United States Court of Appeals

For the First Circuit

Nos. 01-1747

01-1841

IN RE: PERRY HOLLOW MANAGEMENT COMPANY, INC., A/K/A

PERRY HOLLOW MGMT. CORP.; PERRY HOLLOW GOLF CLUB, INC.,

Debtors

YAMAHA MOTOR CORPORATION, USA,

Appellant,

YAMAHA MOTOR CO., LTD.,

Plaintiff,

v.

PERRY HOLLOW MANAGEMENT COMPANY, INC. A/K/A/

PERRY HOLLOW MGMT. CORP.; PERRY HOLLOW GOLF CLUB, INC.,

Debtors, Appellees,

JEFFREY A. SCHREIBER,

Chapter 11 Trustee, Appellee,

GERALDINE L. KARONIS,

Assistant U.S. Trustee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Diane M. Puckhaber, with whom Perkins & Puckhaber, P.A. was on

brief, for appellant.

Edward C. Dial, Jr., with whom Jeffrey A. Schreiber and
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Schreiber & Associates, P.C. were on brief, for appellee.

Robert D. Kamenshine, Attorney, Appellate Staff Civil

Division, with whom Robert D. McCallum, Jr., Assistant Attorney

General and William Kanter, Attorney, Appellate Staff Civil

Division, were on brief for the United States Trustee.

July 23, 2002
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TORRUELLA, Circuit Judge. Yamaha Motor Corporation, USA

("Yamaha"), appeals from the judgment entered by the District Court

for the District of New Hampshire. The judgment affirmed the

bankruptcy court's decision to set aside Yamaha’s security interest

in and allow the sale of seventy-two golf carts, which were part of

the bankruptcy estate of Perry Hollow Golf Club, Inc. and Perry

Hollow Management Company, Inc. (collectively "Perry Hollow"). For

the reasons discussed below, we affirm the district court's

judgment.

I. Factual and Procedural Background

On or about March 24, 1996, Yamaha and Perry Hollow

entered into a conditional sales agreement for the purchase of

seventy-two golf carts. The agreement required Perry Hollow to

make eighteen equal payments between June of 1996 and August of

2001. The paperwork and correspondence generated during the

transaction listed Perry Hollow’s address as 250 Perry Hollow Road,

Wolfeboro, New Hampshire. Yamaha, through an agent, delivered the

golf carts to Perry Hollow Country Club, which was actually located

at 250 Perry Hollow Road, New Durham, New Hampshire. Pursuant to

a security interest in the golf carts accorded to Yamaha under the

agreement, Yamaha filed UCC-1 financing statements with the New

Hampshire Secretary of State and with the clerk of the town of

Wolfeboro, New Hampshire to protect its status as a secured

creditor.

In October of 1999, Perry Hollow filed a voluntary

petition for reorganization under Chapter 11 of the Bankruptcy
1 Section 544(b) provides: "The trustee may avoid any transfer of

an interest of the debtor in property or any obligation incurred by

the debtor that is voidable under applicable law by a creditor

holding an unsecured claim . . . ." 11 U.S.C. § 544(b).

2 This rule states that, "An order authorizing the use, sale, or

lease of property other than cash collateral is stayed until the

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Code. Perry Hollow continued to operate the golf club as a debtorin-possession until April of 2000, when Jeffrey A. Schreiber was

appointed as Chapter 11 Trustee ("Trustee") for Perry Hollow.

During the course of the bankruptcy proceedings, the

Trustee moved for summary judgment against Yamaha on the grounds

that the Trustee, pursuant to 11 U.S.C. § 544(b),1 may avoid

Yamaha’s security interest in the golf carts because it was

unperfected. The Trustee argued that Yamaha failed to perfect its

security interest inasmuch as the UCC-1 financing statement was

filed in the wrong town. Yamaha filed in Wolfeboro, but Perry

Hollow is located in New Durham. In response, Yamaha filed a

cross-motion for summary judgment seeking to establish the validity

of its security interest. 

On October 17, 2000, the bankruptcy court granted the

Trustee’s motion for summary judgment and denied Yamaha’s crossmotion. Yamaha appealed. On October 30, 2000, the Trustee filed

a motion for authorization to sell the golf carts free and clear of

any liens or encumbrances. Yamaha filed a motion in opposition.

After a hearing, in which Assistant U.S. Trustee Geraldine Karonis

("AUST Karonis") participated, the bankruptcy court granted the

Trustee's motion as well as his request to waive the ten-day

automatic stay, pursuant to Bankruptcy Rule 6004(g).2 On November
expiration of 10 days after entry of the order, unless the court

orders otherwise." Fed. R. Bankr. P. 6004(g).

