Radiance Capital v. Crow ( 2021 )

FILED
United States Court of Appeals
Tenth Circuit
February 12, 2021
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
In re: THOMAS CROW,
Debtor,
----------------------------------------
RADIANCE CAPITAL
RECEIVABLES NINETEEN LLC,
Appellant.
v. No. 19-8082
THOMAS LESLIE CROW, also
known as Tom Crow; CAROL-ANN
CROW,
Appellees.
APPEAL FROM THE BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT
(NOS. WY-18-083 and WY-18-086
Judges Cornish, Hall, and Loyd)
David von Gunten, von Gunten Law LLC, Denver, Colorado, for Appellant.
Stephen R. Winship, Winship & Winship, P.C., Casper, Wyoming, for Appellee
Thomas Leslie Crow.
Brent R. Cohen, Lewis Roca Rothgerber Christie LLP, Denver, Colorado, for
Appellee Carol-Ann Crow.
Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit
Judges.
TYMKOVICH, Chief Judge.
This case arises from a bankruptcy filing by Thomas Crow, who owned
substantial property and investment accounts in Wyoming. His bankruptcy
petition sought an exemption for approximately $2 million contained in a Fidelity
account, which he claimed was jointly held with his wife (who did not file for
bankruptcy) and therefore was shielded from creditors under Wyoming law. The
Trustee and a creditor, Radiance Capital Receivables Nineteen, L.L.C., objected
to the claimed exemption. After an evidentiary hearing, the bankruptcy court
upheld the exemption, and a Bankruptcy Appellate Panel (BAP) affirmed.
On appeal, Radiance challenges the BAP’s affirmance. Crow first argues
we lack jurisdiction over this appeal because the BAP’s affirmance of the
bankruptcy court’s ruling on the claimed exemption was not “final” within the
meaning of 28 U.S.C. § 158(d)(1). We reject this argument and hold we have
jurisdiction to review the BAP’s holding concerning the exemption.
On the merits, we affirm. Applying Wyoming law, we conclude the Crows
jointly held the Fidelity account with a right of survivorship—known as a
“tenancy by the entirety” at common law—and was therefore exempt from the
bankrupt estate. We further conclude the tenancy by the entirety was not severed
by the Crows’ subsequent conduct.
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Radiance also challenges the BAP’s affirmance of the bankruptcy court’s
ruling that an adversary proceeding is required to determine the amount of joint
debt held by the Crows before any portion of the Fidelity account must be turned
over to the Trustee. We hold Radiance lacks standing to challenge that portion of
the BAP’s ruling and therefore dismiss that aspect of its appeal.
I. Background
A. Facts
Thomas and Carol Crow resided in a home in Jackson, Wyoming. That
property was sold in 2015 for approximately $10 million, resulting in $5.2 million
in net proceeds. Of that amount, $1.5 million was applied to a new home in
Jackson. The remaining approximately $3.7 million was placed in a Fidelity
account.
The Fidelity account was opened in April 2015. The application to open
the account was signed by the Crows, but their son-in-law, Jeff Marvin, handled
the paperwork. Marvin testified he went to great lengths in his discussions with
Fidelity representatives to ensure that any funds placed in the account would be
held as a tenancy by the entirety. Consistent with that testimony, the application
to open the account contains a handwritten note that labels the account a tenancy
by the entirety. The note was apparently made by a Fidelity representative. Once
the account was opened, subsequent monthly investment reports show the account
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is titled in the name of “Thomas L Crow and Carol A Crow – Tenants by the
Entirety.”
In May 2015, the Crows executed a Fidelity Durable Power of Attorney
granting their daughter Annabelle Marvin (Jeff Marvin’s wife) broad powers to
conduct transactions within the account. 1 All subsequent transactions and
withdrawals from the account were conducted by the Marvins pursuant to the
power of attorney. Transfers to the Marvins from the Fidelity account amounted
to $532,000 in 2015 and $357,820 in 2016. The transfers were ostensibly to pay
off an earlier loan made by the Marvins to the Crows through various
intermediaries.
