Bank of Nebraska v. Rose (In re Rose)Bank of Nebraska v. Rose (In re Rose)
Mаrk M. Rose (“Debtor”) appeals the June 11, 2012 judgment of the bankruptcy court
BACKGROUND
Over a three-year period beginning in 2003, Debtor borrowed money from Bank and pledged various items as collateral. Debtor ultimately defaulted on the loans. After Bank sold the collateral and applied the proceeds to the indebtedness, a deficiency of more than $300,000.00 remained.
In his counterclaim, Debtor alleged Bank breached several of its duties under Nebraska law and converted a lengthy list of Debtor’s assets (“the state law counterclaims”). Debtor asked the bankruptcy court to void Bank’s security interest and award him damages for Bank’s alleged wrongdoing. On Debtor’s motion, Thomas D. Stalnаker, the chapter 7 trustee, was subsequently joined as a defendant and counterclaimant.
The matter was tried, and following its receipt of post-trial briefs from Bank and Debtor, the bankruptcy court entered a memorandum order and a judgment excepting Bank’s claim from dischargе under 11 U.S.C. § 523(a)(2)(B) and denying Debtor any recovery on the state law counterclaims. Debtor timely filed a notice of appeal.
STANDARD OF REVIEW
Debtor’s appeal involves issues of both fact and law. We review the bankruptcy court’s findings of fact for clear error and its legal conclusiоns de novo. Islamov v. Ungar (In re Ungar),
DISCUSSION
Debtor raises seven issues on appeal: (1) whether the bankruptcy court erred by using a subjective justifiable reliance standard rather than an objective reasonable reliance legal standard in determining whether Bank reasonably relied on Debt- or’s financial statemеnts and borrowing base certificates in granting Debtor an extension, renewal, or refinancing of credit; (2) whether the bankruptcy court erred in finding Bank reasonably relied on Debt- or’s financial statements and borrowing base certificates; (3) whether the bankruptcy court erred in finding Debtor рublished his financial statements and borrowing base certificates with the intent to deceive Bank; (4) whether the bankruptcy court erred in finding Bank acted in a commercially reasonable manner in its handling, inventorying, and disposing of Debtor’s coins and inventory; (5) whether the bankruptcy court erred in finding Debtor’s coins had a maximum value of $35,000 in the summer of 2005 and further finding Debtor’s opinion of the value of his coins was overstated; (6) whether the bankruptcy court erred in finding Debtor testified when he bid a job, he treated the bid as an account receivable, even if he did not actually get the jоb, and when a customer paid all or part of the price in advance, Debtor did not necessarily credit the pre-payment against the account receivable, and further finding Debtor created mythical accounts receivable; and (7) whether the bankruptcy cоurt had jurisdiction to enter a final judgment on Debtor’s state law counterclaims.
With respect to the first issue, Debtor argues the bankruptcy court applied a “subjective justifiable reliance” standard in determining whether Bank reasonably relied on Debtor’s written statements. We disagree. The bankruptcy court did not refer to “justifiable reliance” anywhere in its memorandum order. Instead, citing Jacobus v. Binns (In re Binns),
With respect to the next five issues, which call into question many of the bankruptсy court’s findings of fact, the record before us does not permit our consideration of Debtor’s arguments. “Within 14 days after filing the notice of appeal ... the appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal[.]” Fed.R.Bankr.P. 8006. Debtor did not file or serve such a designation. The record before us therefore comprises only the bankruptcy court’s memorandum order and judgment and Debtor’s notice of appeal. Id. Significantly, that record does not include an оfficial transcript of the three-day trial before the bankruptcy court.
Finally, with respect to the remaining issue, Debtor argues under Stern v. Marshall, — U.S. -,
A bankruptcy court may enter a final judgment in a non-core, related proceeding, if the parties consent. 28 U.S.C. § 157(c)(2); Abramowitz v. Palmer,
State law counterclaims by the bankruptcy estate against persons filing claims against the bankruptcy estate arе, of course, core proceedings, 28 U.S.C. § 157(b)(2)(C), albeit core proceedings in which a bankruptcy court lacks the constitutional authority to enter a final judgment. Stern,
Following the genesis of the modern bankruptcy system, the Supreme Court clarified that Article III, § l’s guarantee of an independent and impartial adjudication by the federal judiciary of matters within the judicial power of the United States ... serves to protect primarily personal, rather than structural, interests. Stem further made clear that [28 U.S.C.] § 157 does not implicate questions of subject matter jurisdiction. Acсordingly, as a personal right, Article Ill’s guarantee of an impartial and independent federal adjudication is subject to waiver. And in fact, § 157(c)(2) expressly provides that bankruptcy courts may enter final judgments in non-core proceedings with the consent of all the parties to the proceeding.
