In re: RUMSEY LAND COMPANY, LLC, Debtor. RUMSEY LAND COMPANY, LLC, Plaintiff - Appellant, v. RESOURCE LAND HOLDINGS, LLC; SORIN NATURAL RESOURCE PARTNERS, LLC; PUEBLO BANK AND TRUST COMPANY, LLC, Defendants - Appellees.
No. 18-1452
United States Court of Appeals, Tenth Circuit
December 20, 2019
PUBLISH
Elisabeth A. Shumaker, Clerk of Court
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-02117-CMA-SKC)
Ronald L. Wilcox, Wilcox Law Firm, LLC, Denver, Colorado for Plaintiff - Appellant.
David M. Rich, Minor & Brown, P.C., Denver, Colorado, and Sarah B. Wallace, Ballard Spahr LLP, Denver, Colorado, (Andrew J. Petrie, Ballard Spahr LLP, Denver, Colorado, with them on the brief) for Defendants - Appellees.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
This appeal stems from a dispute involving land sold at a bankruptcy auction. Rumsey Land Company, LLC (“Rumsey“) owned a property subject to a first deed of trust held by Pueblo Bank & Trust Company, LLC (“PBT“). In 2010, Rumsey filed for bankruptcy. Resource Land Holdings, LLC (“RLH“)1 offered to purchase the property, but the bankruptcy court did not approve the sale. Shortly thereafter, PBT purchased the property at a bankruptcy auction. PBT then transferred the land to RLH.
In 2015, Rumsey discovеred that during the bankruptcy proceedings, RLH had entered a loan purchase agreement to purchase PBT‘s interest in the property. The agreement eventually led to litigation in state court between RLH and PBT, which culminated with a settlement agreement allowing RLH to purchase Rumsey‘s property from PBT for $4.75 million.
Rumsey believed the loan agreement, lawsuit, and settlement influenced the price at its bankruptcy auction. It initiated this adversarial proceeding in bankruptcy court against RLH and PBT (collectively “Defendants“), alleging (1) fraudulent concealment in violation of state law and (2) collusive bidding activities in violation of
judgment to Defendants on both claims. Exercising jurisdiction under
On the fraudulent concealment claim, we affirm summary judgment for RLH on the alternativе ground that RLH was not a party to a business transaction with Rumsey and therefore had no duty to disclose information. We affirm summary judgment for PBT because Rumsey forfeited its arguments about PBT‘s duty to disclose and has not argued plain error on appeal.
On the
I. BACKGROUND
A. Factual Background
Rumsey, a Colorado-based limited liability company, owned real property in Evans, Elizabeth, and Nederland, Colorado. In January 2010, it filed for bankruptcy in the United States Bankruptcy Court for the District of Colorado. At the time it filed for bankruptcy, Rumsey‘s holdings included a property known as the Rumsey Farm (“the property” or “the land“), which was encumbered by a first deed of trust held by PBT.
1. RLH‘s Initial Attempts to Acquire the Property
In March 2010, RLH attempted to purchase the property from Rumsey. It discussed with Rumsey the possibility of buying the PBT loan but ultimately offered to purchase the property for $7,484,397.75.
In April 2010, Rumsey filed a motion to approve the sale with the bankruptcy court. Because three creditors objected, the court denied the motion and instructed
2. RLH and PBT‘s Loan Purchase Agreement and Lawsuit
Because RLH could not acquire the property from Rumsey directly, it decided to pursue the possibility of purchasing the debt Rumsey owed to PBT. On December 1, 2010, RLH signed a written loan purchase agreement (“the loan purchase agreement” or “the agreement“) to purchase the debt from PBT for $4.93 million. The agreement contained a confidentiality provision prohibiting disclosure of the agreement or its terms. The parties did not disclose the agreement to Rumsey or to the bankruptcy court.
On February 1, 2011, PBT refused to close on the loan purchase agreement. On March 15, RLH sued PBT to enforce the agreement. As explained below, this lawsuit eventually settled. The parties did not inform Rumsey about the lawsuit.