B. Bankruptcy Court Proceedings
Thomas Crow made his fortune as the founder of Cobra Golf.
Unfortunately, he trusted his finances to an advisor who was later convicted of
fraud. As a result, Crow’s net worth was substantially depleted, leaving him with
significant debt, including a judgment obtained by Radiance against Crow in the
amount of $2.8 million. When Radiance sought to garnish the Fidelity account,
Crow filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code.
1
Thomas Crow had begun showing signs of dementia by early 2015; he
passed away in January 2020.
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Crow claimed that the proceeds of the Fidelity account were exempt because
it was held as a tenancy by the entirety with his wife Carol. The Trustee filed
objections to that claimed exemption, as did Radiance.
The bankruptcy court held an evidentiary hearing on the claimed exemption,
after which it entered an order holding that the Fidelity account was in fact held
as a tenancy by the entirety and exempt under 11 U.S.C. § 522(b)(2)(B). It
further held that “Mr. and Mrs. Crow’s post-creation acts do not rise to the level
to sever the ownership interest between [them].” Aplt. App. 130. The court also
noted the amount of the exemption would be established upon determination of
the amount of joint debt.
The Trustee then moved to have $1.8 million of the Fidelity account
transferred to the Trustee based on the existence of joint debt owed by the Crows.
Radiance joined in that motion. The bankruptcy court denied the motion without
prejudice, holding that the determination of the amount of joint debt had to be
decided in an adversary proceeding.
Radiance and the Trustee appealed the exemption order and the transfer
order to the Bankruptcy Appellate Panel. After the appeal to the BAP had been
perfected, the parties stipulated to allow a portion of Carol Crow’s share in the
Fidelity account to be transferred to her in order to pay for Thomas Crow’s move
into an assisted living facility. Pursuant to that stipulation, Carol Crow was
entitled to use all but $1.8 million in the Fidelity account to pay those expenses.
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The BAP affirmed both the exemption order and the transfer order,
concluding the bankruptcy court did not err in determining the account was held
by the Crows as tenants by the entirety. The panel also held that the tenancy by
the entirety status of the account was not severed by subsequent transactions.
Radiance timely filed a notice of appeal. The Crows then filed a motion to
dismiss the appeal, which was transferred to this panel for decision.
II. Analysis
We first address the Crows’ motion to dismiss for lack of appellate
jurisdiction, and conclude we have jurisdiction. We then turn to the merits of
Radiance’s arguments.
A. Appellate Jurisdiction
Section 158(d) of Title 28 of the United States Code governs appeals from
bankruptcy decisions issued by the bankruptcy court, district court, or the
bankruptcy appellate panel. The court of appeals “shall have jurisdiction of
appeals from all final decisions, judgments, orders, and decrees entered” by the
district court or the BAP. 28 U.S.C. § 158(d)(1). A party may pursue an
interlocutory appeal of an order under § 158(d)(2) if the district court or BAP
certifies the order as one involving a matter of public importance or on which
there is no controlling decision of the court of appeals.
The BAP did not certify Radiance’s appeal under § 158(d)(2), so we have
jurisdiction only if the decision of the BAP was “final” within the meaning of
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§ 158(d)(1). The Crows argue the ruling on the issue before us is not a final
appealable order. We disagree.
Issues of finality and appealability are different in bankruptcy cases.
Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015). “A bankruptcy case
involves ‘an aggregation of individual controversies,’ many of which would exist
as stand-alone lawsuits but for the bankrupt status of the debtor.” Id. (quoting 1
Collier on Bankruptcy ¶ 5.08[1][b], at 5–42 (16th ed. 2014)). Thus, “Congress
has long provided that orders in bankruptcy cases may be immediately appealed if
they finally dispose of discrete disputes within the larger case.” Howard Delivery
Serv. v. Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3 (2006). Some courts have
described this approach as “the flexible finality rule,” which developed “because,
if ‘traditional’ rules of finality applied in bankruptcy, no appeals would be heard
in any bankruptcy matter until a final order issued as to the entire bankruptcy
case.” Eddleman v. U.S. Dep’t of Labor, 923 F.2d 782, 786 n.7 (10th Cir. 1991).
