PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: MOLLY JANE COLEMAN,
Debtor.
ROGER COLEMAN,
Plaintiff,
and
MOLLY JANE COLEMAN,
Debtor-Appellant,
v.
No. 03-2328
COMMUNITY TRUST BANK, d/b/a
Pikeville National Bank & Trust,
Defendant-Appellee,
and
INTERNAL REVENUE SERVICE,
Claimant,
and
UNITED STATES TRUSTEE,
Trustee.
2 IN RE: COLEMAN
In Re: MOLLY JANE COLEMAN,
Debtor.
ROGER COLEMAN,
Plaintiff,
and
MOLLY JANE COLEMAN,
Debtor-Appellee,
v.
No. 03-2347
COMMUNITY TRUST BANK, d/b/a
Pikeville National Bank & Trust,
Defendant-Appellant,
and
INTERNAL REVENUE SERVICE,
Claimant,
and
UNITED STATES TRUSTEE,
Trustee.
Appeals from the United States District Court
for the Western District of Virginia, at Abingdon and Roanoke.
Glen M. Williams, Senior District Judge.
(CA-03-2-1; CA-03-3-1; BK-01-47-7-WSB; BK-01-1199-7-WSB)
Argued: September 22, 2005
Decided: October 20, 2005
Before WILKINS, Chief Judge, LUTTIG, Circuit Judge,
and James C. DEVER, III, United States District Judge
for the Eastern District of North Carolina, sitting by designation.
IN RE: COLEMAN 3
Affirmed in part, reversed in part, and remanded by published opin-
ion. Chief Judge Wilkins wrote the opinion, in which Judge Luttig
and Judge Dever joined.
COUNSEL
John Michel Lamie, BROWNING, LAMIE & GIFFORD, P.C.,
Abingdon, Virginia, for Appellant/Cross-Appellee. Mark Louis Espo-
sito, PENN, STUART & ESKRIDGE, Bristol, Tennessee, for
Appellee/Cross-Appellant.
OPINION
WILKINS, Chief Judge:
Molly Jane Coleman (Debtor) appeals and Community Trust Bank
d/b/a Pikeville National Bank & Trust cross-appeals from a district
court order affirming several bankruptcy orders arising from Debtor’s
Chapter 11 bankruptcy. We affirm in part, reverse in part, and remand
for further proceedings.
I.
In 1995, Debtor’s husband Roger Coleman and Darrell Cook were
partners in several companies involved in coal mining (the Compa-
nies), each of which had petitioned for Chapter 11 bankruptcy. Mr.
Coleman and Cook had obtained financing for the Companies from
Pikeville National Bank, now known as Community Trust Bank (the
Bank). Shortly after the Companies had filed their Chapter 11 peti-
tions, Mr. Coleman, Cook, and counsel for the Companies met with
representatives for the Bank. At that meeting, they discussed several
matters, including the possibility of moving some mining equipment
that secured certain of the Companies’ debts and adjusting their pay-
ment schedule.
During the same time period, the Colemans were struggling with
their inability to pay their 1993 income taxes. This problem arose
4 IN RE: COLEMAN
because of substantial income generated by one of the Companies in
1993. Because the business was organized as a Subchapter S corpora-
tion, the profits were taxed to the owners personally. See Bufferd v.
Comm’r, 506 U.S. 523, 525 (1993). However, the Colemans did not
have the funds to pay their 1993 taxes because the profits had been
used largely to fund another of the Companies. As a result of their tax
problems, the Colemans became concerned that they would lose their
home.
Eventually the Colemans decided to offer their Virginia home and
a Tennessee property (the Properties), both of which they owned as
tenants by the entirety, as further collateral for the debts owed to the
Bank. Thus, on January 18, 1995, the Colemans executed deeds of
trust granting the Bank a security interest in the Properties. The IRS
filed a tax lien on the Colemans’ Virginia home shortly thereafter.
