, shall not be valid without the approval of the Secretary and, if required in the minerals agreement, the Indian mineral owner. The assignee must be qualified to hold the minerals agreement and shall furnish a satisfactory bond conditioned on the faithful performance of the covenants and conditions thereof as stipulated in the minerals agreement. A fully executed copy of the assignment shall be filed with the Secretary within five (5) working days after execution by all parties. The Secretary may permit the release of any bonds executed by the assignor
*372
upon submission of satisfactory bonds to the Bureau of Indian Affairs by the as-signee, and a determination that the assignor has satisfied all accrued obligations.
25 C.F.R. § 225.33 . The effect of this regulation was in dispute in connection with the Pugh MSJ.
In support of his argument that the B-C Assignment was void (or as the regulation puts it — not valid), the Trustee relied upon several cases. The first was
HCB Industries, Inc. v. Muskogee Area Director,
1990 WL 321035 (IBIA Mar. 28, 1990). In that case, HCB Industries, Inc. (“HCB”), appealed a decision of the BIA declining to approve an assignment of a lease to HCB by Arrow Production Company (“Arrow”). The BIA declined to approve the assignment on the ground that the leases were being cancelled. At some point after the assignment, the BIA had advised Arrow, but not HCB, that the leases had expired by their own terms over a year prior to the assignment. On appeal, HCB argued that it had been denied due process, because it was not given notice of, or the opportunity to respond to, the BIA’s determination that the leases had expired, since that notice had been given to Arrow but not to HCB. HCB argued that because the BIA was on notice of the assignment from Arrow to HCB, it should have given notice to HCB. The Board of Indian Appeals (the “Board”) noted that the federal regulation governing assignments of leases of the type there at issue
15
provided that leases may be assigned only with the approval of the Secretary of the Interior, and that such approval had not been obtained. The Board stated:
[HCB’s] due process argument assumes that even though its lease assignments were not approved as required ... it nevertheless acquired a property interest in the leases. [HCB] contends that because the Secretary has authority to approve a conveyance of trust or restricted lands retroactively, with approval relating back to the date of the execution of the attempted conveyance, its “title” is not void, but merely imperfect until approved. [HCB] cites
Lykins v.McGrath,
184 U.S. 169 , 22 S.Ct. 450 , 46 L.Ed. 485 (1902), and
Pickering v. Lomax,
145 U.S. 310 , 12 S.Ct. 860 , 36 L.Ed. 716 (1892), in support of this argument. In
Wishkeno v. Deputy Assistant Secretary
—Indian
Affairs (Operations),
11 IBIA 21 (1982), the Board addressed retroactive approval of conveyances of trust or restricted lands. Retroactive approval is predicated on the requirement that “the transaction [be] fair in all respects,” although the conveyance document was not properly presented to BIA for approval.
George Big Knife,
13 L.D. 511, 515 (1891). As the Supreme Court has held, however, “[t]he doctrine of relation [back in retroactive approval of conveyances of trust or restricted lands] is a legal fiction, resorted to for the purpose of accomplishing justice.”
*373
Kendall v. Ewert,
259 U.S. 139, 148 , 42 S.Ct. 444 , 66 L.Ed. 862 (1922). The doctrine of retroactive approval of conveyances of trust or restricted lands has no effect in the present situation. The doctrine provides that, under appropriate conditions and for equitable reasons, a conveyance that initially had no force or effect for failure to be approved may be revived through the application of a legal fiction. This does not equate with a finding that the initial unapproved conveyance actually passed some form of legal title or property interest to the grantee. Such a holding would be antithetical to the very essence of the statutory and regulatory proscriptions against the conveyance of trust or restricted lands without Secretarial approval. The Board has previously held that an unapproved conveyance of trust or restricted lands is void ab initio, has no force or effect, and grants no rights to either the attempted grantor or grantee.
Smith v. Acting Billings Area Director,
17 IBIA 231, 235 (1989). Although Smith dealt with an initial lease of trust or restricted lands, the Board finds that the same rule applies to assignments. Because an assignment of a lease of trust or restricted lands is not effective until it has been approved, appellant acquired no interest in the leases and was not a party to them. Accordingly, appellant was not a person to whom BIA was required to give notice of actions affecting lease management and lacks standing to object to any such actions.
HCB,
1990 WL 321035 at *3. The Board therefore dismissed HCB’s appeal.
The Trustee also relied on
Chisum v. Acting Muskogee Area Director,
1996 WL 287746 (IBIA May 16, 1996). In that case, the BIA issued a notice to BEANS Oil, Inc. stating that a lease had expired for failure to produce oil in paying quantities. The notice stated: “it is our understanding that this lease was sold and commercially assigned to Mr. Gerald Chisum ... however, as this transfer of title was not approved by the Secretary of the Interior, BEANS Oil, Inc. remains lessee of record.”
Chisum,
1996 WL 287746 at *1. The assignee, Chisum, sought review of the BIA’s decision. The Board cited its earlier
HCB
case to Chisum and gave Chisum a deadline to “show that he had standing to bring this appeal.”
Id.
Chisum did not respond, and the Board dismissed his appeal.
In connection with the Pugh MSJ, the Court noted that the Board of Indian Appeals has continued to cite to its own decision in
HCB. See e.g., Uinta Oil & Gas, Inc. v. Acting Phoenix Area Director,
1994 WL 682956 (IBIA Nov. 4, 1994) (dismissing appeal for lack of standing where appellant did not show BIA approval of an assignment to it and thus failed to show “it had a valid interest in the lease”);
Pacific Enterprises Oil Co. v. Muskogee Area Director,
1994 WL 593093 (IBIA Oct. 20, 1994). In
Pacific Enterprises,
Pacific Enterprises Oil Co. (“Pacific”) appealed a BIA decision that an oil and gas lease had expired for failure to produce oil in paying quantities. Pacific, the lessee of record, had been notified by the BIA of its determination in May of 1994, and had also been notified that an appeal must be mailed within thirty days. In September, Pacific filed its notice of appeal, and contended that the appeal should be considered as timely filed in part because Pacific had sold and/or assigned its interest in the lease in 1985 and had instructed the as-signee to obtain approval of that assignment from the BIA. The Board dismissed the appeal as yntimely, noting:
[t]he lessee’s duties do not end until the assignment is approved. [Pacific’s] belief concerning what another person
*374
might have been informed and/or might have done does not support a finding that [Pacific] has no responsibility toward this lease based on an assignment ... [Pacific] has not submitted any evidence or argument sufficient to warrant a finding that it is not the lessee of record for this lease; that it was not responsible for providing BIA with its current address; or that it should not be charged with receipt of a BIA letter sent to it at its address of record, and signed for at that location.
Pacific Enterprises,
1994 WL 593093 at *2.
In response to the Trustee’s argument that the B-C Assignment was invalid and void ab initio, Pugh distinguished these cases on the ground that each involved a dispute between one of the parties to the unapproved assignment and the government, and not a dispute between two private parties over the validity of an unapproved assignment as between them. Pugh argued, citing
Wood v. Cunningham,
140 N.M. 699 , 147 P.3d 1132 (2006), that this distinction was significant, and the Court ultimately agreed in the November Opinion.
In
Wood ,
a seller tried to rescind a purchase and sale agreement (“PSA”) under which the seller sold its interest in oil and gas leases on Navajo Nation land to the buyer. The
Wood
court first noted that it was undisputed that the assignments of the oil and gas leases had to be approved by the BIA and the Navajo Nation. The seller argued that such approval was a condition precedent to the effectiveness of the PSA. In rejecting this argument, the
Wood
court first noted that the contract itself did not evidence such an intent. There was no performance made contingent upon BIA approval; there was no deadline in the agreement for obtaining such approval. And, because the lack of BIA approval resulted in no injury to the seller, the
Wood
court held that the seller could not rescind its sale. The court further noted that the case before it was
not
a case in which the
buyer
was seeking rescission for a failure to receive good title. In this context, the
Wood
court concluded that the purpose of BIA approval is to effectuate the fiduciary duty the United States owes to Indian tribes, and the PSA’s validity or lack thereof for failure to obtain BIA approval was solely a matter between the buyer and the government. However, as between
the parties to the agreement,
the lack of BIA approval did not render the PSA invalid or ineffective.
This Court concluded, in its November Opinion, that like the seller in
Wood ,
16
the Trustee, standing in Vallecito’s shoes as assignor, was seeking to hold Vallecito’s assignment invalid, and that it would be odd to find that Vallecito could argue that its own assignment was invalid for lack of BIA approval, when BIA approval is required in order to protect
the Indian tribe,
not Vallecito.
See
November Opinion, p. 23. Therefore, the Court concluded that it made perfect sense that the government
(i.e.,
the BIA) could assert rights that the parties to the agreement could not.
Id.; see also Chuska Energy Co. v. Mobil Exploration & Producing North America, Inc.,
854 F.2d 727, 732 (5th Cir.1988)
*375
(“That the Navajos or the Secretary of the Interior could have standing in federal court to challenge the assignment does not confer a similar right on non-tribal or nongovernmental litigants whom it was not designed to protect”).
The Court also relied in its November Opinion on
Ganas v. Tselos,
157 Okla. 107 , 11 P.2d 751 (Ok.1932), in which the court rejected an argument that an assignment of an interest in an oil and gas lease on Indian land was void for lack of approval of the Secretary of the Interior. The plaintiff in
Ganas
alleged that at the defendant’s request, plaintiff drilled wells and operated oil and gas leases for the defendant, who had invested funds. The parties had an oral agreement whereby the plaintiff would operate the lease and pay its expenses and the defendant would receive the oil and gas proceeds, but when plaintiffs expenses reached a certain amount, the defendant agreed to assign a one-half interest in the lease to the plaintiff. The defendant thereafter argued that its agreement to assign the lease interest was void. After noting that the action before it was
not
an action to enforce specific performance of the agreement to assign, but rather an action seeking an accounting, the court held that a lessee of an oil and gas lease on Indian land may contract for the sale or disposal of the lease on the same terms as he might contract respecting an ordinary commercial lease. “If the proposed assignment be approved by the Secretary of the Interior, the conditions and terms of the contract for the sale thereof will be given the same effect as if the assignment had passed the title to the assignee at the time of execution and delivery.” The
Ganas
court cited with approval the rule announced by the Eighth Circuit in
Hertzel v. Weber,
283 F. 921 (8th Cir.1922), which was that a lease of Indian land that had not been approved by the Secretary of the Interior was not void, and the Eighth Circuit’s statement in
Hertzel
that “while such a contract was subject to approval by the Secretary of the Interior ... it was not in violation of the act. The plaintiff had a right to the assignment as per the agreement, and it would then be a matter between the plaintiff and the Secretary of the Interior as to its approval.”