3 Rule 4(a)(1)(A) requires a notice of appeal to be filed within

thirty days of the judgment in a civil case.

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26, 2000, Yamaha filed another notice of appeal from the bankruptcy

court’s rulings and moved for a stay of the sale pending appeal.

The bankruptcy court denied Yamaha’s motion for a stay. See In re

Perry Hollow Golf Club, Inc., Nos. 99-13372-MWV, 99-13373-MWV, 2000

WL 1854779 (Bankr. D.N.H. Nov. 28, 2000). Yamaha appealed that

decision as well. On January 8, 2001, the district court

consolidated the appeals "for all purposes." 

On March 27, 2001, the district court entered judgment

against Yamaha, affirming the bankruptcy court’s decisions. See In

re Perry Hollow Mgmt. Co., 260 B.R. 58 (D.N.H. 2001). Yamaha moved

for a stay of the district court's judgment pending appeal to this

Court. On May 8, 2001, the district court denied Yamaha’s motion

on the ground that Yamaha was unlikely to succeed on appeal. On

May 14, 2001, Yamaha filed a notice of appeal, challenging both the

district court’s March 27 judgment and the May 8 order denying a

stay.

This Court issued an order directing Yamaha to show cause

why its appeal from the March 27 judgment should not be dismissed

as untimely pursuant to Federal Rule of Appellate Procedure

4(a)(1)(A).3 On January 9, 2002, upon review of the parties'

arguments, this Court issued an order stating that there was an

arguable basis for finding the appeal timely under Federal Rule of

Appellate Procedure 4(a)(1)(B) and permitting the appeal to
4 Despite this Court's clear directive, Yamaha failed to brief

this issue.

5 Earlier in the proceedings the U.S. Trustee argued that the

thirty-day rule applied to this appeal because the U.S. Trustee,

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proceed. However, the order instructed the parties to brief this

jurisdictional issue along with the merits of the case.4

II. Discussion

A. Standard of Review

In an appeal from the district court reviewing

proceedings before the bankruptcy court, we independently review

the bankruptcy court's decision, applying the "clearly erroneous"

standard to findings of fact and de novo review to conclusions of

law. In re SPM Mfg. Corp., 984 F.2d 1305, 1310-11 (1st Cir. 1993).

No special deference is owed to the district court's

determinations. See id. at 1311.

B. Jurisdictional Issue

Before we can reach the merits of appellant's claims, we

must first determine that we are vested with jurisdiction. Yamaha

filed the instant appeal forty-eight days after the district court

entered judgment. Federal Rule of Appellate Procedure 4(a)(1)(A)

provides a default thirty-day deadline for filing an appeal in a

civil case. However, "[w]hen the United States or its officer or

agency is a party" in the case, then the appellant has sixty days

after the judgment to file a notice of appeal. Fed. R. App. P.

4(a)(1)(B). Although the parties no longer contest the timeliness

of this appeal,5 the timely filing of an appeal is "mandatory and
despite being an agency of the United States, was not a "party" to

the instant appeal. The U.S. Trustee has now changed its position.

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jurisdictional." Acevedo-Villalobos v. Hernández, 22 F.3d 384, 387

(1st Cir. 1994) (internal quotation marks omitted). Therefore,

unless the sixty-day rule applies, we must dismiss for lack of

jurisdiction. See id. (noting that court "lack[s] jurisdiction

over late appeals").

The United States, its officer, or agency is a "party" to

a case not only where it is a named party to the appeal, see In re

Lloyd, Carr, & Co., 617 F.2d 882, 884 n.1 (1st Cir. 1980), but also

where it has actively participated in the proceedings, see id.; cf.

In re Serrato, 117 F.3d 427, 429 (9th Cir. 1997) (holding that U.S.

Trustee did not become party merely by his involuntary appearance

to quash a summons).

This appeal encompasses challenges to two separate

bankruptcy court proceedings, which the district court consolidated

"for all purposes." The first is an adversary proceeding, see Fed.

R. Bankr. P. 7001, challenging the validity of Yamaha's security

interest in the golf carts. The second is a contested matter, see

Fed. R. Bankr. P. 9014, in which Yamaha opposed the Trustee's

motion for authorization to sell the golf carts.

In the adversary proceeding, the only participants were

Yamaha and the Trustee. Because the Trustee is a private

bankruptcy trustee, who is not employed by the United States

government, the Trustee is not an officer of the United States.

