USCA1 Opinion
October 4, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1339
JUAN M. COFIELD,
Appellant,
v.
JOHN O. DESMOND, TRUSTEE AND
FEDERAL DEPOSIT INSURANCE CORPORATION,
Appellees.
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ERRATA SHEET
The opinion of this Court issued on September 26, 1996 is amended
as follows:
On page 2, 3rd line from the bottom, change "11" to "7"
October 1, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1339
JUAN M. COFIELD,
Appellant,
v.
JOHN O. DESMOND, TRUSTEE AND
FEDERAL DEPOSIT INSURANCE CORPORATION,
Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
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____________________
Juan M. Cofield on brief pro se.
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John O. Desmond on brief pro se.
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Kathryn R. Norcross, Ann S. Duross and Thomas L. Hindes on brief
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for appellee Federal Deposit Insurance Corporation.
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Per Curiam. Appellant Juan M. Cofield appeals from
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the district court's affirmance of a bankruptcy court order
which permitted appellant to convert his chapter 7 bankruptcy
case to a case under chapter 11, but then immediately
reconverted the case back to chapter 7. After carefully
reviewing the briefs and the record, we affirm the district
court's judgment for essentially the reasons stated in its
Memorandum and Order, dated January 26, 1996. We add only
the following comments.
1. A notice of conversion, filed pursuant to 11
U.S.C. 706(a), is not effective on filing. Bankruptcy Rule
1017(d) provides that conversion under 706(a) "shall be on
motion filed and served as required by Rule 9013." Rule
9013, in turn, states that "[a] request for an order . . .
shall be by written motion." Thus, "[t]hese provisions
indicate that a motion to convert pursuant to 706(a) is not
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effective in and of itself, but rather is a request for a
court order of conversion." In re Calder, 973 F.2d 862, 867
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(10th Cir. 1992). As a result, the bankruptcy court was
correct in treating appellant's "notice" as a motion and the
conversion was not effective on January 13, 1995, when it was
filed.
2. Even assuming that "cause" for reconversion to
chapter 7 must exist at the time a 706(a) motion is filed,
such "cause" existed here. The bankruptcy court's cause
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determination rested primarily on the futility of
reorganization. The court based the futility finding on the
speculative nature of the Fannie Mae lawsuit. Although the
court entered these findings three months after appellant
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filed his 706(a) notice, it plainly was determining that
futility had existed as long as the Fannie Mae action had
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been pending. That is, if funding for reorganization was
dependent on the success of the lawsuit and the lawsuit had
little chance of succeeding, the reorganization was futile
when appellant filed the conversion notice.
3. Appellant's procedural due process arguments
also fail. He first maintains that the bankruptcy court made
a determination prior to holding the hearings that it would
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deny conversion. There is simply no support in the record
for this description of what happened. Second, appellant
asserts that although the bankruptcy court noticed the two
hearings as non-evidentiary, it took evidence at them. A
reading of the transcripts from these hearings shows
otherwise. The court only ordered appellant to produce
certain documents at a future time.
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4. Appellant's arguments that the bankruptcy
court's actions constituted a "taking" in violation of the
Constitution and that the bankruptcy court violated the
substantive due process clause were not raised below. As
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such, they are waived. See McCoy v. Massachusetts Inst. of
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Technology, 950
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F.2d 13, 22 (1st Cir. 1991), cert. denied, 504 U.S. 910
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(1992). Affirmed.
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