Chemical Bank v. Togut (In re Axona International Credit & Commerce Ltd.)

924 F.2d 31
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 18, 1991
DocketNo. 259, Docket 90-5036
StatusPublished
Cited by1 cases

This text of 924 F.2d 31 (Chemical Bank v. Togut (In re Axona International Credit & Commerce Ltd.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chemical Bank v. Togut (In re Axona International Credit & Commerce Ltd.), 924 F.2d 31 (2d Cir. 1991).

Opinion

WALKER, Circuit Judge:

As briefed and at oral argument, a principal issue presented was our jurisdiction to hear this appeal and, more specifically, whether and to what extent 11 U.S.C. § 305(c)’s prohibition of review of a bankruptcy court’s order to dismiss or suspend a United States bankruptcy proceeding under 11 U.S.C. § 305(a) survived the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Marathon seriously questioned the constitutionality of the exercise of federal judicial power by non-Article III courts such as the bankruptcy courts without review by Article III courts. While this ease was sub judice, however, Congress amended 11 U.S.C. § 305(e) as part of the Judicial Improvements Act of 1990, Pub.L. 101-650, to meet with Marathon’s concerns. Section 305(c) now permits district court review of a bankruptcy court’s § 305(a) dismissal or suspension order, while specifically prohibiting further review by the courts of appeals and the [33]*33Supreme Court. Under the new amended statute we are expressly deprived of appellate jurisdiction and we dismiss the appeal accordingly.

BACKGROUND

Axona International Credit and Commerce Ltd., a Hong Kong registered deposit taking company, suffered financial collapse in November 1982 due to the demise of Dollar Credit Co., a larger deposit taking company, that cut off lines of credit to Axona as well as other smaller unrelated deposit taking companies. Upon learning of Axona’s plight, several United States creditors, including appellant Chemical Bank, took steps to improve their positions. Some moved in state court to attach Axo-na’s United States bank accounts. Chemical promptly engaged in a transaction with Axona whereby a three million dollar loan outstanding to Chemical Hong Kong was “sold” to Chemical New York, which then “deemed itself insecure” and set off its claim against a three million dollar cash collateral account provided by Axona to Chemical New York after its financial collapse.

In February 1983, bankruptcy proceedings commenced in Hong Kong, Michael Johnson and Eoghan McMillan were appointed to liquidate the company pursuant to the Hong Kong Companies Ordinance. Realizing they would have to commence a United States bankruptcy proceeding to recover assets held by creditors in this country, they filed an involuntary Chapter 7 action against Axona in the Bankruptcy Court of the Southern District of New York pursuant to 11 U.S.C. § 303(b)(4). That provision authorizes a foreign representative of an estate in an ongoing foreign proceeding to commence a full involuntary case in the United States. A United States trustee, Albert Togut, was appointed, and he commenced adversary proceedings against creditors, including Chemical, under 11 U.S.C. §§ 542, 547 and 553 to avoid the preferential transfers made to them and to recover money for Axona’s estate. Chemical eventually settled with the trustee, agreeing to pay the estate 2.7 million dollars, but reserved its right to challenge the bankruptcy court’s jurisdiction over Ax-ona’s estate.

In 1986 the trustee and the Hong Kong liquidators jointly petitioned the bankruptcy court to suspend the proceedings in the Southern District of New York under 11 U.S.C. § 305(a), and to transfer the accumulated estate to the Hong Kong liquidators for distribution to Axona creditors registered in the Hong Kong proceeding. Over Chemical’s opposition, the bankruptcy court ordered the suspension and transfer. See Matter of Axona International Credit & Commerce Ltd., 88 B.R. 597 (Bankr.S.D. N.Y.1988). Chemical appealed the suspension order to the district court, and the trustee and liquidators moved to dismiss on the ground that under § 305(c) the order was not reviewable. The district court ruled the order appealable and affirmed the bankruptcy court’s suspension and distribution order. Chemical’s appeal to this court followed, accompanied by the trustee and liquidators’ continued objection to our jurisdiction to hear it.

DISCUSSION

11 U.S.C. § 305(a) allows a court after notice and a hearing to dismiss or suspend a United States bankruptcy case at any time if such action would better serve the interests of creditors or the debtor, or if it would assure the estate’s expeditious administration in a pending foreign proceeding.1 At the time this appeal was filed 11 [34]*34U.S.C. § 305(c) stated that orders under § 305(a), either granting or refusing such dismissals and suspensions, are “not reviewable by appeal or otherwise.”2 The question originally posed to us, then, was whether we should enforce the seemingly straight-forward language of § 3.05(c) and dismiss for want of appellate jurisdiction Chemical’s appeal to this court from the district court’s review of the bankruptcy court’s suspension order, and indeed, conclude that the district court should not have reviewed it, notwithstanding the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which called into question the section’s blanket prohibition of review by Article III courts of final bankruptcy court decisions.

Section 305(c) was enacted as part of the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549. That Act ushered in sweeping changes in bankruptcy jurisdiction, effectively removing jurisdiction of cases arising under Title 11 and any related civil proceedings from the district courts in favor of newly created “independent” bankruptcy courts. Marathon, 458 U.S. at 80 n. 31, 102 S.Ct. at 2876 n. 31, (quoting H.R.Rep. No. 95-595, at 7, U.S.Code Cong. & Admin.News 1978, p. 5968). The Act’s jurisdictional structure was challenged in Marathon on the ground that it unconstitutionally vested jurisdiction of “all ‘essential attributes’ of the judicial power of the United States,” 458 U.S. at 84-85, 102 S.Ct. at 2878 (citations omitted), in non-Article III judges — that is, judges who are not appointed for life and whose salaries can be lowered by Congress. The Supreme Court agreed, noting, among other things, that although judicial functions such as fact finding had been permissibly delegated to non-Article III courts and personnel in the past — such as in the Federal Magistrates Act upheld in United States v. Raddatz, 447 U.S. 667, 100 S.Ct.

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924 F.2d 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chemical-bank-v-togut-in-re-axona-international-credit-commerce-ltd-ca2-1991.