Allen, In re, Nos. 88-3957

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN, Chief Judge, and SCHROEDER and BEEZER; PER CURIAM; GOODWIN
Parties, 20 Bankr.Ct.Dec. 437 In re Kenneth C. ALLEN, a/k/a Bud Allen, Debtor. Kenneth C. ALLEN, a/k/a Bud Allen, Appellant, v. OLD NATIONAL BANK OF WASHINGTON, Appellee. In re Judith P. ALLEN, Debtor. Judith P. ALLEN, Appellant, v. OLD NATIONAL BANK OF WASHINGTON, Appellee.
Decision Date20 February 1990
Docket Number88-3958,Nos. 88-3957

Page 416

896 F.2d 416
58 USLW 2509, 20 Bankr.Ct.Dec. 437
In re Kenneth C. ALLEN, a/k/a Bud Allen, Debtor.
Kenneth C. ALLEN, a/k/a Bud Allen, Appellant,
v.
OLD NATIONAL BANK OF WASHINGTON, Appellee.
In re Judith P. ALLEN, Debtor.
Judith P. ALLEN, Appellant,
v.
OLD NATIONAL BANK OF WASHINGTON, Appellee.
Nos. 88-3957, 88-3958.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 6, 1989.
Decided Feb. 20, 1990.

Page 417

Frederick P. Corbit, Seattle, Wash., for appellants.

Kristine A. Chrey, Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN, Chief Judge, and SCHROEDER and BEEZER, Circuit Judges.

PER CURIAM:

Kenneth and Judith Allen collectively appeal denials of their motions to dismiss involuntary bankruptcy petitions filed against them under 11 U.S.C. Secs. 701 et seq. (1988). The Allens allege that a joint petition was filed against them in violation of 11 U.S.C. Sec. 303(a) (1988). See Benny v. Chicago Title Ins. Co. (In re Benny), 842 F.2d 1147, 1148-49 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 806, 102 L.Ed.2d 796 (1989). The bankruptcy court found that the disputed petition was filed against Kenneth Allen individually and not against the Allens jointly. The Allens then appealed to the district court, which affirmed. We dismiss the appeal for want of jurisdiction.

On June 24, 1987, the petitioning creditors, consisting of the Old National Bank of Washington, Sea-Land Industries, Seattle-Tacoma Box Company, and Seattle Refrigeration and Manufacturing Corporation, submitted an involuntary bankruptcy petition to the U.S. Bankruptcy Court naming Kenneth C. Allen and Judith P. Allen jointly as debtors. The bankruptcy court clerk issued a summons against both Kenneth and Judith. Before serving the summons, however, the clerk informed the creditors' attorney that a joint involuntary petition could not be filed against a debtor and his spouse, 11 U.S.C. Sec. 303(a) (1988), and asked counsel against which person the petition should be effective. The attorney designated Kenneth C. Allen and instructed the clerk to cross Judith P. Allen's name off the original petition. The clerk corrected the petition and amended the summons to reflect the change. Consequently, only Kenneth was served.

Three days later, the petitioning creditors filed a separate involuntary petition against Judith P. Allen and a summons was issued and served upon her.

The Allens each filed motions to dismiss the petitions on the ground that the initial filing was void and, therefore, the bankruptcy court lacked subject matter jurisdiction. The bankruptcy court found that the involuntary petition was filed against Kenneth C. Allen only and not against the Allens jointly. The bankruptcy court also found that even if the petition initially was filed jointly it was harmless error to include Judith P. Allen's name in the caption and it was proper for the clerk to dismiss her from the petition. In re Kenneth C. Allen, Bankruptcy Court Order No. 87-04906; In re Judith P. Allen, Bankruptcy Court Order No. 87-05053.

The Allens timely appealed to the district court 1 claiming that the bankruptcy court committed reversible error. The district court affirmed the bankruptcy court's finding that the involuntary petition was filed

Page 418

only against Kenneth P. Allen. In re Kenneth C. Allen, Order No. C88-192D; In re Judith P. Allen, Order No. C88-193D. This appeal followed.

Before we may reach the merits, we must determine whether the denial of a motion to dismiss for lack of subject matter jurisdiction based on the allegation of a defective bankruptcy petition is final and appealable to this court. Jurisdiction of an appeal from an order of a bankruptcy court is governed by 28 U.S.C. Sec. 158 (Supp. V 1987). Subsection (a) vests jurisdiction in the district court to hear appeals from "final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, ..." Id. Sec. 158(a). Courts of appeal, however, have jurisdiction only over "final decisions, judgments, orders, and decrees entered under subsection [ ] (a) ..." Id. Sec. 158(d). We do not have jurisdiction over interlocutory orders. See Pizza of Hawaii, Inc. v. Shakey's Inc. (Matter Pizza of Hawaii, Inc.), 761 F.2d 1374, 1378 (9th Cir.1985); Mason v. Integrity Insurance Co., (In re Mason), 709 F.2d 1313, 1315 (9th Cir.1983).