Ganas,
11 P.2d at 753 . As announced by the
Hertzel
court, a general rule of statutory (and contractual) construction is that:
an act declared to be void by statute which is malum in se or against public policy is utterly void and incapable of ratification, but an act or contract so declared void, which is neither wrong in itself nor against public policy, but which has been declared void for the protection or benefit of a certain party, or class of parties, is voidable only and is capable of ratification by the acts or silence of the beneficiary or beneficiaries ... Such an act or contract is valid until avoided, not void until validated, and it is subject to ratification and estoppel.
Hertzel,
283 F. at 928 .
17
In its November Opinion, the Court found the
Wood, Ganas
and
Hertzel
cases
*376
persuasive. In addition, the Court concluded that there was no policy reason to permit private parties who have negotiated their contract to escape the consequences of an otherwise valid assignment by asserting a statutory right enacted and designed to protect a class of persons to which they did not belong.
See
November Opinion, p. 26. The Court also noted that had Vallecito and B-C wanted to negotiate an assignment that was conditioned upon BIA approval, they could have done so. Having failed to include such a provision in their otherwise valid and binding assignment, the Court concluded that neither party should be able to avoid being bound by their agreement by taking advantage of the regulations requiring BIA approval of that assignment, since the purpose of the requirement that the BIA approve assignments of oil and gas leases on Indian land is “to effectuate the fiduciary duty the United States Government as trustee owes the beneficiary Indian tribes,”
Wood,
147 P.3d at 1136 , not to protect private contracting parties from their own bargain.
See
November Opinion, p. 26. Ultimately, therefore, the Court concluded that the BC Assignment was not void ab initio at the time of the Pugh MSJ. The Court recognized, however, that the B-C Assignment may ultimately be avoided if the Navajo Nation and/or the BIA fails to approve it. Therefore, the Court denied the Pugh MSJ to the extent it sought a declaration that Pugh’s ORRI Interest was void because the B-C Assignment was void (and therefore B-C had no title to transfer to Pugh).
Having concluded that the B-C Assignment was valid as between Vallecito and B-C, the Court noted that the ordinary result would be that the Hogback Lease was not property of the estate on the Petition Date, as it had been transferred away.
In re Onasni Property Group, LLC,
425 B.R. 237 (Bankr.W.D.Pa.2010) (rents that had been assigned pre-petition were not property of the estate);
In re Jones Const. & Renovation, Inc.,
337 B.R. 579 (Bankr.E.D.Va.2006) (debtor’s pre-pe-tition assignment of construction contract proceeds to surety prevented proceeds from becoming property of the estate);
In re Brooks,
248 B.R. 99 (Bankr.W.D.Mich.2000) (debtor’s pre-petition assignment of right to receive payments under settlement agreement prevented payments from inclusion in property of the debtor’s estate);
cf., Kapila v. Deutsche Bank AG (In re Louis J. Pearlman Enters., Inc.),
398 B.R. 59 (Bankr.M.D.Fla.2008) (an individual’s pre-petition transfer of all interests in a limited liability corporation to a bank without the consent of the majority of members in the LLC, which was required by the LLC’s operating agreement in order to effectuate such a transfer, was void, such that no interest was in fact transferred to the bank and thus the membership interests were property of the individual’s bankruptcy estate on the petition date). The Court noted in its November Opinion, however, that the B-C Assignment is no ordinary assignment, since it was required by federal law to be approved by the BIA.
18
The Trustee and
*377
the Defendants had agreed that such approval had neither been sought nor obtained, but the Court noted that in the words of the
Hertzel
court, the B-C Assignment was “valid until avoided.”
Hertzel,
283 F. at 928 . It was this possibility of avoidance (if the BIA refused to approve the B-C Assignment), that changed the outcome of the analysis as to whether the Hogback Lease was property of the Vallecito bankruptcy estate on the Petition Date. As the Court noted in the November Opinion, the outcome changed because under § 541(a) of the Bankruptcy Code, the Vallecito estate was comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case,” “wherever located and by whomever held.” 11 U.S.C. § 541 (a). The Court noted that legions of cases have stated that Congress’s intent was to define “property of the estate” in the broadest possible sense.
See, e.g., In re Graves,
609 F.3d 1153, 1156 (10th Cir.2010);
In re Builders Transport, Inc.,
471 F.3d 1178, 1185 (11th Cir.2006);
In re Burgess,
438 F.3d 493 , 509 (5th Cir.2006). It further noted that legions of cases have held that even contingent interests are property of the estate, citing
In re Dittmar,
618 F.3d 1199, 1207 (10th Cir.2010) (an interest may be property of the estate even if it is novel or contingent);
In re McLain,
516 F.3d 301 (5th Cir.2008) (§ 541 brings into the estate all interests held by the debtor, even future, non-possessory, contingent, speculative and derivative interests);
In re Wick,
276 F.3d 412 (8th Cir.2002) (unvest-ed options contingent on continued employment are property of the estate); and
In re Yonikus,
996 F.2d 866, 869 (7th Cir.1993) (“every conceivable interest of the debtor, future, nonpossessory, contingent, speculative, and derivative, is within reach of section 541”). The Court concluded in its November Opinion that if the B-C Assignment was not ultimately approved by the BIA, title to the Hogback Lease would revert to Vallecito, the last party to hold title that had received such approvals.
19
The Court also concluded that even a contingent, reversionary interest is included within the bankruptcy estate, relying upon
In re Graves,
609 F.3d 1153 (10th Cir.2010);
Askanase v. Living-Well, Inc.,
45 F.3d 103 (5th Cir.1995);
In re Spring Ford Indus., Inc.,
338 B.R. 255 (E.D.Pa.2006); and
DCRI L.P. No. 2, Inc.,
299 B.R. 146 (Bankr.N.D.Tex.2003).
20
For
*378
these reasons, and notwithstanding the BC Assignment, the Court concluded in its November Opinion that Vallecito retained a sufficient interest in the Hogback Lease to make it property of the estate on the Petition Date.
Both the Trustee and the Defendants ask this Court to re-visit these rulings, to a certain extent,
21
in light of events that occurred in this adversary proceeding after the issuance of the November Opinion. Specifically, on October 28, 2010, while the Pugh MSJ was pending but the Court had not yet ruled, the Trustee filed a motion for summary judgment against B-C on Count V of the Complaint (the “B-C MSJ”) and sought a declaration that B-C: (a) was bound by the Confirmation Order, (b) was barred by res judicata from asserting any interest in the Hogback Lease, and/or (c) had no interest in the Hogback Lease at any time because B-C never sought or obtained approval of the Navajo Nation and/or the BIA.
22
By the time the B-C MSJ was heard, the Court had ruled on the Pugh MSJ, and the Court’s ruling on the Pugh MSJ mooted the Trustee’s request for a judgment that the B-C Assignment was void for lack of Navajo Nation/BIA approval. Accordingly, by the time the B-C MSJ was argued on December 7, 2010, the November Opinion had been entered and the Court was only required to rule on the first two grounds asserted by the Trustee in the B-C MSJ. On December 21, 2010, the Court issued an oral ruling on the B-C MSJ (the “December Opinion”).
See
Transcript of hearing held 12/21/10, Docket No. 142.
In its December Opinion, the Court first ruled that B-C was bound by the Plan and Confirmation Order because B-C was a creditor of Vallecito, had received copies of the disclosure statement, Plan, notices of hearing and the order setting deadlines to object to confirmation, yet had failed to object to confirmation of the Plan or appeal the Confirmation Order. Second, the Court ruled that because B-C was bound by the Plan and the Confirmation Order, B-C could no longer contest approval of
*379
the settlement between the Trustee and B-C embodied in the Plan, even if that settlement as described in the Plan was inconsistent with, and allegedly went beyond, B-C’s disclaimer of its interest in the Hogback Lease in open court on April 17, 2008, because the Confirmation Order was res judicata as to those issues. The Court therefore granted the B-C MSJ in part, and concluded that B-C “has no right, title or interest in or to the Hogback lease [sic] that it may assert, given confirmation of the Plan. And anyone acting or purporting to act on its behalf cannot legally assert any right, title, or interest in or to the Hogback lease [sic].”
Tr.
12/21/10, p. 24:8-14.
The Trustee now argues that in light of the Court’s ruling in the December Opinion, it is clear that B-C can no longer seek approval of the B-C Assignment, and cannot assist the ORRIs in seeking approval of the ORRI Assignments that are consequently void for lack of Navajo Nation approval. Further, the Trustee asserts that despite this Court’s conclusion in the November Opinion that the Trustee lacked standing to raise the lack of approval of the B-C Assignment because his predecessor-in-interest, Vallecito, was a party to that assignment, he can nevertheless raise the same issue as to the ORRI Assignments because Vallecito was not a party to any of the ORRI Assignments; thus, the cases this Court relied upon in its November Opinion are distinguishable. The Trustee argues that “this is not a case in which one party to a transaction is attempting to use the approval process as a way to escape a deal it entered into.”
Trustee’s Pre-Trial Br.,
p. 10. The Trustee does not, of course, take issue with the Court’s conclusion in the November Opinion that Vallecito retained a sufficient interest in the Hogback Lease, even after assigning it to B-C, such that the Hogback Lease was property of Vallecito’s estate on the Petition Date.
The Defendants, most of whom were not parties to the Pugh MSJ where the issue was decided, continue to assert that the Hogback Lease was not property of the estate on the Petition Date. They further assert that even if, as the Court concluded in the November Opinion, Vallecito’s contingent, reversionary interest in the Hogback Lease was sufficient to cause it to be property of the estate on the Petition Date, that interest has not vested and thus the assignments of ORRIs to the Defendants were not in violation of the automatic stay and the ORRI Assignments were not transfers of property of the estate and thus are not avoidable under § 549. They further assert that the Trustee cannot raise the lack of Navajo Nation approval of their ORRIs as a basis for invalidating their interests, for the same reasons found by the Court in the November Opinion. Lastly, the Defendants assert that even if B-C is excused from seeking BIA/Navajo Nation approval of its assignment, the Trustee is contractually obligated to apply for Navajo Nation consent to the ORRIs, because there is a warranty clause in the ORRI Assignments that binds the Trustee.
The Trustee responds that any obligation to assist B-C in obtaining BIA/Navajo Nation approval of the B-C Assignment was released under the Plan.
As noted earlier, the Court relied, in part, on the
Graves
case for its conclusion that the Hogback Lease was property of the estate on the Petition Date. In a supplemental trial brief, the Defendants attempt to distinguish the
Graves
case. In
Graves ,
James and Kathryn Graves filed their 2006 tax return, which showed that they were entitled to a $8,000 tax refund. Rather than receive the refund, the Graveses elected to leave the funds on deposit with the IRS and have them ap
*380
plied to their 2007 tax liability. Under the Internal Revenue Code, that election is irrevocable, and “no claim for credit or refund of such overpayment shall be allowed for the taxable year in which the overpayment arises.”
