Kamper Investments, L.L.C., et al v. Esmeralda Gomez, et al

Filing

UNPUBLISHED OPINION FILED. [09-41233 Dismissed for Want of Subject Matter Jurisdiction] Judge: TMR , Judge: FPB, Judge: EBC. Mandate pull date is 12/30/2010 [09-41233]

Kamper Investments, L.L.C., et al v. Esmeralda Gomez,00511317038 Case: 09-41233 Document: et al

Page: 1 Date Filed: 12/09/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41233 December 9, 2010 Lyle W. Cayce Clerk I n the Matter of: ESMERALDA GOMEZ, JOSE LUIS GOMEZ; D eb tors ------------------------E S M E R A L D A GOMEZ; JOSE LUIS GOMEZ Appellants v. K A M P E R INVESTMENTS, L.L.C.; WACHOVIA BANK, NATIONAL A S S O C I A T I O N , As Trustee for WFASC Mortgage, Asset-Based Pass-Through C e r t ific a t e s , Series 2005-2, A p p e lle e s

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 7:08-CV-155

B e fo r e REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges. P E R CURIAM:* D e b t o r s Esmeralda Gomez and Jose Luis Gomez directly appeal a b a n k r u p t c y court decision upholding the foreclosure sale of their home. Because

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

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No. 09-41233 t h e Gomezes have obtained neither a final decision from the district court nor a statutory certification for direct appeal, we dismiss for want of jurisdiction. I . BACKGROUND Esmeralda Gomez and Jose Luis Gomez owned a home at 2600 Santa L a u r a in Mission, Texas. Wells Fargo Bank, N.A., as mortgage servicer,

fo r e c lo s e d on the home and sold it to defendant Kamper Investments, LLC at a fo r e c lo s u r e sale on August 7, 2007.1 There is no dispute that the foreclosure sale w a s conducted in accordance with relevant state law. The day after the

fo r e c lo s u r e sale, the Gomezes filed for Chapter 13 bankruptcy protection and c o m m e n c e d an adversary proceeding in an attempt to avoid transfer of title. After evidentiary hearings, the bankruptcy court avoided the sale and awarded t it le of the home to the Gomezes. The defendants appealed to the district court. On March 31, 2009, the district court issued a "judgment" reversing the b a n k r u p t c y court in part but remanding for further findings as to whether the fo r e c lo s u r e sale could be avoided under 11 U.S.C. § 544. The district court a n t ic ip a t e d that the bankruptcy court would resolve the "fact finding matter" a n d then "send it back." On November 17, 2009, after a trial, the bankruptcy c o u r t held that the sale could not be avoided under 11 U.S.C. § 544 and entered ju d g m e n t against the Gomezes. The bankruptcy court stated on the record: T o me what that says to both sides is: going back to Judge Hinojosa, fr a n k ly , doesn't make a whole lot [of] sense. . . . Please don't get me w r o n g but given the recent change in the law that allows an appeal t o go directly to the Fifth Circuit, this seems ideally situated if you

Wells Fargo is the mortgage servicer for Wachovia Bank, National Association, which is trustee for the WFASC Mortgage, Asset-Based Pass-Through Certificates, Series 2005-2, into which the Gomezes' mortgage note has been bundled.

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No. 09-41233 a ll choose to spend the funds to do that. . . . So what I would s u g g e s t is that we give you enough time to figure out if you want to a p p e a l. If you choose to appeal either the fact finding or the earlier r e v e r s a l by Judge Hinojosa to the Fifth Circuit, file a Notice of A p p e a l and Request of Certification to go directly to the Fifth C ir c u it . Unless I hear something pretty extraordinary from [p la in t iffs ] that they want to go back and have Judge Hinojosa [do] w h a t he did before, I'll certify it for a direct appeal to the Fifth C ir c u it. It's just discretionary with them. I can't assure that they'll t a k e my certification but I think all of the standards are met here in terms of what the ­ whether this ought to go directly up. T h e bankruptcy court then specifically, and repeatedly, instructed the G o m e z e s to file a request for certification. The bankruptcy court informed the G o m e z e s that they could not appeal directly to this Court without certification, a n d cautioned them to "look carefully at the rules" before filing their notice of a p p e a l. The Gomezes never filed a request for certification, and the bankruptcy c o u r t never made a certification. On November 25, 2009, the Gomezes filed in b a n k r u p t c y court a notice of appeal to this Court. On December 1, 2009, the G o m e z e s filed in the district court a substantially identical notice of appeal. Both notices purport to appeal the bankruptcy court's November 2009 judgment, a s well as the district court's "Interlocutory Judgment entered on April 7, 2 0 0 9 . . . which became final on November 17, 2009." 2 A fte r receiving briefing on the merits, we sua sponte ordered the parties t o submit supplemental briefing demonstrating the basis for our appellate ju r is d ic t io n . After reviewing the parties' supplemental briefing, we dismiss for w a n t of jurisdiction.
No judgment was entered on April 7, 2009. We presume the notice of appeal refers to the district court's March 2009 judgment.
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No. 09-41233 I I . DISCUSSION A. P r in c ip le s F e d e r a l subject matter jurisdiction is limited and must be conferred by C o n g r e s s within the bounds of the Constitution. See, e.g., U.S. CONST. art. III, § 2; Cary v. Curtis, 44 U.S. 236, 245 (1845); Marbury v. Madison, 5 U.S. (1 C r a n c h ) 137, 176, 179 (1803). Litigants cannot bestow subject matter

