In the Matter of Ben Hyman & Co., Inc., Bankrupt. Ben Hyman & Co., Inc. v. The Fulton Nat'l Bank, 577 F.2d 966 (5th Cir. 1978). · Go Syfert
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In the Matter of Ben Hyman & Co., Inc., Bankrupt. Ben Hyman & Co., Inc. v. The Fulton Nat'l Bank, 577 F.2d 966 (5th Cir. 1978). Cases Citing This Book View Copy Cite
26 citation events across 9 distinct courts.
Strongest positive: In the Matter of Patsy D. Phillips, A/K/A D/B/A Market Fitness, Creekside Plaza, Second Wind, Debtor. Promenade National Bank v. Patsy D. Phillips (ca2, 1988-05-06)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) In the Matter of Patsy D. Phillips, A/K/A D/B/A Market Fitness, Creekside Plaza, Second Wind, Debtor. Promenade National Bank v. Patsy D. Phillips
2d Cir. · 1988 · confidence medium
While it is true that in Greene County Hosp., we quoted In re Delta Services, 782 F.2d 1267, 1268 (5th Cir.1986), for the proposition that “We have jurisdiction only if the underlying bankruptcy court order was final,” we also added “But an interlocutory appeal may gain finality at the district court level if the district court’s order leaves nothing for the bankruptcy court to do but enter the final order.” Greene County Hosp., supra, 835 F.2d at 591 n. 9, citing In re Bowman, 821 F.2d 245 , 246 (5th Cir.1987); In the Matter of Ben Hyman & Co., 577 F.2d 966, 968 (5th Cir.1978).
discussed Cited as authority (rule) In Re Bowman
5th Cir. · 1987 · confidence medium
The district court's remand merely requires the bankruptcy court to determine whether the bank has a right of set-off in the straight bankruptcy proceedings; it, therefore, is not final. 10 577 F.2d at 968 (citations omitted). 11 Similarly, in In the Matter of Cross, 666 F.2d 873 (5th Cir.1982), the district court, although upholding the bankruptcy court's ruling that a debt was nondischargeable, vacated the judgment and remanded the case for redetermination of the amount of the debt.
discussed Cited as authority (rule) Allegheny International Credit Corp. v. Bowman
5th Cir. · 1987 · confidence medium
The district court’s remand merely requires the bankruptcy court to determine whether the bank has a right of set-off in the straight bankruptcy proceedings; it, therefore, is not final. 577 F.2d at 968 (citations omitted).
cited Cited as authority (rule) Beck v. Southland Corp.
5th Cir. · 1981 · confidence medium
In re Ben Hyman & Co., Inc., 577 F.2d 966, 968 (5th Cir. 1978) (citations omitted) (emphasis in original).
discussed Cited as authority (rule) In Re Puritan Dairy Products, Inc.
5th Cir. · 1981 · confidence medium
Even if Beck is correct and jurisdiction does lie in the bankruptcy court, the interlocutory order is not appealable. 4 This case involves a dispute between the debtor and an adverse claimant concerning property within the summary jurisdiction of the bankruptcy court; it, therefore, is a controversy arising in a proceeding in bankruptcy, ... and the order, consequently, is appealable only if final. 5 In re Ben Hyman & Co., Inc., 577 F.2d 966, 968 (5th Cir. 1978) (citations omitted) (emphasis in original). 6 APPEAL DISMISSED. 1 Some of this equipment was in the possession of the trustee, some i…
cited Cited "see" In the Matter of Ron C. Cross, Bankrupt. Murphy & Robinson Investment Company v. Ron C. Cross
5th Cir. · 1982 · signal: see · confidence high
See In re Ben Hyman & Co., 577 F.2d 966, 968 (5th Cir. 1978).
discussed Cited "see, e.g." 14 Collier bankr.cas.2d 1292, Bankr. L. Rep. P 71,131 in Re County Management, Inc., Debtor. County Management, Inc. And Pampell Interests, Inc. v. Charles William Kriegel, Receiver
5th Cir. · 1986 · signal: see also · confidence low
See also In re Ben Hyman & Co., 577 F.2d 966 , 968 (5th Cir.1978) ("final order is one in which nothing remains to be done but the mechanical entry of judgment by the trial court"). 8 The district court's order falls far short of "finally resolving" the dispute between these plaintiffs and defendants.
cited Cited "see, e.g." County Management, Inc. v. Kriegel
5th Cir. · 1986 · signal: see also · confidence medium
See also In re Ben Hyman & Co., 577 F.2d 966, 968 (5th Cir.1978) (“final order is one in which nothing remains to be done but the mechanical entry of judgment by the trial court”).
Retrieving the full opinion text from the archive…
In the Matter of Ben Hyman & Co., Inc., Bankrupt. Ben Hyman & Co., Inc.
v.
The Fulton National Bank
76-4420.
Court of Appeals for the Fifth Circuit.
Aug 7, 1978.
577 F.2d 966
Cited by 19 opinions  |  Published

577 F.2d 966

In the Matter of BEN HYMAN & CO., INC., Bankrupt.
BEN HYMAN & CO., INC., Plaintiff-Appellant,
v.
The FULTON NATIONAL BANK, Defendant-Appellee.

