
USCA1 Opinion

	




          January 6, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1081                                IN RE: WPRV-TV, INC.,                                       Debtor,                                      __________                             PONCE FEDERAL BANK, F.S.B.,                                      Appellant.                                _____________________        No. 92-1229                           IN THE MATTER OF: WPRV-TV, INC.,                                       Debtor,                                      __________                          PUERTO RICO FAMILY CHANNEL, INC.,                                      Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Charles A.  Cuprill-Hernandez  for appellant  Ponce Federal  Bank,            _____________________________        F.S.B.;  Carlos A. Piovanetti Rivera  for appellant Puerto Rico Family                 ___________________________        Channel, Inc.            Orlando  Fernandez, with  whom  Edgardo Munoz,  John  Garcia,  and            __________________              _____________   ____________        Garcia & Fernandez, were on brief for trustee.        __________________                                 ____________________                                 ____________________                      STAHL,   Circuit  Judge.    In  these  consolidated                               ______________            appeals, each appellant, Ponce Federal Bank, F.S.B. ("Ponce")            and Puerto Rico Family Channel, Inc. ("PRFC"), claims a legal            entitlement  to purchase  debtor in bankruptcy  WPRV-TV, Inc.            ("WPRV"  or  "debtor").    After much  legal  wrangling,  the            district  court1 denied both suitors.   With the exception of            one issue, we affirm the district court's rulings.2                                           I.                                          I.                                          __                                  PRIOR PROCEEDINGS                                  PRIOR PROCEEDINGS                                  _________________                      On  December 3,  1987,  WPRV, a  television station            operating  on channel 13 in  Puerto Rico, filed  a Chapter 11            voluntary petition  for reorganization  in the United  States            Bankruptcy Court  for the Eastern District of  Oklahoma.3  On            April 4, 1988, Ponce filed a proof of claim for the principal            amount  of $4,952,071.    Ponce's claim  was  based on  funds                                            ____________________            1.  During the  course of  the proceedings below,  Bankruptcy            Court  Judge  Lamoutte,  to  whom this  case  was  originally            assigned, recused himself. See  infra p. 4.    The district's                                       ___  _____            other  bankruptcy judge  was  unavailable, and  the case  was            transferred to the district court.              2.  We have previously  held that  when a  district judge  is            sitting  in lieu of recused bankruptcy  judges, he is thereby            exercising  the district  court's original  jurisdiction over            bankruptcy cases,  rather than sitting as  a temporary member            of the bankruptcy court.  An appeal, therefore, properly lies            with this court, pursuant to  28 U.S.C.   1291.  In  Re Plaza                                                             ____________            De  Diego Shopping Ctr., Inc., 911 F.2d 820, 824-25 (1st Cir.            _____________________________            1990)  (citing In Re Manoa  Finance Co., Inc.,  781 F.2d 1370                           ______________________________            (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987)).                              _____ ______            3.  According to scant references in the record, the Oklahoma            court was  chosen for WPRV's  bankruptcy proceedings  because            its  financial records were kept there.                                         -2-                                          2            advanced under five promissory notes which were guaranteed by            real  estate  and  chattel  mortgages  on  much  of  debtor's            estate.4  By June 1989,  with prospects for reorganization at            a  nadir,  and   pressure  from  creditors   and  lienholders            mounting,   the  Oklahoma   bankruptcy  judge,   sua  sponte,                                                             ___  ______            converted the case to one under Chapter 7.  The case was then            transferred  to  the  District  of Puerto  Rico  because  the            majority of  the  assets relevant  to the  case were  present            there.   Contemporaneous with  the transfer, Evangelina Vives            was appointed  operating and liquidating  trustee of debtor's            assets.    Pursuant  to 11  U.S.C.     721,  Vives was  given            authority to operate the  station until July 31, 1989.   This            authority was subsequently extended and continues through the            present  time,  although  at  this juncture  it  appears  the            station  is   off  the  air.     