* District Judge for the Northern District of Texas, sitting by designation.

** Pursuant to 5th Cir. R. 47.5, the Court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED February 14, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 05-50440
In the Matter of: STEPHEN CLYDE MARTIN and SUSAN GAYLE MARTIN, Debtors. STEVEN CLYDE MARTIN, SUSAN GAYLE MARTIN, Appellants,
versus SANDERSON FARMS, INC.; FARMERS STATE BANK; JAMES STUDENSKY, Chapter Seven Trustee, Appellees. Appeals from the United States District Court fo r the Western District of Texas (No. 6:05-CV-7)

Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge. * PER CURIAM: ** Debtors appeal pro se from mult iple orders of the bankruptcy court. We dismiss many o f t he Appellants’ claims on procedural grounds and affirm the district court.2 I. FACTUAL AND PROCEDURAL BACKGROUND On July 14, 2003, Steven Martin and Susan Martin filed fo r voluntary Chapter 7 bankruptcy. On th e same day, th ey filed th eir schedules of assets and liabilit ies. The schedule of assets included
a potenti al cause of action against Sanderson Farms, Inc. (“Sanderson”) and/or Farmers State Bank (“Farmers State”), valued at $0. This pot ential cause of action arose from a series of agreements between Sanderson and Farmers State fo r the Martins to construct egg hatching barns fo r Sanderson wit h financing from Farmers State and for Susan Martin to work as a hatching egg producer. The Martins alleged fraud, deceptive trade, breach of contract, and other causes of action in a suit against Sanderson and Farmers State filed in Texas in 2002; the case was non-suited on November 18, 2003, because of th e presence of a mandat ory arb it ration clause in the contracts between Sanderson, Farmers State, and th e Martins. The Martins did not pursue arbitration to completion. The bankruptcy court lift ed th e automatic stay ag ainst Farm ers State, a credi

tor of the Martins, on Septem ber 3, 2003. The Trustee, James Studensky, objected to the schedules, and on September 23, 2003, the Martins filed an amended schedule th at list ed the potenti al cause of action as having an unknown value. The Martins did not attem pt to exempt the cause of action in either their initial or amended schedule. The bankruptcy court granted the Martins a discharge on October 27, 2003. In September 2004, the Trustee filed a motion in bankruptcy court to compromise the Martins’s claims against F armers State Bank. The Martins objected to this motion and filed several of their o wn motions, including a mo tion to avoid fraudulent transfer, a mo tion to declare themselves “persons aggrieved,”
a mo tion to avoid lift ing th e stay against Farmers State, and mo tions fo r fines and sanctions against Sanderson and Farmers State. The bankruptcy court, after conducting a fact-finding hearing, granted3

th e Trustee’s mo tion to com prom ise on November 18, 2004, specifically noting th at none of th e Marti ns’s claims against Sanderson were effected by the order. The judge also denied all of t he Martins’s motions except for their motion to declare themselves persons aggrieved. The Martins appealed t hese unfavorable determ inat io ns in a single notice of appeal to the district court. While th e district court was considering the Martins’s appeal, the Trustee filed a mo tion in district court to com

prom ise the Martins’s claims against Sanderson. On February 2, 2005, the bankruptcy court entered an int erim order on the mo tion to com prom ise, setting a hearing date and
a bidding deadline. The Martins then filed a notice of appeal o f the interim order with the district court, amending th eir init ial notice of appeal to include the interim order as well. The district court dismissed the appeal of the interim order on the motion of the Trustee and directed the bankruptcy court to proceed wit h it s consideration of the Trustee’s mo tion. The Martins appealed the dismissal,
com mencing their appeal before this court on March 18, 2005. The district court then affirmed all of th e orders entered by th e bankruptcy court on November 18, 2005, adopting the factual findings of th e bankruptcy court as well. The Martins then amended their notice of appeal with this court to include all of the motions that the district court upheld. The Martins filed a mo tion in the district court, asking to be allo wed to pro ceed in f orma pauperis, which th e district court denied. The Martins then filed a similar motion in this court, which was also denied. The bankruptcy court, in th e meantime, continued it s consideration of the Trustee’s mo tion to com prom ise th e Martins’s claims against Sanderson. The bankruptcy court approv ed the
com prom ise on May 20, 2005. The debtors then filed a second amended notice of appeal with this court, adding th e bankruptcy court’s order approving the com prom ise wit h Sanderson. On May 27,4

