Fox, Matter of

• Decision Date: 13 May 1985
• Docket Number: No. 84-2541,84-2541
• Citation: 762 F.2d 54
• Parties: 12 Collier Bankr.Cas.2d 1136, 13 Bankr.Ct.Dec. 182 In the Matter of Richard Lee FOX and Marlyce Kay Fox, Debtors. Appeal of Peter F. HERRELL, Trustee in Bankruptcy.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 54

762 F.2d 54

12 Collier Bankr.Cas.2d 1136, 13 Bankr.Ct.Dec. 182

In the Matter of Richard Lee FOX and Marlyce Kay Fox, Debtors Appeal of Peter F. HERRELL, Trustee in Bankruptcy.

No. 84-2541.

United States Court of Appeals Seventh Circuit.

Submitted March 5, 1985.

Decided May 13, 1985.

Peter F. Herrell, Jordan, Herrell & Thiel, Eau Claire, Wis., for plaintiff.

Allan Ohm, Mattka, Robertson & Ohm, Galesville, Wis., for defendant.

Before WOOD, POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

A trustee in bankruptcy appeals from the district judge's reversal of a bankruptcy judge's disallowance of the claims of two banks to participate in the bankrupt estate as unsecured creditors. The banks are seeking the difference between what the debtors owed them on their loans and what selling the properties by which the loans were secured have yielded or will yield the banks. The only question we shall have to decide, however, is whether we have jurisdiction of the appeal.

Our recent decisions in In re Riggsby, 745 F.2d 1153 (7th Cir.1984), and Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc., 758 F.2d 1248 (7th Cir.1985), provide the framework for analyzing the question, and familiarity with those decisions is assumed. As explained in them, under both the current provision governing bankruptcy appeals (28 U.S.C. Sec. 158, adopted last summer) and the immediate predecessor to that provision (28 U.S.C. Sec. 1293, superseded by last summer's amendments), only final orders by the district courts in bankruptcy cases are appealable to the courts of appeals. But even under the new provision, "final" does not mean the same thing in bankruptcy as in other federal cases. A proceeding to establish a claim against a bankrupt estate is final for purposes of appeal when it is over and done with, even though the bankruptcy goes on. Hence if the district court had affirmed the bankruptcy judge's disallowance of the banks' claims, the affirmance would have been a final decision appealable to us. But the district court did not affirm; it reversed and remanded for further proceedings to figure out not only how much money the banks were entitled to but how much each of them would get from the remaining, and insufficient, assets of the estate.

Although a district judge's decision remanding a case to a bankruptcy judge normally is not final for purposes of appeal, it is final for those purposes if all that remains to do on remand is a purely mechanical, computational, or in short "ministerial" task, whose performance is unlikely either to generate a new appeal or to affect the issue that the disappointed party wants to raise on appeal from the order of remand. Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc., supra, 758 F.2d at 1250; Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir.1985). At the other extreme, an order upholding liability but leaving damages for subsequent determination is not a final order. See, e.g., Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976). Too much is left to do in the trial court (here the bankruptcy court). The likelihood that the proceedings on remand will moot, or at least alter, the issues that would be raised on an appeal from the liability determination, or will raise new issues for appeal and thus lead to multiple appeals if the order on liability is appealable, is too great to...