See
26 U.S.C. § 6513 (d). In other words, having made the election to have their 2006 refund held by the IRS and applied towards their 2007 tax liability, if any, the Graveses gave up any right to possess the $3,000 until after their 2007 tax liability was determined. Two months after filing their 2006 return, the Graveses filed for relief under chapter 7 of the Bankruptcy Code. Their chapter 7 trustee filed a motion for turnover of the 2006 refund, arguing that since the debtors were receiving the benefit of the application of the refund, the refund should be treated as an account receivable of the debtors, and the debtors should therefore be required to turnover $3,000 to the estate. The bankruptcy court denied the motion, and the trustee appealed. The Bankruptcy Appellate Panel for the Tenth Circuit affirmed,
Weinman v. Graves,
396 B.R. 70 (10th Cir. BAP 2008), and the trustee appealed. The Tenth Circuit affirmed, noting first the breadth of § 541 and the resulting rule that property of the bankruptcy estate is broad enough to include the debtor’s interests which cannot be liquidated and transferred by the debt- or. The Circuit then noted “one of the central precepts of bankruptcy law”:
a bankruptcy trustee succeeds only to the title and rights in property that the debtor had at the time she filed the bankruptcy petition. Filing a bankruptcy petition does not expand or change a debtor’s interest in an asset; it merely changes the party who holds that interest. Further, a trustee takes the property subject to the same restrictions that existed at the commencement of the case. To the extent an interest is limited in the hands of a debtor, it is equally limited as property of the estate.
Graves,
609 F.3d at 1156 . The Circuit then noted that the trustee’s interest in the application of the tax refund was limited to the same extent as the
debtors’—ie.,
by the Internal Revenue Code, and since the debtors had no right to any of the cash prior to the determination of their 2007 liability (and would only have a right to any of the cash if any funds were left over after application to their 2007 taxes), the trustee had no such right either. The Circuit then stated: “The portion of that further refund attributable to pre-petition earnings would become property of the estate. Thus, we hold that the estate’s interest in the pre-payment is limited to debtors’ contingent reversionary interest in the pre-payment attributable to pre-petition earnings.”
Id.
The Court then analyzed the language of § 542, which requires that the “turnover targets” be “in possession custody, or control, during the case, of property that the trustee may use, sell, or lease under” § 363, and concluded that the debtors had never been in possession, custody, or control of their contingent reversionary interest in the prepayment of their 2007 taxes and thus the trustee’s turnover motion was denied because at no time during the case did the debtors have the right to obtain their refund from the IRS.
Here, the Defendants take issue with this Court’s analysis of the
Graves
case, cited by the Court for the proposition that a contingent reversionary interest is property of the estate. The Defendants assert that the Court did not place as fine a point on the issue as the
Graves
court did.
They argue:
In the instant matter, assuming that a contingent reversionary interest can be property of the estate, the Trustee’s in
*381
terest in the Hogback Lease at the time of the assignments of the overriding royalty interests was, at best, a future contingent reversionary interest which was, and has not, vested in the estate. The assignment of the Hogback Lease from Yallecito to Briggs-Cockerham and then Briggs-Cockerhams’ [sic] assignments of the overriding royalty interest to the Defendants were irrevocable transfers. After Vallecito’s assignment to Briggs-Cockerham, the Trustee had no rights of possession or control over the Hogback Lease, and, further, the Trustee has no current rights of possession of, or control over, the interests assigned to the Defendants. The assignments of the overriding royalty interests were not violations of the automatic stay because the contingent reversionary interest of the estate had not, and still has not, vested. The assignments were not an attempt to obtain possession or control of property of the estate. Just as in the
Graves
case, once the deposit was irrevocably transferred to the IRS, the IRS’ application of the funds to future tax liability of the debtors was not a violation of the stay. The only property of the estate is the contingent reversionary interest, and it was not assigned or conveyed. Therefore, the transfers of the overriding royalty interests were not transfers of property of the estate, and therefore, not avoidable under § 544 or § 549(a), nor were the transfers violations of § 362(a)(3) as they were not acts to obtain possession of property of the estate, from the estate or to exercise control over property of the estate.
Defs’ Supp. Trial Br.,
p. 4.
The Court disagrees. First, the
Graves
court did not speak in terms of the “vesting” of any interest. More importantly, the nature of the interest that the debtors retained in
Graves
differs significantly from the nature of the interest held by Vallecito on the Petition Date. In
Graves,
the debtors irrevocably transferred their interest in the 2006. tax refund, just as Vallecito irrevocably transferred its interest in the Hogback Lease to B-C. However, in
Graves,
the Internal Revenue Code also provided that the debtors would have no interest at all in the funds transferred, unless there was a refund due to them after their 2007 taxes were determined. However, if their 2007 tax return showed that the debtors, for example, owed $5,000, then the full $3,000 tax refund would have been applied to their 2007 taxes and the debtors would have been entitled to nothing. If their 2007 return showed that the debtors owed $2,000, then $2,000 of the 2006 overpayment would have been applied to the 2007 taxes, and the debtors would have received $1,000 back from the IRS. It is this potential “leftover” amount that the debtors would receive back, if anything, once the contingency of their 2007 tax liability was resolved, and it is only this “leftover” amount that the Circuit held was property of the estate. Here, however, Vallecito transferred the entirety of its interest to B-C (concededly irrevocably). But if the Navajo Nation and/or BIA failed to approve the assignment, the entirety of what had been transferred would be returned. Therefore, the entirety of what was transferred away would come back, and Vallecito (and therefore, the Trustee) had, and has, a contingent rever-sionary interest in the entire Hogback Lease — vested or not. The Circuit in
Graves
did not hold that the overpayment was not property of the estate because the debtors’ contingent, reversionary interest had not vested — it held that the portion of the refund which would end up being applied to the 2007 taxes would never be property of the estate, but the portion of the refund which could, statutorily, come back — would be property of the estate.
*382
The Court therefore adheres to its original ruling, as announced in the November Opinion-—-that Vallecito’s contingent rever-sionary interest in the Hogback Lease meant that it was property of the estate on the Petition Date.
23
It was property of the estate on the Petition Date, as opposed to when the contingency gets resolved, because unlike the
Graves
case, Valleeito did not transfer it away in the face of a statute that provided that only some of what had been transferred may come back. Therefore, Valleeito held a contingent, reversion-ary interest in the entire Hogback Lease on the Petition Date.
Next, as noted earlier, the Trustee asserts that despite this Court’s conclusion in the November Opinion that the Trustee lacked standing to raise the lack of approval of the B-C Assignment because his predecessor-in-interest, Valleeito, was a party to that assignment, he can nevertheless raise the same issue as to the ORRIs, because Valleeito was not a party to any of the ORRI Assignments and thus the cases this Court relied upon in its November Opinion are distinguishable. The Trustee argues that “this is not a case in which one party to a transaction is attempting to use the approval process as a way to escape a deal it entered into.”
Trustee’s Pre-Trial Br.,
p. 10. In response, the Defendants assert that the Trustee cannot raise the lack of Navajo Nation approval of their ORRIs as a basis for invalidating their interests for the same reasons found by the Court in the November Opinion. The Court agrees with the Defendants, as explained below.
The Court does not believe that the fact that the Trustee is not a party to the ORRI Assignments he now seeks to avoid assists the Trustee in his quest for avoidance. It is true that in most of the cases that raise the issue of whether a private party can use the lack of Navajo Nation approval as a basis for invalidating an agreement, it is one of the parties to the agreement that is raising the issue. However, the Court notes that in
Hertzel v. Weber,
283 F. 921 (8th Cir.1922), cited by the Court in its November Opinion, the party contesting the validity of an unapproved assignment was
not
one of the parties to the unapproved assignment.
See supra,
n. 3. Despite the fact that the person challenging the validity of an assignment on the basis of lack of approval by the Secretary of the Interior was
not
a party to the challenged assignment, the Eighth Circuit held that he could not do so, because the regulations requiring Secretary approval were enacted for the benefit of the Indians, not the challenger.
Such is the case here. In its November Opinion, the Court held that the Trustee could not challenge the B-C Assignment because the requirements for Navajo Nation/BIA approval were for the benefit of the Navajo Nation. It is true that in the course of doing so, the Court cited to cases, including
Hertzel ,
that have held that “as between the parties to the agreement,” the lack of government ap
*383
proval does not render an agreement invalid. By using that language, neither the cases cited by the Court in its November Opinion nor this Court meant that
only
the parties to an agreement are precluded from challenging its validity on this basis. Rather, the real holding of this Court was that no one, other than the BIA or the tribe for whose benefit the regulation requiring tribal and BIA approval was promulgated, could raise the issue. Moreover, it would be anomalous to conclude that non-protected third parties, who are strangers to the agreement, have greater rights than the parties to the agreement themselves. Therefore, the Court adheres to its earlier ruling in the November Opinion that the Trustee may not invoke the lack of Navajo Nation consent to the B-C Assignment and/or the ORRI Assignments as a basis to challenge B-C’s assignment of ORRIs to the Defendants and invalidate the Defendants’ interests in the Hogback Lease.
The Court’s conclusion that the Trustee may not invoke the lack of Navajo Nation consent as a basis to challenge either the B-C Assignment or B-C’s assignment of the ORRIs disposes in full of the Trustee’s fourth cause of action against Kievit, as that is the sole basis upon which the Trustee asserts that he is entitled to a declaration that Kievit’s interest is “void or voidable” and that Kievit has “no right, title or interest in the Hogback Lease as a result of’ the ORRI Assignment to Kievit.
24
Kievit is entitled to the entry of a judgment that the Trustee take nothing on this claim.
Since the Court has concluded that the Trustee cannot raise the issue of lack of Navajo Nation consent to the ORRI Assignments as a basis to attack their validity, the Court need not consider whether the ORRIs are void, or invalid, absent Navajo Nation consent. However, the Court will nevertheless address that issue, to facilitate any appellate review.
The Trustee asserts that the Defendants lack an interest in the Hogback Lease, citing § 605 of the Navajo Nation Code. As is relevant here, that statute provides:
A. Any transfer of a Navajo Nation mining interest or all rights arising under leases, permits, other agreements including farm-out and operating agreements heretofore approved by the Navajo Nation, or an interest in the aforementioned ... may be done either by assignment, reassignment or by entering into a working agreement or in any other manner, only if the following requirements are fully complied with:
* *
*
1. The assignor and assignee shall complete and file a Navajo Nation Assignment of Mining Interest form with the Minerals Department. Forms and updated instructions shall be available from the Minerals Department of the Navajo Nation.
*384
6. No overriding royalty may be created by any transfer authorized hereby without the consent of the Minerals Department of the Navajo Nation nor shall such overriding royalty be approved if it is determined by the Minerals Department that it will have such an adverse economic impact that it may prevent full recovery of the mineral resources.