The Bank subsequently initiated foreclosure proceedings against
the home. However, on March 22, 2001, the day before the planned
foreclosure sale, Debtor filed a Chapter 11 bankruptcy petition. The
petition asserted that the aggregate value of the Properties was
$745,000 and that the Bank’s secured claims against the Properties
amounted to $900,000. The petition also listed unsecured claims by
the IRS for $260,000; Galen Med, Inc., t/a Clinch Valley Medical
Center for $32,000; and Bank of America for $7,877.10. The IRS
filed a proof of claim in the amount of $571,569.63. And, Galen Med,
Inc. filed proof of five claims totaling $22,559.34. Bank of America
did not file a proof of claim. Debtor’s petition listed the claims of the
Bank and the IRS as disputed. The IRS claim was listed as disputed
because Debtor had claimed she was innocent of joint and several lia-
bility under 26 U.S.C.A. § 6015(f) (West 2002).1 When the petition
was filed, Debtor’s application for relief under § 6015(f) had been
denied, but she had appealed that denial.
Shortly after filing for Chapter 11 relief, Debtor initiated an adver-
sary proceeding against the Bank, the trustees named under deeds of
trust, and the IRS. Debtor claimed that the deeds of trust that she and
1
Section 6015(f) authorizes the Secretary of the Treasury to grant equi-
table relief from joint and several tax liability under certain circum-
stances.
IN RE: COLEMAN 5
her husband had given to the Bank were void as fraudulent convey-
ances under Virginia and Tennessee law because they represented the
Colemans’ improper attempt to hinder, delay, and defraud Debtor’s
creditors, including the IRS.2 Thus, she sought to invoke her "strong
arm" powers as a debtor in possession under 11 U.S.C.A. § 544 (West
2004) to set the deeds of trust aside. Under her proposed bankruptcy
plan, if she were successful in avoiding the deeds of trust, she would
sell the Properties as needed to pay her creditors and the administra-
tive expenses of the estate.
On January 24, 2002, the Bank moved to dismiss Debtor’s Chapter
11 petition on the ground that it was not filed in good faith. In this
regard, the Bank maintained that the Chapter 11 filing was "nothing
more than an attempt by the debtor to impermissibly and wrongfully
clothe herself with the ‘strong arm’ powers of a debtor in possession
or bankruptcy trustee and thereby gain a strategical and tactical
advantage over the Bank and the IRS with respect to the claims of
said creditors." J.A. 105.
The bankruptcy court subsequently confirmed Debtor’s bankruptcy
plan, subject to the outcome of the adversary proceeding. See In re
Coleman, 275 B.R. 763, 771-72 (Bankr. W.D. Va. 2002). The court
also denied the Bank’s motion to dismiss, finding that Debtor’s adver-
sary proceeding was not frivolous, that Debtor’s creditors would ben-
efit from a successful prosecution of the adversary proceeding to set
aside the deeds of trust, and that the relief Debtor sought under Chap-
ter 11 was quite similar to that which she could have sought under
Chapter 7. See id. at 770-71. The Bank moved for reconsideration of
both rulings.
Following a trial on the adversary proceeding—as the Bank’s
reconsideration motion remained pending—the bankruptcy court
determined that the deeds of trust were voidable fraudulent convey-
ances because they were motivated in part by the Colemans’ desire
to hinder the IRS from collecting the Colemans’ back taxes and
because the Bank’s officer in charge of the loans was aware of that
motive. See Coleman v. Cmty. Trust Bank (In re Coleman), 285 B.R.
892, 905-09 (Bankr. W.D. Va. 2002). The court nevertheless ruled
2
Debtor personally owed nothing to the Bank.
6 IN RE: COLEMAN
that the deeds of trust would be avoided only to the extent necessary
to pay the claims and administrative expenses of the estate. See id. at
909-12. The deeds of trust thus would remain in effect to allow the
Bank to recover any surplus. See id. at 912. The court explained that
"this result most effectively upholds the policies and specific statutory
provisions of the Bankruptcy Code and the laws of Virginia and Ten-
nessee to avoid voluntary fraudulent transfers where the rights of third
parties are concerned, but to uphold and enforce them as between the
parties themselves." Id.
