Arbuckle, Matter of, No. 92-7643

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore HIGGINBOTHAM, SMITH, and DeMOSS; PER CURIAM
Citation988 F.2d 29
PartiesBankr. L. Rep. P 75,221 In the Matter of Darrell ARBUCKLE, et al., Debtors. Darrell ARBUCKLE and Linda Arbuckle, Appellants, v. FIRST NATIONAL BANK OF OXFORD and Stephen P. Livingston, Trustee, etc., Appellees. Summary Calendar.
Decision Date13 April 1993
Docket NumberNo. 92-7643

Page 29

988 F.2d 29
Bankr. L. Rep. P 75,221
In the Matter of Darrell ARBUCKLE, et al., Debtors.
Darrell ARBUCKLE and Linda Arbuckle, Appellants,
v.
FIRST NATIONAL BANK OF OXFORD and Stephen P. Livingston,
Trustee, etc., Appellees.
No. 92-7643
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
April 13, 1993.

Page 30

Kathleen L. Caldwell, Taylor, Halliburton, Ledbetter & Caldwell, Memphis, TN, for appellants.

E. Clifton Hodge, Jr., Charles D. Porter, Sylvie Derdeyn Robinson, Phelps Dunbar, Jackson, MS, Stephen P. Livingston, Bankruptcy Estate Trustee, New Albany, MS, for appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Darrell and Linda Arbuckle, debtors in a Chapter 7 bankruptcy proceeding, appeal the district court's dismissal of their appeal from an order of the bankruptcy court. Agreeing that the district court lacked jurisdiction to hear the appeal, we affirm.

Debtors filed a state court action against the First National Bank of Oxford on April 18, 1985. The suit alleged that FNB committed actionable wrongs during its involvement with Debtors' application for a SBA loan. Debtors claimed that they were damaged by their failure to receive that loan or one from FNB.

On October 10, 1986, Debtors voluntarily filed a Chapter 7 bankruptcy petition. The pending cause of action against FNB was not listed on their schedule of assets; FNB was listed among their creditors. Debtors allege that the trustee was made aware of the lawsuit. No effort was made to remove the lawsuit to the bankruptcy court. The bankruptcy proceeding was closed on March 6, 1987, without having dealt with Debtors' cause of action.

On the same day, a new counsel for Debtors filed an entry of appearance in the state court action. Thereafter Debtors amended their complaint against FNB and sought to recommence discovery. The state court denied FNB's motion to dismiss in January 1990. FNB responded on August 6, 1990, by moving to reopen Debtors' bankruptcy proceeding. FNB, a creditor in that proceeding, claimed that the cause of action filed by Debtors was an unadministered asset of the bankruptcy estate. The bankruptcy court reopened the proceeding and reappointed the trustee.

Page 31

FNB then negotiated with the trustee to settle the state court action. On August 7, 1991, the trustee applied to the bankruptcy court to accept FNB's settlement offer. 1 Concluding that the lawsuit had little chance of success, the bankruptcy court found the settlement in the best interest of the estate and granted the application.

Debtors attempted to appeal the Order granting the trustee's application to settle. The Order was entered on February 28, 1992. 2 Debtors' counsel was not present when the Order was entered and claims to have learned of it upon its arrival by mail on March 6, 1992. Counsel mailed Debtors' notice of appeal via "overnight mail" on the following day, a Saturday, nine days after the entry of the Order. The bankruptcy clerk filed the notice of appeal on March 10, 1992--eleven days after the entry of the Order.

Debtors' counsel assumed that the...

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37 practice notes
  • In re Lang, No. 04-4064.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 8, 2005
    ...See, e.g., Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 709-10 (10th Cir.1992); Arbuckle v. First Nat'l Bank of Oxford (In re Arbuckle), 988 F.2d 29, 32 (5th Cir.1993) (per curiam); Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220, 1221-22 (9th Cir.1980). And, consistent with the authority d......
  • Nalle v. C.I.R., No. 94-40661
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 20, 1995
    ...impression in the context of this matter." Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir.1991); see also Portillo, 988 F.2d at 29 (rejecting reliance on "new rule" argument where Commissioner's decision to assess tax was " 'naked and without any foundatio......
  • Senter v. Commissioner, Docket No. 9404-94.
    • United States
    • United States Tax Court
    • July 13, 1995
    ...that the government's position in relying on such an unsupported notice of deficiency was not justified. * * * [Id., [93-1 USTC ¶ 50,222] 988 F.2d at 29; fn. ref. We note that in Portillo, the Commissioner had presented testimony of an individual (Navarro) who asserted that he had paid the ......
  • Phillips v. Tow, CIVIL ACTION H-17-355
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 14, 2017
    ...Rule 8002(a) applies to notices of appeal, and the fourteen-day time period begins to run upon the entry of the order. Matter of Arbuckle, 988 F.2d 29, 31 (5th Cir. 1993). "Since the appeal time starts from the entry of the judgment and not from the service of the notice, the time for ......
  • Request a trial to view additional results
37 cases
  • In re Lang, No. 04-4064.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 8, 2005
    ...See, e.g., Deyhimy v. Rupp (In re Herwit), 970 F.2d 709, 709-10 (10th Cir.1992); Arbuckle v. First Nat'l Bank of Oxford (In re Arbuckle), 988 F.2d 29, 32 (5th Cir.1993) (per curiam); Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220, 1221-22 (9th Cir.1980). And, consistent with the authority d......
  • Nalle v. C.I.R., No. 94-40661
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 20, 1995
    ...impression in the context of this matter." Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir.1991); see also Portillo, 988 F.2d at 29 (rejecting reliance on "new rule" argument where Commissioner's decision to assess tax was " 'naked and without any foundatio......
  • Senter v. Commissioner, Docket No. 9404-94.
    • United States
    • United States Tax Court
    • July 13, 1995
    ...that the government's position in relying on such an unsupported notice of deficiency was not justified. * * * [Id., [93-1 USTC ¶ 50,222] 988 F.2d at 29; fn. ref. We note that in Portillo, the Commissioner had presented testimony of an individual (Navarro) who asserted that he had paid the ......
  • Phillips v. Tow, CIVIL ACTION H-17-355
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 14, 2017
    ...Rule 8002(a) applies to notices of appeal, and the fourteen-day time period begins to run upon the entry of the order. Matter of Arbuckle, 988 F.2d 29, 31 (5th Cir. 1993). "Since the appeal time starts from the entry of the judgment and not from the service of the notice, the time for ......
  • Request a trial to view additional results

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