Venture Bank v. Lapides et al

Filing 16

ORDER. 1. The Request for Certification to the Eighth Circuit Court of Appeals (Doc. No. 9 ) is DENIED; and 2. The Motion for Leave to Amend Statement of Issues (Doc. No. 13 ) is GRANTED.(Written Opinion). Signed by Judge Donovan W. Frank on 4/15/2014. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

In Re:

Civil No. 13-3259 (DWF)

Howard L. Lapides,
Debtor.
__________________________________
Venture Bank,

Bankruptcy Case No. 09-45327
(Chapter 7)

Adv. No. 11-04227
Appellant,

v.

ORDER

Howard L. Lapides and Mary HolterLapides,
Appellees.

Howard L. Lapides and Mary HolterLapides,
Counter Appellants,
v.
Venture Bank,
Counter Appellee.

This matter is before the Court on Appellant Venture Bank’s request to certify an
appeal to the Eighth Circuit Court of Appeals under 28 U.S.C. § 158(d)(2)(A). (Doc.
No. 9.) Also pending is Venture Bank’s Motion for Leave to Amend its statement of the
issues on appeal. (Doc. No. 13.)

Section 158 provides that a District Court may certify a bankruptcy appeal directly
to the Court of Appeals if the underlying “judgment, order, or decree involves a question
of law as to which there is no controlling decision of the court of appeals . . . .”
28 U.S.C. § 158(d)(2)(A). Venture Bank frames the issue on appeal as “the enforceability
of post-discharge obligations by debtors to pre-petition creditors, and the consideration
therefore [sic].” (Doc. No. 9, Appellant’s Request at 2.) But the actual issue is whether
the Bankruptcy Court erred in determining that there was no consideration for the
post-discharge agreements between Venture Bank and debtor Howard Lapides. This is a
factual, not a legal, issue, and thus is not appropriately certified to the Court of Appeals.
Venture Bank’s request for leave to amend similarly obfuscates the record. The
Bankruptcy Court’s decision that there was no enforceable obligation between Venture
Bank and Lapides rested on two distinct bases: (1) that there was no consideration for the
agreements; and (2) even if there was consideration, there was no meeting of the minds.
But as Lapides points out in opposing the Bank’s certification request, the Bank focused
its statement of the issues solely on the consideration issue. Venture Bank now claims
that the Bankruptcy Court’s “finding on mutual assent related to a meeting of the mind
[sic] regarding the true consideration for the post-petition agreements.” (Doc. No. 13,
Appellant’s Mot. to Amend at 2.) But this is not true. The Bankruptcy Court did not
discuss consideration in its discussion of mutual assent. Rather, that court’s opinion that
there was no mutual assent rested on the fact that, although Lapides thought he was
refinancing the mortgages on his home, “the Bank did not intend to refinance [Lapides’s]
mortgages at the time the [] Agreements were executed.” (Doc. No. 5-2, Oct. 11, 2013,
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Order at 14.) Venture Bank’s argument that its statement of the issues encompassed the
mutual assent issue is disingenuous.
Lapides asks the Court to deny Venture Bank’s request to amend, contending that
the statement of the issues is jurisdictional and operates to restrict the issues on appeal.
Lapides also argues that Venture Bank’s failure to include the mutual-assent issue was not
excusable neglect. Venture Bank insists that the statement of the issues is a mere
formality that simply instructs the Bankruptcy Clerk to prepare the record on appeal, and
has no other legal effect. There appears to be no case law directly on point.
Although the Court is reluctant to reward Venture Bank for its obfuscation of the
record here, it is preferable for all issues to be presented and decided in a single appeal,
so that should the matter reach the Eighth Circuit, the record is complete. Accordingly,
the Court will allow Venture Bank to amend its statement of the issues. The briefing
schedule for the appeal shall remain as set forth in the Court’s previous Order on the
matter. (Doc. No. 10.)
IT IS HEREBY ORDERED:
1.

The Request for Certification to the Eighth Circuit Court of Appeals (Doc.

No. [9]) is DENIED; and
2.

The Motion for Leave to Amend Statement of Issues (Doc. No. [13]) is

GRANTED.
Dated: April 15, 2014

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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