
USCA1 Opinion

	




          October 4, 1996                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                   _______________        No.  96-1339                                   JUAN M. COFIELD,                                      Appellant,                                          v.                             JOHN O. DESMOND, TRUSTEE AND                        FEDERAL DEPOSIT INSURANCE CORPORATION,                                      Appellees.                                _____________________                                     ERRATA SHEET                                                        The opinion of this Court issued  on September 26, 1996 is amended        as follows:            On page 2, 3rd line from the bottom, change "11" to "7"                           October 1, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1339                                   JUAN M. COFIELD,                                      Appellant,                                          v.                             JOHN O. DESMOND, TRUSTEE AND                        FEDERAL DEPOSIT INSURANCE CORPORATION,                                      Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Juan M. Cofield on brief pro se.            _______________            John O. Desmond on brief pro se.            _______________            Kathryn R. Norcross, Ann S. Duross and  Thomas L. Hindes on  brief            ___________________  _____________      ________________        for appellee Federal Deposit Insurance Corporation.                                 ____________________                                 ____________________                      Per Curiam.  Appellant Juan M. Cofield appeals from                      __________            the district  court's affirmance of a  bankruptcy court order            which permitted appellant to convert his chapter 7 bankruptcy            case  to  a  case  under  chapter  11,  but  then immediately            reconverted  the case  back to  chapter 7.   After  carefully            reviewing  the briefs and the record,  we affirm the district            court's judgment  for essentially  the reasons stated  in its            Memorandum  and Order, dated January  26, 1996.   We add only            the following comments.                      1.  A  notice of conversion,  filed pursuant to  11            U.S.C.   706(a), is not effective on filing.  Bankruptcy Rule            1017(d) provides that conversion under    706(a) "shall be on            motion  filed and  served as  required by  Rule 9013."   Rule            9013, in  turn, states that "[a]  request for an order  . . .            shall  be  by written  motion."    Thus, "[t]hese  provisions            indicate that a motion to convert pursuant to   706(a) is not                            ______            effective in and  of itself, but  rather is  a request for  a            court order of conversion."  In re Calder, 973 F.2d 862,  867                  _____                  ____________            (10th  Cir. 1992).   As  a result,  the bankruptcy  court was            correct  in treating appellant's "notice" as a motion and the            conversion was not effective on January 13, 1995, when it was            filed.                      2.   Even assuming that "cause" for reconversion to            chapter 7 must exist at the  time a   706(a) motion is filed,            such  "cause" existed  here.   The  bankruptcy court's  cause                                         -2-            determination   rested   primarily   on   the   futility   of            reorganization.   The court based the futility finding on the            speculative nature of  the Fannie Mae lawsuit.   Although the            court entered  these findings  three  months after  appellant                  _______            filed his    706(a) notice,  it plainly was  determining that            futility had existed  as long  as the Fannie  Mae action  had                         _______            been pending.   That  is, if  funding for reorganization  was            dependent on the success  of the lawsuit and the  lawsuit had            little  chance of succeeding,  the reorganization  was futile            when appellant filed the conversion notice.                      3.   Appellant's  procedural due  process arguments            also fail.  He first maintains that the bankruptcy court made            a determination  prior to holding the hearings  that it would                             ________            deny  conversion.  There is  simply no support  in the record            for  this  description of  what  happened.  Second, appellant            asserts that  although the  bankruptcy court noticed  the two            hearings  as non-evidentiary, it  took evidence  at them.   A            reading  of  the   transcripts  from  these   hearings  shows            otherwise.    The court  only  ordered  appellant to  produce            certain documents at a future time.                                   ______                      4.    Appellant's  arguments  that  the  bankruptcy            court's actions  constituted a  "taking" in violation  of the            Constitution  and  that  the  bankruptcy  court violated  the            substantive due  process clause were  not raised  below.   As                                         -3-            such, they are waived.   See McCoy v. Massachusetts  Inst. of                                     ___ _____    _______________________            Technology, 950            __________                                         -4-            F.2d  13,  22 (1st  Cir. 1991),  cert.  denied, 504  U.S. 910                                             _____________            (1992).        Affirmed.                           ________                                         -5-