On the same day that the bankruptcy court resolved the adversary
proceeding, it also denied the Bank’s motion for reconsideration of
the denial of the motion to dismiss. See In re Coleman, 286 B.R. 308,
309 (Bankr. W.D. Va. 2002). However, the court granted the recon-
sideration motion with regard to its earlier confirmation of Debtor’s
plan (for reasons that we will discuss below) and ordered Debtor to
file an amended bankruptcy plan. See id. at 309-10.
The district court affirmed the rulings of the bankruptcy court on
appeal. See Coleman v. Cmty. Trust Bank (In re Coleman), 299 B.R.
780 (W.D. Va. 2003).
II.
Debtor first argues that the bankruptcy court erred in ruling that her
avoidance of the deeds of trust was effective only to the extent neces-
sary to pay the creditors and administrative expenses of her estate. We
agree.
We review de novo the decision of the district court, "effectively
standing in its shoes to consider directly the findings of fact and con-
clusions of law by the bankruptcy court." Cypher Chiropractic Ctr.
v. Runski (In re Runski), 102 F.3d 744, 745 (4th Cir. 1996). Accord-
ingly, "we review legal conclusions by the bankruptcy court de novo
and may overturn its factual determinations only upon a showing of
clear error." Id.
A ruling concerning the proper interpretation of a statute is a legal
determination, which we review de novo. See Commodity Futures
IN RE: COLEMAN 7
Trading Comm’n v. Kimberlynn Creek Ranch, Inc., 276 F.3d 187, 191
(4th Cir. 2002). Statutory interpretation necessarily begins with an
analysis of the language of the statute. See Landreth Timber Co. v.
Landreth, 471 U.S. 681, 685 (1985). In analyzing statutory language,
we must first "determine whether the language at issue has a plain and
unambiguous meaning." Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997). Our determination of whether a statute is ambiguous is guided
"by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole."
Id. at 341. If the language is plain and "the statutory scheme is coher-
ent and consistent," we need not inquire further. United States v. Ron
Pair Enters., 489 U.S. 235, 240-41 (1989). In that situation, "the sole
function of the courts is to enforce [the statute] according to its
terms." Caminetti v. United States, 242 U.S. 470, 485 (1917).
With certain exceptions not applicable in this case, a debtor-in-
possession possesses all of the rights of a bankruptcy trustee.3 See 11
U.S.C.A. § 1107(a) (West 2004). Bankruptcy Code § 544 authorizes
a trustee to avoid liens and transfers under certain circumstances. As
is relevant here, § 544(b)(1) specifically provides that a trustee "may
avoid any transfer of an interest of the debtor in property or any obli-
gation incurred by the debtor that is voidable under applicable law by
a creditor holding an unsecured claim." 11 U.S.C.A. § 544(b)(1)
(emphasis added). Here, the bankruptcy court concluded that the
deeds of trust at issue were voidable as required by the statute.4 See
Coleman, 285 B.R. at 908.
Debtor maintains that the plain language of § 544(b)(1) authorizing
avoidance of "any" transfer that was voidable under applicable law
3
Under Chapter 11 of the Bankruptcy Code, "a debtor in possession
remains in possession of the pre-petition assets and administers them for
the benefit of its creditors." RCI Tech. Corp. v. Sunterra Corp. (In re
Sunterra Corp.), 361 F.3d 257, 260 n.2 (4th Cir. 2004).
4
The Bank maintains on cross-appeal that the bankruptcy court erred
in determining that Debtor proved that the deeds of trust were voidable
under applicable law. For the reasons stated in the opinion of the bank-
ruptcy court, we conclude that the bankruptcy court correctly resolved
the legal questions relating to this issue and that its factual findings were
not clearly erroneous. See Coleman, 285 B.R. at 905-09.
