Bayview Loan Servicing, LLC v. CWCapital Asset Management, LLC (In Re Silver Sands R v. Resort)

MEMORANDUM

Bayview Loan Servicing, LLC, and G & G Real Estate Investment, et al., appeal the bankruptcy court’s order and the Bankruptcy Appellate Panel’s (“BAP”) holding that CWCapital Asset Management, LLC, held a superior lien against property located in Mesa, Arizona, owned by Silver Sands R.V. Resort. We review the bankruptcy court’s decision de novo. Arab Monetary Fund v. Hashim (In re Hashim), 213 F.3d 1169, 1171 (9th Cir.2000). We review its findings of fact for clear error, and we review de novo questions of law, as well as mixed questions of law and fact, including whether the historical facts satisfy the relevant legal rule. Murray v. Bammer (In re Bammer), 131 F.3d 788, 791-92 (9th Cir.1997) (en banc). We affirm in part and reverse in part.

1. The bankruptcy court properly concluded that there was no accord and satisfaction. Under Arizona law, there must be a bona fide dispute regarding the claim that is meant to be settled. Baker v. Emmerson, 153 Ariz. 4 , 734 P.2d 101, 104 (Ariz.Ct.App.1986). Here, there was no such dispute.

2. The bankruptcy court erred in holding that no bailment relationship was created by the delivery of the check to Capmark. Although there…