In re Land

• Decision Date: 19 December 1997
• Docket Number: BAP No. 97-6060.
• Parties: In re John E. LAND, Mary Connie Land, Debtors. Dan BRYAN; Sharon Bryan; Bryan Broadcasting, Inc., Creditors— Appellants, v. John E. LAND, Mary Connie Land, Debtors—Appellees.
• Court: Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Eighth Circuit

215 B.R. 398 (1997)

In re John E. LAND, Mary Connie Land, Debtors.

Dan BRYAN; Sharon Bryan; Bryan Broadcasting, Inc., Creditors— Appellants, v. John E. LAND, Mary Connie Land, Debtors—Appellees.

BAP No. 97-6060.

United States Bankruptcy Appellate Panel of the Eighth Circuit.

Submitted October 22, 1997.

Decided December 19, 1997.

Eric W. Lam, Jan C. Waterhouse, Cedar Rapids, IA, for Appellants.

Janet K. Hong, Cedar Rapids, IA, for Appellees.

Before KOGER, WILLIAM A. HILL, and SCHERMER, Bankruptcy Judges.

KOGER, Chief Judge.

Dan Bryan, Sharon Bryan and Bryan Broadcasting, Inc. appeal from the bankruptcy court's order entered on June 24, 1997, in which the court denied the appellants' Motion to Dismiss or to Change Venue and their Motion to Set Aside and to Vacate Judgment and Order of Confirmation, for Extension of Time to Appeal, and for Other Relief.

FACTS

On April 7, 1997, John and Mary Land, husband and wife, filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Iowa. Despite declaring under penalty of perjury that they had been domiciled or had a residence, principal place of business, or principal assets in the Northern District of Iowa for 180 days immediately preceding the date of the bankruptcy petition or for a longer part of such 180 days than in any other district, counsel for the Lands admitted at a hearing held on June 3, 1997, that venue was proper only in the Southern District of Iowa and that the Lands had filed in the Northern District of Iowa for their convenience. In their bankruptcy schedules, the Lands listed Dan Bryan as a creditor holding an unsecured nonpriority claim based upon his role as a co-signor for a loan from State Central Bank. The amount of the claim was shown as zero, and as contingent, unliquidated and disputed. In the mailing matrix, the Lands listed Dan Bryan's address as Sherwood Oaks, Carthage, Illinois 62321. Although Dan Bryan's spouse, Sharon Bryan, was also a creditor of the Lands as a result of a mortgage executed by the Lands in favor of Dan Bryan and Sharon Bryan, the Lands did not list Sharon Bryan as a creditor in their schedules filed on April 7, 1997. In the mortgage, the address of the Bryans was shown as Sherwood Oaks, Carthage, Illinois 62321. Bryan Broadcasting, Inc. is the Bryans' wholly-owned business and is a defendant, along with the Bryans, in a state court lawsuit filed by the Lands arising out the sale of a radio station by Bryan Broadcasting, Inc., Dan Bryan and Sharon Bryan to the Lands' business, Landmark Broadcasting, Inc. Bryan Broadcasting, Inc. and the Bryans may be creditors of the Lands based upon claims or counterclaims they may file in the pending state court action. On or about May 25, 1997, the Lands did amend their bankruptcy schedules to include Bryan Broadcasting, Inc. and Dan and Sharon Bryan, each with an address of P.O. Box 485, Carthage, Illinois 62321.

A notice of the Lands' bankruptcy filing; the date, time and location of the meeting of creditors; the deadline to file a proof of claim; the bar date for filing objections to confirmation of the plan; and the date, time and place of the hearing on confirmation was mailed to each creditor at the address shown on the mailing matrix. The section 341 meeting of creditors and the confirmation hearing were both held on May 6, 1997, at 12:00 p.m. and 1:30 p.m., respectively. The bankruptcy court confirmed the Lands' Chapter 13 plan, without objection. The order confirming the plan was filed on May 12, 1997.

On May 6, 1997, after the 1:30 p.m. confirmation hearing, Dan Bryan, Sharon Bryan and Bryan Broadcasting, Inc. filed a Motion to Dismiss or to Change Venue. On May 14, 1997, Dan Bryan, Sharon Bryan and Bryan Broadcasting, Inc. filed a Motion to Set Aside and to Vacate Judgment and Order of Confirmation, for Extension of Time to Appeal, and for Other Relief. Subsequently, on May 19, 1997, the appellants filed an amendment to the May 14 motion in which they stated that the address for Dan Bryan was incomplete, and asserted that neither Dan Bryan, Sharon Bryan nor Bryan Broadcasting, Inc. received notice of the Lands' bankruptcy filing. The bankruptcy court held a hearing on the motions on June 3, 1997. The bankruptcy court denied both motions. In its order the bankruptcy court found and concluded in relevant part that:

Evidence was presented that the Bryans\' attorney contacted the Lands\' attorney on April 16, 1997 regarding the bankruptcy of the Lands. This was six days after the notices were mailed by the Clerk. Mr. Bryan testified that upon learning of the bankruptcy he had to "find Mr. Lam as an attorney", as he had no bankruptcy attorney. Mr. Bryan contacted Mr. Lam, who now represents all three Bryan parties, sometime prior to the April 16, 1997 phone call by Mr. Lam to the Lands\' attorney. Mr. Bryan also testified that he is sure he contacted Mr. Lam prior to that date.

