At page 637 Effect of orders on sales without a stay4 citing casesholding that a party must stay a bankruptcy court order of sale, when appealing that order, on the ground that sale of the property in question to a good faith purchaser renders the appeal moot
- Cole v. Ballard, No. 1:19-cv-00141 (W.D.N.C. Mar. 9, 2020).Corp., 554 F.2d 636, 637 (4th Cir. 1977).
- In re Rose's Stores, Inc., Debtor. Ingles Markets, Inc. v. Henderson Investors, Ltd. Eaglewood Props. I, Ltd., 52 F.3d 322 (4th Cir. 1995).publishedCorp.), 554 F.2d 636, 637 (4th Cir.1977); In re Abingdon Realty Corp. (A & H Holding Corp. v. O'Donnell ), 530 F.2d 588, 589 (4th Cir.1976). 12 HIL's second and third arguments also provide independent bases for dismissal.
- Cent. States v. Cent. Transp., Inc., 841 F.2d 92 (4th Cir. 1988).publishedCorp., 554 F.2d 636, 637 (4th Cir.1977); In re Abingdon Realty Corp., 530 F.2d 588, 590 (4th Cir.1976); see also In re Roberts Farms, Inc., 652 F.2d 793, 796-98 (9th Cir.1981); In re Information Dialogues, Inc., 662 F.2d 475 , 476 (8th Cir…
- Alexander v. Chesapeake, Potomac, & Tidewater Books, Inc., 190 F.R.D. 190 (E.D. Va. 1999).published(holding that a party must stay a bankruptcy court order of sale, when appealing that order, on the ground that sale of the property in question to a good faith purchaser renders the appeal moot)
v.
NATIONAL HOMEOWNERS SALES SERVICE CORPORATION, Savage-Fogarty Companies, Inc., Purchaser of George Mason Hotel as confirmed by U. S. Bankruptcy Judge
This is an appeal from an order of the district court modifying and affirming an order of the bankruptcy court.
The National Homeowners Sales Service Corporation, finding itself in financial trouble, agreed to a Chapter XI reorganization proceeding.[1] The bankruptcy court ordered sold the debtor’s principal asset, the George Mason Hotel, to Savage/Fogarty Companies, Inc. The district court affirmed the sale over the objection of National. Sale of the hotel was consummated and the debtor now appeals.
After confirmation of the purchase agreement by the district court, the debtor sought and was granted a stay of execution of the order of sale pending appeal to this Court. The stay, however, was conditioned on the posting of a supersedeas bond by the debtor. Bankruptcy Rule 805. No bond was ever posted. Savage/Fogarty then[*637] paid the price called for in the contract and a deed to the property was executed, delivered and recorded.
The debtor contends on appeal that (1) the bankruptcy court lacked jurisdiction to order sale of the debtor’s major asset under Chapter XI reorganization proceedings, (2) the sale of the hotel was improperly conducted, (3) the bankruptcy court abused its discretion in not confirming a contract for purchase of the hotel for a higher price by an affiliate of the debtor, and (4) the district court lacked jurisdiction to modify the purchase agreement.
Contrary to the debtor’s assertion, the bankruptcy court had jurisdiction to order sale of the debtor’s property. In Chapter XI proceedings, a court of bankruptcy has exclusive jurisdiction over the debtor and property, wherever located. 11 U.S.C. § 711.
We need not consider the debtor’s other contentions because the appeal must be dismissed for mootness.
Rule 805 of the Rules of Bankruptcy and Rule 62(d) of the Federal Rules of Civil Procedure permit a district court to stay enforcement of a bankruptcy court order pending appeal. Under those rules, the district court may condition the granting of the stay upon the filing of a supersedeas bond. In that event, the filing of the petition for review does not effect a stay unless the bond is filed. See, e. g., Country Fairways, Inc. v. Mottaz, 539 F.2d 637, 641 (7th Cir. 1976).
This Court recently considered this issue. In Matter of Abingdon Realty Corp., 530 F.2d 588 (4th Cir. 1976), involved an appeal by a bankrupt where no supersedeas bond had been filed nor a stay pending appeal otherwise effected. In holding that the bankruptcy court order was moot and affirming an order of dismissal, we said at 530 F.2d 589-90:
It is settled law that the filing of a petition to review an order of a bankruptcy judge (formerly a referee in bankruptcy), does not stay the effect or operation of the order unless a supersedeas bond is filed or the order itself provides for a stay. [Citing cases and 2A Collier on Bankruptcy, 14th ed., 1974, K 39.26, p. 1526]. A proposed amendment to Bankruptcy Rule 805, which has been approved by the Judicial Conference of the United States, would add the following sentence at the end of that rule: ‘Unless an order approving a sale of property or issuance of a certificate of indebtedness is stayed pending appeal, the sale to a good faith purchaser or the issuance of a certificate to a good faith holder shall not be affected by the reversal or modification of such order on appeal, whether or not the purchaser or holder knows of the pendency of the appeal.’ The Advisory Committee’s Note states that the sentence proposed to be added ‘is declaratory of existing case law.’ We agree. [Citing cases, including Fink v. Continental Foundry & Machine Co., 240 F.2d 369 (7 Cir. 1957), cert. denied, 354 U.S. 938, 77 S.Ct. 1401, 1 L.Ed.2d 1538, and 11 Wright & Miller, Federal Practice and Procedure: Civil § 2904, n. 31.]
Here, as in Abingdon, there was a confirmed sale to a good faith purchaser. Substantial investment has been made upon reliance of good title to the hotel property having vested in Savage/Fogarty. The appeal from the district court order modifying and affirming the bankruptcy court order of sale became moot in the absence of an effective stay order.
APPEAL DISMISSED.
Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 722 et seq.