2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2006

In Re: Banks

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1829

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Recommended Citation

"In Re: Banks " (2006). 2006 Decisions. Paper 27.

http://digitalcommons.law.villanova.edu/thirdcircuit_2006/27
DLD-61 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 06-1829, 06-1830, 06-1831, 06-1832, 06-1833,

06-1834, 06-1835, 06-1836, 06-1848, 06-1850

________________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 WILLIAM T. BERGER; U.S.

 ATTORNEY'S OFFICE

__________________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 RICHARD P. HERBERT; U.S.

 ATTORNEY'S OFFICE

___________________
2

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 WALTER BYRD; U.S.

 ATTORNEY'S OFFICE

_______________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 DON V. WELLS, JR.; U.S.

 ATTORNEY'S OFFICE

________________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant
3

 v.

 MONKEY KARAOKE; VIOSOFTWARE; KATRINA

 MCELROY; JIMMY DO; WARREN DO; U.S.

 ATTORNEY'S OFFICE

___________________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 RAY RUSSELL, JR.; U.S.

 ATTORNEY'S OFFICE

_______________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 TIM DAVIS; U.S.

 ATTORNEY'S OFFICE

________________
4

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 NATHAN ANGELUS SOFTWARE PROVISIONS;

 U.S. ATTORNEY'S OFFICE

_________________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant

 v.

 PETER J. CALABRESE; U.S.

 ATTORNEY'S OFFICE

_______________

IN RE: FREDERICK H. BANKS,

 Debtor

 FREDERICK H. BANKS,

 Appellant
 Banks chose as Defendants in these actions victims and witnesses of crimes for 1

which the United States prosecuted him.

5

 v.

 THOMAS FREUND; U.S.

 ATTORNEY'S OFFICE

____________________________________

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. Nos. 05-00594, 05-00595, 05-00596, 05-00597, 05-00598, 

05-00599, 05-00600, 05-00601, 05-00613, & 05-00615)

District Judge: Honorable Joy Flowers Conti

_______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action

Under Third Circuit LAR 27.4 and I.O.P. 10.6

November 30, 2006

Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES

(Filed: December 22, 2006)

_______________________

 OPINION

_______________________

PER CURIAM

On November 1, 2001, Frederick H. Banks filed for bankruptcy protection under

Chapter 7 of the Bankruptcy Code. The appointed trustee in bankruptcy filed a report of

no assets. In 2005, Banks filed many adversary actions, including the ten at issue in these

related appeals. The United States unsuccessfully moved in the Bankruptcy Court to 1

intervene in some of them. The Bankruptcy Court, holding that it lacked subject-matter
 In their motion, they also ask us to affirm a separately appealed-from order in another 2

case brought by Banks. We do not presently consider that request.

6

jurisdiction over these adversary actions (and others that we do not presently consider)

because they related only to post-petition acts unrelated to the administration of Banks’

bankruptcy case, dismissed them. Banks appealed to the District Court. The United

States did not appeal from the Bankruptcy Court’s order denying its motion to intervene,

but moved to intervene or to file an amicus curiae brief in the District Court. The District

Court denied the motion to intervene, but allowed the United States to file a brief. The

District Court affirmed the order dismissing the adversary actions. 

Banks appeals. The United States does not appeal from the order denying the

motion to intervene. However, the United States and the United States Attorney’s Office,

neither of whom were parties in the District Court, but the latter of whom is named as a

party on appeal, filed a motion for summary action, seeking affirmance of the order

dismissing the adversary actions, and a motion to stay the briefing schedule pending the 2

resolution of the motion for summary action. The Clerk granted the motion to stay the

briefing schedule. Banks opposes the motion for summary action, moves for

reconsideration of the order granting the motion to stay the briefing schedule, and moves

to strike both motions.

The District Court had jurisdiction to review the Bankruptcy Court’s order

pursuant to 28 U.S.C. § 158(a), and we have jurisdiction to review the District Court’s

order under 28 U.S.C. §§ 158(d) & 1291. We exercise the same standard of review as the
 Although Banks took issue in the District Court with the Bankruptcy Court’s action 3

to dismiss his adversary actions sua sponte, as the District Court explained, the

Bankruptcy Court was obligated to evaluate its jurisdiction and dismiss the actions over

which it lacked jurisdiction.

7

District Court, subjecting the Bankruptcy Court’s legal determinations to plenary review

and reviewing its factual findings for clear error. See In re United Healthcare Sys., 396

F.3d 247, 249 (3d Cir. 2005). 

We consider first the pending motions. More specifically, we must decide whether

the United States and the United States Attorney’s Office have standing to advance their

pending motion. Although the United States Attorney’s Office is nominally a party to

these related appeals, the appealed-from order does not affect its rights or the United

States’ rights. Accordingly, they lack standing to argue the merits of these appeals. 

See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1188 (3d Cir. 1980)

(concluding that nominal parties on appeal have no standing to defend the merits of a

decision); In re St. Clair & Karen M. St. Clair, 251 B.R. 660, 670 & n.11 (D.N.J. 2000). 

We therefore deny the motion for summary affirmance insofar as it relates to the appeals

listed above. We do not grant reconsideration of the order staying the briefing schedule,

however. Nor do we grant Banks’ motion to strike the Government’s motions. 

Even though we deny the Government’s motion for summary affirmance, we will

summarily affirm because no substantial question is presented on appeal. See L.A.R.

27.4; I.O.P. 10.6. The Bankruptcy Court indeed lacked subject-matter jurisdiction over

the ten listed adversary actions. Two statutes, 28 U.S.C. §§ 1334 and 157, provide the 3
8

source of a bankruptcy court’s jurisdiction. See Binder v. Price Waterhouse & Co., 372

F.3d 154, 161 (3d Cir. 2004). Under these statutes, and relevant to our analysis here, a

bankruptcy court has jurisdiction over those cases “‘at least “related to” the bankruptcy.’” 

In re Marcus Hook Dev. Park, Inc., 943 F.2d 261, 266 (3d Cir. 1991) (citations omitted). 

Litigation is related to a bankruptcy if its outcome could “conceivably have any effect on

the estate being administrated in bankruptcy.” See Pacor, Inc. v. Higgins, 743 F.2d 984,

994 (3d Cir. 1984); see also In re Marcus Hook Dev. Park, Inc., 943 F.2d at 264 (stressing

the term “conceivably”). More specifically, an action is related to bankruptcy if its

outcome “could alter the debtor’s rights, liabilities, options, or freedom of action (either

positively or negatively) and which in any way impacts upon the handling and

administration of the bankruptcy estate.” See Pacor, 743 F.2d at 994. The ten adversary

actions were unrelated to bankruptcy because, as Banks plainly alleges in all of his

complaints, the supposed wrongs occurred in 2002 or beyond. Accordingly, they are not

property of the bankruptcy estate such that their resolution would affect the handling or

administration of the estate. See In re Bobroff, 766 F.2d 797, 803 (3d Cir. 1985) (citing

11 U.S.C. § 541 for the proposition that “the only property interests of a debtor that

become part of the estate are those existing ‘as of the commencement of the case.’”) 

In sum, because the Bankruptcy Court lacked subject-matter jurisdiction, we will

affirm the order insomuch as it dismissed the ten listed adversary actions. As we noted

above, the motions of the United States, the United States Attorney’s Office, and Banks

are denied.