18 N.N.C. § 605 (West 2005 & Supp. 2009).
It is undisputed that the Navajo Nation has not been asked to consent to, and has not consented to, the ORRI Assignments. However, it is also undisputed that there is no deadline imposed by either the statute or the assignment documents themselves within which the Defendants must seek such approval. For this reason, the Court concluded in the November Opinion that the fact that the Navajo Nation had not yet approved the ORRI Assignments did not render them void ab initio because there was no evidence in the summary judgment record that Navajo Nation consent could not still be obtained.
The Court notes that the parties have not cited to any cases interpreting § 605 of the Navajo Nation Code, and the Court’s independent research has failed to locate a single case interpreting this statute.
25
The Court must therefore look solely to the text of the statute itself and any other aids of construction to divine its meaning. All inquiries respecting statutory interpretations must begin “with the language of the statute itself.”
U.S. v. Ron Pair Enters., Inc.,
489 U.S. 235, 241 , 109 S.Ct. 1026 , 103 L.Ed.2d 290 (1989). Where a statute’s language is plain, “the sole function of the courts is to enforce it according to its terms.”
Id.
If a statute is susceptible to different meanings, the “fundamental question ... is legislative intent and the reasons that prompted the legislature to enact the law,” and the statute must be “interpreted as having the meaning that best conforms to the purpose of the law.”
In re Whitaker Const. Co.,
411 F.3d 197, 204-5 (5th Cir.2005) (internal citations and quotations omitted).
Here, the dispute centers on the validity of the ORRI Assignments absent Navajo Nation consent. As noted above, the statute provides that “no overriding royalty may be created ... without the consent” of the Navajo Nation. The words of the statute are plain. The word “created” must be given its ordinary meaning.
Castro v. Collecto, Inc.,
634 F.3d 779, 786 (5th Cir.2011) (“when terms used in a statute are undefined, we give them their ordinary meaning”). To “create” is “to make or bring into existence something new.” Webster’s Third New International Dictionary of the English Language 532 (Philip B. Gove, ed. 1993). Therefore, the Court concludes that in the event that the Court has erred and the Trustee
may
assert lack of Navajo Nation consent as a basis to avoid the ORRI Assignments, then in the absence of such Navajo Nation consent, the ORRIs have not yet been created and do not, therefore, exist and are null and void.
However, the Defendants assert that Navajo Nation consent to the ORRI Assignments can still be obtained and thus all is not lost. But, in response to this assertion, the Trustee correctly notes that § 605(a)(1) requires both the assignees— here, the Defendants,
and
the assignor— here, B-C, to complete and file a Navajo Nation Assignment of Mining Interest form. The Trustee argues that it is impossible, in light of the Court’s December
*385
Opinion, for B-C to now complete and file for Navajo Nation consent to its assignment of the ORRIs to the Defendants. The Court agrees. As noted earlier,
see supra
p. 24, the Court in its December Opinion ruled that in view of the Plan and Confirmation Order, B-C “has no right, title or interest in or to the Hogback lease that it may assert, given confirmation of the Plan. And anyone acting or purporting to act on its behalf cannot legally assert any right, title, or interest in or to the Hogback lease.”
Tr.
12/21/10, p. 24:8-14. The Court concludes that B-C is, at this point, unable in light of the Court’s December Opinion to complete and file an application for Navajo Nation consent, as such would be tantamount to an assertion that it has something to assign. Therefore, the Court agrees with the Trustee that it is no longer possible for B-C to seek Navajo Nation consent to its assignment of any interest in the Hogback Lease to the Defendants.
The Defendants also assert that even if
B-C
is unable to seek, or is excused from seeking, Navajo Nation consent to the ORRI Assignments, the
Trustee
is required to seek such consent—on two theories. First, the Defendants argue that the B-C Assignment contains a provision that states that:
Assignor shall, upon request, deliver to Assignee such additional documents as may be required by applicable government regulations, including, but not limited to, the rules and regulations of the Bureau of Indian Affairs and/or Bureau of Land Management, United States Department of the Interior, in order to filly [sic] effectuate or properly evidence the conveyance made herein, and Assignor shall cooperate with Assignee in obtaining the timely approval by such agency or agencies of any such documents. This Assignment shall bind and inure to the benefit of Assignor and Assignee and their respective successors and assign [sic].
See
Ex. 7. The Defendants therefore argue that the Trustee, as successor to the “Assignor” (Vallecito) is bound by this provision and must assist B-C in obtaining approval of the B-C Assignment. In response, the Trustee argues that any obligation to assist B-C in obtaining approval of the B-C Assignment has been released under the settlement with B-C, as approved in the Plan.
26
The Court agrees with the Trustee. Article 11.3 of the Plan, entitled “Compromise and Settlement of Certain Claims” provides:
(a) B-C, Briggs, Cockerham—In order to effectuate the Plan, any and all claims of B-C, Briggs, Cockerham and their Affiliates against the Debtor, shall be released, including, but not limited to BC’s allowed administrative expense claim pursuant to the Court’s Order of January 11, 2008, in the amount of $158,500.00 and B-C’s scheduled unsecured claim of $400,000.00. In addition, B-C, Briggs, and/or Cockerham expressly disclaim any right, title or interest in any and all property of the estate as defined in 11 U.S.C. § 541 .
See
Ex. 17 (Plan, Art. 11.3). This Court has ruled, in its December Opinion, that
*386
this settlement with B-C was approved as of the time of confirmation. As of that date, B-C released Vallecito from “any and all claims” and disclaimed any right, title or interest in any and all property of the estate, which the Court has held included Vallecito’s contingent, reversionary interest in the entirety of the Hogback Lease. The Court concludes that the language of the Plan is broad enough to release Vallecito (and thus the Trustee) from any claims arising from his failure to assist B-C in obtaining Navajo Nation/BIA approval of the B-C Assignment. If B-C cannot assert such claims, neither can those who obtained their interests in the Hogback Lease through B-C.
27
Second, the Defendants point out that it is undisputed that Vallecito assigned the Hogback Lease to B-C pre-petition. They then assert that
there has never been a reconveyance yet back from Briggs-Cockerham to the estate. Confirmation is binding on ... Briggs-Cockerham. At some point in time, and I believe if you read the plan, the plan says upon the effective date there will be a reconveyance back to the estate and a conveyance to the purchaser. At that point in time ... that recon-veyance back to the estate takes subject to anything in existence that Briggs-Cockerham had transferred, including our interest ... and that what the trustee takes, at that point in time, is subject to the assignments from Briggs-Cockerham to the ORRIs which contains provisions that the assignor, Briggs-Cockerham, will assist in obtaining approvals. The trustee takes subject to that provision because the assignment says it inures to the benefit, it binds and inures to the benefit of the assignor and assignees. So we are saying that that binds whomever takes from Briggs-Cockerham, the estate, to assist in that approval process.
Audiotape of hearing held 5/9/11 at 11:54:25-11:55:58 (on file with Court). The Trustee’s sole response to this argument is that there need not be a re-conveyance back to the estate. The Trustee points the Court to decretal paragraph 17 of the Confirmation Order, which provides as follows:
Upon the Trustee’s or Purchaser’s request, any and all holders of any liens or encumbrances filed of public record or arising by statute, including but not limited to (a) Harold O’Connor; (b) Barrens Resources; (c) Sandia Development & Consulting, Inc.; (d) Michael Briggs; (e) John Cockerham; (f) Briggs-Cocker-ham LLC; (g) John Burle; and/or (h) Mary Clare Moser, shall execute a release of such liens and encumbrances as, but only to the extent that, they affect the Hogback Lease or any other Hogback Assets. If any person or entity that has filed financing statements, mortgages, mechanics liens, maritime liens, abstracts,
lis pendens
or other documents evidencing a lien or encumbrance in the Hogback Lease or any Hogback Assets shall not have delivered to the Trustee prior to the closing of the sale, in proper form for filing and exe
*387
cuted by the appropriate parties, termination statements, instruments of satisfaction, or releases of all such liens, claims, interests or encumbrances, the filing or recording of a certified copy of this Order shall constitute conclusive evidence of the release of all liens and encumbrances against the Hogback Lease and/or the Hogback Assets.
Ex. 18, p. 21. The Trustee asserts that this provision means that B-C need not re-convey the Hogback Lease to the Vallecito estate, as the Confirmation Order serves as the re-conveyance document, and it is undisputed that the Trustee recorded a copy of the Confirmation Order in the property records of San Juan County, New Mexico on January 25, 2010. Joint Pretrial Order, § II, ¶ 39.
The Court disagrees with the Trustee’s interpretation of paragraph 17 of the Confirmation Order. First, the Trustee conceded at trial that B-C’s interest in the Hogback Lease is not a “lien.” The Trustee argued (without citation to any authority) that it is an “encumbrance.” The Court disagrees. An encumbrance is “a claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right
that is not an ownership interest.”
Black’s Law Dictionary (9th ed. 2009).
28
By negative implication, an ownership interest in property is
not
an encumbrance.
More importantly, even if the Trustee was
correct—ie.,
that entry of the Confirmation Order is the event that constitutes the re-conveyance of the Hogback Lease back to the Vallecito estate—that event occurred on March 17, 2009. By that date, B-C had already granted the Defendants their ORRIs,
see
Ex. A to Joint Pretrial Order (showing that the last ORRI was.granted on January 29, 2009), pursuant to the ORRI Assignments, each of which stated:
Assignor [B-C] shall, upon request, deliver to Assignee [the Defendants] such additional documents as may be required by applicable governmental regulations, including, but not limited to, the rules and regulations of the Bureau of Indian Affairs and/or Bureau of Land Management, United States Department of the Interior, in order to fully effectuate or properly evidence the conveyance made herein, and Assignor [B-C] shall cooperate with Assignee [the Defendants] in obtaining the timely approval by such agency or agencies of any such documents.
This Assignment shall bind and inure to the benefit of the Assignor and Assignee and their respective successors and assigns.
See
Exs. 20-85.
From the Court’s perspective, any re-conveyance of the Hogback Lease back to the Vallecito estate on March 17, 2009 cannot prevent the Trustee from receiving the Hogback Lease back from B-C subject to the terms of the ORRI Assignments then in place. In other words, the Court concludes that even assuming the Trustee is correct, such that the Vallecito estate got the Hogback Lease back on March 17, 2009, the Vallecito estate got it back subject to what B-C had done with it in the
interim—ie.,
subject to the ORRI Assignments. Because the Vallecito estate was, at that point, the successor to B-C, it was therefore bound by the terms of the ORRI
*388
Assignments. The Plan did not, as it could not have, purport to extinguish or release
B-C’s
obligations on
its
contracts. Moreover, the Plan did not, as it could not have, purport to extinguish the interests of the Defendants. In fact, at the time the Plan was confirmed, the Trustee did not know of the Defendants’ existence or their claim to a right to any portion of the Hogback Lease. Joint Pretrial Order, § II ¶ 37.
