                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-2889
                                      _____________

                        In re: MARGARET ADELINE VELTRE,

                                                         Debtor

      MARGARET ADELINE VELTRE, by her attorney in fact, DINA MILLER,

                                                         Appellants

                                              v.

                                   FIFTH THIRD BANK
                                      _____________

                 On Appeal from the United States District Court for the
                             Western District of Pennsylvania
                                  (No. 2:17-cv-00239)
                District Judge: Honorable Joy Flowers Conti, Chief Judge
                                    _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 15, 2018

      Before: SMITH, Chief Judge, CHAGARES, and FUENTES, Circuit Judges

                               (Opinion filed: July 19, 2018)
                                     _____________

                                        OPINION
                                      _____________



       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
FUENTES, Circuit Judge.

         In this bankruptcy action, Margaret Adeline Veltre appeals the dismissal of her

debtor complaint to avoid the sheriff’s sale of her property to Fifth Third Bank (“Fifth

Third”) as a preferential transfer under 11 U.S.C. § 547.1 We will affirm.

                                                I.

         Because we write for the parties, we discuss only those facts necessary to our

disposition. Veltre owned residential property in Pennsylvania (the “property”). There

were two mortgages on the property: the first was held by Capital One Bank (“Capital

One”), and the second was held by Fifth Third. After Veltre defaulted on her mortgage,

Capital One initiated foreclosure proceedings. Subsequently, Fifth Third purchased the

property at a sheriff’s sale for $90,000, an amount sufficient to satisfy Capital One’s

mortgage.

         Months later, Veltre filed for bankruptcy and initiated this adversary proceeding

alleging that Fifth Third’s purchase of the property was a preference under § 547. In so

doing, she asserted that Fifth Third received a pre-bankruptcy windfall at the expense of

her estate and other creditors by purchasing the property for a sum well below its alleged

market value.2 The Bankruptcy Court dismissed Veltre’s action, concluding that, as a

matter of law, execution of a properly conducted, non-collusive sheriff’s sale is not a




1
  Veltre died during the pendency of the proceedings below. However, her attorney-in-
fact, Dina Miller, has continued administering her estate.
2
    Veltre did not dispute that the sheriff’s sale complied with state law.

                                                2
preferential transfer under § 547. The District Court affirmed the Bankruptcy Court and

this appeal followed.3

                                              II.

         On appeal, Veltre asserts that a non-collusive sheriff’s sale can be set aside as a

preferential transfer under § 547. For the following reasons, we disagree.

         “A preference is a transfer that enables a creditor to receive payment of a greater

percentage of his claim against the debtor than he would have received if the transfer had

not been made and he had participated in the distribution of the assets of the bankrupt

estate.”4 To avoid a transfer under § 547, a plaintiff must establish, inter alia, that the

transfer of the debtor’s property enabled a creditor “to receive more” than that creditor

would have received in a hypothetical Chapter 7 bankruptcy without the alleged

preferential transfer.5 To complete this inquiry, a court must “construct a hypothetical

chapter 7 case and determine what the creditor would have received if the case had

proceeded under chapter 7 without the alleged preferential transfer.”6




3
  The Bankruptcy Court had jurisdiction under 28 U.S.C. § 157. The District Court had
jurisdiction under 28 U.S.C. § 158(a). We have jurisdiction under 28 U.S.C. § 158(d).
“Because the District Court in this case sat as an appellate court reviewing a final order of
the Bankruptcy Court, our review of its determination is plenary.” In re O’Brien Envtl.
Energy Inc., 188 F.3d 116, 122 (3d Cir. 1999). In this regard, “we review the Bankruptcy
Court’s legal determinations de novo, its factual findings for clear error, and its exercise of
discretion for abuse thereof.” Id.
4
    In re Friedman’s Inc., 738 F.3d 547, 558 (3d Cir. 2013) (citation omitted).
5
    11 U.S.C. § 547(b)(5).
6
 In re Tenderloin Health, 849 F.3d 1231, 1235 (9th Cir. 2017) (citation and quotation
marks omitted).

                                               3
         Here, Veltre maintains that the sheriff’s sale of the property is an avoidable

preference because it allowed Fifth Third to receive more than it would have under a

hypothetical Chapter 7 liquidation. This argument fails. As the Supreme Court noted in

BFP v. Resolution Trust Corp., the Bankruptcy Code is ambiguous as to a foreclosed

property’s value.7 However, under Pennsylvania law, “it is presumed that the price

received at a duly advertised public sale is the highest and best obtainable.”8

         Against this background, as the District Court rightly found, we can presume that

the $90,000 obtained for the property at the sheriff’s sale was as much as—if not more

than—a trustee would have obtained under a hypothetical Chapter 7 liquidation. Said

another way, Fifth Third paid $90,000 for a property worth the same amount under

Pennsylvania law. As such, Fifth Third could not “receive more” by purchasing the

property at the sheriff’s sale than it would have received in a hypothetical Chapter 7

liquidation. Thus, Veltre’s argument fails.

                                              III.

         For the foregoing reasons, we affirm the District Court.




7
    511 U.S. 531, 547 (1994).
8
    Blue Ball Nat’l Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. Ct. 2002).


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