The   trustee  assumed   the            administrative  responsibilities of  WPRV, maintaining  it in            operation  ostensibly to preserve  its Federal Communications            Commission ("FCC") transmission license and thus its value as            a going concern.5                                            ____________________            4.  The parties dispute whether,  and to what extent, Ponce's            claim is actually secured.  As will be shown, infra, Part II.                                                          _____            B., we need not resolve that  issue.  Nor is it necessary for            us  to  address the  district  court's  valuation of  Ponce's            claim.            5.  According to statements in the record, if the station had            remained  off the  air for  a significant  length of  time, a            strong  possibility existed  that  the FCC  would revoke  its            transmission license,  resulting in  a drop in  the station's            value.  As  the record contains no dispute as to the accuracy                                         -3-                                          3                      On   August   8,  1991,   the   trustee   filed  an            "informative motion" reporting that  all efforts to sell WPRV            through  a  direct, private  sale  had  failed and  that  all            prospective  offers  had been  withdrawn.   Accordingly,  she            indicated her intent  to sell the station  at public auction.            To  that  end, on  September 10,  1991,  the trustee  filed a            notice of  intent  to sell  WPRV  as a  going  concern at  an            auction to be  held on  September 30, 1991.  The notice  also            indicated that  a hearing to  confirm the auction  sale would            occur on October 11, 1991.                      Responding to  the notice  of the auction  sale and            the  accompanying bidding  instructions, Ponce  delivered its            sealed bid  to the trustee, along with  the required $150,000            deposit,  on  September  25,  1991,  the  deadline  for  such            submissions.   The bid totalled $4.85  million, consisting of            Ponce's allegedly secured debt  of $4.8 million, plus $50,000            cash.   In addition to  Ponce, two other  bidders, neither of            whom had  submitted a prior  written bid or  deposit--both of            which were  required by the bidding instructions--appeared at            the  September 30, 1991,  auction and bid  $1.095 million and            $4.055 million, respectively.                      Despite the  fact that Ponce was  the apparent high            bidder, the trustee did not immediately recommend sale of the                                            ____________________            of this scenario, we  accept it without extensive explication            of federal communication law.                                         -4-                                          4            station  to it.  Rather, the trustee announced that she would            continue accepting offers until  the date of the confirmation            hearing.   On October 4, 1991, Ponce challenged her action by            filing  a  "Motion Requesting  Order  To Show  Cause  Why The            Option  (sic)  Held On  September  30,  1991, Should  Not  Be            Adjudicated  To Ponce Federal Bank And To Set Aside All Other            Bids Received Contrary To Bidding Instructions."                      On October  11,  1991, Bankruptcy  Judge  Lamoutte,            prior  to  conducting the  scheduled  hearing  and ruling  on            Ponce's motion, recused himself based on information received            in  a sealed motion filed  by the trustee  the previous day.6                                            ____________________            6.  The  trustee's  motion,  simply captioned  "Motion  Under            Seal,"  was later  unsealed by  the district  court.   It was            accompanied   by  sworn  statements  from  three  men--Norman            Gonzalez  Chacon,  Federico  Rivera Saez  and  Edwin  Alfredo            Gonzalez Rivera--who were involved in PRFC's aborted  attempt            to purchase WPRV with an auction bid of $6 million.  The gist            of  the statements  was  that prior  to the  auction, affiant            Gonzalez Chacon contacted Ponce to discuss the possibility of            Ponce financing a  PRFC bid up to the  amount of Ponce's debt            with   WPRV.     According  to   Gonzalez  Chacon,   a  Ponce            representative  dissuaded  him  from  attending  the auction,            ostensibly   for  the   reason   that  his   presence   might            unintentionally  force  the  bidding higher  than  necessary.            Gonzalez Chacon claims  he was also assured  that Ponce would            represent PRFC's interests at the auction.  When all the bids            were lower than that contemplated by Gonzalez Chacon, he went            back to  Ponce, feeling  that PRFC's interests  had not  been            protected.  Gonzalez Chacon reported that he was then told by            a  Ponce representative  that Ponce  was not  going to  allow            anyone  but itself to  buy WPRV and  "that if he  were me, he            would  not interfere in this  matter because I  would lose my            money,  because the bank would challenge any award."  He also            detailed threats against the  professional reputation of  the            trustee.                 