In re: Ulmer ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-30433
Summary Calendar
____________________
In The Matter Of: JO ANN LACOSTE ULMER,
Debtor.
DAN C FRISARD,
Appellant,
v.
CYNTHIA LEE TRAINA,
Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-3545-F)
_________________________________________________________________
November 26, 1999
Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Dan Frisard appeals the district court’s
affirmance of a turnover order issued by the bankruptcy court
pursuant to 11 U.S.C. §542. We affirm.
I.
In 1990, Appellant Dan Frisard executed a lien on real
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
property in Covington, Louisiana that belonged to Jo Ann Ulmer
(“debtor”) and Jerry Autin (the debtor’s ex-husband). Frisard
purchased the property at the subsequent judicial sale. In May,
1998, however, Appellee Cynthia Traina, trustee of debtor’s
bankruptcy estate (“trustee”), obtained from the 22nd Judicial
District Court for the Parish of St. Tammany a judgment
nullifying the 1990 sale in favor of Frisard. Frisard’s appeal
from the state court’s judgment was devolutive. Consequently,
the bankruptcy estate was vested with the debtor’s interest in
the property as of the judgment date.
On September 10, 1998, the trustee filed a Motion for
Turnover of Estate Property. Frisard had controlled the property
for several years, and, according to the trustee, the tenants
occupying the property requested “an order of the court to
protect themselves from Frisard’s claims.” Meanwhile, on
September 15, the 22nd Judicial District Court granted Frisard’s
Petition for Executory Process and issued a writ of seizure
against debtor’s property. The Sheriff of the Parish of St.
Tammany seized the property on October 14.1 On October 22, the
bankruptcy court granted the trustee’s motion for a turnover
order, declaring debtor’s property to be property of the
bankruptcy estate and directing the tenants to deliver possession
1
On December 30, 1998, the state court ruled that Frisard’s
Petition for Executory Process was procedurally defective and
insufficient to support the issuance of the writ of seizure. The
court therefore vacated the writ, enjoined the Sheriff from
proceeding with the judicial sale and declared Frisard’s lien
prescribed.
2
of the property to the trustee. The United States District Court
for the Eastern District of Louisiana affirmed the bankruptcy
court’s order, and Frisard now appeals.
II.
We review the bankruptcy court’s conclusions of law de novo,
but findings of fact will not be set aside unless clearly
erroneous. See Matter of Haber Oil Co., 12 F.3d 426, 434 (5th
Cir. 1994). Although the court of appeals benefits from the
district court’s consideration of the matter, the amount of
persuasive force to be assigned the district court’s conclusion
is entirely a matter of discretion with the court of appeals.
Matter of Briscoe Enters., Ltd., II, 994 F.2d 1160, 1163 (5th
Cir.), cert. denied, 510 U.S. 992 (1993).
Frisard asserts that the district court erred in failing to
find the bankruptcy court’s turnover order procedurally and
substantively flawed. We address each contention in turn.
A. Procedural Error
In the lower court, Frisard contended that the turnover
order was procedurally defective because it was granted based on
contested motion pleadings rather than a full adversary
proceeding. The district court, quoting Matter of Haber Oil,
Co., 12 F.3d at 440, noted that “waiver of an adversary
proceeding is possible and permissible if ‘the parties are
apprised of and have a chance to address all the issues being
decided.’” The court concluded that Frisard had waived any
objection because he had notice of the trustee’s motion and
3
failed to object until after the motion was granted. Further,
the court noted that Frisard had been granted a hearing where he
was given the opportunity to address the issues. We agree with
the district court’s analysis.
Frisard, however, counters with two arguments. First, he
argues that he did, in fact, object. What he objected to,
though, was conducting a turnover proceeding without an oral
hearing.2 Frisard was subsequently granted a hearing. At no
time during this hearing did he object to treating the trustee’s
motion as a contested matter, rather than as a matter requiring a
full adversary proceeding.
Second, Frisard argues that interested parties were absent
from the hearing and thus did not waive their objections to the
trustee’s motion. Specifically, he contends that the sheriff who
seized the property before the hearing was in “constructive
possession” of the mortgaged land and therefore should have been
present. Frisard also maintains that the tenants who were
ordered to turn the property over to the trustee should have
attended the hearing. The answer to Frisard’s claim regarding
the sheriff is that whatever the truth of the proposition he is
asserting, no harm has occurred because the sheriff’s seizure was
subsequently vacated. Moreover, the tenants had no claim against
2
In his informal memorandum in opposition to the trustee’s
motion, Frisard stated that, “under Local Court Rules (Rule 9013-
1(D)), does not appear [sic] as a motion which can be heard Ex
Parte without a hearing.” In his formal memorandum, Frisard
repeats this argument and adds that the motion “was not filed as
a contested or adversary matter ....”
4
the property and, in fact, had agreed to vacate before the
turnover order was issued.
B. Substantive Error
Frisard posits a series of arguments alleging substantive
error in the bankruptcy court’s turnover order: (1) the trustee
of debtor’s second bankruptcy estate abandoned this property,
and, therefore, it cannot be reclaimed by the trustee of debtor’s
fourth bankruptcy; (2) the bankruptcy court had no jurisdiction
to “adjudicate conflicting claims to [the] property” or
“determine State created property rights”; (3) the state court
judgment nullifying the judicial sale to Frisard did not give the
bankruptcy estate possession of the property; and (4) the
turnover order interferes with Frisard’s post-discharge
foreclosure on the property. We find these arguments
unpersuasive. Frisard asserted the same contentions below, and,
because we agree with the district court’s well-reasoned
conclusions, we find it unnecessary to revisit these issues.
III.
For the foregoing reasons, we AFFIRM.
5