See In re Serrato, 117 F.3d at 428; 28 U.S.C. § 586(a)(1)
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(providing that U.S. Trustee is responsible for maintaining a panel

of "private trustees" for Chapter 7 cases). Therefore, the sixtyday rule was not applicable to the adversary proceeding.

The contested matter, although primarily between Yamaha

and the Trustee, involved a third party as well. AUST Karonis,

exercising the U.S. Trustee's discretionary right to "raise,"

"appear," or "be heard on any issue" in a bankruptcy proceeding,

see 11 U.S.C. § 307, cross-examined the potential buyer of the golf

carts regarding his financial capacity. By so doing, AUST Karonis,

and, therefore, the U.S. Trustee, an agency of the United States,

see Joelson v. United States, 86 F.3d 1413, 1417 (6th Cir. 1996),

became a party to the contested matter. See In re Lloyd, Carr &

Co., 617 F.2d at 883 n.1 (explaining that "the government's

participation here was sufficiently active . . . to invoke the 60-

day limit"). As a result, the sixty-day period applied to the

appeals of the contested matter.

Because the contested matter and the adversary proceeding

were consolidated "for all purposes," the sixty-day limit governing

the contested matter extends to the entire consolidated case. See

In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987)

(finding that where the United States was a party to one case, the

sixty-day rule applied to the other case if the cases were

consolidated); cf. Bay State HMO Mgmt., Inc. v. Tingley Sys., Inc.,

181 F.3d 174, 182 (1st Cir. 1999) (holding that consolidated cases

should be treated as single action for purposes of determining res

judicata). Therefore, because Yamaha filed its notice of appeal
6 This statute has since been amended, taking effect on July 1,

2001, to eliminate the requirement of having to file the financing

statement with the clerk of the town. See N.H. Rev. Stat. Ann. §

382-A:9-501(a)(2) (Supp. 2001). This amendment, however, has no

bearing on this case.

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within sixty days of the district court's judgment, its appeal is

timely, and we can proceed to the merits of the case.

C. Perfection of the Security Interest

New Hampshire law provides that a creditor, to perfect a

security interest, must file a UCC-1 financing statement with the

Secretary of State and, if the debtor conducts business in only one

town within the state, also with the clerk of such town. See N.H.

Rev. Stat. Ann. § 382-A:9-401(1)(c) (1994).6 When a debtor

conducts business in more than one town within the state, then a

creditor need only file a UCC-1 financing statement with the

Secretary of State. See id. The bankruptcy court determined, and

the district court affirmed, that Yamaha’s security interest was

not perfected according to New Hampshire state law inasmuch as

Yamaha did not file a UCC-1 financing statement with the clerk of

the town of New Durham, the town where Perry Hollow conducted

business. 

On appeal, Yamaha offers three theories to support its

claim that filing in Wolfeboro was sufficient to perfect its

security interest. First, Yamaha argues that it was not required

to file in New Durham because Perry Hollow conducted business in

more than one town within the state. Second, Yamaha contends that

even if it was required to file in New Durham, it "substantially
7 This statute was amended and reenacted in 2001 as N.H. Rev.

Stat. Ann. § 382-A:9-506(a) (Supp. 2001) (stating that financing

statements "substantially satisfying" the requirements are

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complied" with the filing requirements so as to perfect its

security interest. Third, Yamaha claims that it justifiably relied

on Perry Hollow’s representations that it was located in Wolfeboro,

thereby excusing Yamaha's failure to file in New Durham under Field

v. Mans, 516 U.S. 59 (1995).

Yamaha argues that because Perry Hollow had a mailing

address in Wolfeboro and a physical location in New Durham, Perry

Hollow was conducting business in more than one town in the state,

thereby relieving Yamaha of the duty to file a financing statement

with anyone other than the Secretary of State. The bankruptcy

court, however, found that Perry Hollow does business only in one

town within New Hampshire. Given that the Wolfeboro address was

only a mailing address, we cannot say that this finding was clearly

erroneous. Therefore, under New Hampshire law, Yamaha had to file

a financing statement with both the Secretary of State and the

clerk of the town of New Durham to perfect its security interest.

Relying on In re Circus Time, 641 F.2d 39 (1st Cir.

1981), Yamaha further argues that even if it was obligated to file

in New Durham, it "substantially complied" with this requirement.

In Circus Time, this Court held that minor errors, not seriously

misleading, in certificates of title were not sufficient to render

a security interest in those vehicles unperfected; "substantial

compliance" with the documentary requirements was sufficient. See

id. at 43; see also N.H. Rev. Stat. Ann. § 382-A:9-402(8) (1994)7
effective).