For all of these reasons, the Court concludes that the Trustee is not entitled to the declarations he seeks in his first, second, third or fourth causes of action—to the extent he seeks declarations that the Defendants’ interests are void for lack of Navajo Nation consent. The Court’s conclusions may be summarized as follows: (1) the Court adheres to its earlier ruling that despite the validity of the B-C Assignment as between Vallecito and B-C, Vallecito retained a sufficient interest in the Hogback Lease such that the Hogback Lease was property of Vallecito’s bankruptcy estate on the Petition Date; (2) the Court adheres to its earlier ruling that the Trustee, as a non-protected third party, cannot raise the lack of Navajo Nation/BIA approval as a basis to invalidate the B-C Assignment; and (3) the Court further concludes that its prior ruling is equally applicable to the Trustee’s attempt to invalidate the ORRI Assignments for lack of Navajo Nation consent. Alternatively, if the Court has erred and the Trustee is able to invoke a lack of Navajo Nation consent to the ORRI Assignments as a basis to void those assignments, the Court concludes that (1) at the present time, the interests purportedly conveyed by the ORRI Assignments were not created; (2) B-C is precluded from seeking Navajo Nation consent to the ORRI Assignments by confirmation of the Plan; (3) any obligation the Trustee had as successor to Vallecito to seek approval of the BC Assignment has been released under the confirmed Plan; (4) B-C’s interest in the Hogback Lease is not a “lien” or “encumbrance” such that paragraph 17 of the Confirmation Order excuses the need for a re-conveyance of the Hogback Lease back to the Vallecito estate; and (5) even if the Confirmation Order constituted a re-conveyance of the Hogback Lease back to the Vallecito estate from B-C, the estate received the Hogback Lease subject to BC’s agreement to deliver to the Defendants such additional documents as may be required to obtain Navajo Nation consent to the ORRI Assignments; so, while B-C cannot seek Navajo Nation approval of the ORRI Assignments, the Trustee took the Hogback Lease subject to the ORRI Assignments and B-C’s obligation to deliver such additional documents as may be required to obtain Navajo Nation consent to the ORRI Assignments.
B. Are the ORRI Assignments Void as having been taken in Violation of the Automatic Stay?
The Trustee next asserts that the Defendants who received their assignments after the Petition Date lack any interest in the Hogback Lease because BC’s transfers to them occurred post-petition in violation of the Vallecito automatic stay and are therefore void. As the Court has previously concluded that the Hogback Lease was property of the Vallecito bankruptcy estate on the Petition Date,
see supra
at pp. 25-30, the automatic stay applies to protect Vallecito’s interest in the Hogback Lease. As is relevant here, 11 U.S.C. § 362 (a) provides that the filing of a bankruptcy petition “operates as a stay, applicable to all entities, of ... (3) any act to ... exercise control over property of the estate.” The stay is effective upon the filing of a bankruptcy case, without regard
*389
to notice to anyone of its filing.
In re Cueva,
371 F.3d 232 (5th Cir.2004).
This Court has previously ruled in its November Opinion that B-C’s assignment, post-petition, of the various ORRIs in the Hogback Lease to the Defendants was an act to exercise control over property of the estate. The Court noted in its November Opinion that in this Circuit, actions taken in violation of the stay are “voidable,” not “void.”
Jones v. Garcia,
63 F.3d 411, 412 (5th Cir.1995). The Court also noted, however, that a transfer made in violation of the automatic stay is invalid when it occurs, although the transfer may be retroactively validated if someone seeks and receives an annulment of the stay under § 362(d).
Cueva,
371 F.3d at 236. None of the Defendants has sought, or received, such relief here; thus, the post-petition transfer by B-C of ORRIs to all but 10 of the Defendants was, and remains, invalid unless the stay is annulled under § 362(d) or some exception to the automatic stay applies.
29
For the same reasons, the Defendants’ recording of the ORRI Assignments post-petition also violated the automatic stay and is invalid unless the stay is annulled or an exception to the automatic stay applies.
30
The Court noted in its November Opinion that § 362(b) provides that the filing of a bankruptcy petition “does not operate as a stay ... (24) under subsection (a), of any transfer that is not avoidable ... under section 549.” The Defendants who received post-petition ORRIs argued that the transfers of the ORRIs to them by BC were not avoidable under § 549 and therefore their transfers were excepted from the automatic stay. In connection with the Pugh MSJ, the Trustee argued that § 549 is not an exception to the stay set forth in § 362(a). In its November Opinion, the Court disagreed with the Trustee, noting that all of the cases that the Trustee cited for the proposition that a transfer to a good faith purchaser under § 549(c) is not excepted from the automatic stay were decided before the enactment by Congress in 2005 of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). Prior to BAPCPA, courts had struggled with the interplay of §§ 362 and 549. See,
e.g., U.S. v. Miller,
5:02-CV-0168-C, 2003 WL 23109906 (N.D.Tex. Dec. 22, 2003) (containing a comprehensive discussion of the varying analyses employed by the courts). The Court noted in its November Opinion that while some courts held that § 549 was an uncodified exception to the automatic stay—others did not—and the Fifth Circuit fell into the latter camp.
In re Cueva,
371 F.3d 232 (5th Cir.2004).
With the enactment of BAPCPA, however, § 362(b)(24) was added to the Bankruptcy Code and accordingly, the Court considered in its November Opinion the effect of its addition. The Court considered the two reported and one unreported decisions that considered the interplay between §§ 362(b)(24) and 549.
See In re Striblin,
349 B.R. 301 (Bankr.N.D.Fla.2006);
In re Ducker,
No. 06-70250, 2007 WL 1119640 (Bankr.E.D.Ky. Apr. 3, 2007); and
In re Howard,
391 B.R. 511 (Bankr.N.D.Ga.2008). The Court ruled in its November Opinion that both the United States Supreme Court and the
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Fifth Circuit have held that the starting point for ascertaining Congressional intent is the existing statutory text.
See, e.g., Lamie v. U.S. Trustee,
540 U.S. 526, 533-536 , 124 S.Ct. 1023 , 157 L.Ed.2d 1024 (2004) and
In re SeaQuest Diving, L.P.,
579 F.3d 411 (5th Cir.2009). The Court concluded in its November Opinion that there is nothing in the text of § 362 that suggests that the exception applies to anything less than the full panoply of transfers rendered unavoidable by § 549.
31
In turn, there is nothing in the text of § 549 that limits its application to transfers by the debtor, or to voluntary transfers. Therefore, in its November Opinion, the Court concluded that a transfer that is not avoidable under § 549 is excepted from the automatic stay under § 362(b)(24).
The Court next examined in its November Opinion whether the transfer to Pugh (which was the only transfer at issue in the Pugh MSJ) was avoidable under § 549 in order to determine whether that transfer was excepted from the automatic stay. The issue before the Court in the Pugh MSJ was whether the exception to § 549 avoidance contained in subsection (c) thereof applied.
32
Because Pugh had submitted an affidavit that stated that the assignment of the ORRI from B-C was payment for several debts that B-C owed to Pugh, aggregating approximately $2,190,700, and at that time “no facts were known to [Pugh] that would have made me believe that Valleeito Gas, LLC, a third-party, claimed a non-operating ownership interest in the Hogback Lease,” the Court concluded that this evidence, when viewed in the light most favorable to Pugh, precluded a grant of summary judgment in the Trustee’s favor as to Pugh’s § 549(c) defense, such that the Court was unable to conclude that the transfer was avoidable under § 549 and therefore not excepted from the automatic stay. Therefore, the Court denied summary judgment to the Trustee to the extent the Trustee sought a declaration that the B-C Assignment was void as made in violation of the automatic stay.
Of course, the Court has now tried the adversary proceeding, as to all Defen
*391
dants except B-C,
see supra
notes 3 & 9, and thus this issue is ripe for determination. As noted earlier, the Trustee’s first, second, and third causes of action all assert (as against Pugh, the March 20 Claimants and the April 15 Claimants, respectively) that the ORRI Assignments were recorded post-petition and are therefore subject to avoidance under §§ 362 and 549. In connection with the Pugh MSJ, Pugh did not resist judgment on the ground that § 362 cannot afford the Trustee the relief he seeks. The Defendants still do not resist on this ground. Nevertheless, the Court must consider whether the Trustee is entitled to
avoidance
of
anything
under § 362. For the reasons that follow, the Court concludes that he is not.
In
In re Pointer,
952 F.2d 82 (5th Cir.1992), the question before the Circuit was whether Texas ad valorem tax liens, which arise by operation of law, violate the automatic stay when they attach post-petition to property of a bankruptcy estate. The Fifth Circuit held that it was unable to resolve the issue because the creditor before it lacked standing under the Bankruptcy Code to avoid the liens as violative of the automatic stay. The facts in
Pointer ,
distilled to those relevant here, were as follows: Pointer held a note and deed of trust on an apartment complex that was owned, at the relevant point in time, by Valwood Village Apartments, Ltd. (“WAL”). In 1986, WAL was forced into involuntary bankruptcy. Thereafter, Pointer herself filed a petition for relief under chapter 11. She moved for relief from the automatic stay in the WAL bankruptcy case, which relief was granted, and she thereafter foreclosed her lien on the complex. She was the high bidder at the foreclosure sale and therefore purchased the complex. The city’s taxing authorities (the “Taxing Authorities”) filed a proof of claim in Pointer’s case seeking payment of the taxes allegedly securing their liens on the apartment complex that Pointer now owned. Pointer filed an adversary proceeding against the Taxing Authorities, arguing that the Taxing Authorities were prevented from obtaining liens on the complex due to the automatic stay in WAL’s bankruptcy case. The relief Pointer sought in her adversary proceeding included a request for a determination that the Taxing Authorities be found to have no liens on the property. The Fifth Circuit initially framed the question as “whether a creditor has standing to seek relief for an alleged violation of the automatic stay by another creditor.”
Pointer,
952 F.2d at 85 . The Fifth Circuit first examined Constitutional standing, and concluded that Pointer had such standing. The Fifth Circuit next examined Pointer’s statutory standing under the Bankruptcy Code. It was in this context that the Fifth Circuit stated:
We turn to two sections in the Bankruptcy Code which address the question of standing to bring suit for violations of the automatic stay. The first section need not long concern us because it authorizes suits to obtain a form of relief different from that sought by Pointer. Specifically, § 362(h), which was added to the Bankruptcy Code in 1984, provides that ‘an individual injured by any willful violation of a stay provided by [§ 362] shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.’ .... Pointer, however, seeks a different form of relief from that authorized by § 362(h). Rather than seeking damages, Pointer seeks instead to invalidate the Taxing Units’ post-petition liens as violative of the automatic stay. The Code specifically addresses standing to enforce this type of alleged stay violation — unauthorized
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post-petition transfers of property of the estate — in § 549.
