Revised August 18, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 99-10829
________________________
In the Matter of: FRANK J. STANGEL,
Debtor,
FRANK J. STANGEL,
Appellant,
versus
UNITED STATES OF AMERICA; THOMAS D. POWERS,
Chapter 13 Trustee,
Appellees.
______________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________________
August 1, 2000
Before DAVIS, JONES, and STEWART, Circuit Judges.
PER CURIAM:
Chapter 13 debtor-appellant Frank Stangel appeals two
adverse decisions of the bankruptcy court in separate adversary
proceedings that have been consolidated on appeal. Because Stangel
did not timely appeal the first adversary proceeding to the
district court, we dismiss that part of his appeal for want of
jurisdiction. Because Stangel lacks standing to assert the
trustee’s lien avoiding power under 11 U.S.C. §545(2), we dismiss
that part of his appeal for lack of standing.1
FACTS & PROCEDURAL HISTORY
Stangel is a well-educated2 actor and acting instructor
who runs a flea market business on the side. Over a number of
years between 1982 and 1995, he failed to pay income taxes and had
repeated skirmishes with the Internal Revenue Service. He has also
filed previous Chapter 13 bankruptcies; this is his third one.
The instant case was commenced February 2, 1996. The IRS
was his sole creditor. The service filed a secured claim for
unpaid tax assessments dating from 1982, 1983, 1984, 1987, and
1988; an unsecured priority claim for the years 1989-95; and an
unsecured general claim for penalties and interest from 1989-95.
Stangel responded by initiating two adversary
proceedings. The first concerned the amount of taxes owed by the
debtor. The bankruptcy court entered a final judgment of the
amount owed on August 12, 1997. Ten days later, Stangel timely
filed motions for a new trial and to amend judgment and to amend
the findings of fact and conclusions of law. In an order entered
September 8, 1997, the bankruptcy court denied these motions. On
September 5, Stangel filed an amended motion for additional
1
Stangel’s property on which he seeks to avoid a lien is not exempt
from a federal tax lien. See §522(c)(2)(B).
2
Stangel has a B.A. from Michigan State University and a law degree
from LaSalle University.
2
findings of fact and conclusions of law, which the bankruptcy court
denied on September 21. Stangel’s notice of appeal was filed on
October 1, 1997.
Stangel’s second adversary proceeding, filed in September
1997, was titled a “complaint to avoid lien.” Stangel alleged
therein that he was entitled to exercise the avoidance powers of
the bankruptcy trustee under 11 U.S.C. §545(2) and thereby avoid
attachment of tax liens to his personalty.
In response to this second proceeding, the bankruptcy
court rejected Stangel’s standing to pursue the avoidance action,
on the grounds that §545 states only that “the trustee” may pursue
such claims. Alternatively, the court held that the provision does
not substantively permit the avoidance of a federal tax lien,
because the tax law contains a more stringent standard for defeat
of a federal tax lien pursuant to IRC §6323. The district court
affirmed these holdings. Stangel now appeals.
DISCUSSION
1. The First Adversary Proceeding
Because Stangel’s appeal from the bankruptcy court to the
district court in the first adversary proceeding was not timely, we
lack jurisdiction.
Whether Stangel’s appeal was timely depends on (1) when
the district court entered its orders denying the first of
Stangel’s successive post-judgment motions, and (2) when Stangel
3
filed his notice of appeal. The dates of these events are as
follows: (1) September 8, 1997, when the bankruptcy court entered
judgment denying debtor’s first post-judgment motion; and (2)
October 1, 1997, the date of Stangel’s notice of appeal.
Bankruptcy Rule 8002(a) allows a debtor ten days from the
date of entry on an order disposing of a Rule 59-type motion in
which to file his notice of appeal. That a debtor files a second
round of post-judgment motions has been held ineffective to extend
this time period.3 See In re Stangel, 68 F.3d 857, 859 (5th Cir.
1995). Stangel’s October 1, 1997 notice of appeal was filed more
than 10 days after the bankruptcy court’s September 8, 1997
judgment denying his first post-judgment motion, and his second
post-judgment motion was successive and did not toll the time
period. Under Rule 8002(a), his appeal to the district court was
thus untimely.
Because Stangel’s appeal to the district court was
untimely, the district court lacked jurisdiction over the appeal.
When the district court lacks jurisdiction over an appeal from a
bankruptcy court, this Court lacks jurisdiction as well. See In re
Don Vicente Macias, Inc., 168 F.3d 209, 211 (5th Cir. 1999). We
therefore dismiss for want of jurisdiction.