After  unsealing  the  motion   two  months  later,  the            district  court referred  its contents  to the  United States            Attorney's office  for investigation as to  possible criminal                                         -5-                                          5            The case was  then, as noted  previously, transferred to  the            district court, which eventually rescheduled the confirmation            hearing  to  November  12,  1991.   Prior  to  that  hearing,            however,  on October 24, 1991, the trustee filed a motion for            authority to  sell certain  property of  the estate  free and            clear of liens, with the existing liens attaching immediately            to the proceeds of the sale in order to protect the equipment            and property interests of the lienholders.  See 11 U.S.C.A.                                                          ___            363(f)(3), (5) (West 1979 & Supp. 1992).  Simultaneously, the            trustee filed a notice  of private sale, recommending  a sale            to PRFC, whose  representative, Gonzalez Chacon,  had already            tendered  a   $100,000  earnest  deposit  towards  the  total            proposed sale price of  $4.835 million.7  The notice  of sale            itemized the total price into four categories:  real property            ($2 million); equipment subject to  Ponce's liens ($280,500);            all   other  estate-owned  equipment  ($300,000);  and  going            concern value ($2.25 million).                                            ____________________            misconduct.            7.  According to the trustee, Gonzalez Chacon and Rivera Saez            originally expressed an interest  in purchasing WPRV prior to            the auction,  and were given  the bidding instructions  and a            sample  Asset  Purchase  Agreement  (APA).     Following  the            auction,  which  they  did  not  attend,  see  supra note  6,                                                      ___  _____            negotiations  concerning  a  private  sale  to  PRFC   began,            culminating in the PRFC offer.                                         -6-                                          6                      At the November 12, 1991,  hearing, Ponce8 objected            to the  PRFC sale for a number of reasons, including the fact            that it still believed  that it was entitled to  purchase the            station  as a  result of  its--and no  one else's--compliance            with the auction procedures.   Ponce stated, however, that it            would not object to  the PRFC sale provided that it  was made            for all of the debtor's estate and not on an itemized  basis.            Finally, Ponce  stated  that if  the  itemized sale  were  to            proceed,  it would bid $2 million of its claimed secured debt            for the equipment subject to its lien which had been itemized            on the notice of private sale at a value of only $280,000.  A            PRFC representative  testified that if Ponce  were allowed to            purchase the equipment at  issue, which included transmission            towers vital  to the  station's operation, it  would withdraw            its bid  entirely.  The  trustee testified that  the proposed            sale  did not include all  of the assets  encumbered by Ponce            liens, and that a large part of  the Ponce collateral was not            being  sold.   Finally, the  trustee urged acceptance  of the            PRFC bid because--by bringing in over four million dollars in            cash--the bid would realize the biggest benefit to the estate            and  creditors  as  a whole.    In  contrast,  the Ponce  bid            included  just over  two thousand dollars  in cash,  with the                                            ____________________            8.  Only Ponce objected to the PRFC sale.  Several creditors,            on the other hand, testified in the sale's favor.                                         -7-                                          7            rest represented by  its credit  claim, the  actual value  of            which the trustee disputed. See supra note 4.                                          ___ _____                      Following  the hearing,  the district  court orally            confirmed the  sale to  PRFC, overruled Ponce's  objection to            same, and denied  Ponce's show cause motion  addressed to the            conduct  of the auction.   The judgment from  which Ponce now            appeals was entered  December 18, 1991.   As relevant  events            continued  to  occur   after  the   confirmation,  we   defer            discussion of Ponce's appeal until a more complete background            picture has been sketched.                      Shortly  after the district court's approval of the            sale to  PRFC, a  multifaceted dispute developed  between the            trustee and  PRFC, grounded on disagreements as  to the terms            of  the  sale,  the  trustee's  inability  to  determine  the            identity of PRFC's principals, and  PRFC's apparent inability            to  demonstrate satisfactorily its  financial ability.  