If consent permits a non-Article III judge to decide finally a non-core proceeding, then it surely permits the same judge to decide a core proceeding in which he would, absent consent, be dis-entitled to enter final judgment.
Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.),
In this case, Debtor filed his amended answer and counterclaim in May 2008. While the Supreme Court did not decide Stem until June 2011, Debtor had ample opportunity thereafter — most notably at the trial in March 2012 or in his post-trial brief in April 2012 — to object to the bankruptcy court’s entering a final judgment on the state law counterclaims. He did not do so. Instead, he remained silent ... until the bankruptcy court ruled against him. “[Tjhe consequences of a litigant ... sandbagging the court — remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor — can be particularly severe.” Stem,
Even if we were to conclude otherwise, there is still the matter of Debt- or’s lack of standing to pursue an appeal from the bankruptcy court’s final judgment on the state law countеrclaims.
The question of standing generally challenges whether a party is the proper one to request an adjudication of a particular issue. Standing is an element of federal subject matter jurisdiction which cannot be waived and may be raised at any time by a party or by the court.... The Bankruptcy Code does not contain an explicit grant or limitation on appellate standing, yet we, like many other court[s], have looked to pre-code law to determine standing and have utilized the “person aggrieved” test. To have standing to appеal from an order of the bankruptcy court, the person aggrieved test requires that the appellant show a basis for arguing that the challenged action caused him cognizable injury, i.e., thatthe party was aggrieved by the order. A person is aggrieved if he is directly and adversely affeсted pecuniarily by the order. This principle limits standing to persons with a financial stake in the bankruptcy court’s order. If a party can show a reasonable possibility of a surplus after satisfying all priority and general unsecured claims, then that party has shown a pecuniary interеst and has standing to appeal.
Yates v. Forker (In re Patriot Co.),
First, the filing of Debtor’s petition for relief under the bankruptcy code created a bankruptcy estate comprising, inter alia, all Debtor’s legal and equitable intеrests in property on the petition date. 11 U.S.C. § 541(a). This included the state law counterclaims. Vreugdenhil v. Hoekstra,
That being so, Debtor could not pursue the state law counterсlaims “without participation by the [chapter 7] trustee.” Vreugdenhil,
Second, Debtor is not a “person aggrieved” by the bankruptcy court’s final judgment on the state law counterclaims. At oral argument, Debtor argued if he recovered more оn the state law counterclaims than the chapter 7 trustee needed to pay timely filed proofs of claim, he would be entitled to the surplus. We disagree. Before Debtor would be entitled to any surplus, the chapter 7 trustee would have to pay all priority claims, all allowed and timely-filed unsecured claims, all allowed but tardily-filed unsecured claims, and all allowed claims for a fine, penalty, or forfeiture or for multiple, exemplary, or punitive damages that do not represent actual pecuniary loss, in full, with interest at the legal rate from September 11, 2005, the date on which Debtor filed his petition for relief. 11 U.S.C. § 726(a). The limited record on appeal affords us no basis for determining either the likely recovery on the state law counterclaims or the amount the chapter 7 trustee would have to pay the various clаim holders described above. Debtor has not shown “a reasonable possibility of a surplus after satisfying all priority and general unsecured claims.” Patriot Co.,
For the foregoing reasons, we affirm the bankruptcy court’s judgment determining the debt Debtor owed to Bank was excepted from discharge under 11 U.S.C. § 523(a)(2)(B) and denying any recovery on Debtor’s counterclaim.
Notes
. The Honorable Timothy J. Mahoney, United States Bankruptcy Judge for the District of Nebraska.
. The uncaptioned document Debtor caused to be filed on October 11, 2012 — less than two weeks before oral argument and more than three months after the deadline to file a designation of the items to be included in the record on appeal — is not an official transcript. In addition to not being designated by Debtor, that document was neither requested in compliance with Fed.R.Bankr.P. 8006 (the bankruptcy court’s docket notes "[t]he parties did not request a transcript from the Court”) nor completed and filed in compliance with Fed.R.Bankr.P. 8007 (the bankruptcy court's docket further notes "[t]he court’s authorized transcribing agency has not certified this transcript”).