In the Tenth Circuit, “[g]rant or denial of a claimed exemption is a final
appealable order from a bankruptcy proceeding.” In re Brayshaw, 912 F.2d 1255,
1256 (10th Cir. 1990). In this case, the bankruptcy court allowed Thomas Crow a
tenancy-by-the-entirety exemption as to the Fidelity account, and the BAP
affirmed subject to a determination of the amount of joint debt. This legal
determination constituted a “[g]rant . . . of a claimed exemption” under Brayshaw,
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and therefore may be immediately appealed. 2 The Crows fail to acknowledge
Brayshaw, and nothing in their argument suggests it is no longer good law.
The Crows’ motion to dismiss is denied, and we will proceed to the merits
of Radiance’s appeal.
B. Exemptions for Tenancy by the Entirety
Radiance argues the bankruptcy court erred in determining the Fidelity
account is exempt. It contends tenancy by the entirety is disfavored under
Wyoming law, and that the Fidelity account is not the sort of personal property
that can be held as a tenancy. Even if the Fidelity account was created as a
tenancy by the entirety under Wyoming law, Radiance further argues that the
Crows’ subsequent conduct severed that tenancy. We reject Radiance’s
arguments.
Section 522 of the Bankruptcy Reform Act of 1978 authorizes a debtor in
bankruptcy to exempt certain property from the bankrupt estate. In particular,
§ 522(b)(2)(B) permits the exemption of “any interest in property in which the
debtor had, immediately before the commencement of the case, an interest as a
2
The concurrence argues the BAP did not “grant” an exemption and its
legal determination was non-final because the total amount of the exemption was
subject to a later factual determination of the amount of joint debt. We think that
view parses the meaning of “grant” as used in Brayshaw too finely. In its own
words, the bankruptcy court “allow[ed] [Thomas Crow’s] tenants by the entirety
exemption as to the Fidelity account,” Aplt. App. 130, and the BAP affirmed this
ruling. This was sufficient to bring the BAP’s determination within the holding
of Brayshaw.
-8-
tenant by the entirety or joint tenant to the extent that such interest . . . is exempt
from process under applicable nonbankruptcy law.” This provision “simply
recognizes the right which exists under the laws of certain states, to protect
entirety property from execution by the creditors of one spouse.” In re Anselmi,
52 B.R. 479, 484 (Bankr. Wyo. 1985).
Because there is no federal law of property, whether an exemption exists
under § 522(b)(2)(B) is dependent on state law.
1. Creation of a Tenancy by the Entirety
A tenancy by the entirety is a common-law estate unique to married
couples, with a right of survivorship where the surviving spouse retains the entire
interest rather than acquiring the decedent’s interest. Tenancy by the Entirety,
Black’s Law Dictionary (11th ed. 2019). Wyoming law recognizes tenancy by the
entirety in personal property. Id. at 485 (“It appears that Wyoming is among the
minority of states which recognize tenancy by the entirety in personal property.”);
Wambeke v. Hopkin, 372 P.2d 470, 475–76 (Wyo. 1962); Wyo. Stat. § 34-1-140
(tenancy by the entirety “as to any interest in real or personal property” may be
established “by designating in the instrument . . . the names of such . . . tenants
by the entirety”). Radiance points out that while tenancy by the entirety was once
presumed at common law, it is now disfavored in Wyoming. Anselmi, 52 B.R. at
487. This only means, however, that “the existence of a tenancy by the entirety
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will not be presumed . . . in the absence of an express intent to create a right of
survivorship.” Id.In Wambeke the Wyoming Supreme Court laid out two alternative ways to
prove the creation of a tenancy by the entirety in personal property:
1. Each of the four unities of interest, time, title, and
possession must be present, with the added unity of person for a
tenancy by the entirety; or
2. In the absence of one or more of the first four unities, it
must be evident from the language of the instrument itself that the
parties thereto intended to create a right of survivorship.
372 P.2d at 476. The parties agree that the required unities of interest are lacking
with respect to the Fidelity account, so the only way the Crows can establish a
tenancy by the entirety is by the second alternative described in Wambeke.