Pointer,
952 F.2d at 86-86 . The Fifth Circuit then held that Pointer could not exercise avoidance powers under § 549 because that power belonged solely to the trustee or debtor-in-possession, and not to creditors. Therefore, the Circuit concluded that she lacked standing to avoid the Taxing Authorities’ liens.
33
More recently, the Fifth Circuit relied upon its earlier decision in
Pointer :
Although T.A. Grant contends that the Trustee’s authority to set aside the sale is found in § 362, this section on its face does not give the trustee the right to set aside a transfer, and appellants cite no persuasive authority that the Trustee has that power under § 362. The section of the Bankruptcy Code that gives the Trustee the authority to avoid a post-petition transfer is 11 U.S.C. § 549 ... The Trustee’s right to avoid post-petition transfers in this case is granted by § 549. Thus, the analyses of the bankruptcy court and district court of whether the Trustee’s assignee had the right under § 362 to avoid the tax sale is flawed. Whatever authority the Trustee had to set aside the sale emanates from § 549, and we must remand....
In re Paxton,
440 F.3d 233, 237 (5th Cir.2006).
This Court is unwilling to engage in similarly “flawed analysis” despite the invitation to do so by the Trustee’s Complaint and the Defendants’ silence. Accordingly, the Court concludes that the Trustee may not rely upon § 362 to avoid the ORRI Assignments or anything else. This conclusion is fatal to the Trustee’s attempt to avoid the ORRI Assignments as to the ORRI Defendants identified on Ex. A to the Joint Pretrial Order as ORRI Assignment Nos. 1-10, because those transfers occurred pre-petition, and thus § 549 does not apply.
34
C. Avoidance under Section 549
Therefore, the Court turns to the Trustee’s claims under § 549. A discussion of these claims will require some further factual background, because additional facts are relevant to the remaining Defendants’ assertion of their “good faith purchaser” defense to the Trustee’s § 549 claims.
See
11 U.S.C. § 549 (c).
35
*393
As noted earlier, in 2006, Vallecito got the Hogback Lease from Tiffany, prior to Vallecito’s bankruptcy filing. Shortly thereafter, Vallecito executed several assignments of various rights in the Hogback Lease. Specifically, in addition to the B-C Assignment, Vallecito executed an “Assignment, Conveyance and Bill of Sale” dated May 9, 2006 conveying to Sandia Development and Consulting Service, Inc. (“Sandia”) an “undivided fifty and one-tenth percent (50.1 %) of the operating rights in [the Hogback Lease] insofar as” that lease covered the land from the surface down to, but not below, the base of the Dakota
formation'
— i.e., the operating rights to the “shallow.” Ex. 5; Joint Pretrial Order, ¶ 4. On that same date, Valleci-to executed a similar assignment to John Burle (“Burle”) — this time of an undivided
5%
of the operating rights to the shallow land covered by the Hogback Lease. Ex. 6; Joint Pretrial Order, ¶ 5. Also prior to Vallecito’s bankruptcy filing, on September 6, 2006, litigation was filed in the United States District Court for the District of New Mexico captioned
Philip John Burle, Mary Clare Moser, Sandia Development and Consulting Services, Inc., Tse Ndeeshglish Enterprises, Inc. v. Michael W. Briggs and Vallecito Gas, LLC,
Case No. 6:06-cv-00838 (the “Burle Litigation” and, when referring to the plaintiffs in the Burle Litigation, the “Burle Plaintiffs”). Joint Pretrial Order, ¶ 8. The Trustee and the Defendants have stipulated that the Defendants did not have actual notice of the Burle Litigation. Joint Pretrial Order, ¶ 17.
The complaint in the Burle Litigation was entitled “Complaint for Damages Resulting from Fraud and Violation of the Unfair Practices Act or for Specific Performance of a Contract for Sale of Mineral Interests in Real Estate” (the “Burle Complaint”). Ex. 90. The Burle Complaint alleged, in essence, that (i) Tiffany owned the Hogback Lease, which Vallecito wanted to purchase and further develop; (ii) Vallecito told Tse Ndeeshglish Enterprises, Inc. (“TSE”) that Tiffany was willing to sell its interest in the Hogback Lease for $1.5 million, and that TSE could purchase a 50.1% interest in the Lease for $1.5 million, and that “major oil companies were interested in purchasing the rights to drill and develop the Pennsylvanian formation below the Dakota formation, and such ‘deep drilling rights’ could be resold immediately to BP Production or others for $9.5 million, so that [TSE] would recover its purchase price and earn a profit on the resale immediately,” Burle Complaint, ¶ 2.e (Ex. 90); (iii) those representations were false, because Tiffany was willing to sell its interest for only $920,000, and there were no major oil companies interested in purchasing the deep drilling rights for $9.5 million; (iv) TSE was an entity owned by the Navajo Nation and, as such, it was entitled to receive a loan guaranty from the BIA, because the proceeds of the loan would be used to purchase a property of which more than 50% would be owned by a Native American tribe or a subsidiary entity controlled by a Native American Tribe; (v) Vallecito represented to TSE that if TSE got a $5 million loan so guaranteed and gave the proceeds to Vallecito, that the proceeds would be used to pay $1.5 million to Tiffany to purchase the Hogback Lease, $1 million for the further development of the existing wells on the land, $500,000 to pay TSE’s share of the cost of drilling the new wells, and $2 million for an unrelated project; (vi) TSE applied for the loan guaranty from the BIA, and Vallecito agreed to buy the Hogback Lease from Tiffany, use the loan proceeds as set forth above, and assign the Hogback Lease to TSE; (vii) TSE had agreed to execute a contract with Vallecito whereby Vallecito would manage and de
*394
velop the lease and, in exchange, Valleeito would be entitled to 49.9% of the revenues from the property; (viii) during the loan application process, Valleeito told TSE that Tiffany was about to change its mind, and to prevent a loss of the chance to buy the Hogback Lease from Tiffany, Philip John Burle (“Burle”) agreed to lend Val-lecito $1 million, and Mary Clare Moser (“Moser”) agreed to lend $80,000 as “bridge loans” to be repaid once TSE obtained the $5 million loan, guaranteed by the BIA, from Compass Bank, and in exchange, Valleeito agreed to assign to Burle and Moser a 5% interest in the working interest in the Hogback Lease; (ix) Vallec-ito delivered an assignment of the Hogback Lease, but that the assignment “deviated from the assignment promised in that the depth of the rights assigned to Plaintiffs was limited to the Dakota formation, so that [Valleeito] retained all ‘deep drilling rights’ which it has previously represented to [TSE] it would receive,” Burle Complaint, ¶ 2.m (Ex. 90); (x) the assignment was delivered to Compass Bank, which acted as escrow, but that the Burle Plaintiffs’ representatives were only allowed to review the assignment for a short period of time and were unskilled in reading those documents and therefore failed to understand that the depth of the drilling rights were limited such that TSE would not be able to recover its investment shortly, and that TSE therefore authorized the disbursement of the $1 million to Valleeito to purchase the Hogback Lease from Tiffany, but that TSE discovered the “deviation between what was promised and what was delivered” the next day, Burle Complaint, ¶2^ (Ex. 90); and (xi) in subsequent discussions, Valleeito agreed to a rescission of the purchase, but was unable to obtain the funds to do so. The Burle Plaintiffs sought (i) a judgment in favor of Burle for $1 million and in favor of Moser for $80,000; (ii) punitive and exemplary damages; (iii) an accounting for revenues from sales of the oil produced; (iv) a judgment for plaintiffs’ proportionate share of same; and (v) most significantly, “a decree compelling specific performance of Plaintiffs’ contract with Defendants for assignment and conveyance of the contracts between Plaintiffs and [Valleeito] including the ‘deep drilling rights.’ ” Burle Complaint, ¶ 3.a (Ex. 90).
On September 13, 2006, the Burle Plaintiffs filed a Notice of Lis Pendens in San Juan County, New Mexico (the “Burle Lis Pendens”) regarding the Burle Litigation related to the Hogback Lease. Joint Pretrial Order, ¶ 8. On November 2, 2006, the Burle Plaintiffs, Briggs and Valleeito entered into a settlement agreement that purported to settle the Burle Litigation (the “Burle Settlement Agreement”). Ex. 92. Significantly, the Trustee and the Defendants currently dispute the precise terms of the Burle Settlement Agreement, as set forth in more detail below.
On March 15, 2007, the Burle Plaintiffs filed in the Burle Litigation a “Motion for Order Determining Enforceability of Settlement Agreement Dated November 2, 2006” (the “Motion to Determine”) Ex. 93. The Motion to Determine alleged that the Burle Settlement Agreement required Briggs and Valleeito to “participate in processing the loan for developing the property or, to buy Plaintiffs’ interest in the property.” Motion to Determine, ¶ 1 (Ex. 93). It further alleged that during November, 2006, Briggs represented to the Burle Plaintiffs “that he elected to purchase Plaintiffs’ interest in the property and would have the money ‘at the end of this week or early next week,” but that more than four months had elapsed and Briggs and Valleeito had failed to tender any funds or otherwise effect the settlement. Motion to Determine, ¶¶ 2-3 (Ex. 93). In their memorandum in support of
*395
the Motion to Determine, the Burle Plaintiffs similarly alleged that the settlement agreement provides that Briggs and Val-lecito “either proceed with their contract to borrow $3 million and use it to develop the Hogback [Lease] or buy out Plaintiffs’ interest in the property.” Ex. 93. The memorandum further noted that although four months had elapsed since the execution of the Burle Settlement Agreement, no performance had been tendered. The Motion to Determine therefore requested either a determination that the Burle Settlement Agreement was no longer enforceable because of Briggs’s and Yallecito’s failure to perform within a reasonable time, or that a “cut-off” date be set for their performance.
On September 28, 2007, the judge presiding over the Burle Litigation entered an order finding that the Burle Settlement Agreement was “legally valid and should be reduced to judgment.” Ex. 94. On that same date, the judge entered judgment in favor of Briggs and Valleeito and dismissed the Burle Complaint. Ex. 95. The judgment was not appealed. Joint Pretrial Order, ¶ 15.
On October 5, 2007, the Burle Plaintiffs filed a Motion for Reconsideration. Ex. 96. On October 9, 2007, the Burle Plaintiffs filed a “Motion for Order and Mandatory Injunction,” which alleged that on April 23, 2007, Valleeito executed and recorded an assignment of the working interest in the Hogback Lease, and that unless “such transfer is avoided, Plaintiffs will be unable to enforce the Settlement Agreement which this Court determined should be enforced.” Ex. 97, ¶¶ 2-3.
36
On January 8, 2008, the judge presiding over the Burle Litigation entered an order that stated, in full:
An Order Granting Summary Judgment and a Judgment of dismissal were entered in this case on September 28, 2007. Plaintiffs attempted to file a Motion for Reconsideration [doc. 72], but it was rejected as deficient. No order reopening the case has been entered and therefore no further pleadings are permitted. All pleadings filed after September 29, 2007, are ordered stricken and the file is to remain closed.
