Ewell v. Diebert

137 B.R. 963, 1990 U.S. Dist. LEXIS 19806, 1990 WL 357076
CourtDistrict Court, E.D. California
DecidedSeptember 6, 1990
DocketNo. CV F-90-253 EDP
StatusPublished

This text of 137 B.R. 963 (Ewell v. Diebert) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ewell v. Diebert, 137 B.R. 963, 1990 U.S. Dist. LEXIS 19806, 1990 WL 357076 (E.D. Cal. 1990).

Opinion

MEMORANDUM DECISION

PRICE, District Judge.

This case involves two separate appeals from orders filed by Richard T. Ford, Bankruptcy Judge, Eastern District of California.

The first appeal is from an order of the bankruptcy court granting the trustee’s motion for authorization to sell certain property of the estate. The second appeal is from the bankruptcy court’s order denying the appellant’s motion to set aside the close of escrow, established to affect the sale, and for a stay of the order authorizing the sale pending appeal.

The following facts are relevant to both appeals:

The debtor is the wife of the appellee A.B. Ewell, Jr. Marital termination proceedings were pending when the appellant’s petition in bankruptcy was filed. This Court is not informed as to the present status of the marital termination proceedings.

A community interest in property located at Millerton and Auberry, Fresno County California, was part of the bankruptcy estate of the appellant.

On November 21, 1989, the bankruptcy court approved the sale of the Millerton and Auberry property in the estate to New Cities Development Corporation (“NCDC”) for a total price of $8,059,000, with $6,579,000 to be paid at the close of escrow. Although the bankruptcy judge approved this application, there were objections filed by a creditor and others that the prospective purchaser was not being required to put up a nonrefundable deposit on the property at the time the sale was approved. This was because neither the appellant, nor her estate, could complete all of the preliminary steps necessary to deliver the property to a buyer ready to develop. The buyer would have to expend considerable time, money and effort to determine whether these steps could be completed. All other parties present at the hearing, including the appellant and appellees, agreed to the order.

[965]*965By December 13, 1989, it became apparent that the prospective buyer NCDC could not meet the terms of the escrow, and it was going to fail. Appellant and the president of the buyer corporation filed declarations in support of a motion to extend the escrow established in the pending sale. No transcript of this proceeding was furnished to this Court, so the Court is in the dark as to what was presented to the bankruptcy court. Based on what is before this Court, however, NCDC did not offer to put up a non-refundable deposit to insure the bankruptcy estate against loss accruing due to the delay in the close of escrow. The bankruptcy court denied the order on January 16, 1990.

On January 22,1990, the trustee’s subsequent motion to sell the property to Miller-ton New Town Development Company (“MNDC”) came on for hearing. Debtor appeared by counsel and objected to the sale on the ground that the offer did not represent the fair market value of the property. During the hearing, the bankruptcy judge ruled on certain objections to the declaration filed by the appellant.

The bankruptcy court sustained the various objections to appellant’s declaration. Counsel for appellant neither objected to the rulings as a matter of law, made an offer of proof to overcome the objections, nor requested a continuance to offer competent testimony to overcome the objections. Indeed, the only objections voiced by appellant’s counsel at the hearing were that 1) sufficient notice to prospective buyers had not been given; and 2) the procedures for a bidder qualifying were preset, and did not constitute an open auction.

The bankruptcy court overruled the objections. It was pointed out, and approved by the court, that the property had been on the market since July, 1988, some six (6) months, that the tentative subdivision map was then in existence only by reason of a temporary extension, and that if it expired, the estate did not have the assets to have it reinstated.

The bankruptcy court heard the trustee’s summation of the terms of the sale, asked for bids of those present, but’ received none. Significantly, debtor’s counsel did not apply to the bankruptcy court or to the district court for an order staying the bankruptcy court’s order pending debtor’s appeal from the order approving the sale to MNDC.

Thereafter, the escrow established to consummate this sale closed on February 2, 1990.

Appellant filed a notice of appeal from the foregoing order confirming the sale on February 2, 1990. Appellant also filed a motion to set aside the close of escrow and for a stay of the order pending appeal. Presumably, the appellant was moving the bankruptcy court to stay the close of escrow pending the appeal of the order confirming the sale. The bankruptcy court denied appellant’s motion. Thereafter, appellant appealed that order.

STANDARD OF REVIEW

We stand in the same position as did the district court in reviewing the bankruptcy court’s order. In re Center Wholesale, Inc., 759 F.2d 1440, 1445 (9th Cir.1985); In re Sambo’s Restaurants, Inc., 754 F.2d 811, 814 (9th Cir.1985). We review the bankruptcy court’s conclusions of law de novo, and its factual findings for clear error. In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1377 (9th Cir.1985); In re Jules Meyers Pontiac, Inc., 779 F.2d 480, 482 (9th Cir.1985).

In Re Pacific Far East Lines, Inc., 889 F.2d 242, 244-45 (9th Cir.1989).

It is the Court’s determination that the same principle of law is dispositive of both appeals.

Again, we look at the dates of the significant events.

After the hearing on the trustee’s motion for an order authorizing the sale (the order was issued on January 22, 1990) an escrow to consummate the sale was opened. That escrow closed, and the deed to MNDC was recorded on February 2, 1990. While debt- or’s counsel filed an appeal from the order authorizing the sale on February 2, 1990, he took no steps to stay the order authorizing the sale from its inception.

[966]*966On February 9,1990, seven (7) days after the escrow closed, the appellant filed a motion to set aside the close of escrow, and for a stay of the order authorizing the sale pending the appeal. Appellant’s counsel made no interim effort to obtain an order that would either expedite the hearing, or protect the integrity of the estate pending the determination of the motion, or the appeal.

At the hearing before the bankruptcy judge, appellant’s counsel argued that the sale was consummated during the time the automatic stay was in effect provided by Rule 62 of the Federal Rules of Civil Procedure. The bankruptcy court took the position that a stay following a sale by the bankruptcy court pursuant to Bankruptcy Code section 3631 was not affected by Rule 62,

Related

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Bluebook (online)
137 B.R. 963, 1990 U.S. Dist. LEXIS 19806, 1990 WL 357076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewell-v-diebert-caed-1990.