Ragosa v. Canzano

295 B.R. 166, 2003 Bankr. LEXIS 795, 41 Bankr. Ct. Dec. (CRR) 161
CourtBankruptcy Appellate Panel of the First Circuit
DecidedJuly 16, 2003
DocketBAP No. MB 02-039; Bankruptcy No. 99-19194-WCH; Adversary No. 01-1446
StatusPublished
Cited by1 cases

This text of 295 B.R. 166 (Ragosa v. Canzano) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ragosa v. Canzano, 295 B.R. 166, 2003 Bankr. LEXIS 795, 41 Bankr. Ct. Dec. (CRR) 161 (bap1 2003).

Opinion

BROWN, Bankruptcy Judge.

Mary M. Ragosa appeals the July 16, 2002, order of the United States Bankruptcy Court for the District of Massachusetts denying her motion for summary judgment and granting the motion for summary judgment filed by Robert and Joan Canzano in their capacity as the Trustees of the J & B Realty Trust (the “Canzano Trustees”), and seeks to overturn the bankruptcy court’s approval of a sale of certain real estate to the Appellees, the Canzano Trustees, pursuant to 11 U.S.C. § 363.1 For the reasons set forth below, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

On November 17, 1999, Michael J. Colarusso and Mary Colarusso (collectively, the “Debtors”) filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code.2 On March 15, 2000, the Debtors filed a motion to convert the case from Chapter 13 to Chapter 11, which the bankruptcy court granted that same day. On February 13, 2001, the Debtors moved to convert their Chapter 11 case to Chapter 7, and that motion was granted on March 7, 2001. As of the Petition Date, the Debtors owned certain real property located at 289 West Bay Road, Osterville, Massachusetts (the “Property”).

On May 15, 2001, the Chapter 7 Trustee, Donald Lassman, filed a motion for an order pursuant to § 363(b)(1) and (f) authorizing and approving the private sale of the Property free and clear of all liens, claims and encumbrances (the “Sale Motion”). Contemporaneously, the Chapter 7 Trustee filed a Notice of Intended Private Sale, identifying four offers, all in the amount of $719,900, received for the Property. The Notice listed June 25, 2001 as the deadline by which to file any objections to the proposed sale. No objections were filed by the deadline.

Between June 25, 2001, and June 29, 2001, each of the four prospective purchasers submitted sealed bids increasing their prior offers. On June 29, 2001, the bankruptcy court held a hearing on the Sale Motion at which both Ragosa, as Trustee of the G.B.C. RE Trust, and the Canzano Trustees appeared and submitted their sealed counter bids. At the conclusion of that hearing, the bankruptcy court entered an order authorizing and approving the private sale of the Property to the Canzano Trustees free and clear of any liens, claims, charges, interests, and encumbrances (the “Sale Approval Order”). See Appellant’s App. at 38. The Sale Approval Order also provided that if the Canzano Trustees failed to close, the Chapter 7 Trustee was authorized to complete the sale to Ragosa as Trustee the of G.B.C. RE Trust. See id. at 39. On July 2, 2001, [170]*170the Chapter 7 Trustee recorded a Trustee’s Deed with an attached certified copy of the Sale Approval Order. On July 10, 2001, the Chapter 7 Trustee filed a Report of Chapter 7 Trustee on Sale of Real Property, disclosing that the Canzano Trustees had been the successful purchasers of the Property. Ragosa neither filed an appeal of the Sale Approval Order nor sought a stay of the Sale Approval Order pending appeal.

On October 23, 2001, Ragosa, as an individual and not as Trustee of the G.B.C. RE Trust, filed a complaint in the Land Court for the Commonwealth of Massachusetts (Case No.: 275638), seeking a declaratory judgment establishing a claim of ownership to a portion of the Property via adverse possession (the “Land Court Action”). In connection with the Land Court Action, Ragosa filed a lis pendens, creating a cloud on the Canzano Trustees’ title to the Property. See Appellant’s App. at 199.

On November 6, 2001, the Canzano Trustees commenced an adversary proceeding in the bankruptcy court (Adv. Pro. No.: 01-1446) seeking to enforce the Sale Approval Order and to enjoin Ragosa from proceeding with the Land Court Action (the “Adversary Proceeding”). In their Complaint, the Canzano Trustees argued, among other things, that because Ragosa participated in the sale of the Property as a bidder and did not object thereto, she was barred from prosecuting the Land Court Action under principles of judicial estoppel. On November 8, 2001, after a hearing, the bankruptcy court granted a preliminary injunction in favor of the Canzano Trustees enjoining Ragosa from:

[Tjaking any further action in the Land Court for the Commonwealth of Massachusetts in Case No. 275638 and from taking any and all other action with respect to the issue of title to a parcel of property popularly known as 289 West Bay Road, Osterville, Massachusetts, referred to as the locus in the above-captioned Complaint, until such further order of this Court.

See Appellant’s App. at 102-03.

On November 30, 2001, Ragosa filed a Motion to Dismiss or Abstain with respect to the Adversary Proceeding. On that same date, Ragosa filed a Motion to Amend Order Granting Preliminary Injunction. In the motions, Ragosa argued, among other things, that she had acquired a portion of the Property via adverse possession (the “Adversely Acquired Property”) and, consequently, that portion of the Property was never part of the Debtors’ estate and could not have been included in the Sale Motion. Ragosa also argued that because the Adversely Acquired Property was never part of the bankruptcy estate, the bankruptcy court did not have jurisdiction over it, and Ragosa had no obligation to object to the sale. The Canzano Trustees filed an opposition to the motion to dismiss. The bankruptcy court held a hearing on the motion to dismiss and the motion to amend, and denied both motions. Thereafter, Ragosa filed an answer to the Adversary Proceeding complaint.

The Canzano Trustees filed a Motion for Summary Judgment, Or In the Alternative, Judgment on the Pleadings, Pursuant to Bankruptcy Rule 7056 and F.R.C.P. 56, and Ragosa filed her own Motion for Summary Judgment. After hearing oral argument on the cross motions for summary judgment, the bankruptcy court permitted the parties to file supplemental memoranda of law. On July 16, 2002, the bankruptcy court entered a Memorandum Decision and a separate Order granting the Canzano Trustees’ summary judgment motion and denying Ragosa’s summary judgment motion. Ragosa filed a timely Notice of Appeal from that Order.

[171]*171 JURISDICTION

The Panel has jurisdiction to hear appeals from “final judgments, orders, and decrees” pursuant to 28 U.S.C. § 158(a)(1) or “with leave of the court, from interlocutory orders and decrees” pursuant to 28 U.S.C. § 158(a)(3). Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646. An interlocutory order “ ‘only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)).

Generally, a bankruptcy court order denying a motion for summary judgment is not a final order. See CRS Steam, Inc.

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Related

In Re Colarusso
295 B.R. 166 (First Circuit, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
295 B.R. 166, 2003 Bankr. LEXIS 795, 41 Bankr. Ct. Dec. (CRR) 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ragosa-v-canzano-bap1-2003.