2005, Sanderson filed a timely mo tion in the bankruptcy court to vacate the May 20, 2007 order to correct a misst atem

ent of fact under Fed. R. Civ. P. 59(e) and Bankruptcy Rule 9023. That motion is st ill pending in t he bankruptcy court. II. DISCUSSION Generally, in a bankruptcy appeal, we apply the same standard of review to the bankruptcy court’s decision as applied by th e district court. E.g., In re Amco Ins. , 444 F.3d 690, 694 (5th Cir. 2006). Findings of fact are reviewed for clear error, and legal conclusions are reviewed de novo. I d. When reviewing th e approval of a mo tion to com prom ise, this court reviews fo r abuse of discretion. In re Aweco, Inc. , 725 F.2d 293, 297 (5th Cir. 1984); In re Jackson Brew ing Co. , 624 F.2d 599, 602- 03 (5th Cir. 1980). A bankruptcy court’s lift of an automatic st ay is also reviewed for abuse of discretion. In re Chunn , 106 F.3d 1239, 1242 (5th Cir. 1997). A. We must init ially resolve, however, what issues are properl y r aised in this appeal . In bankruptcy appeals, appellants are required to file a statem ent of the issues to be presented in t he appeal separate from th e notice of appeal. Fed. R. Bankr. P. 8006. If an issue is not included in this statem ent, even if it was raised in and decided by the bankruptcy court, it is not preserved fo r appeal and is waived. I

n re GGM, P.C. , 165 F.3d 1026, 1032 (5th Cir. 1999). The Martins did not include any ment io n of th eir mo tions fo r fines and sanctions against Farmers Bank and Sanderson in their Fed. R. Bankr. P. 8006 notice; accordingly, they waived the right to appeal the bankruptcy court’s denial of th ese motions. Additionally, we will not consider any issues on appeal that were not rai sed before the bankruptcy court. I

n re Ginther Trusts , 238 F.3d 686, 689 & n.3 (5th Cir. 2001). The Martins raise1 We also dismiss th e Martins’s appeal from the February 2, 2005 order of th e bankruptcy

court setting a hearing on th e Trustee’s mo tion to com prom ise the claims against Sanderson because th at appeal was not from a final order and th at order is now mo ot in light of the bankruptcy court’s May 20th order. Accordingly, the joint motion of the Trustee and Sanderson to dismiss the appeal of this o rder i s granted. 5 many issues in th eir brief, including challenges to the com position of the chicken feed provided by Sanderson and th e use of cell phones in courthouses, th at were not decided by the bankruptcy court. We do not consider any of th ese issues in this appeal. All addit io nal claims made by t he Martins that
are not separately considered belo w are dismissed because they were not raised before the bankruptcy court and/or they were not included in the debtors’ Fed. R. Bankr. P. 8006 notice. B. We also must consider our jurisdiction to hear this appeal. Our jurisdiction stems from 28 U.S.C. § 158(d), allo wing us to review bankruptcy determ inat io ns of eit her a district court sit ting as
an appeals court or a bankruptcy appellate panel. We do not have jurisdiction over appeals from the bankruptcy court or district court when certain post-judgment mo tions have been filed, including timely mo tions to am

end under Fed. R. Bankr. P. 9023. Fed. R. Bankr. P. 8002(b); s ee also In re Transtexas Gas Corp. , 303 F.3d 571, 579 (5th Cir. 2002). Therefore, we dismiss the Mart ins’s appeal from th e bankruptcy court’s May 20, 2005 order to com prom ise the claims of Sanderson fo r lack of jurisdiction. The motion was never considered by either a district court sitting as an appeals court or a bankruptcy appellate panel, and the Martins did not seek leave to appeal under 28 U.S.C. § 158(a) and Fed. R. Bankr. P. 8003. Additionally, Sanderson filed a timely motion to amend the judgment, depriving any appellate court of jurisdiction under Fed. R. Bankr. P. 8002(b). 1 We also dismiss th e Martins’s appeal from the denial of their mo tion to vacate the lift of the stay against Farmers State fo r being untimely. Any appeal of the bankruptcy court’s lift of the stay6

must have been filed wit hin ten days in order to be timely. Fed. R. Bankr. P. 8002(a). The stay was lift ed on Septem