Whether a particular document constitutes an “instrument” within the
meaning of Wambeke is a matter on which the parties strongly disagree. Radiance
argues for a narrow definition, and its position is effectively that an investment
account like the one at issue here can never be held as a tenancy by the entirety.
Radiance contends an “instrument” within the meaning of Wambeke was narrowly
defined by the bankruptcy court in Anselmi: “As used by the Wambeke court,
‘instrument’ might include bills, bonds, conveyance, leases, mortgages, contract,
promissory notes, deeds, and other similar writing whereby ‘chattel is embodied
-10-
in a document.’” Anselmi, 52 B.R. at 492 (quoting Restatement (2d) of Conflicts,
§§ 248 & 249 cmt. h). Radiance also notes that Wyo. Stat. § 34-1-140 provides
that a joint tenancy or tenancy by the entirety “may be established” in an
“instrument of conveyance or transfer.” Radiance argues there is nothing in this
case that fits this definition of “instrument.”
We disagree with Radiance’s position, which would unduly narrow
tenancies by the entirety in Wyoming. The relevant passage of Anselmi reads:
[A] careful reading of Wambeke indicates that, in this context,
[“instrument”] refers to those writings which give formal expression
to a legal act or agreement for the purpose of creating, securing,
modifying, or terminating a right. As used by the Wambeke court,
“instrument” might include bills, bonds, conveyance, leases,
mortgages, contract, promissory notes, deeds, and other similar
writing whereby “chattel is embodied in a document.”
52 B.R. at 492 (emphasis added). The first sentence provides an apt definition,
and is consistent with Wyoming cases that inquire whether the “creating
instrument” evidences a clear intention to create a tenancy by the entirety. See,
e.g., Choman v. Epperly, 592 P.2d 714, 718 (Wyo. 1979) (citing cases). On the
other hand, the second sentence on which Radiance relies is only an example—it
indicates the definition of instrument “might include” a document in which the
chattel is embodied, not that it is limited to such a document. Similarly, § 34-1-
140 states that a joint tenancy or tenancy by the entirety “may be established” in
an instrument of conveyance or transfer—not that it can only be established in
such a manner.
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The Wyoming Supreme Court recently confirmed that § 34-1-140 does not
prescribe the only method of creating a right to survivorship. In Fleig v. Estate of
Fleig, 413 P.3d 63 (Wyo. 2018), the court held that a husband and wife held a
bank account as a joint tenancy with right of survivorship because the
membership account contract between the couple and the bank unambiguously
evidenced an intent to create a right of survivorship. Id. at 643. 3 Radiance
complains Fleig does not involve a tenancy by the entirety. But tenancy by the
entirety is merely one species of a right of survivorship, and Wyoming cases treat
joint survivorship and tenancy by the entirety interchangeably for analytical
purposes. Indeed, the Wambeke standard itself, which indisputably addressed
whether a tenancy by the entirety had been created, used the phrase “right of
survivorship.” 372 P.2d at 476.
Here, the application to open the Fidelity account is a “creating
instrument,” and it gave formal expression to an agreement between Fidelity and
the Crows to create rights. The application contains a handwritten note expressly
labeling the account as a tenancy by the entirety. We therefore find it is “evident
from the language of the instrument itself that the parties thereto intended to
create a right of survivorship.” Wambeke, 372 P.2d at 476.
3
In addition, other Wyoming cases have accepted bank account signature
cards as evidence of intent to create a right of survivorship. See, e.g., Nat’l Bank
of Newcastle v. Wartell, 580 P.2d 1142, 1145–46 (Wyo. 1978).
-12-
Radiance further argues, however, that the application itself contains
language allowing either spouse to dispose of the assets of the account without
the consent or approval of the other. Citing Anselmi, Radiance argues this
provision is inconsistent with the very concept of a tenancy by the entirety. We
disagree. Anselmi concludes only that the unity of interest is missing where
either spouse is capable of voluntarily alienating the property without consent of
the other. 52 B.R. at 491. But the second alternative under Wambeke “recognizes
the existence of a joint tenancy without the four unities if the intention to create
such is evident.” Choman, 592 P.2d at 715 (emphasis added). In this case, all the
parties agree that the four unities are lacking and that a tenancy of the entirety
can be proved only by a demonstration of intent based on the language of the
instrument itself. We find the Crows proved that requisite intent under the second
alternative.
