UNITED STATES COURT OF APPEALS TENTH CIRCUIT

In the Matter of: GEORGE LOVE FARMING, LC, Debtor.

------------------------------ GEORGE B. LOVE; VALAYNE LOVE; SNOWVILLE FARMS, LLC, a Utah limited liability company; GEORGE LOVE FARMING, LC, a Utah limited liability company, Plaintiffs–Appellants,

v. FEDERAL DEPOSIT INSURANCE CORPORATION as RECEIVER for BARNES BANKING CORPORATION, a Utah corporation, Defendant–Appellee. No. 10-4076 (B.A.P. No. 08-094-UT)

ORDER AND JUDGMENT *

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 15, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - Before KELLY , TACHA , and LUCERO , Circuit Judges.
George Love and several farming en tities he operated filed for Chapter 11 bankruptcy. Barnes Ba nking Company (“Barnes” 1 ) was a creditor in volved in the bankruptcy proceedings. Afte r a Chapter 11 reorganization pl an was confirmed, a Love entity filed a new bankruptcy petition under Chapter 7. A nd while the Chapter 7 case was active, Love, several of his farming en tities, and his wife Valayne Love, filed suit against Barnes in Utah state court. Barnes removed the state lawsuit to the bankruptcy court and prevailed on summary judgment. The bankruptcy appellate panel (“BAP”) affirmed. George Love, Valayne Love , George Love Farming, LC, and Snowville Farms, LLC (“Snowville”), seek to appeal the gr ant of summary judgment. We have no jurisdiction over the claims of Valayne Love , Snowville, and George Love Farming, LC, and therefore dismiss those parties’ appeals. Exercising jurisdictio n over George Love’s claims pursuant to 28 U.S.C. §§ 158(d)(1) and 12 91, we affirm.
I In August 2004, George Love and Snow ville, one of the farming companies he operated, filed voluntary Chap ter 11 bankruptcy petitions in Utah Bankruptcy Court. By