ju r is d ic t io n on federal courts by waiver or consent. See, e.g., Mitchell v. Maurer, 2 9 3 U.S. 237, 244 (1934). We are obligated to examine our subject matter ju r is d ic t io n , sua sponte if necessary. See, e.g., Bender v. Williamsport Area Sch. D is t., 475 U.S. 534, 541 (1986); Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 3 7 9 , 382 (1884). We have jurisdiction to determine our own jurisdiction. See, e .g ., United States v. Mine Workers of Am., 330 U.S. 258, 291 (1947); United S ta te s v. Shipp, 203 U.S. 563, 573 (1906). F o r the most part, bankruptcy appeals are governed by 28 U.S.C. § 158. See Conn. Nat. Bank v. Germain, 503 U.S. 249, 252 (1992). Under § 158, in t e r lo c u t o r y and final decisions of a bankruptcy court are appealable to the d is t r ic t court, and final decisions of the district court are, in turn, appealable to u s . 28 U.S.C. §§ 158(a), (d)(1); see also id. § 1291 (authorizing appeal from final d e c is io n of a district court); In re Wood & Locker, Inc., 868 F.2d 139, 142 (5th C ir . 1989). A final decision typically is one that "ends the litigation on the m e r it s and leaves nothing for the court to do but execute the judgment." Catlin v . United States, 324 U.S. 229, 233 (1945); Martin v. Halliburton, 618 F.3d 476, 4 8 1 (5th Cir. 2010). In some circumstances an appealable "final judgment" may b e entered as to fewer than all claims in a proceeding, but "only if the court e x p r e s s ly determines that there is no just reason for delay." FED. R. CIV. P. 4

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No. 09-41233 5 4 (b ); FED. R. BANKR. P. 7054(a) (incorporating Rule 54(b) in adversary b a n k r u p t c y proceedings); see also In re Wood & Locker, 868 F.2d at 143-45 ( i n t e r p r e t in g Rule 54(b) in bankruptcy context); Curtiss-Wright Corp. v. Gen. E le c . Co., 446 U.S. 1, 8 (1980) (identifying factors relevant to Rule 54(b) c e r t ific a t io n ). We have held that "[i]f the language in the order appealed from, e it h e r independently or together with related portions of the record referred to in the order, reflects the district court's unmistakable intent to enter a partial fin a l judgment under Rule 54(b), nothing else is required to make the order a p p e a la b le . We do not require the judge to mechanically recite the words `no just r e a s o n for delay.'" Kelley v. Lee's Old Fashioned Hamburgers, Inc., 908 F.2d 1 2 1 8 , 1220 (5th Cir. 1990) (en banc). On the other hand, we have also held that t h e mere "fact that the district court labeled its order as a `Final Judgment' does n o t suffice to make that order appealable under Rule 54(b)." Briargrove

S h o p p in g Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 540 (5th Cir. 1 9 9 9 ). In addition to this ordinary appellate process, we have discretion to hear a direct appeal from a bankruptcy court decision (interlocutory or final) if the b a n k r u p t c y court, the district court, a bankruptcy appellate panel, or all a p p e lla n t s and appellees acting jointly certify that: (i) the decision involves a q u e s t io n of law as to which there is no controlling decision of this Court or of the S u p r e m e Court, or involves a matter of public importance; (ii) the decision in v o lv e s a question of law requiring resolution of conflicting decisions; or (iii) an im m e d ia t e appeal from the decision may materially advance the progress of the c a s e or proceeding in which the appeal is taken. 28 U.S.C. § 158(d)(2)(A)(i)-(iii); s e e also In re OCA, Inc., 552 F.3d 413, 418 (5th Cir. 2008). Because the specific 5