2. Severance of a Tenancy by the Entirety
Even if a tenancy by the entirety had been created, Radiance argues it was
“severed” by certain actions taken after the Fidelity account was opened. First, it
argues that withdrawals from the account by Annabelle Marvin and Jeff Marvin
severed the tenancy. Second, Radiance argues that when the Crows entered a
stipulation to allow Carol Crow access to a part of the Fidelity account to pay for
her husband’s nursing care expenses, the tenancy was severed. We hold the
tenancy by the entirety was not severed.
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Radiance characterizes the Marvins as treating the Fidelity account as a sort
of slush fund, withdrawing proceeds on a whim for their own personal benefit.
Even accepting this characterization as true, Radiance cites only a single
bankruptcy case from Florida in support of their argument that the Marvins’
withdrawals severed the tenancy. In that case, the court stated that if any of the
five unities are destroyed, “there is no entireties estate.” In re Pierre, 468 B.R.
419, 426 (Bankr. M.D. Fla. 2012). As discussed above, however, the parties all
agree that the required unities are lacking, so it is not clear why Pierre is
relevant. In addition, in making the withdrawals, Annabelle Marvin was
exercising her power of attorney on behalf of both her parents. The Crows, as the
owners of the Fidelity Account, had the right to determine its subsequent
disposition, and they did so by granting Annabelle Marvin power of attorney and
ratifying each subsequent transfer.
Radiance also argues the stipulation in the bankruptcy court to allow Carol
Crow to access a portion of the Fidelity funds severed the tenancy. As the BAP
noted in this case, however, a debtor’s right to an exemption is determined on the
petition date. White v. Stump, 266 U.S. 310, 313 (1924). And the language of
§ 522(b)(3)(B) refers to “interests of the debtor in property as of the
commencement of the case.” Any subsequent agreement concerning the Fidelity
account therefore has no bearing on the status of the exemption.
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C. The Transfer Order
After the bankruptcy court found the Fidelity account to be exempt as a
tenancy by the entirety, the Trustee moved to have a portion of the Fidelity
account transferred to the Trustee based on the existence of joint debt owed by
the Crows. The bankruptcy court denied the motion without prejudice. In that
order, the bankruptcy court held the determination of the amount of joint debt had
to be decided in an adversary proceeding. Radiance argues the bankruptcy court
erred in so holding.
The Crows contend Radiance has no standing to challenge the transfer
order, and we agree. The Crows argue Radiance is not a “person aggrieved” by
the order, and therefore has no standing to challenge it. To qualify as a “person
aggrieved,” Radiance must show that its rights or interests are “directly and
adversely affected pecuniarily by the decree or order of the bankruptcy court.” In
the Matter of C.W. Mining Co., 636 F.3d 1257, 1260 (10th Cir. 2011) (quoting
Holmes v. Silver Wings Aviation, 881 F.2d 939, 940 (10th Cir. 1989)). Radiance
makes no effort to explain how it has been aggrieved by the bankruptcy court’s
transfer order, nor could it. Indeed, Radiance’s own brief argues that “the Trustee
is entitled to turnover of at least half the Fidelity funds.” Radiance Op. Br. at 38
(emphasis added). In addition, because the transfer order is entirely procedural it
makes no substantive determination concerning any party’s rights or interests,
including Radiance’s. Accordingly, Radiance lacks standing to challenge the
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order, and we dismiss this aspect of its appeal.
III. Conclusion
For the foregoing reasons, we affirm the BAP’s holding that the Fidelity
account is exempt under § 522(b)(2)(B). We further dismiss the portion of
Radiance’s appeal concerning the bankruptcy court’s transfer order.
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No. 19-8082, Radiance Capital Receivables Nineteen LLC v. Crow
BRISCOE, Circuit Judge, concurring.