8 IN RE: COLEMAN
unqualifiedly allows her to avoid the deeds of trust here. Thus, she
maintains that the bankruptcy court erred in limiting the extent to
which she could avoid them.
The Bank argues that even if the language of § 544, when viewed
in isolation, suggests that avoidance must be all or nothing, § 550—
the recovery statute—creates an ambiguity in § 544. Section 550(a)
provides, with certain exceptions not relevant here, that "to the extent
that a transfer is avoided under section 544 . . . , the trustee may
recover, for the benefit of the estate, the property transferred . . . ."
11 U.S.C.A. § 550(a) (West 2004) (emphasis added). Based on the
emphasized language, the Bank contends that, like property recovery,
transfer avoidance could be limited to the extent necessary to benefit
the creditors and pay the administrative expenses of the estate.
We do not accept this assertion. In the absence of equivalent lan-
guage in § 544, the presence of the phrase "for the benefit of the
estate" in § 550 merely highlights the fact that Congress knew how
to include such a limitation when it wanted to. See Keene Corp. v.
United States, 508 U.S. 200, 208 (1993) ("Where Congress includes
particular language in one section of a statute but omits it in another,
it is generally presumed that Congress acts intentionally and pur-
posely in the disparate inclusion or exclusion." (internal quotation
marks & alterations omitted)).
The Bank nevertheless maintains that the § 550 language creates an
ambiguity with regard to § 544 because the concepts of avoidance and
recovery are intertwined. We agree that the concepts are intertwined
to the extent that property cannot be recovered under § 550 until an
action is brought to avoid the transfer of that property. See Glanz v.
RJF Int’l Corp. (In re Glanz), 205 B.R. 750, 757 (Bankr. D. Md.
1997). But the opposite is certainly not true, as the case before us
demonstrates. Once Debtor avoided the deeds of trust, no recovery
was necessary; the avoidance itself was the meaningful event.5 See id.
at 758. Thus, the recovery statute has no application here.
5
It is this factor that distinguishes Wellman v. Wellman, 933 F.2d 215
(4th Cir. 1991), on which the bankruptcy court relied. There, a debtor-in-
possession initiated an action to set aside a stock sale under 11 U.S.C.A.
IN RE: COLEMAN 9
The Bank contends that even if applying the plain language of
§ 544 would allow Debtor to avoid the deeds of trust entirely, the
bankruptcy court was free to "use its equitable powers to limit the
avoidance and effectuate the Code’s underlying goal of protecting the
estate’s assets for the benefit of creditors, thus preventing a ‘windfall’
for the debtor." Br. of Appellee/Cross-Appellant at 50. We disagree.
The Bankruptcy Code bestows certain equitable powers on bank-
ruptcy courts by providing that they "may issue any order, process,
or judgment that is necessary or appropriate to carry out the provi-
sions" of the Code. 11 U.S.C.A. § 105(a) (West 2004); see United
States v. Energy Res. Co., 495 U.S. 545, 549 (1990). However, the
Supreme Court has made clear that "whatever equitable powers
remain in the bankruptcy courts must and can only be exercised
within the confines of the Bankruptcy Code." Norwest Bank Wor-
thington v. Ahlers, 485 U.S. 197, 206 (1988). Thus, the equitable
powers that a bankruptcy court possesses "are not a license . . . to dis-
regard the clear language and meaning of the bankruptcy statutes and
rules." Official Comm. of Equity Sec. Holders v. Mabey, 832 F.2d
299, 302 (4th Cir. 1987); see 2 Collier on Bankruptcy ¶ 105.01[2]
(Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev. 2005)
("Section 105 does not allow the bankruptcy court to override explicit
mandates of other sections of the Bankruptcy Code . . . .").
