[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 5, 2007
No. 06-15723 THOMAS K. KAHN
CLERK
D. C. Docket Nos.
06-60299-CV-CMA
95-24079-BKC-JK
In Re: LINDA JANE GAUL,
Debtor,
__________________________________________________________________
DWIGHT H. MATLACK,
LINDA MCVEIGH MATLACK,
Plaintiffs-Appellants,
versus
LINDA JANE GAUL,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(September 5, 2007)
Before DUBINA and MARCUS, Circuit Judges, and PROCTOR,* District Judge.
PER CURIAM:
This is an appeal from the district court’s judgment affirming the
bankruptcy court’s order denying the Matlack’s request for relief from stay. The
basis of the bankruptcy court’s ruling was that the settlement agreement between
the parties was an executory contract since the debtor’s obligation included a
possible payment to the Matlacks of the sum of $200,000 and was not merely an
obligation to transfer property to them. The district court entered a well-reasoned
order affirming the bankruptcy court’s order but held that both the settlement
agreement and the underlying contract were executory. The Matlacks then
perfected this appeal.
We review factual findings under a clearly erroneous standard and
conclusions of law de novo. In Re: Bilzerian, 153 F.3d 1278, 1281 (11th Cir.
1998).
After reviewing the record and reading the parties’ briefs, we agree with the
district court’s finding that both the settlement agreement and the terms of the
contract were executory. We also reject the Matlack’s contention that the
_____________________
*Honorable R. David Proctor, Judge, United States District Court for the Northern
District of Alabama, sitting by designation.
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bankruptcy court rendered an “advisory opinion” or otherwise deprived the
Matlacks of due process. Likewise, we reject the Matlack’s claim for judicial
estoppel as they have failed to demonstrate the existence of any perversion of
justice.
Finally, we agree with the district court’s finding that the Matlacks waived
their “bad faith” argument since they failed to present that argument to the
bankruptcy court.
For the above-stated reasons, we affirm the district court’s judgment
affirming the bankruptcy court’s order.
AFFIRMED.
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