In re: POSIBA, INC. v. LESLIE T. GLADSTONE, Ch. 7 Trustee; CERTAIN UNDERWRITERS AT LLOYD'S, LONDON

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: POSIBA, INC.,
Debtor,
______________________________
KUITY CORPORATION,
Appellant,
v.
LESLIE T. GLADSTONE, Ch. 7 Trustee;
CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON,
Appellees.
No. 20-56120
D.C. No.
3:19-cv-01529-JLS-MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted October 22, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Carol Bagley Amon, United States District Judge for
FILED
OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge.
Kuity Corporation (“Kuity”) appeals the district court’s order dismissing
Kuity’s bankruptcy appeal under 11 U.S.C. § 363(m). We have jurisdiction under
28 U.S.C. § 158(d). Reviewing the district court’s decision de novo, In re
Marshall, 721 F.3d 1032, 1038–39 (9th Cir. 2013), and the bankruptcy court’s
factual findings for clear error and its conclusions of law de novo, In re Berkeley
Del. Ct., LLC, 834 F.3d 1036, 1039 (9th Cir. 2016), we affirm.
1. Kuity contends that the district court erred by dismissing its appeal
under § 363(m) because the bankruptcy court never made a good faith finding in
connection with the approval of a motion to sell the debtor’s interest in an
insurance policy. Section 363(m) provides in relevant part that:
The reversal or modification on appeal of an authorization . . . of a sale
or lease of property does not affect the validity of a sale or lease under
such authorization to an entity that purchased or leased such property
in good faith, whether or not such entity knew of the pendency of the
appeal, unless such authorization and such sale or lease were stayed
pending appeal.
11 U.S.C. § 363(m).1
Kuity’s argument is unpersuasive. A court’s findings “may be stated on the
record after the close of the evidence or may appear in an opinion or a
the Eastern District of New York, sitting by designation.
1 It is undisputed that Kuity did not seek a stay of the order approving the sale
pending appeal.

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memorandum of decision filed by the court.” Fed. R. Civ. P. 52(a)(1); see also
Fed. R. Bankr. P. 7052, 9014. The bankruptcy judge explicitly stated, “I’m
making a good faith finding,” after hearing testimony regarding the sale, and noted
that neither party engaged in fraud or collusion in connection with the sale. The
order approving the sale motion also, at minimum, implies a good faith finding
because the sale motion stated the purchase price was fair and reasonable, and the
overbid agreement—incorporated by reference in the sale order—conditioned the
sale on the bankruptcy court’s good faith finding under § 363(m). See In re
Onouli-Kona Land Co., 846 F.2d 1170, 1174 (9th Cir. 1988) (“Ninth Circuit
authority . . . does not require the bankruptcy court to make an explicit finding of
good faith.”); see also In re Ewell, 958 F.2d 276, 281 (9th Cir. 1992). This was
sufficient to satisfy the requirements of § 363(m).
2. Kuity next argues that even if the bankruptcy court made a good faith
finding, it is clearly erroneous. But as the district court found, Kuity waived this
issue by failing to raise it in the initial appeal to the district court. See, e.g., In re
Nelson, 561 F.2d 1342, 1348 (9th Cir. 1977) (explaining that a failure to raise an
issue in the lower courts generally renders that issue waived on appeal). Kuity
does not challenge the district court’s holding on this point in its appeal to this
court, and thus has waived any argument that the district court erred in this respect.
Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.4 (9th Cir.

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1999) (“Arguments not raised in opening brief are waived.”).
3. Because the district court did not err in holding that Kuity’s appeal
was statutorily moot under § 363(m), we need not reach Kuity’s remaining
arguments. For this same reason, the motions to strike filed by appellee Certain
Underwriters at Lloyd’s London (Dkt. Nos. 15–16) are denied as moot.
AFFIRMED.

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