There was testimony that Mr. Bryan may have heard of the Lands\' bankruptcy through one of his other attorneys during depositions in a collateral case. Whether coincidental or not, he became aware of the Lands\' Chapter 13 petition and began to act on that information at the same time the notices from the court were delivered.

. . . .

Mr. Bryan had notice of the bankruptcy proceeding in question and began to act on that information exactly as if he had received notice by mail. Mr. Bryan contacted an attorney to deal with bankruptcy issues at Mr. Bryan\'s request at least 20 days prior to the objection bar and confirmation hearing date. The Court concludes that Mr. Bryan had adequate notice of the Lands\' bankruptcy.

It is notable that the appellants do not appeal from the bankruptcy court's determination that Dan Bryan had actual notice of the Lands' bankruptcy filing at least 20 days prior to the date set for the confirmation hearing, nor do they appeal from the bankruptcy court's factual findings supporting its ruling.

Regarding Sharon Bryan's notice of the Lands' bankruptcy filing, the bankruptcy court found and concluded that:

Sharon Bryan and Dan Bryan live together as husband and wife. Mr. Bryan testified that they see each other every day and that he would discuss with Mrs. Bryan matters of an important nature of which he became aware. The bankruptcy of individuals who presumably owe them a substantial debt would qualify as a matter of importance. Mrs. Bryan has retained the same attorney as Mr. Bryan to represent her in relation to the Lands\' bankruptcy. That attorney received notice of the Lands\' bankruptcy from Mr. Bryan at least 20 days prior to the hearing date.

This Court has concluded that Mr. Bryan received timely notice of the Lands\' bankruptcy proceeding. "The normal relationship between spouses being close, Congress could well consider that receipt of the notice by either spouse would be well calculated to give actual notice to both, even though one spouse may be temporarily absent." Cohen v. United States, 297 F.2d 760, 773 (9th Cir.1962). In Cohen, a prosecution for income tax evasion, Mr. Cohen was temporarily away, in prison. He nevertheless was deemed to have received notice when his wife was served at their permanent address. Neither of the Bryans have claimed absence from the family home. Mr. Bryan\'s testimony, the advisory language of Congress, and Cohen, when considered together, convince this Court that notice to Mr. Bryan sic was adequate.

In the case of In re Texaco Inc., 182 B.R. 937 (Bankr.S.D.N.Y.1995), a Chapter 11 case, adjacent landowners were found to have received actual "Notice by mail of the Bar Date" for the filing of proofs of claim, by reason of their relationships to five other landowners to whom notice was actually mailed. The parties in question in Texaco were related to some lesser degrees (sister-in-law, e.g.) to parties to whom notice had actually been mailed. Id. at 954. This provides further support that the Lands\' position that Mr. Bryan\'s notice provided either actual or imputed notice to Mrs. Bryan by virtue of their marital relationship, living arrangement, and the testimony of Mr. Bryan.

The bankruptcy court also observed and found that Sharon Bryan "was a party to the Motion to Dismiss or to Change Venue which was filed late on the date of the confirmation hearing." It is important to note that the appellants do not appeal from the bankruptcy court's factual findings supporting its legal conclusion that Dan Bryan's actual notice of the Lands' bankruptcy filing could be imputed to Sharon Bryan.

The bankruptcy court did not spend much time on the venue issue. In relevant part, the bankruptcy court stated that no objections to venue were made prior to the confirmation hearing and found that the motion filed subsequent to confirmation was not timely filed.

JURISDICTION

We must address the issue of whether the bankruptcy appellate panel has jurisdiction to hear the appeal in this case. The appellants timely filed a notice of appeal on July 1, 1997. See Fed. R. Bankr.P. 8002(a). The bankruptcy court's denial of the appellants' motion to set aside the order confirming the debtors' plan is a final order over which the bankruptcy appellate panel unquestionably has appellate jurisdiction. See KCC-Leawood Corporate Manor I v. Travelers Ins. Co., 117 B.R. 969, 972 (W.D.Mo.1989) ("Confirmation of a plan is a final order for purposes of an appeal.").

The inquiry over whether we may exercise jurisdiction in this case arises in the context of the bankruptcy court's order denying the motion to change venue. Although the denial of a motion to change venue is interlocutory in nature, it has been held to be appealable under 28 U.S.C. § 158(a). See ICMR, Inc. v. Tri-City Foods, Inc., 100 B.R. 51, 53 (D.Kan.1989). In ICMR, Inc. the district court, quoting 1 Collier on Bankruptcy ¶ 3.024f (L. King 15th ed.1988), opined:

The discretion of the district court o

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