Latimer, In re, 89-5116
| Decision Date | 07 November 1990 |
| Docket Number | No. 89-5116,89-5116 |
| Citation | 918 F.2d 136 |
| Parties | 24 Collier Bankr.Cas.2d 230, 20 Bankr.Ct.Dec. 1987, Bankr. L. Rep. P 73,670 In re: Caesar C. LATIMER, Debtor. Kenneth L. STAINER, Appellee, v. Emily L. LATIMER; the unknown heirs, executors, administrators, devisees, and assigns of Maria L. Latimer, Deceased; Julia Latimer Warren, administratrix of the estate of Maria L. Latimer, Deceased; Julia Latimer Warren, individually; Reta Latimer Wright; James Harold Latimer; Charles Sylvester Latimer, Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Caesar C. Latimer, Tulsa, Okl., for appellants.
David A. Carpenter, Tulsa, Okl., for appellee.
Before McKAY, McWILLIAMS and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Defendants appeal from an order of the district court affirming the bankruptcy court's order avoiding all conveyances of real property by debtor Caesar C. Latimer and his wife Emily L. Latimer. We affirm.
The trustee, Kenneth L. Stainer, commenced an adversary action in the bankruptcy court to recover the real property the debtor had conveyed five months before filing his Chapter 7 bankruptcy petition to Mrs. Latimer, and which she subsequently conveyed in part to the other defendants. None of the defendants had submitted a claim against the bankruptcy estate. At a pretrial conference, the bankruptcy court denied defendants' oral demand for a jury trial. After trial, the bankruptcy court avoided all of the conveyances by debtor and Mrs. Latimer. Defendants appealed to this court, after the district court affirmed the bankruptcy court.
On appeal, defendants first argue that the debtor had standing to participate in this adversary proceeding. We agree with the district court's determination that debtor had no standing, due to his failure to move to intervene in this adversary action.
Defendants argue the bankruptcy court erred in ruling they were not entitled to a jury trial, because, they contend, they did not waive their right to a jury trial. After determining bankruptcy courts are without jurisdiction to conduct jury trials, the district court concluded defendants' failure to request a transfer to the district court after the bankruptcy court denied their request for a jury trial effectively waived their right to a jury trial.
The trustee first maintains the bankruptcy court properly denied the request for a jury trial because defendants made an oral rather than a written request for jury trial. We agree. A request must be in writing. Fed.R.Civ.P. 38(b); Bankr.R. 9015 (abrogated Mar. 30, 1987). Thus, defendants did not make a proper request for a jury trial.
Even if defendants had made a proper request, we accept the trustee's argument that defendants waived their right to a jury trial. In Granfinanciera, S.A. v. Nordberg, --- U.S. ----, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Court held that when a proper demand for a jury trial has been made, a person who had not submitted a claim against a bankruptcy estate has a seventh amendment right to a jury trial when sued by a trustee to recover alleged fraudulent conveyances of property. The Court, however, expressly declined to decide whether bankruptcy courts have authority to conduct jury trials in fraudulent conveyance actions. Id. 109 S.Ct. at 2802. In considering the issue, this court has recently held that bankruptcy courts may not...
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In re Glannon, 91-40230
...with its request for jury trial in the bankruptcy court thereby waives its right to a jury trial. See Stainer v. Latimer (In re Latimer), 918 F.2d 136, 137 (10th Cir.1990). In this case, appellant filled both requests concurrently on May 14, 12 In the interest of judicial economy, the court......
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...claims.15 However, the Tenth Circuit has held that bankruptcy court's do not have authority to try jury trials. See In re Latimer, 918 F.2d 136, 137 (10th Cir.1990) (bankruptcy courts do not have the authority to conduct jury trials, so a party seeking a jury trial must also seek withdrawal......
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...whatever is necessary to bring the proceeding before a court that can conduct the jury trial the party wants. Stainer v. Latimer (In re Latimer), 918 F.2d 136, 137 (10th Cir. 1990). In this case, Defendants have not demanded, and cannot now timely demand, a jury trial. Under LCvR 81.4(b), m......
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