Pasley v. Keats (In re Pasley)
Opinion of the Court
Appellant/Debtor Jeffrey W. Pasley ("Debtor") is the sole member of R.E.N. Enterprises, LLC ("REN"), a Kentucky limited liability company. REN owns real estate at 4528 West Broadway, Louisville, Kentucky ("LLC Real Estate"). Appellee/Chapter 7 Trustee Robert W. Keats ("Trustee") filed a motion seeking authority from the United States Bankruptcy Court for the Western District of Kentucky to sell the LLC Real Estate. Trustee asserted that Debtor's interest in REN
*8was estate property under § 541(a)(1),
JURISDICTION
The Panel has jurisdiction to decide this appeal. The United States District Court for the Western District of Kentucky has jurisdiction to hear appeals from final orders issued by the Bankruptcy Court.
FACTS
The relevant facts are undisputed. Debtor filed a chapter 7 bankruptcy petition on December 19, 2016, and his amended petition lists "DBA R.E.N. Enterprises, LLC" in response to question 4, which asks for "[a]ny business names ... you have used in the last 8 years." (Bankr. No. 16-33769-acs, ECF No. 143-1 at 2, 4.
*9Trustee discovered that REN owns the LLC Real Estate. On June 29, 2018, Trustee filed a "Notice and Motion to Sell Real Property Free and Clear (
Debtor objected to the Sale Motion, arguing that the LLC Real Estate should not be sold until a pending adversary proceeding relating to separate real estate was resolved, but he did not explain the correlation between the LLC Real Estate sale and the adversary proceeding. Trustee filed a Supplemental Brief in support of the Sale Motion, reaffirming his positions that Debtor is deemed to have assigned his membership interest in REN to Trustee upon his bankruptcy filing and that Trustee had the right to liquidate REN's assets. Debtor's only response was, again, that the LLC Real Estate should not be sold until the adversary proceeding was resolved.
The bankruptcy court held an initial hearing on the Sale Motion on October 2, 2018, and Debtor, his counsel, and Trustee appeared. The court explained that it would overrule Debtor's objection regarding Trustee's authority to operate REN, stating: "The trustee has the authority to stand in the shoes of the debtor as to this LLC, and if he wants to sell the property, he can sell the property that is owned by the LLC. Period." (Oct. 2, 2018 Hr'g Tr. at 24.) However, the court instructed Trustee to identify REN's creditors that would have to be satisfied before any of REN's funds would flow through to Debtor's estate and continued the hearing.
The bankruptcy court held a continued hearing on the Sale Motion on November 27, 2018, and Debtor, his counsel, and Trustee appeared. The court again stated that Trustee stood in Debtor's shoes regarding Debtor's ownership interest in REN. After addressing the court's concerns regarding notice to REN's creditors, Trustee stated that a realtor was ready to list the LLC Real Estate and, to avoid potential issues with title companies and closing attorneys, asked the Court to enter an order giving him authority to sell the LLC Real Estate. Debtor's counsel argued in opposition that the LLC Real Estate was not property of Debtor's bankruptcy estate, and the court responded:
It's not property of the bankruptcy estate, it's the ownership interest in the LLC that's the property of the bankruptcy estate ... and the trustee stands in the shoes now of the - he is the sole stockholder of that - or shareholder of that LLC now. He has the authority to sell it, not under 363, but he has the authority to sell it as the stock - sole owner.
(Nov. 27, 2018 Hr'g Tr. at 9.)
After concluding that law in the Sixth Circuit regarding Trustee's authority to sell the LLC Real Estate is clear, the bankruptcy court granted the Sale Motion as to the LLC Real Estate. The court *10subsequently entered the Sale Order. Debtor timely filed a Notice of Appeal of the Sale Order on December 11, 2018.
DISCUSSION
This appeal must be dismissed for lack of standing. Although neither party raised standing as an issue, standing is a threshold issue that federal appellate courts must consider prior to reaching the merits of an appeal. Barry v. Lyon ,
In bankruptcy cases, appellate standing " 'is more limited than Article III standing or the prudential requirements associated therewith.' " Moran v. LTV Steel Co., Inc. (In re LTV Steel Co., Inc. ),
As a result, chapter 7 debtors rarely have the requisite " 'pecuniary interest because no matter how the estate's assets are disbursed by the trustee, no assets will revert to the debtor.' " Lunan v. Jones (In re Lunan ),
There is no evidence that Debtor is a "person aggrieved" by the Sale Order he appeals. REN-not Debtor-owns the LLC Real Estate. The Sale Order directs the sale of the LLC Real Estate, and Debtor failed to explain how that sale would diminish his property, increase his burdens, or impair his rights. Thus, Debtor lacks the requisite pecuniary interest in the LLC Real Estate sale contemplated in the Sale Order. Debtor did not claim an exemption in his membership interest in REN, and he failed to demonstrate that his success on appeal would otherwise entitle him to a distribution of surplus assets from his chapter 7 estate. Consequently, Debtor lacks standing to appeal the Sale Order. Therefore, the appeal must be dismissed.
CONCLUSION
For the foregoing reasons, the appeal is DISMISSED for lack of standing.
Unless otherwise indicated, all chapter and section references are to the United States Bankruptcy Code,
All subsequent references to "ECF No. __" are to the CM/ECF record in Bankruptcy Case No. 16-33769-acs.
Debtor did not designate amended Schedule C as part of the record on appeal, and the parties' briefs did not discuss it. However, the Panel takes judicial notice of its filing in the bankruptcy court record pursuant to Federal Rule of Evidence 201(b)(2). Appellate courts may take judicial notice of facts not subject to reasonable dispute that are supported by documents not included in the record on appeal. U.S. v. Ferguson ,
Reference
- Full Case Name
- IN RE: Jeffrey W. PASLEY, Debtor. Jeffrey W. Pasley v. Robert W. Keats, Chapter 7 Trustee
- Cited By
- 5 cases
- Status
- Published