Ex. 98; Joint Pretrial Order, ¶ 20.
On April 14, 2008, after Valleeito had filed its bankruptcy case in this Court and after the Trustee had been appointed as Chapter 11 Trustee of the Valleeito estate, Briggs and Valleeito, through counsel, filed a document with the County Clerk in San Juan County, entitled “Release of Notice of Lis Pendens.” Ex. 100; Joint Pretrial Order, ¶ 22. That document, which bears the caption of the Burle Litigation, provides:
Defendant, Michael W. Briggs and Val-leeito Gas, L.L.C., through counsel, hereby request the County Clerk of San Juan County, New Mexico to discharge the Notice of Lis Pendens filed in the office of the County Clerk of San Juan County, New Mexico, on September 13, 2006 ... against the above named Defendant and hereby release said Notice of Lis Pendens and discharge all of the real estate as evidenced by the attached Order Granting Summary Judgment attached hereto as exhibit A and the Judgment attached hereto as exhibit B.
Ex. 100. Attached to the Release of Notice of Lis Pendens were the September 28, 2007 order and judgment signed by the judge presiding over the Burle Litigation
*396
that determined the Burle Settlement Agreement to be enforceable.
With this further factual background in mind, the Court will turn to the parties’ arguments under § 549. It is undisputed that the transfers of the ORRI Assignments that are identified on Ex. A to the Joint Pretrial Order as ORRI Assignment Nos. 11-66 all took place post-petition and were not authorized by the Bankruptcy Code or this Court. Therefore, only the Defendants’ defenses are at issue.
37
i. The Statute of Limitations in § 549(d) and Equitable Tolling
The Defendants first assert that the Trustee may not avoid under § 549 the ORRI Assignments that are identified on Ex. A to the Joint Pretrial Order as ORRI Assignment Nos. 11-27 because the statute of limitations has expired. Section 549(d) provides:
(d) An action or proceeding under this section may not be commenced after the earlier of—
(1) two years after the date of the transfer sought to be avoided; or
(2) the time the case is closed or dismissed.
The Vallecito bankruptcy case has not been closed or dismissed, so the applicable statute of limitations in the present adversary proceeding is two years after the date of the transfer sought to be avoided. The Court takes judicial notice, and it is undisputed, that this adversary proceeding was filed on March 9, 2010. Therefore, the Defendants argue that ORRI Assignment Nos. 11-27, that were all assigned prior to March 9, 2008, are insulated from avoidance by § 549(d).
38
*397
In response, the Trustee argues that the doctrine of equitable tolling applies to toll limitations in this adversary proceeding until two years after the date he learned of the ORRI Assignments, which the parties have stipulated occurred in “approximately November 2009.”
See
Joint Pretrial Order, ¶ 37.
39
Accordingly, the Trustee asserts that his Complaint, filed less than a year later, is timely even as to ORRI Assignment Nos. 11-27.
Although several circuits have specifically held that the deadline set forth in § 549(d) may be equitably tolled,
see, e.g. In re Pugh,
158 F.3d 530 , 537 (11th Cir.1998) (“there is a strong consensus among courts that sections 546(a) and 549(d) can be equitably tolled”);
In re Olsen,
36 F.3d 71 (9th Cir.1994), the Fifth Circuit is not among them. Nevertheless, for the reasons explained below, the Court is convinced that if faced with the issue the Fifth Circuit would conclude that § 549(d) maybe equitably tolled. First, the Fifth Circuit has ruled that if a deadline is a statute of limitations, it may be equitably tolled.
Fisher v. Johnson,
174 F.3d 710 (5th Cir.1999). Courts recognize a significant distinction between time limits that are jurisdictional as opposed to those that merely operate as a statute of limitations. If a time limit is a statute of limitations it (i) can be waived, (ii) is subject to estoppel and equitable tolling, and (iii) can be extended by agreement of the parties.
Granger v. Aaron’s Inc.,
636 F.3d 708 (5th Cir.2011) (EEOC case);
In re Int’l Admin. Servs., Inc.,
408 F.3d 689 (11th Cir.2005);
Int’l Brotherhood of Teamsters, Gen’l Teamsters Union Local 106 v. FiveCap, Inc.,
No. 1:02-cv-928, 2003 WL 22697173 (W.D.Mich. Nov. 14, 2003). Conversely, if a time limit is jurisdictional, it cannot be waived or extended by the parties or the court.
Int’l Brotherhood of Teamsters,
2003 WL 22697173 at *4.
Second, while the Fifth Circuit has not held that § 549(d) is a statute of limitations as opposed to a jurisdictional bar, it has, along with several other circuits, concluded that § 546(a) is a statute of limitations.
In re Tex. Gen. Petroleum Corp.,
52 F.3d 1330 , 1337 (5th Cir.1995);
see, e.g. In re
Raynor; 617 F.3d 1065 (8th Cir.2010);
In re Pugh,
158 F.3d 530 (11th Cir.1998);
In re M & L Business Mach. Co.,
75 F.3d 586 (10th Cir.1996). As one court has noted, “the language of §§ 546(a) and 549(d) is almost identical, the sole difference being the event which triggers the start of the time period,” thus, cases construing one shed light on the proper construction of the other.
In re Shape, Inc.,
138 B.R. 334, 337 (Bankr.D.Me.1992).
Third, the clear weight of authority at the lower court level supports the application of equitable tolling to the deadline set forth in § 549(d).
See, e.g., In re Evenson,
No. 05-37920-svk, 2010 WL 4622188 (Bankr.E.D.Wis. Nov. 3, 2010);
In re Lau Capital Funding, Inc.,
321 B.R. 287 (Bankr.C.D.Cal.2005);
In re Dreiling,
233 B.R. 848 (Bankr.D.Colo.1999);
In re Arboleda,
224 B.R. 640 (Bankr.N.D.Ill.1998);
In re Russ,
No. 4-87-2332, 1997 WL 188449 (Bankr.D.Minn. Apr. 18, 1997). As the United States Supreme Court has noted, limitations periods are customarily subject to equitable tolling, unless tolling
*398
would be inconsistent with the test of the relevant statute, and Congress “must be presumed to draft limitations periods in light of this background principle. That is doubly true when it is enacting limitations periods to be applied by bankruptcy courts, which are courts of equity and apply the principles and rules of equity jurisprudence.”
Young v. U.S.,
535 U.S. 43, 49-50 , 122 S.Ct. 1036 , 152 L.Ed.2d 79 (2002) (internal citations and quotations omitted).
For these reasons, the Court concludes that the doctrine of equitable tolling may, in theory, be applied in this adversary proceeding to the Trustee’s avoidance claims under § 549. The question remains whether the doctrine applies in fact.
The Fifth Circuit has, in many other contexts, discussed the contours of the doctrine of equitable tolling. The doctrine applies “only in rare and exceptional circumstances,”
Harris v. Boyd Tunica, Inc.,
628 F.3d 237, 239 (5th Cir.2010), and should be applied “sparingly.”
Manning v. Chevron Chem. Co.,
332 F.3d 874 (5th Cir.2003). It most typically applies where the plaintiff “has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,”
id.,
or “is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.”
Melancon v. Kaylo,
259 F.3d 401, 407 (5th Cir.2001). In the bankruptcy context, it may apply when the defendants’ active or passive concealment prevented the trustee from discovering his causes of action.
In re Juliet Homes, LP,
No. 07-36424, 2010 WL 5256806 (Bankr.S.D.Tex. Dec. 16, 2010) (discussing doctrine in context of fraudulent transfer complaint and § 546(a)). Where equitable tolling is based on passive concealment, the trustee must have exercised reasonable diligence to discover the fraud. If there has been active concealment, the statute of limitations does not begin to run until the trustee gained actual knowledge of the transfer.
Id.
at *11. But, a plaintiff must pursue its rights diligently.
In re Porras,
312 B.R. 81 (Bankr.W.D.Tex.2004). In this context, “diligence is measured by an objective standard.”
Juliet Homes,
2010 WL 5256806 at *13;
Porras ,
at 108. In the
Juliet Homes
case, the court stated:
The Court must determine whether the Trustees discovered or should have discovered that the alleged fraud occurred, but nonetheless failed to file a timely suit.
Id.
In a fraudulent transfer case, courts consider whether the bankruptcy trustee had “inquiry notice” of the alleged fraudulent transfer.
Id.
Inquiry notice consists of “sufficient storm warnings to alert a reasonable person to the possibility that there were either misleading statements or significant omissions” involved in a transfer.
Sterlin v. Biomune Systems,
154 F.3d 1191, 1196 (10th Cir.1998). The Court considers (i) when the Trustees had inquiry notice of the alleged facts underlying the claims against the new defendants and (ii) whether investigation at that time would have allowed the Trustees to discover the claims before the limitations period had run. If the underlying facts should have been discovered before the limitations period had ended, equitable tolling is not appropriate.
Juliet Homes,
2010 WL 5256806 at *13. Similarly, where despite the exercise of due diligence, a trustee fails to timely bring an avoidance action due to fraud or extraordinary circumstances beyond the trustee’s control, the doctrine will prevent the expiration of the limitations period.
In re IFS Fin’l Corp.,
No. 02-39553, 2010
*399
WL 4614293 (Bankr.S.D.Tex. Nov. 2, 2010). However, it does not apply to a “garden variety act of attorney negligence.”
Harris,
628 F.3d at 240 .
It is the party seeking to invoke the doctrine that bears the burden to provide justification for its application.
Granger v. Aaron’s, Inc.,
636 F.3d 708 (5th Cir.2011) (Title VII case);
Stroman v. Thaler,
603 F.3d 299 (5th Cir.2010) (habeas petition);
U.S. v. Petty,
530 F.3d 361 (5th Cir.2008) (action under Antiterrorism and Effective Death Penalty Act);
Ramirez v. City of San Antonio,
312 F.3d 178 (5th Cir.2002) (employment discrimination case under the Americans with Disabilities Act);
In re Price,
244 B.R. 398 (Bankr.S.D.Tex.1998) (bankruptcy case).
Here, the Court concludes that the Trustee has not met that burden. First, it is undisputed that there has been no wrongful conduct or concealment on
the Defendants’
part. It is also undisputed that the circumstances leading to the dispute here were, at least in large measure, beyond the Trustee’s control. The Trustee did not control Briggs or his entity, BC, which is the entity that made the transfers at issue; many of them
after
Briggs had disclaimed his and B-C’s interest in the Hogback Lease in open court. However, the Trustee has not put on sufficient, or even any, evidence of diligence. The Trustee did not conduct a title search in the San Juan County records. Joint Pretrial Order, ¶ 31. Had he done so at the time of confirmatíon of the Plan (March 2009), he would have found every one of the ORRI Assignments now at
issue—ie.,
ORRI Assignment Nos. 11-27—as they had been recorded a year earlier. The Trustee learned of the existence of the ORRI Assignments in November 2009—at least several weeks prior to the expiration of § 549’s limitations period as to the transfers at issue—but did not file this adversary proceeding until March 9, 2010, after it had expired.