1 Barnes is now a failed financial in stitution in Federa l Deposit Insurance Corporation (“FDIC”) receivership. The FD IC was substituted for Barnes as the real party in interest. For clarity’s sake we will refer to the appellee as “Barnes.”- 3 - early 2005, faced with continued “cash flow problems,” Love and Snowville moved to consolidate their bankruptcies with seve ral other Love-controlled entities. The bankruptcy court granted the motion, creatin g a Chapter 11 bankruptcy estate comprised of all assets and liabilities of the following parties: (1) George B. Love; (2) Snowville Farms, LLC; (3) George Love Farming, LC; (4) George Love Farmi ng Partnership; and (5) George Love Fa mily Partnership (collectively, the “Consolidated Debtors” ). Pursuant to a confirmed Chapter 11 reorganization plan, the Conso lidated Debtors were to join tly manage Love’s farming operations and repay creditors, including Ba rnes, from crop proceeds or funds from a United States Department of Agriculture Farm Service Agency loan (the “FSA Loan”). According to appellants, the Consolidated Debtors applied for an FSA loan to make the payments to Barnes and other credito rs. Barnes held a lie n on the Consolidated Debtors’ crops, and the FSA would not prov ide a loan unless Ba rnes executed a lien waiver. Appellants contend that Barnes would not sign a lien waiver, and the FSA accordingly refused to make the loan, rende ring the Consolidated Debtors unable to comply with the Chapter 11 plan. The Consolidated Debtors unsuccessfully mo ved to compel Barnes to execute the FSA lien waiver in the Chapter 11 proceedin g. On appeal, the BAP agreed with the bankruptcy court that: (1) Ba rnes did not breach the plan by refusing to sign the FSA lien waiver; and (2) “by putting an other entity in Chapter 7 ba nkruptcy, selling one of its- 4 - farms, and allowing the other farm to be placed under contract, [the Consolidated Debtors] had effectively ab andoned” the Ch apter 11 plan. Indeed, before the BAP decided the Chapte r 11 appeal, George Love Farming, LC, filed a separate Chapter 7 bankruptcy petitio n. The bankruptcy court held that the Chapter 11 plan consolidated all debtors, su ch that “when George Love Farming, LC, filed [the] Chapter 7 case, it did so as the al ter ego of the entire Consolidated Estate,” and therefore the Chapter 7 estate “includes all of the assets and liabilitie s of the Consolidated Estate because it includes all of the Consolidated [Debtors].” George Love, Valayne Love , George Love Farming, LC, and Snowville then initiated a third legal action, suing Barnes in Utah st ate court on theories similar to those advanced in the Chapter 11 case. Because the Chapter 7 proceeding was ongoing, Barnes removed the state action to bankruptcy court. The state court plaintiffs filed a motion to remand, which was denied. George Love Farm ing, LC, via its Chapte r 7 Trustee, settled its state law claims with Barnes. Barnes prevailed on summary judgment against all other debtors, and the BAP affirmed. Ge orge Love, Valayne Love, George Love Farming, LC, and Snowville no w seek to appeal.
II As a threshold matter, Barnes contends that we do not have subject matter jurisdiction over the appeals of Valayne Love, George Love Farming, LC, and Snowville. Reviewing our subject matter jurisdiction de novo, see Butler v. Kempthorne , 532 F.3d 1108, 1110 (10th Cir. 2008), we agree.- 5 - Barnes is now in FDIC receivership. Accordingly, our jurisdiction over “any claim or action for payment from, or any ac tion seeking a determination of rights with respect to, the assets of” Barnes is limited by statute. 12 U.S.C. § 1821(d)(13)(D). When a failed financial institution is placed into FDIC receivership, claims against the institution must be submitted to the FDIC for administrative determination. See § 1821(d)(3)-(10). The claims pr ocess is a mandatory prerequisite to judicial review. § 1821(d)(13)(D). Federal courts may exerci se jurisdiction only after a claimant has completed the administrativ e claims process. See § 1821(d)(6)(A )(ii), (d)(7)(A), (d)(8)(C). The claims process is manda tory, whether a case is f iled after a receiver is appointed or, as here, before the bank fa iled. Resolution Trust Corp. v. Mustang
Partners , 946 F.2d 103, 106 (10th Cir. 1991) (“ No interpretation [of § 1821(d)] is possible which would excuse this requirement fo r creditors with suits pending . . . .”); see also Marquis v. FDIC , 965 F.2d 1148, 1151 (1st Cir. 1992) (“[P]articipation in the administrative claims review process [is] mandatory for all parties asserting claims against failed institutions, rega rdless of whether lawsuits to enforce those claims were initiated prior to the appointment of a receiver.”). George Love Farming, LC, Valayne Love, and Snowville (i.e., all appellants save George Love himself) did not file their clai ms with the FDIC. Appellants contend that we should distinguish between suits filed before and after a receiver is appointed, citing a Tenth Circuit case, Marc Development, Inc. v. FDIC , 992 F.2d 1503 (10th Cir. 1993), in- 6 - which we recognized such a distinction. Unfortunately for appellants, however, that decision was vacated. Marc Dev., Inc. v. FDIC , 12 F.3d 948, 949 (10th Cir. 1993) (en banc). Our only case on point confirms that there is no difference between prereceivership claims and post-receivership claims with respect to § 1821(d)’s jurisdictional bar. See Mustang Partners , 946 F.2d at 106; see also § 1821(d)(6)(A)(ii) (providing for judicial review following the administrativ e claims process to “continue an action commenced before the appointment of the receiver”); § 1821(d)(7)(A) (permitting an administrative hearing “in lieu of filing or continuing any action under paragraph (6)”); § 1821(d)(8)(C) (allowing certain claimants “to file a suit, or to continue a suit filed before the appointment of the receiver” after complying with an expedited administrative review process). This preceden t is consistent with the majority of circuits that have considered the issue. See Intercontinental Travel Mktg., Inc. v. FDIC , 45 F.3d 1278, 1283-84 (9th Cir. 1994); Brady Dev. Co., Inc. v. Resolution Trust Corp. , 14 F.3d 998, 1003-06 (4th Cir. 1994); Bueford v. Resolution Trust Corp. , 991 F.2d 481, 485 (8th Cir. 1993); Marquis , 965 F.2d at 1151. But see Whatley v. Resolution Trust Corp. , 32 F.3d 905, 907-10 (5th Cir. 1994). Only George Love completed the administ rative claims process. We therefore have jurisdiction solely over his appeal.- 7 - III A Love contends that the bankruptcy cour t lacked jurisdiction over his state-law claims because they were not core bankruptcy matters and we re unrelated to the Chapter 7 proceeding. We review th e question of whether a bankruptcy court had subject matter jurisdiction de novo. Jones v. Bank of Santa Fe (In re Courtesy Inns, Ltd.) , 40 F.3d 1084, 1085 (10th Cir. 1994). Bankruptcy courts may exercise jurisdic tion over “core proceedings arising under title 11, or arising in a case under title 11.” 28 U.S.C. § 157(b)(1). Core proceedings “include, but are not limited to . . . matters concerning the administration of the estate” and “other proceedings affect ing the liquidation of the asse ts of the estate or the adjustment of the debtor-cre ditor or the equity security holder relationship.” § 157(b)(2)(A), (O). Further, district courts “m ay provide that . . . any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.” § 157(a). The District of Utah has so provided. See D. Utah Civ. R. 83-7.1. Acco rdingly, the Utah Bankruptcy Court has jurisdiction over all matters that are: (1) core bankruptcy procee dings; or (2) related to ongoing bankruptcy proceedings. Love’s state court complaint alleged: (1) the Chapter 11 plan constituted a contract, which Barnes breached by failing to sign the lien waiver; (2) Barnes’ refusal to sign the lien waiver, failure to confirm a crop insurance rider or allow the FSA to confirm- 8 - a crop insurance rider, and refusal to honor se veral checks were breaches of the implied covenant of good faith and fair dealing; an d (3) Barnes owed a fiduciary duty to Love, which it breached by failing to cooperate with him in obtaining the FSA loan. The bankruptcy court correctly held the state court action was a core proceeding. First, George Love Farming, LC, the Chapter 7 debtor, was a plaintiff in the state court action and Barnes, a creditor, was the defendant . A suit by the debtor against a creditor, based on a confirmed bankruptcy plan, would necessarily have affected the size of the estate and the “debtor-credito r . . . relationship.” § 157(b )(2)(O). Second, the parties disputed whether the Chapter 7 estate owned the state law claims; thus the state court action was “a matter[] concerni ng the administration of the estate.” § 157(b)(2)(A). 2
B Love contends the doctrine of “mandato ry abstention” required the bankruptcy

