Babic v. Ford Motor Credit Corp. (In re Ashoka Enterprises, Inc.)

156 B.R. 343, 1993 U.S. Dist. LEXIS 8757
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedMay 14, 1993
DocketBankruptcy No. 92-8743-CIV.
StatusPublished
Cited by4 cases

This text of 156 B.R. 343 (Babic v. Ford Motor Credit Corp. (In re Ashoka Enterprises, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Babic v. Ford Motor Credit Corp. (In re Ashoka Enterprises, Inc.), 156 B.R. 343, 1993 U.S. Dist. LEXIS 8757 (Fla. 1993).

Opinion

[344]*344 ORDER GRANTING MOTION TO DISMISS APPEAL

MORENO, District Judge.

THIS CAUSE came before the Court upon the Ford Motor Credit Corporation’s Motion to Dismiss (docket no. 9).

THE COURT has considered the Motion, responses, the pertinent portions of the record and has been otherwise fully advised in open court.

Based on the following analysis, the Motion to Dismiss the Appeal is GRANTED.

FACTS

The Appellant Stephen Babic was a guarantor of a promissory note secured by a mortgage on real and personal property and executed by the Debtor Ashoka Enterprises in favor of Appellee Ford Motor Credit Corporation. On November 1, 1989, Ashoka filed in bankruptcy court a Chapter 11 petition which was later converted to a Chapter 7 petition. Ford Motor filed a claim against the bankruptcy estate for money owed pursuant to the promissory note. The property which secured the note was the subject of a Final Judgment of Foreclosure entered by the Circuit Court of the 18th Judicial Circuit, Brevard County, Florida, Case No. 90-16694-CA-J, in favor of Ford Motor and against Ashoka.

Ford Motor was the successful bidder at the foreclosure sale, and Ford Motor then filed an amended proof of claim to the bankruptcy court to collect the balance of the debt. In the bankruptcy proceeding, there was a dispute as to the proper date on which to value the property in order to determine the amount of the deficiency. The trustee argued that the appropriate date to value the collateral was the date of the filing of the original petition. According to Ford Motor, the proper date was the date of the foreclosure sale.

The bankruptcy court heard oral argument on October 6, 1992. In an oral ruling on October 9, 1992 and in a written order dated October 21, 1992 and entered on October 22, 1992, the bankruptcy court found that the proper date on which to value the property was the date of the foreclosure sale. Babic filed an appeal of the court order on November 2, 1992. The bankruptcy court tried the issue of Ford Motor’s claim against the Ashoka estate from October 19, 1992 to October 21, 1992 and announced an oral ruling on October 21, 1992. A written order was entered by the bankruptcy court on November 10, 1992. Babic has not appealed the bankruptcy court’s order of November 10, 1992.

ANALYSIS

Babic’s Statement of Issue on Appeal presents the issue as follows: whether the bankruptcy court erred in determining that the date of valuation was the date of the foreclosure sale as opposed to the date of the filing of the original bankruptcy petition. Ford Motor has argued in its Motion to Dismiss Appeal that this court lacks jurisdiction to hear the appeal because the bankruptcy court’s written order of October 22, 1992 is neither a final order nor an appealable interlocutory order.

Ford Motor also has argued in its motion that the appeal of the October 22, 1992 order was rendered moot by the November 10, 1992 Final Order. The court does not address this argument. The appeal is dismissed because the court finds that the bankruptcy court’s order is not a final order and is not an appealable interlocutory order.

Federal district courts are vested with jurisdiction to hear appeals from bankruptcy court decisions by 28 U.S.C. § 158(a):

The district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving.

Accordingly, the court’s inquiry into its jurisdiction to hear the appeal of the bankruptcy court’s order requires two steps. [345]*345First, the court must determine whether the bankruptcy court order is a final order appealable by right. If the order is not a final order, the court next must determine whether the order is an appealable interlocutory order.

A. The Bankruptcy Court Order Determining Date of Valuation is Not a Final Order.

A final determination is “ ‘one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Charter Co. v. Prudential Ins. Co. (In re Charter Co.), 778 F.2d 617, 621 (11th Cir.1985) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). In bankruptcy proceedings, however, it is generally only the particular controversy which must have been resolved for the order to be considered “final.” Id. (citing In re Saco Local Dev. Corp., 711 F.2d 441, 443-46 (1st Cir.1983); United States v. Air Florida, Inc., 48 B.R. 749, 750 (S.D.Fla.1984)).

An order is not final if it only disposes of an incidental procedural issue during the bankruptcy proceedings. Providers Benefit Life Ins. Co. v. Tidewater Group, Inc. (In re Tidewater Group, Inc.), 734 F.2d 794, 796 (11th Cir.1984) (citing Stewart v. Kutner (In re Kutner), 656 F.2d 1107, 1111 (5th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982)). Instead, for an order to be final, the bankruptcy court must have resolved the litigation, decided the merits, determined the rights of the parties, settled liability, or established damages. Id. (citing Callister v. Ingersoll-Rand Fin. Corp. (In re Callister), 673 F.2d 305 (10th Cir.1982)).

The Eleventh Circuit has held in the Regency Woods Apartments case that the principle of finality of bankruptcy court orders is subject to the qualifications and limitations of the Forgay-Conrad rule announced in Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), and the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Growth Realty Companies v. Regency Woods Apartments (In re Regency Woods Apartments, Ltd.), 686 F.2d 899, 902 (11th Cir.1982).1 The Forgay-Conrad rule treats an order as final if the order “directs the immediate delivery of physical property and subjects the losing party to irreparable injury if appellate review must await the final outcome of the litigation.” Regency Woods Apartments, 686 F.2d at 902 (citing 9 Jeremy C. Moore, et al., Moore’s Federal Practice ¶ 110.11 (2d ed. 1982)). Under the Cohen doctrine, an order will be reviewable if

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156 B.R. 343, 1993 U.S. Dist. LEXIS 8757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babic-v-ford-motor-credit-corp-in-re-ashoka-enterprises-inc-flsb-1993.