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(providing that a "financing statement substantially complying"

with requirements is effective). This case, however, is easily

distinguishable. Circus Time involved errors in the financing

documents (i.e., the certificates of title), as opposed to errors

in the filing process. The doctrine of substantial compliance has

not been extended to filing requirements. See In re Covey, 66 B.R.

459, 460 (Bankr. D.N.H. 1986) (holding that security interest was

not perfected since debtor conducted business only in one town in

the state and creditor did not file financing statement in that

town); In re Sports Enters., Inc., 38 B.R. 282, 282-83 (D.N.H.

1984) (holding that security interest was unperfected where

creditor, in addition to filing with the Secretary of State,

mistakenly filed with the clerk of the town adjacent to where

debtor conducted business); see also N.H. Rev. Stat. Ann. 382-A:9-

401, Offic. Comm. 5 (stating that "filing in only one of two

required places is not effective").

A misfiled UCC-1 financing statement fails to serve the

intended purpose of the filing requirement, which is to give proper

notice that a secured interest exists. If we were to adopt

Yamaha's argument, we would be placing an undue burden on all

creditors. In addition to checking for prior encumbrances with the

clerk of the town where the debtor is actually located, creditors

would be forced to undergo the task of checking for misfiled

security interests in adjacent towns, perhaps even statewide.

Moreover, Yamaha's proposed scheme would reward creditors who
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negligently misfile their UCC-1 financing statements. Such an

outcome would undermine the statute's purpose. Therefore, we hold

that Yamaha's actions in this case were insufficient to perfect its

security interest. 

Yamaha's final justification for filing in Wolfeboro,

instead of New Durham, is that it "justifiably relied" on Perry

Hollow's representations that it was located in Wolfeboro. As a

result, Yamaha argues that under Field v. Mans, 516 U.S. 59 (1995),

its security interest should not be avoidable. In Field, the Court

held that a creditor, who, in extending credit, placed "justifiable

reliance" on fraudulent representations made by the debtor, could

except a debt from discharge under 11 U.S.C. § 523(a)(2)(A).

Field, 516 U.S. at 74.

Yamaha alleges that Perry Hollow made false

representations by not providing the true location of its business

and that, therefore, Yamaha could justifiably rely on the Wolfeboro

address provided by Perry Hollow when filing the financing

statement. This argument is flawed. First, Field applies to

actions under 11 U.S.C. § 523(a) to except a debt from discharge.

This is not the case here. 

Second, Yamaha fails to proffer evidence that Perry

Hollow committed fraud in providing its Wolfeboro address.

Specifically, Yamaha must prove that Perry Hollow intended to

deceive it when providing the Wolfeboro address. We are not

convinced that providing a valid mailing address, instead of a

physical address, constitutes an intentionally false
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representation. Therefore, insofar as this action was not brought

under 11 U.S.C. § 523(a), and absent a showing of fraud, we decline

to extend Field’s justifiable reliance standard to this matter.

See In re Perry Hollow Mgmt. Co., 260 B.R. at 62 (stating that no

case has applied Field to a suit avoiding a security interest under

11 U.S.C. § 544).

D. Yamaha's Motion to Stay the Sale Pending Appeal

Yamaha argues that it was entitled to a stay of the golf

carts' sale pending appeal, pursuant to Bankruptcy Rule 6004(g).

Rule 6004(g) states that "[a]n order authorizing the use, sale, or

lease of property other than cash collateral is stayed until the

expiration of 10 days after entry of the order, unless the court

orders otherwise." Fed. R. Bankr. P. 6004(g) (Supp. 2001)

(emphasis supplied). Yamaha complains that the bankruptcy court

erred in waiving the ten-day period and ordering the immediate sale

of the golf carts. 

Although Rule 6004(g) provides for a ten-day stay, it also

clearly states that the court can order otherwise. The Advisory

Committee notes on Rule 6004(g) expressly state that "[t]he court

may, in its discretion, order that Rule 6004(g) is not applicable

so that the property may be used, sold, or leased immediately . .

. ."

The court held an evidentiary hearing on the Trustee's motion

to sell the golf carts and waive the automatic stay. The Trustee

presented as factual bases for the waiver that the sale price was

reasonable, the buyer was ready to complete the sale the next day,
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and the present owner of the golf club intended to charge for the

carts' continued storage. Yamaha did not contest these facts. See

In re Perry Hollow Mgmt. Co., 260 B.R. at 65. Accordingly, because

we find that the bankruptcy court properly acted within its

discretion, we affirm its decision to waive the stay.

III. Conclusion

For the foregoing reasons, the district court’s judgment is

affirmed.