Piperi v. Gutierrez

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 13, 1996
• Docket: 96-20152
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 96-20114 No. 96-20152 No. 96-20183 Summary Calendar _______________

In the Matter of: RONALD A. PIPERI,

Debtor.

RONALD A. PIPERI,

Appellant,

VERSUS

JORGE A. GUTIERREZ, as Receiver for Rio Grande Savings and Loan Association, in Liquidation,

Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-91-3296, CA-H-90-3906 & CA-H-91-3661) _________________________

September 12, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. This is a consolidated appeal from three separate judgments of

the district court affirming three respective decisions of the

bankruptcy court. The debtor, Ronald Piperi, appeals the modifica-

tion of the mandatory stay to allow a state court fraud action to

continue (No. 96-20152), the order granting summary judgment in a

discharge action (No. 96-20183), and the denial of his motion to

stay the discharge action (No. 96-20114). We affirm in all three

proceedings.

I.

This case arises out of the failure of the Rio Grande Savings

and Loan Association (“Rio Grande”) and Piperi's bankruptcy. In

short, Piperi, as controlling director of Champion Savings

Association, entered into a number of loan swaps with Rio Grande.

Following the transactions, Rio Grande, which was not insured by

either the federal government or the State of Texas, was placed

into conservatorship and liquidated by the Texas Savings and Loan

Commissioner (the “commissioner”).

Jorge Gutierrez, the state receiver, filed a state court suit

against Piperi, alleging that he had defrauded Rio Grande in

connection with the loan transactions. Following extensive

discovery, the state court action was scheduled to begin on

November 13, 1990.

2 On November 12, Piperi commenced a chapter 11 bankruptcy.1 On

November 14, Gutierrez filed with the bankruptcy court an emergency

motion to modify the stay. The court provided notice and conducted

an evidentiary hearing on November 16.

Piperi did not testify at the hearing but he was represented

by counsel. Gutierrez testified that he was appointed as receiver

after the commissioner declared Rio Grande insolvent and that his

duties included prosecuting fraud actions in furtherance of the

state's duty to regulate financial institutions.

The court granted Gutierrez’s motion, finding that good cause

existed under 11 U.S.C. § 362(d)(1) (West Supp. 1996) and that

Gutierrez, as receiver, was a governmental instrumentality acting

to enforce the police or regulatory powers of the state under

§ 362(b)(4) (1993). The court modified the stay in an order dated

November 28.

Following the modification, Piperi voluntarily withdrew his

answer in state court. Gutierrez presented evidence, and the jury

returned a $96 million fraud verdict against Piperi. The verdict

was reduced to $84 million, consisting of $21 million in actual

fraud damages and $63 million in exemplary damages.

Gutierrez commenced an adversary proceeding against Piperi in

the bankruptcy court under 11 U.S.C. § 523(d) (1993), seeking to

except the state court award from any discharge. Piperi answered,

1 The proceeding was converted to a chapter 7 proceeding on August 26, 1991.

3 and Gutierrez filed a motion for summary judgment. Piperi did not

offer any contravening summary judgment evidence.

On April 26, 1991, Piperi filed a motion to stay or abate the

discharge action under 11 U.S.C. § 305 (1993), based on an alleged

criminal investigation into his business affairs. Piperi argued

that a stay was required under the parallel proceeding doctrine.

After an evidentiary hearing, the court entered an order denying

the motion.

On November 1, 1991, the court entered summary judgment in

favor of Gutierrez, holding that the actual damages of $21 million

were not dischargeable. The court based its judgment on the

collateral estoppel effect of the state court judgment, finding

that the judgment established that Piperi had engaged in fraud.

II.

Piperi first argues that the bankruptcy court abused its

discretion in modifying the automatic stay. With regard to the

finding of good cause under § 362(d)(1), Piperi asserts that there

was no evidence of “imminent harm.” With regard to § 362(b)(4), he

contends that Gutierrez is not a government instrumentality.

The bankruptcy court did not abuse its discretion in finding

that there was good cause for modification of the automatic stay.2

A finding of good cause does not require a finding of “imminent

2 As a result, we do not address the district court’s holding that modification was proper under § 362(b)(4).

4 harm.” Piperi filed for bankruptcy on the eve of trial. Risk of

delay and judicial economy are both sufficient to constitute good

cause.3 Piperi’s assertion that the court improperly based its

decision on the fact that he had retained a criminal defense

attorney is without merit.