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No. 09-41233 p r o c e d u r e s for making this statutory certification are established by courtp r o m u lg a t e d rules, see FED. R. BANKR. P. 8001(f), technical noncompliance with t h e procedures does not necessarily deprive us of jurisdiction. See In re Scotia P a c ific Co., LLC, 508 F.3d 214, 219 (5th Cir. 2007). Our jurisdiction in this case is not confined to § 158. We have discretion t o hear an appeal from an interlocutory order of a district court sitting in its b a n k r u p t c y appellate capacity if the district court certifies in writing that the " o r d e r involves a controlling question of law as to which there is substantial g r o u n d for difference of opinion and that an immediate appeal from the order m a y materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); Germain, 503 U.S. at 251-52; In re First Fin. Dev. Corp., 960 F.2d 23, 2 5 (1992). We also have jurisdiction over a district court's interlocutory order t h a t has the practical effect of "granting, continuing, modifying, refusing or d is s o lv in g injunctions." 28 U.S.C. § 1292(a)(1); see Carson v. Am. Brands, Inc., 4 5 0 U.S. 79, 84 (1981) (finding appellate courts have jurisdiction over in t e r lo c u t o r y district court orders that have the "practical effect" of refusing in ju n c t io n ; might have a "serious, perhaps irreparable, consequence"; and can b e "effectually challenged" only by immediate appeal); cf. In re Nichols, 21 F.3d 6 9 0 , 693 (5th Cir. 1994) (finding no appellate jurisdiction under § 1292(a)(1) b e c a u s e district court's order did not grant, continue, modify, refuse, or dissolve in ju n c t io n ); In re Kassover, 343 F.3d 91, 94-95 (2d Cir. 2003) (finding no a p p e lla t e jurisdiction under § 1292(a)(1) when district court declined to hear m e r it s of appeal from bankruptcy court's order granting an injunction).

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No. 09-41233 B. A p p lic a tio n T h e r e are several potential bases for appellate jurisdiction in this case, but n o n e is adequate. 1. T h e District Court's March 2009 Decision

T h e district court's March 2009 remand order was not final for purposes o f § 158(d)(1). In a line of cases, we have held that "when a district court sitting a s a court of appeals in bankruptcy remands a case to the bankruptcy court for s ig n ific a n t further proceedings, the remand order is not `final' and therefore not a p p e a la b le under § 158(d)." In re Cortez, 457 F.3d 448, 453 (5th Cir. 2006). Whether a case has been remanded for "significant further proceedings" turns o n whether the bankruptcy court is required to perform additional judicial fu n c tio n s or mere ministerial functions. In re Caddo Parish-Villas South, Ltd., 1 7 4 F.3d 624, 626 (5th Cir. 1999). A remand requires significant further

p r o c e e d in g s if it "necessitates further factual development or other significant ju d ic ia l activity involving the exercise of considerable discretion," or if it "is lik e ly to generate a new appeal or affect the issue that the disappointed party w a n t s to raise on appeal from the order of remand." In re Pro-Snax Distribs., I n c ., 157 F.3d 414, 420 (5th Cir. 1998); see also In re Aegis Specialty Mktg. Inc. o f Ala., 68 F.3d 919, 921 (5th Cir. 1995). Here, after remand, the bankruptcy c o u r t was required to conduct a trial and make findings of fact and law. These a r e quintessential judicial functions that implicated the bankruptcy judge's d is c r e t io n and did in fact generate new proceedings and a new appeal. Because t h e district court's remand order did not end the litigation on the merits, it was n o t an appealable final decision under § 158(d)(1).

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No. 09-41233 I t is true that the district court's remand order was styled a "judgment" a n d rejected two potential bases for avoiding the foreclosure sale of the Gomezes' h o m e . Simply calling a remand order a "judgment" does not, however, reflect " u n m is t a k a b le intent" to enter a partial final judgment under Rule 54(b), p a r tic u la r ly when the district court did not mention, and the parties did not even r e q u e s t, Rule 54(b) certification. See Briargrove, 170 F.3d at 540. Nor does it, in the alternative, satisfy the stringent certification requirements for an in t e r lo c u t o r y appeal under § 1292(b). See Linton v. Shell Oil Co., 563 F.3d 556, 5 5 7 (5th Cir. 2009) (alerting "district judges to the need to provide in their c e r t ific a t io n orders some demonstration that the governing standards for an in t e r lo c u t o r y appeal have been met"); Askanase v. Livingwell, Inc., 981 F.2d 807, 8 1 0 (5th Cir. 1993) (dismissing appeal because district court's decision "was n e ith e r in form nor content a final decision," nor did it "make the certifications n e c e s s a r y " for interlocutory appeal); In re First Financial Dev. Corp., 960 F.2d a t 26 (same); cf. DeMelo v. Woolsey Marine Indus., Inc., 677 F.2d 1030, 1033-35 (5 t h Cir. 1982) (discussing interplay between Rule 54(b) certification and § 1292(b) certification). Accordingly, we lack jurisdiction under either § 1291 or 1 2 9 2 (b ). We need not inquire whether the district court's remand order had the p r a c t ic a l effect of "granting, continuing, modifying, refusing or dissolving" an in ju n c t io n , and hence might have been appealable under 28 U.S.C. § 1292(a)(1). Even if the district court's decision had such an effect (or, for that matter, had b e e n certified as a partial final judgment or for interlocutory appeal), the G o m e z e s ' notice of appeal was not filed until December 1, 2009 and therefore w o u ld have been untimely. See FED. R. APP. P. 4(a)(1)(A) (requiring notice of 8

