17 Collier bankr.cas.2d 771, Bankr. L. Rep. P 71,977 in Re Russell Carver & Norman Carver, Debtors. Howard L. Heikkila & Reino W. Heikkila v. Russell Carver & Norman Carver, 828 F.2d 463 (8th Cir. 1987). · Go Syfert
17 Collier bankr.cas.2d 771, Bankr. L. Rep. P 71,977 in Re Russell Carver & Norman Carver, Debtors. Howard L. Heikkila & Reino W. Heikkila v. Russell Carver & Norman Carver, 828 F.2d 463 (8th Cir. 1987). Cases Citing This Book View Copy Cite
31 citation events (10 in the last 25 years) across 22 distinct courts.
Strongest positive: Skillforce, Inc. v. Hafer (vaed, 2014-04-25)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
cited Cited as authority (rule) Skillforce, Inc. v. Hafer
E.D. Va. · 2014 · confidence medium
Heikkila v. Carver {In re Carver), 828 F.2d 463, 464 (8th Cir.1987). .
discussed Cited as authority (rule) In Re Gibson
Bankr. D.S.C. · 2011 · confidence medium
In re Darrell Creek Assocs., L.P., 187 B.R. 908, 915 (Bankr.D.S.C.1995); In re Cooke, 127 B.R. 784, 786 (Bankr.W.D.N.C.1991) (citing Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987); Fed.
discussed Cited as authority (rule) In Re John R. Canney, Iii, Chapter 7 Trustee for the Estate of Maxwell Frazer, Trustee, John R. Canney, Iii, Chapter 7 Trustee for the Estate of Maxwell Frazer, United States Trustee, Trustee, Town of Weathersfield, Movant v. Merchants Bank (2×) also: Cited "see"
2d Cir. · 2002 · confidence medium
See Tynan, 773 F.2d at 179; Johnson, 719 F.2d at 278 & n. 12. 16 See 11 U.S.C. § 541 (a), quoted supra note 12. 17 In reaching our conclusion, we need not, and therefore do not, decide whether filing the certificate of non-redemption constitutes a ministerial or affirmative act See In re Carver, 828 F.2d at 463-64 (holding that certification of non-redemption by the clerk of the court, where the debtor failed to comply with a contract for deed within a redemption period, was not an affirmative act required to complete the running of the redemption period but was instead merely a ministerial a…
cited Cited as authority (rule) In re Bunke
Bankr. D.S.D. · 1994 · confidence medium
Johnson, 719 F.2d at 275-79 ; Maanum v. Rieffer (In re Maanum), 828 F.2d 459, 460 (8th Cir.1987); Heikkila v. Carver (In re Carver), 828 F.2d 463, 464-65 (8th Cir.1987).
discussed Cited as authority (rule) In Re Jackson
Bankr. W.D. Okla. · 1991 · confidence medium
Counties Contracting, 855 F.2d at 1059 ; Whispering Bay Campground Inc., v. Fagan (In re Whispering Bay Campground, Inc.), 850 F.2d 443, 446 (8th Cir.1988); Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987); Federal Land Bank v. Glenn (In re Glenn), 760 F.2d 1428, 1440 (6th Cir.) cert. denied, 474 U.S. 849 , 106 S.Ct. 144 , 88 L.Ed.2d 119 (1985); Tynan, 773 F.2d 180 ; Johnson, 719 F.2d at 278.
discussed Cited "see" Canney v. Merchants Bank (In re Canney) (2×)
2d Cir. · 2002 · signal: see · confidence high
See In re Carver, 828 F.2d 463, 464 (8th Cir.1987).
discussed Cited "see" Soares v. Brockton Credit Union
1st Cir. · 1997 · signal: see · confidence high
See Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987) (holding that a “routine certification” by the clerk, entered post-petition, did not transgress the automatic stay); Capgro Leasing, 169 B.R. at 315-16 (holding the clerk’s entry of judgment on the docket to be ministerial when, prior to the bankruptcy filing, the court had ordered summary judgment).
discussed Cited "see" Soares v. Brockton Credit
1st Cir. · 1997 · signal: see · confidence high
See Heikkila v. Carver (In re Carver), ___ ________ ______ ____________ 828 F.2d 463, 464 (8th Cir. 1987) (holding that a "routine certification" by the clerk, entered post-petition, did not transgress the automatic stay); Capgro Leasing, 169 B.R. at 315 - ______________ 16 (holding the clerk's entry of judgment on the docket to be ministerial when, prior to the bankruptcy filing, the court had ordered summary judgment).
discussed Cited "see" In Re DiCello
Bankr. E.D.N.C. · 1987 · signal: see · confidence high