Section 158 has been interpreted to grant jurisdiction to a court of appeals only when both the district and bankruptcy courts' orders are "final." T.O. King v. Stanton (In re Stanton), 766 F.2d 1283, 1285 (9th Cir.1985); Cash Currency Exchange, Inc. v. Shine (Matter of Cash Currency Exchange, Inc.), 762 F.2d 542, 545-46 (7th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985).

The dispute in this case focuses on whether the bankruptcy court's order was final. 2 Because an order determining the validity of a petition and denying a motion to dismiss for lack of subject matter jurisdiction does not terminate the bankruptcy proceedings, it fails the conventional test of finality. Catlin v. United States, 324 U.S. 229, 232-33, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945) (Motion to dismiss for lack of subject matter jurisdiction is not a final order. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.")

To determine what is appealable as a final judgment in bankruptcy proceedings, this court has, however, "adopted a test that emphasizes the need for immediate review, rather than whether the order is technically...

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61 practice notes
  • Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California, No. 93-70679
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 18, 1994
    ...raises new and important problems, or issues of law of first impression." Valenzuela-Gonzalez, 915 F.2d at 1279 (quoting In re Allen, 896 F.2d 416, 419-20 (9th Cir.1990) (quoting Bauman v. United States, 557 F.2d 650, 654-55 (9th Although we have written of these five factors that "no singl......
  • Bonner Mall Partnership, In re, No. 92-36754
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 4, 1993
    ...have jurisdiction, both the bankruptcy court's and district court's orders must be final. Allen v. Old Nat'l Bank of Wash (In re Allen), 896 F.2d 416, 418 (9th Cir.1990) (per curiam). Here, the bankruptcy court's order granting relief from the automatic stay was clearly final. 8 Packerland ......
  • Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California, No. 93-70679
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 16, 1994
    ...raises new and important problems, or issues of law of first impression." Valenzuela-Gonzalez, 915 F.2d at 1279 (quoting In re Allen, 896 F.2d 416, 419-20 (9th Cir.1990) (quoting Bauman v. United States, 557 F.2d 650, 654-55 (9th Although we have written of these five factors that "no singl......
  • Klestadt & Winters, LLP v. Cangelosi, Nos. 10–16970
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 6, 2012
    ...regarding finality under former § 1293 are applicable to cases arising under § 158. Allen v. Old Nat'l Bank of Wash. (In re Allen), 896 F.2d 416, 418 n. 3 (9th Cir.1990) (per curiam). Thus, for ease of reference, we use § 158 in the opinion to refer to both § 158 and its repealed precursor,......
  • Request a trial to view additional results
61 cases
  • Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California, No. 93-70679
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 18, 1994
    ...raises new and important problems, or issues of law of first impression." Valenzuela-Gonzalez, 915 F.2d at 1279 (quoting In re Allen, 896 F.2d 416, 419-20 (9th Cir.1990) (quoting Bauman v. United States, 557 F.2d 650, 654-55 (9th Although we have written of these five factors that "no singl......
  • Bonner Mall Partnership, In re, No. 92-36754
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 4, 1993
    ...have jurisdiction, both the bankruptcy court's and district court's orders must be final. Allen v. Old Nat'l Bank of Wash (In re Allen), 896 F.2d 416, 418 (9th Cir.1990) (per curiam). Here, the bankruptcy court's order granting relief from the automatic stay was clearly final. 8 Packerland ......
  • Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California, No. 93-70679
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 16, 1994
    ...raises new and important problems, or issues of law of first impression." Valenzuela-Gonzalez, 915 F.2d at 1279 (quoting In re Allen, 896 F.2d 416, 419-20 (9th Cir.1990) (quoting Bauman v. United States, 557 F.2d 650, 654-55 (9th Although we have written of these five factors that "no singl......
  • Klestadt & Winters, LLP v. Cangelosi, Nos. 10–16970
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 6, 2012
    ...regarding finality under former § 1293 are applicable to cases arising under § 158. Allen v. Old Nat'l Bank of Wash. (In re Allen), 896 F.2d 416, 418 n. 3 (9th Cir.1990) (per curiam). Thus, for ease of reference, we use § 158 in the opinion to refer to both § 158 and its repealed precursor,......
  • Request a trial to view additional results

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