We also reject Piperi’s contention that holding the hearing

four days after he filed for bankruptcy and two days after

Gutierrez filed his motion to lift the stay denied him due process

of law. By definition, an emergency hearing cannot be scheduled in

a leisurely manner. We agree with the Seventh Circuit that limited

notice before a hearing does not violate due process when a state

court trial is impending. Holtkamp, 669 F.2d at 508.

III.

Piperi next avers that the bankruptcy court erred in granting

summary judgment on the ground that the state court action

conclusively determined that the $21 million judgment was for

fraud. Piperi argues that the state court judgment was a default

judgment and, as such, cannot support collateral estoppel.

For purposes of § 523(a), a bankruptcy court may grant summary

3 Holtkamp v. Littlefield, 669 F.2d 505, 508 (7th Cir. 1982) (finding that judicial economy provides good cause to modify stay when trial was five days away); In re Saunders, 103 B.R. 298, 299 (Bankr. N.D. Fla. 1989) (finding that judicial economy supports good cause modification); In re Elliott, 66 B.R. 466, 467 (Bankr. S.D. Fla. 1986) (finding that good cause exists to allow conclusion of pending state court proceeding); In re McGuirt, 61 B.R. 974 (Bankr. S.D. Tex. 1986) (finding good cause when state court litigation is on the verge of trial).

5 judgment based on the collateral estoppel effect of a state court

judgement. Garner v. Lehrer (In re Garner), 56 F.3d 677 (5th Cir.

1995). The preclusive effect of a judgment is determined by the

preclusion law of the state in which it was rendered. Id. at 679.

Under Texas law, collateral estoppel “bars relitigation of any

ultimate issue of fact actually litigated and essential to the

judgment in a prior suit, regardless of whether the second suit is

based upon the same cause of action.” Id. Texas law requires that

the following:

A party seeking to invoke the doctrine of collateral estoppel must establish (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.

Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1994).

In the present case, Piperi questions only the first element of the

test.

Because we find that the state court judgment was not a true

“default judgment,” we reject Piperi’s argument that the judgment

is not entitled to collateral estoppel effect.4 In state court,

Gutierrez waived his right to take a default judgment and, instead,

proceeded with a trial on the merits.5 In that context, the

4 Whether a true default judgment is entitled to collateral estoppel effect in a bankruptcy proceeding is an open question in this circuit, and we do not address it. 5 See 47 TEX. JUR. 3D Judgments § 129 (1980) (noting that a party may waive (continued...)

6 judgment was not technically a default judgment.6

This case presents a situation more akin to a post-answer

default, where a party answers and fails to appear at trial and the

plaintiff is forced to present his evidence before the jury.7 A

jury heard the evidence presented by Gutierrez and found that he

had met his burden of proof. Like the defendant in Garner, Piperi

could have defended the case but, instead, chose to withdraw. The

issue of fraud was fully and fairly litigated.

IV.

We find it unnecessary to reach the merits of Piperi’s appeal

in No. 96-20114. The district court dismissed the appeal as moot

because Piperi already had been convicted in the parallel criminal

proceeding. Piperi has failed to articulate a single reason why

this case is not moot.

The purpose of the stay was to prevent the risk of self-

incrimination. Piperi has not pointed to any instance where he was

prejudiced in the bankruptcy proceeding by the risk of self-

5 (...continued) the right to a default judgment). 6 See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); 47 TEX. JUR. 3D Judgments § 114 (1980) (noting that a default judgment is allowed only when a party fails to file an answer and is deemed to have admitted the plaintiff’s allegations).

7 See Garner, 56 F.3d at 680 (finding that collateral estoppel applies to a post-answer default because the plaintiff must offer evidence to prove his case); Stoner, 578 S.W.2d at 682 (distinguishing between “default judgment” and “post- answer default”); 47 TEX. JUR.3D Judgments § 119 (1980) (noting that post-answer default is not a default judgment because the plaintiff must prove its case).

7 incrimination or where continuation of the proceeding will result

in prejudice to his criminal case. The appeal is moot.

The judgments in all three proceedings are AFFIRMED.