3. Rumsey‘s Bankruptcy Auction
In early March 2011, the bankruptcy court approved the sale and notice procedures to auction the property. On March 31, 2011, RLH submitted a $4 million
stalking horse bid.2 The same day, PBT submitted a credit stalking horse bid, which did not offer new money but agreed to reduce Rumsey‘s debt by $5 million. Rumsey selected PBT‘s bid as the stalking horse.
Shortly after Rumsey selected PBT as the stalking horse bidder, RLH‘s counsel e-mailed PBT regarding the pending lawsuit with RLH. He noted thаt “[t]he indications that RLH has received from [Rumsey‘s] marketing agent are that RLH was the second place contender to be the stalking horse and no other offers were really in the ball park.” App. at 949. He then added,
[PBT] and [RLH] may turn out to be the only two horses in this race. If that should come to pass, there may be some avenues for a consensual resolution of the disputes between our clients.... Naturally, collusive bidding is inappropriate and I‘m not suggesting anything like that, but the bankruptcy court might be a good forum for a global resolution.
Id. PBT‘s counsel responded that it did not want to create the appearance or impression of any sort of impropriety or collusive bidding to which . . . some other interested party could object pursuant to Section 363(n) of the Bankruptcy Code.” Id. at 1019. It therefore suggested that “until the auctiоn and sale process is concluded, . . . it would be
unwise to engage in any dispute resolution or settlement discussions, of any nature, which may involve the property to be sold at the auction or the underlying loan documents held by [PBT].” Id.
On May 11, 2011, Rumsey auctioned the property. RLH did not participate in the auction. Confluence Resource Holdings, LLC (“Confluence“) placed the winning bid.
On May 25, 2011, Rumsey submitted a Proposed Sale Order, which contained the following representation:
The Debtor and each Successful Bidder and the Back-Up Bidder have fully disclosed
all consideration to be given by each Successful Bidder and the Back-Up Bidder and all other agreements or arrangements entered into by each Successful Bidder and the Back-Up Bidder in connection with the sale of the Assets.
Id. at 963. RLH and PBT both received copies of the Proрosed Sale Order, but neither disclosed their loan purchase agreement or lawsuit.
The bankruptcy court entered the Proposed Order on June 17, authorizing Confluence as the successful bidder and PBT as the back-up bidder. In August, Confluence announced it would not proceed with closing. As a result, Rumsey accepted PBT‘s back-up bid.
4. Defendants’ Settlement Agreement
On September 13, 2011, RLH and PBT agreed to settle their lawsuit. As part of their settlement, they agreed that after PBT acquired the property through the bankruptcy sale, it would sell the property to RLH for $4.75 million. On September 20, the parties entered a contract formalizing this agreement.
5. Sale to PBT and Later Transfer to RLH
On October 4, 2011, PBT moved the bankruptcy court to approve transfer of the property from Rumsey to PBT. In the motion, PBT represented that the property was “free and clear of all liens, encumbrances, claims, and interests.” Id. аt 1021. PBT provided a non-exhaustive list of liens and encumbrances but did not disclose the loan purchase agreement or settlement with RLH. The bankruptcy court‘s proposed Supplemental Sale Order also did not mention the loan purchase agreement, and it specified that “[t]he acquisition of the Assets is undertaken by [PBT] without collusion and in good faith.” Id. at 1034. Both RLH and PBT received copies of the Order, which the bankruptcy court entered on October 6, 2011, thereby transferring the property to PBT. On October 13, PBT conveyed the property to RLH.
6. Discovery of Defendants’ Loan Purchase Agreement and Settlement
PBT and RLH never disclosed their loan purchase agreement, lawsuit, or settlement to Rumsey, and Rumsey did not learn of the agreement until 2015. Rumsey stated that “the [agreement] and subsequent efforts to enforce it had the effect of limiting RLH‘s bid tо the amount agreed to by RLH and PBT,” and that it “would have objected to credit bidding as a part of the sale process if it had known of the [agreement].” Id. at 964.