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No. 09-41233 a p p e a l to be filed within 30 days); Smith v. Mine Safety Appliances Co., 691 F.2d 7 2 4 , 725 (5th Cir. 1982) ("For purposes of appealability, a judgment entered p u r s u a n t to Rule 54(b) is a final judgment, and an appeal must be taken within t h ir t y days after its entry."); Burnley v. City of San Antonio, 470 F.3d 189, 192 (5 t h Cir. 2006) (observing that timely appeal is `mandatory'"). 2. The Bankruptcy Court's November 2009 Decision

T h e bankruptcy court's November 2009 decision was final because it d e n ie d "all relief" requested by the Gomezes and left nothing else for the b a n k r u p t c y court to decide. The Gomezes did not, however, appeal the decision t o the district court. Section 158(d)(1), which confers appellate jurisdiction only o v e r final decisions of the district court, therefore is irrelevant. T h e only remaining potential basis for jurisdiction is § 158(d)(2), which g iv e s us discretion to hear a direct appeal from a bankruptcy court decision in t h e event the bankruptcy court, the district court, a bankruptcy appellate panel, o r all appellants and appellees acting jointly make a statutory certification. See 2 8 U.S.C. § 158(d)(2)(A)(i)-(iii). The Gomezes concede that "[t]he record does not c o n t a in any certification by the Bankruptcy Court and the court of appeals did n o t authorize a direct appeal as the statute requires because the[re] was no d ir e c t appeal certified."3 We confirm that although the bankruptcy judge

e x p r e s s e d a willingness to certify his November 2009 decision for direct appeal, h e did not in fact make the certification, nor did he specify on which statutory g r o u n d his certification would be made. Indeed, the Gomezes did not even r e q u e s t a certification from the bankruptcy court. This case thus involves more
The record also does not contain a certification by the district court or a bankruptcy appellate panel, nor does it include a joint certification by all appellants and appellees.
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No. 09-41233 t h a n technical noncompliance with bankruptcy rules. See, e.g., In re Scotia P a c ific , 508 F.3d at 219 (holding that actual certification by district court is s u ffic ie n t to invoke appellate jurisdiction under § 158(d)(2) even though c e r t ific a t io n technically should have been made by bankruptcy court under b a n k r u p t c y rules); In re Turner, 574 F.3d 349, 352 (7th Cir. 2009) (holding that t im e ly transmittal of litigant's request for certification to circuit court c o n s t it u t e s functional equivalent of petition for permission to appeal). This case in s t e a d involves a failure to satisfy a statutory precondition for direct appeal to t h is Court. The Gomezes' failure to satisfy the statutory certification

req u irem en t concludes our jurisdictional inquiry. See Bowles v. Russell, 551 U.S. 2 0 5 , 213 (2007) (stating that when an "appeal has not been prosecuted in the m a n n e r directed, within the time limited by the acts of Congress, it must be d is m is s e d for want of jurisdiction"). Because no statutory certification has been m a d e , we have no discretion to authorize the Gomezes' appeal, and we have no ju r is d ic t io n under § 158(d)(2). W e must finally reject the Gomezes' novel contention that the district c o u r t's remand order became an appealable final judgment as of the bankruptcy c o u r t's November 2009 decision. The Gomezes have not cited, and we have not fo u n d , any authority for the proposition that a bankruptcy court's decision on r e m a n d , after additional factual development and significant judicial activity, t r a n s fo r m s the district court's earlier remand order into a final judgment. Indeed, the Gomezes' theory would do away with district court supervision, a r e s u lt not authorized by Congress, see 28 U.S.C. §§ 157(b)(1), (c)(1) (providing for d is t r ic t court review of bankruptcy decisions in core and noncore matters), nor lik e ly the Constitution, see N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 10

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No. 09-41233 4 5 8 U.S. 50, 81 (1982) (plurality opinion of Brennan, J.) (invalidating B a n k r u p t c y Act of 1978, and observing that "[c]ritical to the Court's decision to u p h o ld the Magistrates Act was the fact that the ultimate decision was made by t h e district court"); see also id. at 91 (Rehnquist, J., concurring in judgment). After the bankruptcy court's November 2009 decision, the Gomezes had two c h o ic e s : appeal to the district court and then appeal the district court's final d e c is io n to this Court; or obtain a statutory certification and try to appeal d ir e c t ly to this Court. The Gomezes did neither, and their own way has not been a u t h o r iz e d by Congress. I I I . CONCLUSION F o r want of subject matter jurisdiction, this appeal is DISMISSED.

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