ber 3, 2003, and th e Martins’s did not request relief from this order until October 13, 2004, and did not file an appeal wit h the district court until November 29, 2004. Therefore, the Martins’s motion was untimely, and the order lifting the stay had become final and unappealable. We also dismiss as mo ot th e Martins’s appeal from the district court’s denial of their mo tion to proceed in fo rma pauperis in this appeal. This court has already considered and denied that
mo tion, and regardless, th e appeal is now being considered on its m erits despite any possible deficiencies in t he payment of fees. C. The Martins’s appeal th e district court’s determ inat io n th at the bankruptcy court was correct th at th ey did not have standing to file a mo t i on to void fraudulent transfers. The Martins did not
mo ve to void th e transfer under 11 U.S.C. § 522, which grants debtors limit ed rights to avoid certain liens o n exempted property, an issue that is no t rai sed here where the Martins did not exempt their causes of action against Farmers Bank and Sanderson. Instead, the Martins relied on 11 U.S.C. §§ 544, 547(b), 548(a), & 550, which by their terms apply to only the Trustee. While creditors may in
som e limit ed circumstances have th e right to bring these actions, see In re Dierschke , 975 F.2d 181, 182 n.3 (5th Cir. 1992); In re Natchez Corp. of W. Va. , 953 F.2d 184, 187 (5th Cir. 1992) (holding th at if a creditor seeks authorization from the bankruptcy court, there may be circumstances where
a creditor is entitled to bring an action under 11 U.S.C. § 549); see also In re Porras , 312 B.R. 81, 94 (W.D. Tex. Bankr. 2004) (holding th at in som e circumstances a fraudulent conveyance action may not “belo ng” to th e estate exclusively), this case does not embody any of those circumstances. We7

affirm t he determinations of the district court and the bankruptcy court on the Martins’s motion to void fraudulent transfers. Finally, we m

ust consider the Martins’s appeal from the motion to compromise the claims wit h Farmers State, approved by th e bankruptcy court on November 18, 2004, and approved by the district court on appeal on April 25, 2005. Section 541 of the Bankruptcy Code creates, upon the filing of bankruptcy, an estate th at consists of “all legal or equitable int erests of the debtor in property
as of th e com

mencement of th e case,” including causes of action th at belo ng to the debtor at the time th e case is filed. E.g., In re Sw ift , 129 F.3d 792, 795 (5 th Cir. 1995). The Martins included their possible causes of action against Farmers State and Sanderson on their schedules, and they did not attem pt to exem

pt these causes of action. When reviewing a bankruptcy court’s approval of a com prom ise, the appellate court should “assure th at [the] com

prom ise is trul y ‘fair and equitable’ and ‘in the best int erest of the estate.’” I n re Jackson Brew ing Co. , 624 F.2d 599, 602 (5th Cir. 1980) (quoting Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson , 390 U.S. 414, 425 (1968) [hereinafter TMT Trailer]). This assurance comes from seeing t hat the bankruptcy judge was apprised of all the relevant facts to com

pare th e possible rewards of lit igation wit h the terms of the com prom ise. Id. The court should set forth its findings on “(1) the probability of success in the litigation . . . (2) the
com plexit y and likely duration of th e lit igation and any attendant expense, inco nvenience, and delay, and (3) all oth er factors bearing on th e wisdom of the com prom ise.” Id. (citing TMT Trailer , 390 U.S. at 424-25). Having reviewed the bankruptcy court’s order approving the compromise after2 The jo int mo tion by th e T rustee and Farmers State to di smiss t his portion of the appeal is

denied. 8 conducting a fact-finding hearing, we find no abuse of discretion in his approval of the com prom ise of th ose claims that belonged to the estate. 2 The Martins also challenge th e com prom ise on the basis th at it takes from them the right to file lawsuit s against Farmers State Bank that might arise in the future. The motion to compromise seeks to settle claims “t hat th e Bankruptcy Estate has against Farmers State Bank.” The only claims belo nging to the estate are those th at had accrued at the time of the Martins’s bankruptcy petition. See, e.g., In re Educators Health Trust , 25 F.3d 1281, 1284 (5th Cir. 1994) ( “Whether a particular state cause of action belongs to the estate depends on whether under applicable . . . law the debtor could have raised th e claim as of th e com mencement of the case.”); see also Sw ift , 129 F.3d 792. We find no abuse of discretion in the lower courts’ approval of the compromise. III. CONCLUSION We affirm t he judgment of the district court. Additionally, we grant the jo int mo tion of the Trustee and Sanderson to d ismiss the appeal of the interim order and deny the joint motion of the Trustee and Farmers State to dismiss the appeal of the motion to compromise.