* * * *
The following table summarizes the events described above.
| | Events Relating to Loan Purchase Agreement |
|---|---|
| 01/15/2010 Rumsey files for bankruptcy. | |
| 03/08/2010 RLH offers to purchase the property for approximately $7.5 million. | |
| 09/03/2010 Bankruptcy court denies Rumsey‘s motion to approve sale to RLH. | |
| 12/01/2010 RLH signs agreement to purchase debt from PBT for $4.93 million. | |
| 02/01/2011 PBT refuses to close on loan purchase agreement. | |
| 03/02/2011 Bankruptcy court approves sale and notice procedures for bankruptcy auction of the property. | |
| 03/15/2011 RLH sues PBT to enforce loan purchase agreement. | |
| 03/31/2011 RLH and PBT submit stalking horse bids. Rumsey selects PBT as the stalking horse. | |
| 05/11/2011 Rumsey auctions the property. Confluence places winning bid. | |
| 05/25/2011 Rumsey submits Proposed Sale Order specifying parties have disclosed agreements related to the property. | |
| 06/17/2011 Bankruptcy court enters Proposed Sale Order designating Confluence as winning bidder and PBT as back-up bidder. | |
| 08/15/2011 Confluence backs out of sale, leaving PBT as winning bidder. | |
| 09/13/2011 RLH and PBT agree to settle lawsuit; parties agree that PBT will transfer the property to RLH for $4.75 million. | |
| 09/20/2011 RLH and PBT enter contract formalizing settlement and sale from PBT to RLH. | |
| 10/04/2011 PBT files motion to transfer the property from Rumsey to PBT. It represents that property is free of liens and encumbrances and that acquisition of assets was undertaken without collusion. | |
| 10/06/2011 Bankruptcy court enters Supplemental Sale Order transferring the property to PBT. | |
| 10/13/2011 PBT transfers the property to RLH. |
B. Procedural Background
1. Adversarial Proceeding Against RLH and PBT
In 2015, Rumsey initiated an adversarial proceeding against Defendants in bankruptcy court. Its complaint alleged Defendants “entered into a secret collusive agreement which had the effect of corrupting the bidding mechanism approved by the Court.” Id. at 442. Specifically, Rumsey noted RLH initially offered to purchase Rumsey Farm from it for approximately $7.5 million and later agreed to purchase PBT‘s loan for $4.9 million.3 Rumsey alleged that the loan purchase
2. Bankruptcy Court Proceedings
The bankruptcy court re-opened Rumsey‘s bankruptcy case, and Rumsey filed an amended complaint asserting six causes of action: (1) fraud on the court (against Defendants), (2) violation of
requested two alternative forms of relief: “that the Bankruptcy Court avoid the sale” or “[i]n the alternative, . . . that PBT and RLH be required to pay damages in the amount by which the value of the рroperty sold exceeds the price at which such sale was consummated ....” Id. at 519.
RLH and PBT filed separate motions to dismiss for failure to state a claim. The bankruptcy court denied the motions, finding Rumsey had “alleged facts supporting a conclusion” that PBT and RLH “reached a secret understanding or agreement regarding the sale of [Rumsey‘s] Assets, which agreement improperly lowered the ultimate sale price.” Id. at 689. The court also found Rumsey “alleged sufficient facts to support a conclusion that the agreement between RLH and [PBT] controlled the bidding price for the sale of the property. Id. at 691.
3. District Court Proceedings
RLH filed a Motion to Withdraw Reference4 to the bankruptcy court, and the proceedings were transferred to the United States District Court for the District of Colorado. RLH then moved for summary judgment on claims 1, 2, 4, and 5, arguing that
each was time-barred and that Rumsey “[could not] meet [its] burden to produce evidence supporting any of [its] claims.” Id. at 734. PBT moved to join RLH‘s motion for summary judgment, which the court granted. PBT also moved for dismissal of claims 3 and 6 for breach of contract and breach of duty of good faith and fair dealing, arguing those claims were “predicated on Rumsey . . . being successful in proving [the other four claims].” Id. at 952.