3
The latter post-judgment motion is treated as a motion under Federal
Rule 60(b), with similar effects on timeliness. Stangel does not contend that
he seeks review of the denial of his second round of post trial motions on the
same standard that applies to Rule 60(b).
4
2. The Second Adversary Proceeding
As noted above, 11 U.S.C. §545 codifies a trustee’s
ability to avoid certain liens on property of a debtor. Stangel
asserts that he has just as much interest as the Chapter 13 trustee
in avoiding these tax liens, since the completion of his Chapter 13
plan will result in a discharge and the reversion to him of the
property in his estate. Standing in the way, however, is §545
itself, which does not expressly confer power on anyone except the
trustee to pursue these motions.4
Two cases – one from the Fifth Circuit and one from the
Supreme Court – lead us to conclude that Stangel lacks standing to
pursue his avoidance motion. Matter of Hamilton, 125 F.3d 292 (5th
Cir. 1997), addressed the standing of a Chapter 13 debtor to
exercise avoidance powers available to a trustee under §544 of the
Bankruptcy Code.5 While acknowledging earlier case law to the
contrary, Hamilton stated that “[m]ore recently, bankruptcy courts
addressing the issue have receded from their earlier opinions and
refused to use §544 to allow Chapter 13 debtors to exercise strong-
arm powers reserved for Chapter 13 trustees.” Hamilton, 125 F.3d
at 296. The court went on to reason that a Chapter 13 debtor does
4
§545 reads: “The trustee may avoid the fixing of a statutory lien on
property of the debtor....” See 11 U.S.C. §545.
5
Specifically, the debtor wished to use §544 to avoid a foreclosure sale
on his homestead that occurred just before bankruptcy. See Hamilton, 125 F.3d
at 295.
5
not have standing to pursue a §544 avoidance through 11 U.S.C.
§1303, a catch-all clause that allows the debtor “the rights and
powers of a trustee” under 11 U.S.C. §§ 363(b), (d), (e), (f) and
(l). See Hamilton, 125 F.3d at 296. The court did find, however,
that since the debtor’s suit satisfied the criteria of §522(h),
which gives the debtor power to avoid the fixing of certain liens
on otherwise exempt property, the debtor had standing to avoid the
foreclosure sale under that provision. See Hamilton, 125 F.3d at
298.
The Supreme Court wrote on an analogous provision of the
Bankruptcy Code in Hartford Underwriters Ins. Co. v. Union Planters
Bank, 120 S.Ct. 1942 (5/30/00). In a unanimous opinion, Justice
Scalia rejected a creditor’s claim that it could file a motion to
recover the actual and necessary costs of preserving collateral of
the debtor’s estate under 11 U.S.C. §506(c). That provision allows
only the trustee to recover such costs. The Court’s opinion relied
principally on the clear statement in the statute, assisted by the
overall context of the Bankruptcy Code. Although §506(c) is a
different provision than the one at issue here, and a Chapter 11
case is different from a Chapter 13 case, the Court’s mode of
reasoning is fully applicable here. In particular, the opinion
stated:
Petitioner argues that in the absence of such restrictive
language [stating that only the trustee may make the claim],
no party in interest is excluded. This theory – that the
6
expression of one thing indicates the inclusion of others
unless exclusion is made explicit – is contrary to common
sense and common usage. Many provisions of the Bankruptcy
Code that do not contain an express exclusion cannot sensibly
be read to extend to all parties in interest.
Hartford, 120 S.Ct. at 1948.
The reasoning of both Hamilton and Hartford Underwriters
strongly suggests that Stangel does not have standing under the
plain reading of §545. Both those opinions concerned Bankruptcy
Code provisions that stated that trustees had certain powers, and
both rejected interpretations that extended those powers to other
parties in interest. That is precisely what Stangel asks us to do
here, and, in light of those cases and the plain language of the
statute, we refuse to do so. Because Stangel does not have
standing to pursue this avoidance action, we do not reach the
question whether the trustee can in fact utilize §545 to avoid
federal tax liens.6
DISMISSED.
6
The Government cites two circuit court cases supporting its position
that §545 cannot be used to avoid federal tax liens. See In re Berg, 121 F.3d
535 (9th Cir. 1997) and In re Walter, 45 F.3d 1023 (6th Cir. 1995). Furthermore,
we note that if bankruptcy law permitted freer avoidance of federal tax liens,
it would create a huge incentive to file bankruptcy.
7