                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             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Precedential or Non-Precedential: Non-Precedential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


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DLD-61                                       NOT PRECEDENTIAL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
                      ___________________
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

             2
                     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
          ________________



                 3
    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



                4
                                                 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.1 The United States unsuccessfully moved in the Bankruptcy Court to

intervene in some of them. The Bankruptcy Court, holding that it lacked subject-matter

   1
    Banks chose as Defendants in these actions victims and witnesses of crimes for
which the United States prosecuted him.

                                             5
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,2 and a motion to stay the briefing schedule pending the

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

   2
    In their motion, they also ask us to affirm a separately appealed-from order in another
case brought by Banks. We do not presently consider that request.

                                             6
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.3 Two statutes, 28 U.S.C. §§ 1334 and 157, provide the



   3
     Although Banks took issue in the District Court with the Bankruptcy Court’s action
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
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.

                                              8