Under the facts found by the bankruptcy court, the plain language
of § 544 provides that Debtor "may avoid" the deeds of trust. To
"avoid," in a legal context, means "[t]o render void." Black’s Law
§ 548, which allows a trustee to "avoid any transfer of an interest of the
debtor in property, or any obligation incurred by the debtor" under cer-
tain specified circumstances, 11 U.S.C.A. § 548(a)(1) (West 2004). See
Wellman, 933 F.2d at 217. Even though § 548 is similar to § 544 in that
it contains no "for the benefit of the estate" language, we held that the
debtor-in-possession lacked standing to set aside the sale because the
action was not being prosecuted for the benefit of the estate. See id. at
217-19. Critically, though, our decision in Wellman that the debtor
lacked standing was based largely on the fact that any recovery of the
stock under § 550 would not benefit the estate. See id. at 218. Since
avoidance is the meaningful event in the case at bar, § 550 has no appli-
cation here.
10 IN RE: COLEMAN
Dictionary 146 (8th ed. 2004); see Webster’s Encyclopedic
Unabridged Dictionary of the English Language 143-44 (2001)
(defining "avoid" in a legal context to mean "to make void or of no
effect; invalidate"). The ruling of the bankruptcy court that the deeds
of trust remain in effect as between Debtor and the Bank clearly
infringes Debtor’s right, unambiguously conferred by the Code, to
nullify the grant of the deeds. We therefore hold that the bankruptcy
court erred in limiting Debtor’s ability to avoid the deeds of trust.6
III.
Debtor also contends that the bankruptcy court erred in withdraw-
ing its order confirming her Chapter 11 plan on the Bank’s motion for
reconsideration. We agree.
In its order on reconsideration, the bankruptcy court explained that
its confirmation of Debtor’s Chapter 11 plan had been based on its
view that avoidance of the deeds of trust would have to be all or noth-
ing. See Coleman, 286 B.R. at 309. The court explained, however,
that it later ruled that the Bank’s security interest could be partially
avoided so that creditors and administrative expenses could be paid
but the Bank would otherwise retain its interest:
The Debtor’s Plan as confirmed by this Court left the
Debtor, in the event of a successful challenge to the Bank’s
deeds of trust in the adversary proceeding, free to continue
6
We note additionally that the Bank’s contention that limiting Debtor’s
ability to avoid the deeds of trust is necessary to protect the estate assets
for the benefit of creditors is suspect in light of the fact that for Debtor
to be left with any proceeds from the sale of the homes, all of the credi-
tors’ claims would first have to be paid. Moreover, it is hard to see how
the Bank is in a position to request equitable relief from the effects of the
§ 544 avoidance of the deeds when the Bank’s agent’s knowledge of the
impropriety of the grant of the deeds was the basis for avoidance in the
first place. See Keystone Driller Co. v. Gen. Excavator Co., 290 U.S.
240, 244 (1933) ("It is one of the fundamental principles upon which
equity jurisprudence is founded, that before a complainant can have a
standing in court he must first show that not only has he a good and mer-
itorious cause of action, but he must come into court with clean hands."
(internal quotation marks omitted)).
IN RE: COLEMAN 11
her efforts to gain innocent spouse relief from the IRS with
regard to its claim and subject to an obligation to sell the
properties subject to the deeds of trust only if necessary to
pay the IRS and her other creditors. Such a result is directly
at odds with this Court’s decision rendered contemporane-
ously with this one in the adversary proceeding upholding
the Bank’s rights in the deeds of trust as to Mrs. Coleman
but subordinating them to the rights of her creditors.
Accordingly, such Plan ought not to have been confirmed.
Id. at 309-10 (emphasis added).
Because we conclude that the bankruptcy court was correct in its
original view that avoidance of the deeds of trust must be all or noth-
ing, we hold that the reconsideration by the court of its earlier confir-
mation of the plan was unwarranted.
IV.
On cross-appeal, the Bank maintains that the bankruptcy court
erred in denying its motion to dismiss Debtor’s Chapter 11 petition
for lack of good faith. We disagree.
In Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir. 1989), we held
that a Chapter 11 petition may be dismissed for lack of good faith on
the part of the petitioner, but to warrant dismissal, "both objective
futility [of the bankruptcy filing] and subjective bad faith [must] be
shown." Carolin, 886 F.2d at 700-01 (emphasis in original). We rea-
soned that "[s]uch a test . . . contemplates that it is better to risk pro-
ceeding with a wrongly motivated invocation of Chapter 11
protections whose futility is not immediately manifest than to risk cut-
ting off even a remote chance that a reorganization effort so moti-
vated might nevertheless yield a successful rehabilitation." Id. at 701.
We also explained that requiring objective futility as well as subjec-
tive bad faith "is necessary to accommodate the various and conflict-
ing interests of debtors, creditors, and the courts that are at stake in
deciding whether to deny threshold access to Chapter 11 proceedings
for want of good faith in filing." Id. In sum, we noted that "[t]he over-
all aim of the twin-pronged inquiry must . . . be to determine whether
12 IN RE: COLEMAN
the purposes of the Code would be furthered by permitting the Chap-
ter 11 petitioner to proceed past filing." Id.
Carolin concerned a reorganization of a going concern, not a liqui-
dation of an individual’s assets, but our reasoning in Carolin is no
less applicable in the liquidation context. Thus, to warrant dismissal
of Debtor’s petition, the Bank was required to show the objective
futility of the petition as well as Debtor’s subjective bad faith.
The Bank asserts that even if it must show that Debtor’s petition
was objectively futile to warrant dismissal for lack of good faith, it
necessarily showed objective futility since Debtor has no ongoing
concern to reorganize. We disagree. In making this argument, the
Bank relies on language in Carolin stating that a petition with no
chance of bringing about a successful reorganization is objectively
futile. We explained in Carolin that "[t]he objective futility inquiry is
designed to insure that there is embodied in the petition some relation
to the statutory objective of resuscitating a financially troubled
debtor." Id. (internal quotation marks & alteration omitted). That Car-
olin stated the objective futility test in terms of the chances of rehabil-
itating a going concern is hardly surprising, since Carolin involved a
reorganization. However, since Carolin, the Supreme Court has held
that individual debtors with no ongoing business concern also may
invoke Chapter 11. See Toibb v. Radloff, 501 U.S. 157, 166 (1991).
Thus, in judging the objective futility of a Chapter 11 petition in a liq-
uidation context, courts must decide whether the petition represents
an objectively futile attempt to achieve the more general goal of "re-
suscitating a financially troubled debtor." Carolin, 886 F.2d at 701
(internal quotation marks & alteration omitted).
The Bank clearly failed to demonstrate objective futility under that
standard, and it certainly did not demonstrate that the bankruptcy
court clearly erred in ruling that objective futility was not established.
See id. at 702 ("We review the bankruptcy court’s ultimate finding
that the filing was not in good faith as one of fact subject to the
clearly erroneous standard."). Debtor’s Chapter 11 filing afforded her
the opportunity to avoid the Bank’s security interest and pay her cred-
itors. Regardless of whether Debtor’s subjective motivation was con-
sistent with the purposes of the Bankruptcy Code, the bankruptcy
court had reason to conclude that her petition could serve those pur-
IN RE: COLEMAN 13
poses. We therefore conclude that the bankruptcy court properly
denied the Bank’s motion to dismiss.
V.
The Bank next argues that the bankruptcy court erred in not barring
Debtor under the doctrine of judicial estoppel from challenging the
tax liability that is the basis for her attempt to avoid the deeds of trust.
We disagree.
Judicial estoppel is an equitable doctrine designed to prevent liti-
gants from "playing fast and loose" with the court. FDIC v. Jones,
846 F.2d 221, 234 (4th Cir. 1988) (internal quotation marks omitted).
The doctrine estops a party in a legal proceeding from asserting a
position that is inconsistent with another asserted position when the
inconsistency would allow the party to benefit from deliberate manip-
ulation of the court. See id.