See In re Carver, 828 F.2d 463 (8th Cir.1987), in which the Eighth Circuit held that the automatic stay did not apply to the “ministerial” act by the clerk of court of certifying that the property had not been redeemed within the period allowed by state law when no affirmative action by the creditor was required for that certification to occur.
discussed Cited "see, e.g." In Re Mr. Movies, Inc.
Bankr. D. Minn. · 2002 · signal: see, e.g. · confidence medium
See, e.g., Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527-28 (2nd Cir.1994); Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 973-75 (1st Cir.1997). 2 .
discussed Cited "see, e.g." LaBarge v. Vierkant (In Re Vierkant)
8th Cir. BAP · 1999 · signal: compare · confidence medium
Compare Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987) (The Eighth Circuit held that the post-petition "ministerial” and "routine” entry of a certification of noncompliance by the court clerk after the expiration of a judicially decreed redemption period in a strict foreclosure action brought against the debtor who had defaulted on a contract for deed did not violate the automatic stay.).
discussed Cited "see, e.g." Dale Alan LaBarge v. Kevin Lynn Vierkant
8th Cir. BAP · 1999 · signal: compare · confidence medium
Compare Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir. 1987)(The Eighth Circuit held that the post-petition “ministerial” and “routine” entry of a certification of noncompliance by the court clerk after the expiration of a judicially decreed redemption period in a strict foreclosure action brought against the debtor who had defaulted on a contract for deed did not violate the automatic stay.). 5 The courts are split on whether actions taken in derogation of the automatic stay are void ab initio or merely voidable.
discussed Cited "see, e.g." In Re Watson
Bankr. D. Nev. · 1996 · signal: see also · confidence medium
See also Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987) (rejecting debtor’s claim that “routine certification” by clerk of court that debtor failed to redeem contract within redemption period was “judicial proceeding” within meaning of § 362). *241 In the Utah ease of Rogers v. Rogers, 671 P.2d 160 (1983) there was no final judgment signed by the judge, only an order showing intention to enter a judgment.
discussed Cited "see, e.g." In Re Capgro Leasing Associates
Bankr. E.D.N.Y. · 1994 · signal: see also · confidence medium
See also Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987) (rejecting debtor’s claim that “routine certification” by clerk of court that debtor failed to redeem contract within redemption period was “judicial proceeding” within meaning of § 362).
discussed Cited "see, e.g." Rexnord Holdings, Inc. v. Maurice Bidermann
2d Cir. · 1994 · signal: see also · confidence medium
See also Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987) (rejecting debtor’s claim that “routine certification” by clerk of court that debtor failed to redeem contract within redemption period was “judicial proceeding” within meaning of § 362).
discussed Cited "see, e.g." In Re Cooke
Bankr. W.D.N.C. · 1991 · signal: see, e.g. · confidence medium
See e.g., Heikkila v. Carver (In re Carver), 828 F.2d 463, 464 (8th Cir.1987); Goldberg v. Tynan (In re Tynan), 773 F.2d 177, 179-80 (7th Cir.1985); Federal Land Bank of Louisville v. Glenn (In re Glenn), 760 F.2d 1428, 1436-40 (6th Cir.1985); In re Martinson, 731 F.2d 543 , 544-45 (8th Cir.1984); Johnson v. First' Nat’l Bank of Montevideo, 719 F.2d 270, 275-78 (8th Cir.1983), ce rt. denied, 465 U.S. 1012 , 104 S.Ct. 1015 , 79 L.Ed.2d 245 (1984); In re Adams, 86 B.R. 867, 870 (Bankr.E.D.N.C.1988); In re Farmer, 81 B.R. 857, 859-60 (Bankr.E.D.Pa.1988); In re DiCello, 80 B.R. 769, 772-73 (Bank…
cited Cited "see, e.g." Saunders v. Reeher (In Re Saunders)
Bankr. E.D. Pa. · 1989 · signal: see also · confidence low
See also In re Carver, 828 F.2d 463 (8th Cir.1987).
Retrieving the full opinion text from the archive…
17 Collier bankr.cas.2d 771, Bankr. L. Rep. P 71,977 in Re Russell Carver and Norman Carver, Debtors. Howard L. Heikkila and Reino W. Heikkila
v.
Russell Carver and Norman Carver
87-5004.
Court of Appeals for the Eighth Circuit.
Sep 8, 1987.
828 F.2d 463
Cited by 15 opinions  |  Published

