Agrawal v. CO&G Production Group LLC et al

Filing 8

ORDER dismissing the appeal 1 as Mr. Agrawal failed to file a timely notice of appeal and has not stated any valid basis for tolling or extending the appeal time; this court is therefore without jurisdiction to hear this appeal. Signed by Honorable Joe Heaton on 3/27/2017. (cla)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
In re:
KHRISHNA KUMAR AGRAWAL;
Debtor,
KHRISHNA KUMAR AGRAWAL;
Appellant,
v.
CO&G PRODUCTION GROUP, L.L.C.;
GREAT AMERICAN INSURANCE
COMPANY; ACADIANA
MAINTENANCE SERVICES; and,
SPOON RESOURCES, L.L.C.,
Appellees.

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Case No. 16-11253-JDL
Involuntary Chapter 7

Case No. CIV-17-0038-HE

ORDER
Debtor/Appellant Khrishna Kumar Agrawal filed this appeal from the bankruptcy
court’s order granting relief pursuant to § 303 of the Bankruptcy Code. Four entities
claiming to be creditors of Mr. Agrawal had filed an involuntary petition in April 2016.
Mr. Agrawal moved to dismiss the petition on the basis that the petition was filed in bad
faith and that a bona fide dispute existed as to petitioning creditors’ debts. The bankruptcy
court denied that motion, concluding that the involuntary petition was facially sufficient
and that Mr. Agrawal’s arguments did not warrant dismissal at that stage. He then
answered, raising again the issue of whether petitioners were qualifying creditors holding
claims which were “not contingent as to liability or the subject of a bona fide dispute as to

liability or amount ….” See 11 U.S.C. § 303(b)(1). The petitioners’ claims were based on
state court judgments, and the bankruptcy court proceeded to consider whether the
judgments met the § 303(b)(1) standard.
The court directed the parties to submit summaries of the state court proceedings
resulting in the judgments and to submit briefs in support of their respective positions. On
November 1, 2016, the court entered an order directed to the nature of the petitioning
creditors’ claims, addressing the fact that the particular claims at issue were state court
judgments [Doc. #4-17]. It concluded that three of the four state court judgments qualified
as non-default judgments which were either unappealed or appealed but unstayed. 1 Based
on that determination, and applying what it viewed as the majority rule, the court concluded
that the three judgments were not “the subject of a bona fide dispute as to liability” and
hence were a proper basis for the involuntary petition.
Soon thereafter, the court conducted an evidentiary hearing directed to the further
question of whether the debtor was paying his debts as they became due. See 11 U.S.C. §
303(h)(1). During that hearing, Mr. Agrawal sought to offer evidence directed to the
underlying validity of the state court judgments, which the court excluded. He also sought
the recusal of the bankruptcy judge, which was denied. On December 13, 2016, the court
entered its order finding that Mr. Agrawal was not paying his debts as they became due

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Debtor did not challenge the fact of the judgments or their status (i.e. appealed or not;
stayed or not.) Rather, he challenged the underlying validity of the judgments, claiming they were
the result of fraud or some other infirmity.

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and, incorporating the legal conclusions addressed in the November 1 order, granted the
order for relief based on the involuntary petition.
Mr. Agrawal commenced this appeal on January 11, 2017. His various arguments
are all to the effect that he was entitled, through offers of proof or otherwise, to challenge
in the bankruptcy court the underlying validity of the state court judgments and that,
because he was attempting to do so, a bond fide dispute exists as to them. The petitioning
creditors, appellees here, argue that Mr. Agrawal’s appeal was not timely and that the
bankruptcy court’s order was correct on the merits.
The court concludes it is unnecessary to address the substantive merit of the
bankruptcy court’s decision, as Mr. Agrawal’s appeal is plainly untimely.

The general

rule is that appeals from a judgment, order or decree in bankruptcy “must be filed with the
bankruptcy clerk within 14 days after entry of the judgment, order, or decree being
appealed.” Fed.R.Bankr.P. 8002(a)(1). This rule “is strictly construed and requires strict
compliance.” In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992). Failing to file a timely
notice of appeal creates a “jurisdictional defect barring appellate review.” Id. Here, the
final order being appealed was the order granting relief on December 13, 2016. Agrawal’s
notice of appeal was filed January 11, 2017, clearly past the 14-day filing deadline.
The general rule of fourteen days to appeal is subject to certain exceptions. Mr.
Agrawal attempts to rely on the exception stated in Fed.R.Bankr.P. 8002(b), which
potentially extends the appeal time if one of four types of motions is filed by a party in the
meantime. Specifically, he asserts that his motion to lift automatic stay filed November
10, 2016, was actually a motion for “additional findings under Rule 7052” or a motion to
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reconsider. However, a fair reading of the motion supports neither assertion. He plainly
was not seeking additional findings from the bankruptcy court and his motion never
mentioned Rule 7052. Rather, he was seeking relief from the automatic stay so that he
could pursue his fraud and other theories in the state courts which rendered the various
judgments. Similarly, the motion cannot plausibly be read as seeking to alter or amend a
judgment, or for new trial. It did not ask for that relief and, in any event, the November 1
order was not a final order within the reach of those provisions.
Mr. Agrawal failed to file a timely notice of appeal and has not stated any valid
basis for tolling or extending the appeal time. This court is therefore without jurisdiction
to hear this appeal. The appeal is DISMISSED.
IT IS SO ORDERED.
Dated this 27th day of March, 2017

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