I agree that we should affirm the Bankruptcy Appellate Panel’s (BAP’s) holding
on the merits. I also agree that we should deny the Crows’ motion to dismiss for lack of
jurisdiction. I disagree, however, with the rationale proposed in support of our having
appellate jurisdiction to review the BAP’s rulings. Specifically, I disagree that the BAP’s
decision “granting” an exemption was immediately appealable. As I read the BAP’s
ruling, it did not “grant” an exemption; rather, it left the exemption contingent on the
outcome of an adversary proceeding. 1 Thus, Radiance’s appeal of the BAP’s decision
was interlocutory. Now that the adversary proceeding has concluded as to the exemption
issue, however, Radiance’s appeal has ripened, and we may exercise jurisdiction.
Under 28 U.S.C. § 158(d)(1), we have jurisdiction from “all final decisions,
judgments, orders, and decrees entered” by the BAP or district court exercising appellate
jurisdiction over a bankruptcy court. Accordingly, to determine our jurisdiction, “we
look to the order of the BAP itself, determining whether it is final by considering the
effect that the order will have in the context of the particular appeal.” In re Tri-Valley
Distributing, Inc., 533 F.3d 1209, 1214 (10th Cir. 2008). “If the BAP’s order results in
significant further proceedings in the bankruptcy court, the BAP’s order is not final, and
1
The BAP noted that although Mrs. Crow had intervened in the appeal to the BAP,
she was not a party or participant in the proceedings before the bankruptcy court and thus
unable to fully protect her rights. The BAP concluded an adversary proceeding would
permit the bankruptcy court to obtain jurisdiction over Mrs. Crow and allow her due
process before potentially requiring turnover of the property in which she has an interest.
BAP Op. at 40.
we do not have jurisdiction to consider an appeal therefrom.” Id. An order is only
“final” when it “alters the status quo and fixes the rights and obligations of the parties.”
Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015).
Here, the BAP correctly found that the bankruptcy court’s exemption order was an
interlocutory order. Aplt. App. at 1290. The bankruptcy court ruled that the Fidelity
account was held by the Crows as tenants by the entirety. Id. at 130. The bankruptcy
court did not, however, determine the extent of the exemption. Rather, the bankruptcy
court ruled that Mrs. Crow was entitled to at least one half of the Fidelity account,
representing her interest in the tenancy by the entirety as a non-debtor spouse, and that
“[t]he portion of the other half that is subject to administration as non-exempt will be
based on the amount of joint debt as determined in the pending Turnover proceeding.”
Id. In a separate order, the bankruptcy court ruled that the “Turnover proceeding” to
determine the amount of joint debt should be brought as an adversary proceeding. Id. at
132 (turnover order). Thus, as the BAP recognized, “[u]ntil the amount of the tenants by
the entirety exemption [was] determined, there [was] no final resolution for [the BAP] to
review.” Id. at 1290. And the amount of the tenants by the entirety exemption could not
be determined until the conclusion of the adversary proceeding.2
2
The majority does not clearly explain how the BAP erred in concluding that the
exemption order was nonfinal.
2
The BAP’s decision did not change the interlocutory nature of the bankruptcy
court’s exemption order. Like the bankruptcy court, the BAP held that the exemption
was “dependent upon the joint debt of the Crows,” and the amount of joint debt would be
resolved in an adversary proceeding. BAP Op. at 41. Thus, this case initially fell under
our general rule that the BAP’s decision is interlocutory when it affirms an interlocutory
order by the bankruptcy court. See Tri-Valley Distributing, 533 F.3d at 1214–15.
In re Brayshaw, 912 F.2d 1255, 1256 (10th Cir. 1990), does not resolve the issue
before us. In that case, we held that “[g]rant or denial of a claimed exemption is a final
appealable order from a bankruptcy proceeding.” Id. Yet, as described above, the BAP’s
ruling was not that clear cut. The BAP did not “grant” or “deny” any exemption—it
merely made a legal determination that the exemption could apply to anywhere between
half and all of the Fidelity account. Thus, the BAP’s ruling left the parties’ rights and
obligations far from “fixed.” Bullard, 135 S. Ct. at 1692. The BAP’s ruling regarding
the exemption only got the parties part way toward resolution of their competing claims
for the Fidelity account—it affirmed the bankruptcy court’s conclusion that the Fidelity
account was established and maintained by the Crows as tenants in the entirety, but
whether any part of the account would escape exemption remained to be seen.
