*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-30330

Summary Calendar

 

IN THE MATTER OF: PATRICIO H. MUJICA; VERONICA G. MUJICA,

Debtors.

PATRICIO H. MUJICA

VERONICA G. MUJICA,

Defendants-Appellants,

versus

JOAN B. PARMELEE, TRUSTEE,

Plaintiff-Appellee.

 

Appeals from the United States District Court

for the Middle District of Louisiana

 

(93-CV-0261)

September 11, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Patricio and Veronica Mujica appeal from a ruling of the

district court ordering them to deposit certain sums with the

Trustee, Joan Parmelee. We affirm.

I. Limitations
2

The Mujicas first contend that the two-year period of

limitations contained in 11 U.S.C. § 549(d)(1) (1988) bars the

Trustee's action. The district court rejected this argument, and

exercising de novo review, we agree with the court.

§ 549(d)(1)'s limitations period applies only to actions

brought under § 549. In this case, the district court determined

that the Trustee had sued under 11 U.S.C. § 542 (1988). The

Mujicas' argument that the Trustee should have brought a § 549

action implicates the merits of the Trustee's claim, not the

applicable limitations period; had the Trustee sued under the

wrong statute, she would have failed on the merits. No period of

limitations bars this suit.

II. Property of the Estate

 The district court held that the funds at issue were prepetition "property of the estate" under the bankruptcy laws. 

Reviewing de novo, we agree.

The bankruptcy and district courts reasoned as follows. 

When the Mujicas filed Chapter 7, the stock in Louisiana

Neurosurgical Corporation, owned via the conduit of Mujica and

Porché, Inc., became property of the estate. In addition, all

"[p]roceeds, products, offsprings, rents, or profits" from the

stock also became property of the estate. 11 U.S.C. § 541(a)(6)

(1988). The Mujicas's ownership of LNC stock entitled them to

that portion of LNC's accounts receivable corresponding to Dr.

Mujica's earnings for the corporation, minus certain corporate

expenses. In so holding, the courts below presumably interpreted
3

LNC's certificate of incorporation, its bylaws, and its day-today business operations, as well as state corporation law. The

bankruptcy and district courts held, in other words, that the

Mujicas occupied the same position that they would have had no

intermediate corporate structure existed, and had Dr. Mujica

performed services for consumers and billed them directly. At

the moment they petitioned for bankruptcy, the Mujicas' stock

ownership entitled them to the portion of LNC's accounts

receivable corresponding to the pre-petition medical services

that Dr. Mujica had performed on behalf of LNC, for which LNC

would bill the consumers. Because the entitlement to the value

of pre-petition services sprang from the Mujica's ownership in

the LNC stock, it became property of the estate.

The Mujicas only argument with the above reasoning is that

because at the time of the petition the accounts receivable

belonged in form to LNC, not to the Mujicas, the accounts were

not property of the estate. This argument turns on the accuracy

of the bankruptcy court's holding that LNC's certificate of

incorporation, bylaws, and daily practice, when construed

according to state corporation law, gave the Mujicas a vested

interest in the portion of the funds generated from LNC's

accounts receivable corresponding to the pre-petition services

that Dr. Mujica performed. But the Mujicas have not attacked

this holding on appeal. Their argument thus amounts to the

blanket contention that a debtor's interest in funds deriving

from the accounts receivable of a corporation in which the debtor
4

owns stock may never constitute proceeds or profits of the stock,

even if the corporation's structure and state law purport to

grant the debtor a vested right to these funds. The Mujicas,

however, cite no cases on point, and existing authority suggests

otherwise. See, e.g., In re McDaniel, 141 B.R. 438, 439-40

(Bankr. N.D. Fla. 1992) (holding that a percentage of a

professional firm's gross fees due to the debtor in return for

the debtor's pre-petition sale of his stock to the firm's

remaining members constituted property of the estate); In re

Bernheim, 62 B.R. 739, 742-43 (Bankr. D.N.J. 1986) (holding that

post-petition profits received on stock owned at the time of the

petition constitute property of the estate).

In re Newman, 875 F.2d 668 (8th Cir. 1989), does not help

the Mujicas. In Newman, the truck at issue was not property of

the estate because state partnership law gave the debtor "no

interest [in the truck] aside from his right to demand his

individual partner's share." 875 F.2d at 671. In this case, the

debtors' right to demand their share, in funds generated from

corporate accounts receivable instead of partnership profits, is

the subject of the Trustee's lawsuit.

We affirm the holding below that the funds at issue

constituted property of the estate.

III. Calculation of the Accounts Receivable

We also affirm the lower courts' calculations of the value

of the Mujicas' stock. We review these calculations for abuse of

discretion.
5

Contrary to the Mujicas' contention, the bankruptcy court

did net the gross receivables by corporate expenses, and deducted

$2110.70 per month over the first four post-petition months. In

addition, the bankruptcy court relied on records of checks to LNC

during the first three-and-one-half months after the petition to

calculate what portion of LNC's accounts receivable corresponded

to charges generated by Dr. Mujica's pre-petition services. 

Regarding the certificate of deposit, the bankruptcy court used

straightforward calculations based on bank records documenting

the value of the deposit and LNC's overall indebtedness to

conclude that LNC used pre-petition funds to build equity on the

CD.

The Mujicas do not argue that the lower courts' calculations

lacked support in the documentary evidence. They contend instead

that the testimony of Drs. Mujica and Porché contradicted the

evidence upon which the courts below relied. This court does not

sit to resolve conflicts in evidence, especially when such

conflicts involve the credibility of oral testimony. Ample

evidence supported the findings of the bankruptcy and district

courts.

Finally, we affirm that the district court had jurisdiction

to correct the erroneous calculations of the bankruptcy court. 

Bankruptcy Rule 7502 provides that Fed. R. Civ. P. 52 applies in

adversary proceedings like the case at bar. Nothing in the

language of Rule 52 supports the Mujicas arguments as to an
6

"unequivocal error" standard or a lack of jurisdiction in the

district court.

AFFIRMED.