No. 76-4420.

United States Court of Appeals,
Fifth Circuit.

Aug. 7, 1978.

Morton P. Levine, Craig J. Rabiner, Homer S. Mullins, Atlanta, Ga., for plaintiff-appellant.

Alfred S. Lurey, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, GOLDBERG and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

[*~966]1

The bankrupt debtor, Ben Hyman, appeals an order of the district court remanding this case to the bankruptcy court for a determination whether one of its creditors, Fulton National Bank, was entitled to exercise a right of set-off in the pending bankruptcy proceedings. Because this appeal is taken from an interlocutory order, we refuse to entertain it.

2

On August 11, 1975, the bankrupt filed its initial petition seeking reorganization under Chapter XI of the Bankruptcy Act. At that time, it owed the bank $233,819.47 and had bank deposits totaling $38,284.79.

3

Two days after the Chapter XI petition was filed, the bank set off the balance in the debtor's accounts against the debt due it. Subsequently, the portion of the accounts that had been deposited after August 11 was restored to the bankrupt estate, but the bank refused to relinquish the amount on deposit at the time the reorganization proceedings had begun, $27,993.70. The bankruptcy court held that filing of the Chapter XI petition cut off the bank's right to set-off, ordered the funds restored to the debtor, and held the bank in contempt. The bank appealed this order to the district court.

4

Before the district court heard the appeal, the Chapter XI proceeding was converted into bankruptcy. The district court, therefore, remanded the case to the bankruptcy court to determine whether the bank had a right of set-off in the bankruptcy proceedings. In addition, it held that the bankruptcy court lacked the power summarily to order that the funds be placed at the bankrupt's disposal without providing some means of protection to the creditor's rights and reversed the finding of contempt. From this order the bankrupt appeals.

5

Appeals do not ordinarily lie from interlocutory orders. F.R.C.P. Rule 54. However, Section 24 a of the Bankruptcy Act, 11 U.S.C. § 47, provides for appeals "from the several courts of bankruptcy . . . in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy . . . ." Thus, "in an astonishing departure from the final judgment rule Section 24 a of the Bankruptcy Act makes orders in 'proceedings in bankruptcy' appealable whether 'interlocutory or final.' " 9 Moore's Fed.Prac. P 110.19(5) at 222. This aberration from the final judgment rule applies to Chapter XI proceedings by virtue of 11 U.S.C. § 716. The language of that section distinguishes "controversies arising in proceedings in bankruptcy," and allows only for appeals from final judgments. 11 U.S.C. § 47(a).

6

The distinction is purposeful and it cannot be treated as tweedledum and tweedledee. Yet it eludes precise definition. In re Brissette, 9 Cir. 1977, 561 F.2d 779; In re Durensky, 5 Cir. 1975, 519 F.2d 1024, 1027. In an attempt to capture the thought that marks the difference, we said in Durensky :

7

As a general rule, "proceedings" are those matters of an administrative character, including questions between the bankrupt and his creditors which are presented in the ordinary course of the administration of the bankrupt's estate. "Controversies," on the other hand, are usually described as matters which arise in the course of the bankruptcy proceedings and which are not mere steps in the ordinary administration of the bankrupt, but which present distinct and separable issues between the trustee and adverse claimants concerning the right and title to the bankrupt's estate.

8

In re Durensky, supra, 519 F.2d at 1027; see also United Kingdom Mutual S. S. Assur. Assoc. v. Liman, 2 Cir. 1969, 418 F.2d 9.

9

This case involves a dispute between the debtor and an adverse claimant concerning property within the summary jurisdiction of the bankruptcy court; it, therefore, is a controversy arising in a proceeding in bankruptcy. In re Brendan Reilly Assoc., Inc., 2 Cir. 1967, 372 F.2d 235; Hillcrest Lumber Co. v. Terminal Factors, Inc., 2 Cir. 1960, 281 F.2d 323. Cf. City of Fort Lauderdale v. Freeman, 5 Cir. 1952, 197 F.2d 122, and, the order, consequently, is appealable only if final.

10

A final order is one in which nothing remains to be done but the mechanical entry of judgment by the trial court. Diamond Shamrock Oil and Gas Corp. v. Commissioner of Revenues, Arkansas, 8 Cir. 1970, 422 F.2d 532; Cook v. Eizenman, 5 Cir. 1963, 312 F.2d 134. The district court's remand merely requires the bankruptcy court to determine whether the bank has a right of set-off in the straight bankruptcy proceedings; it, therefore, is not final. Compare Chicago v. Atchison, Topeka and Sante Fe RR, 1958, 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 and Pope v. Atlantic Coast Line RR, 1953, 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed. 1094.

[*~967]11

For these reasons we dismiss the appeal.