Vogel Van & Storage, Inc., In re, 1047
Decision Date | 21 June 1995 |
Docket Number | D,No. 1047,1047 |
Citation | 59 F.3d 9 |
Parties | 33 Collier Bankr.Cas.2d 1169, Bankr. L. Rep. P 76,541 In re VOGEL VAN & STORAGE, INC., Debtor. William M. McCARTHY, Esq., Trustee for the Estate of Vogel Van & Storage, Inc., Appellant, v. NAVISTAR FINANCIAL CORPORATION, f/k/a International Harvester Credit Corp., and Navistar, Inc., f/k/a International Harvester Company, Appellees. ocket 94-5049. |
Court | U.S. Court of Appeals — Second Circuit |
Richard L. Weisz, Albany, NY (Hodgson, Russ, Andrews, Woods & Goodyear, Albany, NY, of counsel), for appellant.
Murry S. Brower, Albany, NY (Thorn and Gershon, Albany, NY, of counsel), for appellees.
Before: WINTER, MAHONEY, and JACOBS, Circuit Judges.
Appellant William M. McCarthy appeals from a judgment entered July 29, 1994 in the United States District Court for the Northern District of New York, Frederick J. Scullin, Jr., Judge, that dismissed McCarthy's appeal from a judgment entered June 28, 1993 in the bankruptcy court for that district, Justin J. Mahoney, Bankruptcy Judge. The bankruptcy court judgment had dismissed McCarthy's action against appellees Navistar Financial Corporation and Navistar, Inc. (collectively "Navistar") for avoidance of a preference.
The district court dismissed McCarthy's appeal on the ground that it lacked jurisdiction over the appeal because no timely notice of appeal from the bankruptcy court judgment had been filed. The district court determined that McCarthy had failed to obtain an order from the bankruptcy court pursuant to Fed.R.Bankr.P. 8002(c) that would have validated the notice of appeal that McCarthy did file, more than ten but less than thirty days after the entry of the bankruptcy court judgment.
Because the record amply establishes that the bankruptcy court orally granted the Rule 8002(c) motion, and because McCarthy's failure to reduce the bankruptcy court's oral order to writing and submit it to the bankruptcy court, as required by a local bankruptcy rule, did not deprive the district court of jurisdiction to hear McCarthy's appeal, we reverse.
Debtor Vogel Van & Storage, Inc. ("Vogel Van") filed for bankruptcy relief under chapter eleven of the Bankruptcy Code on October 24, 1985. The case was converted to chapter seven in March 1986, and McCarthy was then appointed chapter seven trustee of Vogel Van. McCarthy brought a preference action to recover a payment made by Vogel Van to Navistar that was not deposited until July 30, 1985; less than ninety days prior to the date on which Vogel Van filed for bankruptcy protection. See 11 U.S.C. Sec. 547(b)(4)(A); Barnhill v. Johnson, 503 U.S. 393, 393-96, 112 S.Ct. 1386, 1387-88, 118 L.Ed.2d 39 (1992). Navistar asserted an affirmative defense that the payment was made in the ordinary course of business, thereby exempting it from recovery as a preference. See 11 U.S.C. Sec. 547(c)(2). After a trial, the bankruptcy court concluded that Navistar had met its burden in proving the affirmative defense, and dismissed McCarthy's complaint. Judgment was entered for Navistar on June 28, 1993.
Bankruptcy Rule 8002(a) requires that a "notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment ... appealed from." However, Rule 8002(c) provides an exception to this requirement, specifying in pertinent part that:
The bankruptcy judge may extend the time for filing the notice of appeal by any party for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule. A request to extend the time for filing a notice of appeal must be made before the time for filing a notice of appeal has expired....
On July 7, 1993, within ten days of the entry of the bankruptcy court judgment, McCarthy moved for an extension of time to file his notice of appeal. Navistar consented to the motion by letter and affidavit submitted to the court on July 15, 1993. McCarthy filed a notice of appeal on July 26, 1993.
McCarthy contended by affidavit below and argues on appeal that on July 28, 1993, the bankruptcy court orally granted his Rule 8002(c) motion. Navistar contests this assertion, and points to the bankruptcy court "clerk's proceeding memo" for the July 28 hearing of that motion. The "courtroom notes" at the foot of the memorandum state: This document is "So Ordered," apparently over the initials of Bankruptcy Judge Mahoney, and dated "7/28/93." The docket sheet entry for that date reads: Bankruptcy Judge Mahoney has since died.
During the ensuing months, the bankruptcy court entered four written orders extending McCarthy's time to perfect his appeal to the district court, to the first of which Navistar consented. Once the appeal was perfected, however, Navistar moved the district court to dismiss the appeal because McCarthy's notice of appeal had been filed late. 1 The district court ruled that: The district court accordingly dismissed McCarthy's appeal to that court.
This appeal followed.
McCarthy contends that the bankruptcy court orally granted his Rule 8002(c) motion, notwithstanding the clerk's note indicating that the motion had been withdrawn. Navistar disagrees, and argues in the alternative that because McCarthy failed to reduce the order to writing, as required by Northern District of New York Local Bankruptcy Rule 9(b), the district court lacked jurisdiction to hear the appeal. McCarthy responds that the local rule is not jurisdictional. We agree with McCarthy on both issues.
When reviewing a district court's determination of its subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo. See Greenblatt v. Howell, 41 F.3d 1506, 1506 (6th Cir.1994) (unpublished order) ( ); cf. Mackensworth v. S.S. American Merchant, 28 F.3d 246, 252 (2d Cir.1994) ( ); Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591, 594 (2d Cir.1993) ( )(collecting cases).
Because Navistar consented to the requested extension of time for McCarthy to file his notice of appeal, it would have been curious, to say the least, for the bankruptcy court to have denied McCarthy's Rule 8002(c) motion. Indeed, Navistar does not contend that the bankruptcy court did so, but rather that McCarthy withdrew his motion at the hearing of the motion. McCarthy denies this claim. Such a withdrawal would also have been quite puzzling, because McCarthy's time to file a notice of appeal had already elapsed, absent an extension, and a notice of appeal had already been filed whose validity was dependent upon the requested extension.
Nor do we agree with Navistar that we may rely upon the bankruptcy court "clerk's courtroom notes" as evidence that the motion was withdrawn, because it is clear to us that the notes were in this respect erroneous. As just indicated, it is highly unlikely that McCarthy would have withdrawn his...
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