828 F.2d 463

17 Collier Bankr.Cas.2d 771, Bankr. L. Rep. P 71,977
In re Russell CARVER and Norman Carver, Debtors.
Howard L. HEIKKILA and Reino W. Heikkila, Appellees,
v.
Russell CARVER and Norman Carver, Appellants.

No. 87-5004.

United States Court of Appeals,
Eighth Circuit.

Submitted June 12, 1987.
Decided Sept. 8, 1987.

Dennis W. Finch, Rapid City, S.D., for appellants.

James B. Holden, Denver, Colo., for appellees.

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and MURPHY,[*] District Judge.

JOHN R. GIBSON, Circuit Judge.

[*~463]1

Russell and Norma Carver appeal from the district court's[1] decision that a judicially decreed period of redemption is not automatically stayed pursuant to 11 U.S.C. Sec. 362(a) (1982 & Supp. II 1984). We affirm.

2

On December 3, 1985, the Carvers filed for bankruptcy under Chapter 11. Before this filing, a South Dakota state court entered a judgment in a strict foreclosure action declaring that the Carvers, as vendees, had defaulted on a contract for deed they had entered with Howard and Reino Heikkila pertaining to certain real estate in South Dakota. Pursuant to S.D.C.L. Sec. 21-50-3 (1987), the state court gave the Carvers ninety days to redeem the contract.

3

When the Carvers filed under Chapter 11, the ninety-day redemption period had not yet expired. In response to motions concerning whether and when the Carvers could cure their default, the bankruptcy court held that the running of the redemption period was automatically stayed by 11 U.S.C. Sec. 362(a). In re Carver, 61 B.R. 824 (Bankr.D.S.D.1986). Relying on this court's opinion in Johnson v. First National Bank of Montevideo, 719 F.2d 270 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984), the district court reversed, holding that the redemption period was only temporarily stayed pursuant to 11 U.S.C. Sec. 108(b) (Supp. II 1984), 71 B.R. 20. This appeal followed.

4

In Johnson, this court held that "Congress intended Sec. 362(a) to prohibit only certain types of affirmative actions." 719 F.2d at 276 (emphasis in original); see also Maanum v. Reiffer (In re Maanum ), 828 F.2d 459, 460 (8th Cir.1987). We thus rejected the argument that "an automatic transfer of property, following the expiration of a period of redemption, constitutes either an 'act' or 'proceeding,' or the 'enforcement' of a right within the meaning of Sec. 362(a)." 719 F.2d at 276. In the present situation, the Heikkilas were not required to take any affirmative actions to regain their interest in the subject property at the expiration of the redemption period. Under South Dakota law, when a debtor to a contract for deed is subject to an adverse foreclosure judgment and fails to comply with the contract within the judicially decreed period of redemption, "such judgment shall be and become final without further order of the court, and all rights asserted under the contract sued on shall thereupon be forever barred and foreclosed." S.D.C.L. Sec. 21-50-3.

5

The Carvers argue that because the clerk of the court must certify that the Carvers failed to comply with the contract within the redemption period, see id. Sec. 21-50-6, an affirmative act is required to defeat their interest, thus rendering inapplicable the "automatic transfer" rationale of Johnson. This certification, however, is not an act required to complete the running of the redemption period. Instead, it applies after the time for compliance with the judgment has expired and after the judgment has become final. Id. Any contractual rights the debtor may have possessed will already have been automatically extinguished at the time of certification. See id. Sec. 21-50-3. This ministerial certification requirement can therefore never prevent the otherwise valid transfer of rights that occurs at the expiration of the judicially decreed redemption period. We thus reject the Carvers' contention that this routine certification constitutes a judicial proceeding or act to obtain possession of property under 11 U.S.C. Sec. 362(a)(1) or (a)(3).

6

Our conclusion that section 362(a) does not toll a judicially decreed redemption period is bolstered by the language of 11 U.S.C. Sec. 108(b). As we stated in Maanum, supra, "[s]ection 108(b) and section 362(a) are mutually exclusive; anything temporarily stayed under the specific language of section 108(b) is not indefinitely stayed by the more general language of section 362(a)." 828 F.2d at 460 (citing Johnson, 719 F.2d at 277-78). Among other things, section 108(b) governs "an order entered in a nonbankruptcy proceeding [that] * * * fixes a period within which the debtor * * * may * * * cure a default, or perform any other similar act." The South Dakota state court's order fixing the period in which the Carvers could comply with the contract undoubtedly constitutes such an order.

[*~464]7

The judgment of the district court is affirmed.

*

The HONORABLE DIANA E. MURPHY, United States District Judge for the District of Minnesota, sitting by designation

1

The Honorable Andrew W. Bogue, Senior United States District Judge for the District of South Dakota