Armed            with  these concerns,  and  following several  failed closing            attempts,  the  trustee notified  PRFC'S  attorney by  letter            dated  December  13,  1991,   that  she  was  cancelling  the            negotiations   and   forfeiting   PRFC'S  $100,000   deposit.            Initially, both  actions were purported to  be taken pursuant            to provisions of  the auction bidding instructions  requiring            closing within  thirty days of confirmation,  which had taken            place November 12, 1991.                                         -8-                                          8                      The  trustee claimed  that prior  to the  time that            PRFC made  its purchase  offer, the parties  agreed that  the            terms  of  the APA  and  auction  bidding instructions  would            control the sale.   The  parties had also  agreed on  certain            changes  to  be made  in the  APA  relative to  deposit, down            payment, and payment of operational expenses between the time            of closing and FCC license transfer.  After the confirmation,            however,  the  trustee  claimed  that PRFC's  attorney  began            attacking previously agreed-upon APA provisions.                      Also  troubling the  trustee  was  the  controversy            concerning  the identity  of the  parties  with whom  she was            dealing.    According to  the  trustee,  Gonzalez Chacon  and            Rivera Saez  indicated that  PRFC had been  incorporated, but            during  negotiations, the  trustee learned  that it  was not.            Moreover,   while   attorney  Carlos   Piovanetti  apparently            represented PRFC,  one  partner, Rivera  Saez,  claimed  that            Piovanetti did not represent him.                      Finally, the  trustee indicated  that  some of  the            proof of Gonzalez Chacon's financial worthiness had come from            documents in  the name  of his son,  Norman Gonzalez  Rivera,            which Gonzalez Chacon had represented as his own.                      On December 20,  1991, responding to the  trustee's            actions, Gonzalez Chacon,  on behalf of PRFC,  filed a motion            seeking  return of  the  deposit and  an order  directing the                                         -9-                                          9            trustee  to  negotiate with  PRFC  under  court supervision.9            Evidentiary  hearings were held  on January 21  and 27, 1992,            following which the court entered an order vacating its prior            confirmation  of  the  PRFC  sale,  upholding  the  trustee's            decision to forfeit the deposit,  and allowing the trustee to            resume  her efforts to sell  the station.   PRFC appeals from            that order.                                            ____________________            9.  In  fact, the record indicates that  the trustee tried to            negotiate  with  PRFC,  even  after the  December  13,  1991,            cancellation.  Again, however, no agreement was reached.                                         -10-                                          10                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A. PRFC Appeal            A. PRFC Appeal            ______________                      In setting aside the  PRFC sale, the district court            endorsed  the trustee's  position, and  found and  ruled that            PRFC  had accepted the APA  and bidding instructions prior to            the trustee's recommendation of the  sale, and had raised  no            objections   to   their   terms   until   after  the   sale's            confirmation.  Thus, the  court ruled, these terms  became an            integral  part of  the sale  agreement  between PRFC  and the            trustee,  an agreement  which led  to the  trustee's original            sale   recommendation.    Because  the  bidding  instructions            required  the purchaser  to sign  the APA  within 30  days of            confirmation--an event,  obviously, which did  not occur--the            court held that the trustee's cancellation action was proper.            In addition, based on testimony presented at  two hearings in            January  1992, the  court ruled  that the  trustee's concerns            regarding possible misrepresentations on  the part of PRFC as            to the actual identities of those who would  be in control of            the  station10 as  well  as their  financial capacity11  were                                            ____________________            10.  As we  have previously noted, the  trustee became aware,            after  the confirmation  of  the  sale,  that  PRFC  was  not            incorporated, as  she was led  to believe  it was.   In fact,            incorporation  did not  occur until  after she  cancelled the            sale.  As such, the purchase offer had been made  by Gonzalez            Chacon  and Rivera Saez as equal partners, rather than by the            corporation.   Later,  during  the January  hearings, it  was                                         -11-                                          11            well-founded, and further militated  in favor of vacating the            confirmation.   With respect  to the deposit  forfeiture, the            court relied on  a section of the  bidding instructions which            mandated  automatic   forfeiture   in   the   event   of   an            unconsummated sale.  