The district court first addressed RLH‘s statute of limitations argument. The court listed the relevant limitations periods for each of Rumsey‘s claims, including the
The court then granted summary judgment on the merits as to all six of Rumsey‘s claims. The rulings on only two—the fraudulent concealment claim and the
First, on the fraudulent conсealment claim, the district court stated that “[t]here is no general duty for all participants in market transactions to disclose material, nonpublic information,” id. at 1486, and that a duty to disclose arises only if the parties have “a fiduciary or other similar relation of trust and confidence,” id. at 1485. It granted summary judgment for RLH because it found “Rumsey [had] not offered evidence of a relationship of trust and confidence between it and . . . RLH.” Id. at 1486. The court also granted summary judgment for PBT because “Rumsey focuse[d] exclusively on its relationship with . . . RLH” and did “not proffer any argument about why . . . PBT in particular owed it a duty to disclose.” Id. at 1488.
Second, on the
II. DISCUSSION
This appeal presents two issues: (1) whether the district court erred in granting summary judgment for Defendants on Rumsey‘s fraudulent concealment claim, and (2) whether the district court erred in granting summary judgment for Defendants on Rumsey‘s
summary judgment and the Tenth Circuit‘s law on forfeiture. We then turn to the fraudulent concealment and
A. Background Law
1. Standard of Review
“We review the grant or denial of summary judgment de novo, applying the same standard of review as the district court.” S.E.C. v. Cochran, 214 F.3d 1261, 1264 (10th Cir. 2000). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“The movant bears the initial burden of making a prima faciе demonstration of the absence of a genuine issue of material fact . . . .” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The movant may carry this burden “by ‘showing‘—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party‘s case.” Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
When applying this standard, courts “view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
2. Forfeiture
“It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). Accordingly, “if the theory [a party urges on appeal] simply wasn‘t raised before the district court, we usually hold it forfeited.” Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th Cir. 2014) (quotations omitted).
Our case law explains “what kind of specificity is required in the trial court in order tо preserve an issue for appeal.” Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993). Although “[p]leadings and motions in the trial court will be given a liberal reading,” Tele-Commc‘ns, Inc. v. Comm‘r., 104 F.3d 1229, 1233 (10th Cir. 1997), we do not address “bald-faced new issue[s],” “theor[ies] that [were] discussed in a vague and ambiguous way,” or “issues that were raised and then abandoned pre-trial,” Lyons, 994 F.2d at 722.
We also do not address “arguments raised in the District Court in a perfunctory and underdeveloped manner.” Tele-Commc‘ns, 104 F.3d at 1233 (quoting Kensington Rock Island Ltd. P‘ship v. Am. Eagle Historic Partners, 921 F.2d 122, 124-25 n.1 (7th Cir. 1990) (alterations omitted)). “[V]ague, arguable references to a point in the district
court proceedings do not . . . preserve the issue on appeal.” Lyons, 994 F.2d at 721 (quotations omitted). “Fleeting references” to an argument are also insufficient. Tele-Commc‘ns, 104 F.3d at 1233-34 (issue forfeited where brief to the tax court “contain[ed] only a single paragraph addressing the issue,” but “[o]n appeal, [that] fleeting contention bec[ame] ten pаges of argument, replete with examples and citations“).
To urge reversal of an issue that was forfeited in district court, an appellant must argue plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). If an appellant does not explain how its forfeited arguments survive the plain error standard, it effectively waives those arguments on appeal. See McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (noting that “even if [a party‘s] arguments were merely forfeited before the district court, [the] failure to explain . . . how they survive the plain error standard waives the arguments in this court“); see also United States v. Qualls, 741 F. App‘x 592, 596 (10th Cir. 2018) (unpublished) (holding that appellant waived a forfeited argument “because his briefing made no mention of the plain error standard of review“); United States v. Herrera-Zamora, 647 F. App‘x 855, 858-59 (10th Cir. 2016) (unpublished) (“[Appellant] makes his two remaining arguments for the first time on appeal. Because he does so without arguing for plain-error review, these arguments are
effectively waived on appeal.“)7. “[F]ailure to argue
B. Fraudulent Concealment Claim
We affirm the grant of summary judgment on Rumsey‘s fraudulent concealment claim. As to RLH, the district court granted summary judgment because it found Rumsey and RLH were not in a relationship of trust and confidence as described in the Restatement (Second) of Torts § 551(2)(a). We affirm on the alternative ground that RLH was not a party to a business transaction with Rumsey and therefore had no duty to disclose under § 551(2). As to PBT, the district court granted summary judgment because it found that Rumsey “[did] not proffer any argument about why . . . PBT in particular owed it a duty to disclose.” App. at 1488. We affirm because Rumsey has forfeited its arguments about PBT and has not argued plain error on appeal.