40
The Court further finds that there were sufficient “storm warnings” to put the Trustee on notice that he should conduct an investigation into the San Juan County records respecting the Hogback Lease. Vallecito’s schedules disclosed that Valleci-to and Briggs were defendants in the Burle Litigation, and described the nature of the proceeding as “[s]uit alleging fraud and requesting specific performance, preliminary injunction, and appointment of a referee and interim receiver concerning the Hogback Lease.” Ex. 101. A cursory review of the pleadings filed in the Burle Litigation would have revealed that the Burle Plaintiffs alleged, in their Memorandum in Support of Plaintiffs’ Motion for Reconsideration, that Vallecito had transferred the Hogback Lease to B-C which was “likely intended to place the Hogback [Lease] beyond the reach” of the New Mexico court. Ex. 100.
Moreover, the record reflects that in February, 2008, the Trustee filed a “Mo
*400
tion for Turnover of Estate Property Pursuant to Section 542 of the Bankruptcy Code” (the “Turnover Motion”). Ex. 14. The Turnover Motion alleged, among other things, that on February 22, 2008, the Trustee had spoken to counsel for Tiffany who had informed the Trustee that Tiffany had learned, three days earlier, of two assignments affecting the Hogback Lease — the B-C Assignment, and an assignment
from B-C
to Barrons Resources LLC, a Vallecito insider. Turnover Motion, ¶¶ 16, 22 (Ex. 14). The Trustee noted in his Turnover Motion that the assignment from B-C to Barrons Resources LLC was “concerning,” in part because the assignment was executed while the Arcturus Injunction was in place and “Mr. Briggs [sic] actions on behalf of Vallecito and BC could be construed to be violations of the Temporary Restraining Order, the Temporary Injunction, and/or violations of relevant statutes.” Turnover Motion, ¶¶ 26, 30.
The record also discloses that in March of 2008, just
days
after the ORRI Assignment Nos. 11-27 were purchased by the Defendants, the Trustee’s counsel sent a letter to an attorney that stated:
When we talked you indicated, and subsequently Mr. Briggs also indicated to me, that Briggs-Cockerham LLC was contemplating a possible sale of a portion of its interests in the Hogback Lease to a third party in order to raise the necessary funds to make a settlement payment we have been discussing. ... We believe that any possible sale or further transfer of any interest of the Hogback Lease must be conducted with the full knowledge of, and complete disclosure to, the Trustee, the Bankruptcy Court, and all parties in interest in the Vallecito Bankruptcy. Accordingly, on behalf of the Trustee, I want to make it clear that the Trustee does not consent to any such transfer. The Trustee further requests any information regarding a potential transaction, including the parties and the stated consideration and/or purchase price.
Ex. 13.
Finally, in October, 2008, the Trustee filed a First Amended Disclosure Statement in the Vallecito bankruptcy case. Ex. 16. The Trustee described Vallecito as of the Petition Date as being “mired in extensive litigation in multiple courts in various jurisdictions”. The Debtor and its principals were accused of various misdeeds by parties that had entered into transactions with the Debtor and/or its principals involving certain oil and gas projects and/or leases. Ex. 16, p. 8. The Amended Disclosure Statement then listed no fewer than six lawsuits in which some variety of fraud was alleged.
Thus, the Trustee was clearly aware, as of February 2008, that B-C had made at least one assignment of an interest in the Hogback Lease to Barrons Resources, that the Trustee believed was in violation of court orders. Moreover, the Trustee was clearly aware, as early as March of 2008, that B-C was thinking about making further transfers of the Hogback Lease. Finally, the Trustee knew that Vallecito, BC and its principals stood accused in multiple fora of fraud. Still, the Trustee did not search the San Juan County records at any time prior to confirmation of the Plan (March 17, 2009) to see if any such transfers had been effected. If he had, he would have seen ORRI Assignment Nos. 11-27, recorded only days after the Trustee sent the March, 2008 letter.
The Court notes that normally it is the buyer (here, Vision) in a real estate transaction who is most concerned with doing a title search not the seller (here, the Trustee). On the facts of this case, however, the Trustee should have been equally con
*401
cerned. The Trustee is a fiduciary to Val-lecito’s creditors, with a duty to maximize the return to the Vallecito estate. An express condition of the sale to Vision, and to the effectiveness of the Plan proposed by the Trustee, is that the Trustee convey to Vision “one hundred percent (100%) of the working interest and net revenue interest in the Hogback Lease, subject only to the royalty interest held by the Navajo Nation pursuant to the terms of the Hogback Lease.” Ex. 17, pp. 14, 15, 17. Despite that contractual obligation, incurred in furtherance of the Trustee’s duty to creditors, the Trustee did not search the real property records in San Juan County to determine whether he had such title to transfer to Vision under the Plan.
In short, on these facts, it is difficult to conclude that the Trustee has satisfied his burden to show diligence sufficient to invoke the doctrine of equitable tolling. The Court acknowledges that this lawsuit is essentially between two innocent factions — -the Trustee, who inherited the case and its facts from Vallecito, and the Defendants, who purchased ORRIs sold to them by B-C without any knowledge of Valleci-to’s bankruptcy case or Briggs’s disclaimer of B-C’s interest in the Hogback Lease. The doctrine of equitable tolling is tempting here, where the Trustee is using the Bankruptcy Code’s avoidance powers to recover the Hogback Lease so that it may be sold for the benefit of Vallecito’s creditors. But, it must be remembered that the Defendants are equally innocent and appear to have been defrauded by their grantor, B-C.
The Court’s research has revealed few cases where the doctrine of equitable tolling has been raised in circumstances such as these — where there has not been some conduct on the part of the defendants that warranted its application, but rather wrongful conduct of an intervening third party. The closest is
Wiscovitch-Rentas v. Almonte,
No. 08-1740(GAG), 2009 WL 349360 (D.P.R. Feb. 11, 2009). In that ease, a chapter 11 debtor disclosed on its schedules that it had made payments to creditors within ninety days of the bankruptcy filing. The case was converted to chapter 7 more than two years later, and the chapter 7 trustee thereafter filed adversary proceedings against preference recipients. The defendants moved to dismiss, claiming that the complaints were time-barred. The trustee opposed the motions, invoking the doctrine of equitable tolling, on the ground that the debtor had intentionally prolonged the chapter 11 case until the limitations period expired, in order to prevent the trustee from asserting avoidance claims against insiders. The bankruptcy court granted the motions, and the trustee appealed. The district court affirmed and adopted the reasoning of the bankruptcy judge that “it would be inequitable to allow the trustee to use the doctrine of equitable tolling to bring these actions against general trade creditors for prepetition preferences, since these defendants played no role in the alleged wrongful conduct perpetrated by the debtor’s representative post-petition.”
Wiscovitch-Rentas,
2009 WL 349360 at *2. Similarly, in
In re U.S. Investors Co. of America,
5 Fed.Appx. 779 (9th Cir.2001) (unpublished disposition), the Ninth Circuit held that a lack of diligence by a prior chapter 7 trustee prevented the successor trustee from invoking the doctrine of equitable tolling. In both of these cases, therefore, the intervening conduct of a third party was insufficient to invoke the doctrine of equitable tolling.
For all of these reasons, the Court concludes that the Trustee’s second cause of action, against the March 20 Claimants, is time-barred to the extent it seeks to avoid, pursuant to § 549, the ORRI Assignments identified on Exhibit A to the Joint Pre
*402
trial Order as ORRI Assignment Nos. 11-27.
ii. The “Good Faith Purchaser” Defense of § 549(c)
As noted above, the elements of the Trustee’s § 549 claim are not in real dispute. Rather, the remaining dispute centers on the application of the § 549(c) defense to the ORRI Assignments identified on Ex. A to the Joint Pretrial Order as ORRI Assignment Nos. 28-66.
Section 549(c) provides:
The trustee may not avoid under subsection (a) of this section a transfer of an interest in real property to a good faith purchaser without knowledge of the commencement of the case and for present fair equivalent value unless a copy or notice of the petition was filed, where a transfer of an interest in such real property may be recorded to perfect such transfer, before such transfer is so perfected that a bona fide purchaser of such real property, against whom applicable law permits such transfer to be perfected, could not acquire an interest that is superior to such interest of such good faith purchaser. A good faith purchaser without knowledge of the commencement of the case and for less than present fair equivalent value has a lien on the property transferred to the extent of any present value given, unless a copy or notice of the petition was so filed before such transfer was so perfected.
Thus, § 549(c) creates a three-part test: (1) was the transferee a “good faith purchaser without knowledge of the commencement of the case;” (2) did the transferee pay “present fair equivalent value;” and (3) was the transferee’s interest perfected before a copy or notice of the bankruptcy petition was recorded, such that a bona fide purchaser under state law could not have acquired a superior interest.
In re Fjeldsted,
293 B.R. 12 (9th Cir.BAP 2003);
In re Tri-Valley Distributing, Inc.,
no. 01-36562, 2011 WL 2442046 (Bankr.D.Utah June 16, 2011). As noted earlier, the parties have stipulated that a copy or notice of the petition was not filed in the San Juan County records. Joint Pretrial Order, ¶ 40. Therefore, element (3) of the Defendants’ § 549(c) defense is undisputed.
As to the second element,
ie.,
whether the transferees paid “present fair equivalent value” for the transfer, neither side has provided any evidence other than the parties’ stipulation that the Defendants paid the amounts set forth on Exhibit A to the Joint Pretrial Order. The record is devoid of
any
evidence of what the transferred interests were worth. In the absence of such evidence, the Court cannot assess at all the equivalence of the value paid, much less determine whether the value paid was presently fair or not. While courts have disagreed about the appropriate benchmark against which the price paid is tested, they are uniform in comparing the price paid against
something.
The Court lacks any evidence of that something here.
41
As the Defendants
*403
bore the burden of proof on this issue,
42
the Court concludes that the Defendants are not entitled to the § 549(c) defense for this reason alone.
43
However, the Court must also address the first
element
— ie., whether the Defendants were “good faith purchaser^] without knowledge of the commencement of the case,” in order to determine whether the Defendants are entitled to get a lien for the value they paid under § 549(c). The phrase “good faith purchaser without knowledge of the commencement of the case” is undefined by the Bankruptcy Code. The parties here appear to assume that the phrase is defined by reference to state — here, New Mexico — law. The Trustee argues that
the ORRI Defendants cannot dispute that they received all of their purported ORRIs subsequent to the recording of a valid notice of lis pendens involving title to the Hogback Lease. Notwithstanding these substantial hurdles, th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2201493. Public record. Not legal advice.