Blumeyer v. Sosne (In Re Blumeyer)

383 B.R. 457, 2008 Bankr. LEXIS 552, 2008 WL 657862
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedMarch 13, 2008
Docket07-6065
StatusPublished

This text of 383 B.R. 457 (Blumeyer v. Sosne (In Re Blumeyer)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blumeyer v. Sosne (In Re Blumeyer), 383 B.R. 457, 2008 Bankr. LEXIS 552, 2008 WL 657862 (bap8 2008).

Opinion

KRESSEL, Chief Judge.

Hope Blumeyer appeals the decision of the bankruptcy court 1 which denied her motion to reconsider the denial of her motion to dismiss her case, set aside the dismissal of Arthur Blumeyer’s bankruptcy case, set aside the denial of the statutory trustee’s motion to dismiss Arthur’s case, and set aside the order approving the trustee’s compromise and settlement and sale of assets in Arthur’s case. 2 We affirm.

*460 Background

In February of 1994, Arthur Blumeyer was convicted of mail fraud, wire fraud, conspiracy, and money laundering in connection with various companies involved in the insurance business, including Bel-Aire Insurance Company. Bel-Aire and other related companies are currently in receivership and Arthur is incarcerated in a federal penitentiary.

On March 28, 1998, Arthur filed a Chapter 11 bankruptcy petition in the Eastern District of Missouri. His wife, Hope Blu-meyer filed her own Chapter 11 petition in Florida on June 8, 1998. Her case was transferred to the Eastern District of Missouri. Both cases were converted to Chapter 7 cases and David Sosne was appointed trustee in both cases.

During the administration of the cases, the trustee agreed to sell Arthur’s and Hope’s interests in Bel-Aire and its affiliated entities, and any claims they had against the Missouri Department of Insurance to the department of insurance. On July 6,1999, the trustee sought approval of this agreement. The statutory trustee, who was appointed by the Circuit Court of Cole County, then brought a motion which claimed that the appointment of the statutory trustee divested Arthur from control of his assets and the ability to file a bankruptcy case, arguing that the bankruptcy trustee could not administer the estate. The bankruptcy court treated the statutory trustee’s motion as one to dismiss the bankruptcy case. On August 4, 2003, the bankruptcy court denied the motion. Neither Arthur nor Hope appealed this order.

On June 16, 2004, the bankruptcy court granted the trustee’s motion to approve a compromise and settlement with the department of insurance and a sale of estate assets. On June 28, 2004, Arthur brought a motion to dismiss his bankruptcy case or to stay the order which authorized the sale of estate assets. The bankruptcy court denied this motion. Arthur appealed to the district court. His appeal was dismissed for failure to pay the filing fee.

On September 12, 2006, the bankruptcy court dismissed Arthur’s case for failure to pay the entire filing fee and for failure to file a complete set of schedules and statements. The bankruptcy court retained jurisdiction to permit the trustee to distribute the estate’s assets.

On August 23, 2007, Hope filed a motion in her bankruptcy case to (1) set aside the order of dismissal of Arthur’s case; (2) set aside the order in Arthur’s case which denied the statutory trustee’s motion to dismiss; (3) set aside the order in Arthur’s case which approved the compromise and settlement and authorized the sale of estate assets; and (4) dismiss her bankruptcy case. The bankruptcy court denied her motion on September 14, 2007. Hope filed a motion to reconsider on September 24, 2007, which the bankruptcy court denied on September 27, 2007. She appealed on October 9, 2007. 3

*461 Standard of Review

We review the bankruptcy-court’s factual findings for clear error and its conclusions of law de novo. DeBold v. Case, 452 F.3d 756, 761 (8th Cir.2006); In re Vondall, 364 B.R. 668, 670 (8th Cir. BAP 2007). We review issues committed to the bankruptcy court’s discretion for an abuse of that discretion. In re Neal, 461 F.3d 1048, 1055 (8th Cir.2006). The bankruptcy court abuses its discretion when it fails to apply the proper legal standard or bases its order on findings of fact that are clearly erroneous. Id. A decision to grant a motion to voluntarily dismiss a bankruptcy case is reviewed for abuse of discretion. In re Turpen, 244 B.R. 431, 433 (8th Cir. BAP 2000).

DISCUSSION

The Orders Entered in Arthur’s Case.

With the exception of the denial of Hope’s motion to dismiss her case, the orders at issue in this appeal are all orders entered in Arthur’s case. We affirm the bankruptcy court’s denial of Hope’s motion to reconsider the orders entered in Arthur’s case. There are many reasons why we reject Hope’s appeal from these orders.

We are unclear whether Hope is attempting to appeal the old orders directly, the order denying her motion for relief from those orders, or the order denying her motion to “reconsider” the later order. First, the period for timely filing an appeal is 10 days from the date of the entry of the judgment, order, or decree appealed from. See Fed. R. Bankr.P. 8002(a). As to all of the orders in Arthur’s case, Hope’s appeals are untimely. The denial of the dismissal of Arthur’s case, and the approval of the compromise and settlement and sale of assets, and the dismissal of Arthur’s case occurred in 2003, 2004, and 2006 respectively. The orders have long since become final, and Hope may not appeal them years afterwards. Nor has she shown any grounds for revisiting these orders under Rule 60, the only possible rule that could apply.

Second, Hope has not demonstrated that she is an aggrieved party who has the right to appeal the orders entered in Arthur’s case. The right to appeal is limited to parties who are aggrieved in some appreciable manner by the judgment. A person is aggrieved if the judgment bears directly and injuriously on his or her interests. Because she has not demonstrated how the orders entered in Arthur’s case have adversely affected her interests, Hope does not have the right to appeal these orders.

Third, Hope lacks standing to appeal the orders in Arthur’s case. Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies. Therefore, the plaintiff must have standing to sue in order for a federal court to have the power to hear and decide the case. See Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000). To show Article III standing, a plaintiff has the burden of proving: (1) that she suffered an injury-in-fact; (2) a causal relationship between the injury and the challenged conduct; and (3) that the injury likely will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury-in-fact is a harm that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id.

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383 B.R. 457, 2008 Bankr. LEXIS 552, 2008 WL 657862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blumeyer-v-sosne-in-re-blumeyer-bap8-2008.