Stangel v. United States (In Re Stangel)

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.

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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

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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).

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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.

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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

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 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.

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