1. Legal Background
Under Colorado law,8 a plaintiff claiming fraudulent concealment must prove fivе elements:
(1) the concealment of a material existing fact that in equity and good conscience the defendant should have disclosed; (2) knowledge on the defendant‘s part that such a fact was being concealed; (3) ignorance of that fact on the plaintiff‘s part; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.
Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 420 P.3d 223, 234 (Colo. 2018).
To satisfy the first element, the “plaintiff must show that the defendant had a duty to disclose material information.” Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965 P.2d 105, 111 (Colo. 1998). Colorado courts look to the Restatement (Second) of Torts § 551 to determine whether a party has a duty to disclose. See Level 3 Commc‘ns, LLC v. Liebert Corp., 535 F.3d 1146, 1163-64 (10th Cir. 2008); Mallon Oil, 965 P.2d at 111.
That section provides:
One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
Restatement (Second) of Torts § 551(1) (Am. Law. Inst. 1977). It then describes five situations when a duty to disclose might arise:
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(a) matters known to him that the other is entitled to know because of a fiduciary
or other similar relation of trust and confidence between them; and (b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous reprеsentation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
Restatement (Second) of Torts § 551(2)(a)-(e). Each subsection of § 551(2) gives rise to an independent duty to disclose. See, e.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 1109-12 (10th Cir. 2009) (recognizing § 551(2)(a) as basis for a duty to disclose); Level 3 Commc‘ns, 535 F.3d at 1163-64 (recognizing § 551(2)(b) as basis for a duty to disclose); Mallon Oil, 965 P.2d at 111 (recognizing § 551(2)(e) as basis for a duty to disclose).
The disclosure duties described in § 551(2)(a)-(e) apply only to “part[ies] to a business transaction.” Restatement (Second) of Torts § 551(2). Our case law is in accord. In cases where we have considered whether § 551(2) triggered a duty to disclose,
the parties have always been engaged in business transactions. See, e.g., Level 3 Commc‘ns, 535 F.3d at 1149, 1163-64 (considering whether there was a duty to disclose between two parties who directly contracted for the sale and purchase of batteries)9; Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1382 (Colo. App. 1990) (considering whether there was a duty to disclose between employer and employee). And in at least one unpublished case, a Colorado district court stated it was “aware of no[] [cases] that [have] found a duty to disclose the terms of a contract to non-parties who may be affected by the agreement.” Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II, LLC, No. 14-CV-00134, 2014 WL 4400764, at *13 (D. Colo. Sept. 5, 2014) (unpublished).
2. Analysis
We analyze Rumsey‘s fraudulent concealment claim as to each defendant, RLH and PBT. We begin with the claim against RLH. We first consider whether Rumsey forfeited its arguments against RLH by failing to present them to the district court. We conclude Rumsey did not forfeit its § 551(2)(b) and (e) arguments about RLH because it raised those arguments in its opposition to RLH‘s motion for summary judgment. We next consider whether the district court properly granted summary judgment for RLH on
the fraudulent concealment claim. We affirm on the alternative ground that RLH was not party to a business transaction and therefore had no duty to disclose under § 551(2).
As to Rumsey‘s fraudulent concealment claim against PBT, we conclude that
a. Fraudulent concealment claim against RLH
i. Forfeiture analysis
Defendants argue Rumsey forfeited its arguments about RLH‘s duties under Restatement § 551(2)(b) and (e). See Aplee. Br. at 23 (“Rumsey . . . cannot make new arguments on appeal regarding RLH.“). We disagree.