Although the BAP’s decision was not final, the bankruptcy court’s subsequent
grant of summary judgment in the adversary proceeding cured Radiance’s otherwise
3
premature notice of appeal. 3 An otherwise ineffective interlocutory appeal may be cured
if “subsequent to the filing of the premature notice of appeal, the [bankruptcy court]
either finally disposes of the remainder of the case or follows the Rule 54(b) procedure
for entry of final judgment on the particular matters theretofore appealed.” In re
Durability, 893 F.2d 264, 266 (10th Cir. 1990) (citing Lewis v. B.F. Goodrich Co., 850
F.2d 641, 645 (10th Cir. 1988)). In its summary judgment order, the bankruptcy court
determined that “[n]o interest in the Fidelity Account remains in the bankruptcy estate.”
Aple. Not. Suppl. Authority, Att. 1 (Order Granting Summ. J.) at 6. Thus, the remainder
of the case left by the BAP’s decision—i.e., the determination of joint debt and the
amount of the exemption—has been finally disposed, and jurisdiction is now proper. See
also In re Woolsey, 696 F.3d 1266, 1268–69 (10th Cir. 2012) (finding jurisdiction to
review a district court’s affirmance of a bankruptcy court’s nonfinal order, where the
bankruptcy court confirmed a plan while the appeal was pending). 4
3
The bankruptcy court granted summary judgment in favor of Mrs. Crow,
concluding: “Upon Mr. Crow’s passing, not only did his interest in the entirety terminate,
but also the Trustee and the bankruptcy estate’s interest in the entirety property, in favor
of Mrs. Crow. No interest in the Fidelity account remains in the bankruptcy estate.”
Aple. Not. Suppl. Authority, Att. 1 (Order Granting Summ. J.) at 6.
4
In Woolsey, we concluded we had jurisdiction, in part, because the parties did not
“identif[y] any prejudice anyone would suffer by taking up the appeal now.” 696 F.3d at
1269; see also id. (“[A]t least absent any indication of potential prejudice, a premature
notice of appeal involving a bankruptcy matter, even one (like this one) with an
interstitial stop in the district court, ripens and become effective once a final order
approving a plan of reorganization is entered.”) (internal quotations omitted). The Crows
are not prejudiced by our exercise of jurisdiction, as our resolution here may help guide
4
Crow points out that the bankruptcy court denied summary judgment on Carol
Crow’s counterclaim and has not entered final judgment in the adversary proceeding. See
Errata to Oral Argument. Further, the bankruptcy court has not entered a Rule 54(b)
order in the adversary proceeding. Yet, Carol Crow’s counterclaim was not part of the
BAP’s decision; thus, her counterclaim is not relevant to whether we have jurisdiction
over Radiance’s appeal of the BAP’s decision. Further, a Rule 54(b) certification is only
one way to cure an appeal of an interlocutory order. Because the bankruptcy court’s
summary judgment order “finally dispose[d] of the remainder” of the BAP’s
consideration of the exemption issue, jurisdiction over the exemption issue is proper
under the first alternative recognized in Durability.
The finality rules are indeed “different in bankruptcy.” Bullard, 135 S. Ct. at
1692. Yet, they are not so flexible as to permit review while the parties’ dispute is
simultaneously litigated in an adversary proceeding. Radiance’s appeal of the exemption
issue only ripened when the adversary proceeding concluded as to that issue.
the parties and the bankruptcy court in future proceedings. See Aple. Not. Suppl.
Authority, Att. 1 (Order Granting Summ. J.) at 9 (staying enforcement of grant of
summary judgment pending determination of this appeal). The Trustee, although
ostensibly aware of this appeal, has not asserted that the appeal should be dismissed.
5