Here, the Bank contends that Debtor asserted inconsistent positions
by maintaining that she is liable to the IRS for back taxes but continu-
ing to challenge that liability.7 There is nothing improper about
Debtor asserting both positions in the context of this case, however.
The two positions merely reflect the reality that although Debtor
maintained that she should not be liable to the IRS, she had not been
successful in overturning her liability. She therefore faced the pros-
pect of having to pay the taxes even as she attempted to challenge that
obligation. Debtor’s dual positions also reflect her dual roles in this
action. On the one hand, she is a debtor in possession fulfilling her
fiduciary duty to her creditors (including the IRS) by asserting their
rights to avoid the Bank’s security interest in her land. On the other
hand, she is a taxpayer pursuing her own right to challenge the IRS’s
decision concerning her tax liability.
VI.
The Bank finally contends that the bankruptcy court erred in setting
7
Debtor now has exhausted all avenues available for challenging her
tax liability.
14 IN RE: COLEMAN
aside the deeds of trust with respect to the interest of Mr. Coleman.
We disagree.
The Bank maintains that the doctrine of collateral estoppel, also
known as issue preclusion, should have precluded the bankruptcy
court from setting aside the deeds of trust with respect to Mr. Cole-
man’s interest. See First Union Commercial Corp. v. Nelson, Mullins,
Riley & Scarborough (In re Varat Enters.), 81 F.3d 1310, 1315 (4th
Cir. 1996) (explaining that collateral estoppel applies in bankruptcy
proceedings). To bar Debtor from litigating the issue of whether the
deeds of trust could be set aside entirely, the Bank had to establish
that (1) the issue to be precluded is identical to the issue already liti-
gated, (2) the issue was actually determined in the prior proceeding,
(3) the determination of the issue was an essential part of the decision
in the prior proceeding, (4) the prior judgment was final and valid,
and (5) the party against whom estoppel is asserted had a full and fair
opportunity to litigate the issue. See Sedlack v. Braswell Servs.
Group, 134 F.3d 219, 224 (4th Cir. 1998).
The Bank’s collateral estoppel argument arises out of the fact that
Mr. Coleman, like his wife, filed a personal Chapter 11 bankruptcy
petition in which he initiated an adversary proceeding seeking to set
aside the deeds of trust pursuant to Virginia and Tennessee fraudulent
conveyance law. His adversary proceeding was dismissed with preju-
dice because it was filed beyond the applicable two-year statute of
limitations.
The Bank identifies no issues of fact or law that were actually
determined in Mr. Coleman’s action and reappear in the current
action. While Mr. Coleman’s claims may have been similar to those
in this action, they were dismissed with prejudice because of his fail-
ure to file within the applicable statute of limitations. Because no stat-
ute of limitations questions are at issue here, collateral estoppel does
not apply.8
8
The Bank also suggests that—collateral estoppel aside—a debtor in
possession lacks the statutory authority to avoid the grant of a security
interest in properties held by a debtor and another person as tenants by
the entirety. In its initial brief, the Bank twice alludes to this proposition,
IN RE: COLEMAN 15
VII.
In sum, we reverse the district court order to the extent that it
affirms (1) the bankruptcy court ruling that Debtor’s avoidance of the
deeds of trust is only partially effective and (2) withdrawal by the
bankruptcy court of its earlier confirmation of Debtor’s plan. Other-
wise, we affirm. We thus remand to the district court for further
remand to the bankruptcy court for additional proceedings.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
each time in a single sentence with no argument in favor of the position.
Because the brief contains no argument supporting this claim, we do not
consider it. See Fed. R. App. P. 28(a)(9)(A) (providing that the appel-
lant’s brief must contain "appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which
the appellant relies"); 11126 Baltimore Blvd., Inc. v. Prince George’s
County, 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc) (declining to con-
sider arguments for failure to comply with Rule 28).