In its opposition to RLH‘s motion for summary judgment, Rumsey explicitly argued RLH had a duty to disclose the loan purchase agreement. Rumsey quoted § 551(2)(b) and (e) in full. It also provided facts to support a duty of disclosure under § 551(2)(b) and (e).
For example, Rumsey:
- Identified specific, “clearly ambiguous” statements that RLH made to Rumsey‘s broker. App. at 968.
- Explained how these statements could be interpreted in multiple ways and argued that the statements were “misleading in light of the fact that RLH and PBT had [already] entered into the [loan purchase agreement].” Id.
- Argued RLH had “an affirmative duty” to correct misleading representations made in thе proposed sale orders submitted on May 25, 2011 and October 4, 2011. Id. at 970.
In addition, Rumsey argued RLH should have been aware that Rumsey “would reasonably expect disclosure of an agreement by RLH to purchase PBT‘s loan” because knowledge of the purchase agreement “was necessary to enable [Rumsey‘s broker], in conjunction with the debtor and objecting creditors, to determine how to proceed with an auction.” Id. Rumsey thus alleged disclosure was required “in light of the relationship between [the parties], the customs of the trade[,] and other objective circumstances.” Id.
Rumsey‘s opposition to Defendant‘s motion for summary judgment presented more than “vague, arguable references” to
b. Summary judgment for RLH
The district court granted summary judgment for RLH because it found no relationship of trust and confidence giving rise to a duty to disclose under
We conclude RLH was not party to a business transaction with Rumsey. RLH was thus not subject to the disclosure duties in
c. Fraudulent concealment claim against PBT
Defendants argue Rumsey forfeited all arguments about PBT because “[i]n responding to the motions for summary judgment, Rumsey . . . focused exclusively on RLH‘s duty . . . and it was only in its Opening Brief to this Court that Rumsey . . . for the first time assert[ed] that [PBT] also had a duty to disclose.” Aplee. Br. at 29. We agree.
Although Rumsey preserved its arguments about RLH‘s duty to disclose under
Because PBT joined RLH‘s motion for summary judgment, Rumsey could have advanced arguments in district court about both Defendants in its opposition brief. It did not. It made no arguments about PBT‘s duty to disclose. Any reference to PBT‘s duty was done only in “a vague and ambiguous way,” Lyons, 994 F.2d at 722, or “in a perfunctory and underdeveloped manner,” Tele-Commc‘ns, 104 F.3d at 1233. Such references are not sufficient to preserve an issue for appellate review. Rumsey thus forfeited its arguments about PBT. Rumsey‘s failure to explain now how these forfeited arguments “survive the plain error standard waives the arguments in this court.” McKissick, 618 F.3d at 1189.
Because Rumsey forfeited its arguments about PBT and has not argued plain error on appeal, we affirm the district court without addressing the merits of Rumsey‘s fraudulent concealment claim against PBT. See United States v. Branch, 658 F. App‘x 375, 376 (10th Cir. 2016) (unpublished) (“[B]ecausе [appellant] . . . fails to argue for plain error review[,] . . . we decline to review his claims and affirm the district court.“).
C. Section 363(n) Collusive Bidding Claim
We also affirm the grant of summary judgment on Rumsey‘s
1. Legal Background
a. Section 363(n)
The sеction also allows a trustee to “recover from a party to [a bankruptcy sale] any amount by which the value of the property sold exceeds the price at which such sale was consummated.” Id. Courts have divided this claim into “three essential elements“: (1) an agreement, (2) between potential bidders, (3) that controls the price at bidding. In re Sunnyside Timber, LLC, 413 B.R. 352, 363 (Bankr. W.D. La. 2009); see also In re Sanner, 218 B.R. 941, 944 (Bankr. D. Ariz. 1998). Only the third element is at issue here.