2 Love also contends the state action was not “related to” a bankruptcy proceeding, an alternative basis for bankruptcy court ju risdiction. This contention borders on the frivolous. “The test for determ ining whether a civil proceeding is related in bankruptcy is whether the outcome of that proceeding coul d conceivably have any effect on the estate being administered in bankruptcy.” In re Gardner , 913 F.2d 1515, 1517-18 (10th Cir. 1990). As noted above, a Chapter 7 debtor’s lawsuit against a Chapter 7 creditor will almost always affect the estate. Love’s assertion of this argument continue s a troubling pattern of conduct. Our review of the record reveals the filing of redundant and apparently vexatious lawsuits, repeated attempts to violate automatic stays, and obfuscation of the issues before the bankruptcy courts, all for the apparent purpo se of frustrating the administration of the bankruptcy estate. As the bankruptcy court found, Love engaged in a bad faith “pattern of abuse.” Such disregard for the integrity of the state and federal courts is unacceptable both from Love and his counsel.- 9 - court to remand the state court action back to Ut ah state court. We review this claim de novo. Personette v. Kennedy (In re Midgard Corp.) , 204 B.R. 764, 770 (B.A.P. 10th Cir. 1997). Congress has provided that bankruptcy co urts must abstain from hearing certain state law claims, despite possessing ju risdiction to consider them. See 28 U.S.C. § 1334(c)(2). A party seeking mandatory abst ention must establish six elements: (1) a timely motion to abstain was filed; (2) the ac tion was based upon a state law claim; (3) the bankruptcy court had only “related to” jurisdiction; (4) there was no independent federal jurisdiction; (5) the action was comm enced in state court; and (6) the action is capable of timely adjudicati on in state court. Midgard , 204 B.R. at 776-78. Because we have concluded that the state cour t action was a core proceeding, see Section III.A, supra , Love’s mandatory abstention argument fa ils on the third prong of this test. C On summary judgment, the bankruptcy cour t dismissed many of Love’s claims as precluded by the doctrines of the law of the case and collateral estoppel. 3 However, it considered and rejected some claims on the merits. The bankruptcy court’s grant of summary judgment is reviewed de novo. Burke v. Utah Trans it Auth. & Local 382 , 462

3 The dismissed claims c oncerned Barnes’ duty to execute a lien waiver, which had been litigated in th e Chapter 11 case. Valayne Love argues she was not a party to the Chapter 11 proceedings and thus cannot be bound by the prio r determination. But we do not have jurisdiction over Valayne Love’s claims, see Section II, supra , and thus cannot consider her appeal of the grant of summary judgment.- 10 - F.3d 1253, 1257 (10th Cir. 2006 ). Summary judgment is only appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Love contends that Barnes breached vari ous duties by failing to honor checks that were written after the Chapter 7 petition had be en filed and were dr awn on a Barnes bank account. According to Love, th e account “h[eld] the balance of the 2005 crop proceeds.” Barnes did not honor the check because th e account on which it was drawn “contained solely proceeds from the sale of the 2005 and 2006 crops,” which were assets of the Chapter 7 bankruptcy estate. All claims relating to the checks were prop erly dismissed by the bankruptcy court. Love had no authority to with draw funds from the Chapter 7 es tate as a matter of law.
See 11 U.S.C. § 362(a). Barnes accordingly had no duty to disburse the funds.
D Love’s final argument is that the bankrupt cy court did not have jurisdiction over Valayne Love. Because Vala yne Love did not complete the FDIC’s administrative claims process, see Section II, supra , we have no jurisdic tion over her appeal.
IV
We DISMISS the appeals of Valayne Love, George Love Farming, LC, and Snowville for lack of jurisdiction. We AFFIRM the bankruptcy appellate panel’s- 11 - affirmance of the bankruptcy court’s grant of summary judgment against George Love.

Entered for the Court

Carlos F. Lucero Circuit Judge