“Congress explained that
b. Limitations period for 363(n) claims
As discussed above,
In general, courts construe
Courts do not apply
The section 363(n) cases that adopt the one-year time limit of
Rule 60 are avoidance cases where the plaintiff seeks to modify or vacate a sale order. The rationale for applying the one-year time limit ofRule 60 in this context is that the avoidance remedy of section 363(n) is derived from the power to vacate an order underRule 60 , and thus must be subject to the limitations of that rule. Even if this analysis is correct, the linkage toRule 60 breaks down when a plaintiff is asserting only a claim for damages under section 363(n). A section 363(n) damages claim does not seek tovacate or modify the court‘s order approving the sale.
2. Analysis
We first describe two errors the district court committed in analyzing Rumsey‘s
Finally, we consider whether the district сourt properly granted summary judgment for Defendants on the
a. District court errors
In granting summary judgment on Rumsey‘s
Second, the district court conducted an accrual analysis and determined there was “a genuine dispute over a fact material to . . . the date the [
b. Timeliness
The district court incorrectly applied
First, Rumsey sought to avoid the bankruptcy sale. This request was subject to
Second, Rumsey alternatively requested damages. As discussed above, courts do not apply
The district court did not say which statute of limitations should apply to Rumsey‘s
c. Summary judgment
The district court said “Rumsey [did] not set forth specific facts from which a rational trier of fact could infer that Defendants . . . entered into the Loan Purchase Agreement with intent that the Agreement control the price.” App. at 1492. We agree and affirm the summary judgment on Rumsey‘s
To avoid summary judgment, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Rumsey did not do so. In its opposition to Defendants’ motion for summary judgment, Rumsey presented only a single paragraph to argue why summary judgment was not appropriate on the
Rumsey Land has met its burden of establishing the existence of an agreement between potential bidders that controls the sale price. The very purpose of RLH‘s lawsuit against PBT was to establish its contractual right to have the agreed upon amount of the [loan purchase agrеement] control the sale price as between potential bidders RLH and PBT. As RLH alleged in its lawsuit [against PBT], absent the [agreement] and the lawsuit to enforce it, RLH might have had to make a cash bid that would have exceeded the amount agreed to in the [agreement]. Because of the [agreement] and the lawsuit to enforce it, RLH never had to exceed the amount agreed to in the [agreement].
App. at 974 (citations omitted).
Aside from these general and conclusory allegations, Rumsey offered no specific details to support its position. For example, the record contains communications between RLH and PBT acknowledging that “collusive bidding is inappropriate,” id. at 949, and expressing the parties’ mutual desire to avoid “the appearance or impression of any sort of impropriety,” id. at 1019. Rumsey provided no evidence to contradict these communications or to show that, despite their caution, Defendants in fact intended to control the sale price. Rumsey also did not provide evidence showing “[t]he influence on the sale price [was] an intended objective of the agreement, and not merely an unintended consequence.” In re N.Y. Trap Rock, 42 F.3d at 752 (emphasis added). Nor did it show that the “purpose of
In district court, Rumsey did not identify evidence in the record to support its position. Although the district court “may ‘go beyond the referenced portions’ of the plaintiffs’ evidentiary materials, ‘[it] is nоt required to do so.‘” Bird v. Regents of N.M. State Univ., 619 F. App‘x 733, 740 (10th Cir. 2015) (unpublished) (quoting Adler, 144 F.3d at 672). On appeal, we also “ordinarily limit[] our review to the materials adequately brought to the attention of the district court by the parties.” Adler, 144 F.3d at 671. “[W]e, like the district courts, have a limited and neutral role in the adversarial process, and are wary of becoming advocates who comb the record of previously available evidence and make a party‘s case for it.” Id. at 672; see also SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1513 (10th Cir. 1990) (a court of appeals “need not sift through the record to find . . . evidence” in the absence of citations in a party‘s brief (quotations omitted)). If there was evidence to support Rumsey‘s
Because Rumsey did not provide any facts or evidence to demonstrate an issue of material fact on its
III. CONCLUSION
We affirm the district court‘s grant of summary judgment for Defendants.