PRFC now  claims that the district court            erred in  approving the  trustee's action in  terminating the            sale and forfeiting the deposit.                      As an  initial matter,  we note first  the district            court's relatively narrow range of discretion  in determining            to set aside its  prior confirmation order.  Matter  of Chung                                                         ________________            King, Inc.,  753 F.2d 547,  549 (7th  Cir. 1985).   While the            ____  ____            court  has broad  initial discretion  in granting  or denying            confirmation, the court may vacate a prior order confirming a                                            ____________________            revealed that Gonzalez Chacon  was facing criminal charges in            Puerto  Rico.  And, while Gonzalez  Chacon maintained that he            disassociated himself from  PRFC, his  signature appeared  on            documents dated  January 28, 1992, that  were later submitted            to the  court.  The true identity and reputation of the buyer            was  especially  relevant, as  the  sale  hinged on  eventual            transfer of  WPRV's license  to  the purchaser,  and the  FCC            considers  such factors  in its  licensing decision.   See 47                                                                   ___            U.S.C.A.    307-311 (West 1991).            11.  As a  result of the  concerns created by  the previously            described   discrepancy  relating  to   the  certificates  of            deposit, the district court  ordered PRFC to present evidence            of  its finances at the  second hearing, held  on January 27,            1992.   The only evidence presented was the testimony of Juan            Ramon Guzman,  who characterized  himself as a  "contact" for            four  alleged  investors.   Guzman,  however,  was unable  to            provide  any details  as to  the finances  of PRFC,  Gonzalez            Chacon, Rivera Saez, or any other  investor.  Instead, Guzman            could testify only as to what he was told by the investors--a            group  of  doctors--as  to  their  interest  and  ability  to            purchase WPRV.                                         -12-                                          12            sale only in  very limited circumstances  in the exercise  of            its   powers  as  a  court   of  equity.     Id.    Following                                                         ___            confirmation, a court  may set aside  the sale  if "there was            fraud, unfairness, or mistake in the conduct of the sale  . .            . ."  M.R.R. Traders, Inc. v. Cave Atlantique, Inc., 788 F.2d                  ____________________    _____________________            816,  818 (1st Cir. 1986) (citation  omitted); see also Chung                                                           ___ ____ _____            King,  753 F.2d at 549-550  ("the existence of fraud, mistake            ____            or a like infirmity" would be necessary to vacate a confirmed            sale)  (citing Bankruptcy  Rule 9024,  which applies  Fed. R.            Civ.  P. 60 to bankruptcy cases, allowing judgments to be set            aside  for,  inter  alia,  mistake,  inadvertence,  surprise,                         _____  ____            excusable  neglect, fraud,  misrepresentation  or any  reason            justifying relief).                        Such  limited  discretion  is   necessary,  because            "`[i]f  parties are to be encouraged to bid at judicial sales            there must be stability and a time must come when  a fair bid            is accepted and the proceedings are ended.'"  Id. (quoting In                                                          ___          __            re  Webcor, 392 F.2d 893,  899 (7th Cir.),  cert. denied, 393            __________                                  _____ ______            U.S. 837 (1968)). "This policy of finality protects confirmed            sales unless  compelling equities  outweigh the  interests in            finality." Id. (citations and internal quotes omitted); In re                       ___                                          _____            F.A.  Potts and  Co., Inc.,  86 B.R.  853 (Bankr.  E.D. Pa.),            __________________________            aff'd  93 B.R. 62 (E.D. Pa. 1988), and aff'd without opinion,            _____                              ___ _____ _______ _______            891 F.2d 280 (3rd Cir. 1989) (finding of fraud or mistake not                                         -13-                                          13            necessary  when  "compelling   equities,"  including   events            subsequent to confirmation, outweigh finality goal).12                      We agree with the  district court that the shifting            positions  of PRFC  with  respect  to  its finances  and  the            identity   of   its   principals  constituted   circumstances            sufficient  to vacate  the confirmation.13   As  noted above,            it  is  the   principle  of  finality  which  serves  as  the            counterweight  to the  court's discretion.   Here,  given the            uncertainty surrounding PRFC, that principle is outweighed by            countervailing equities.   Nor would  the bankruptcy  court's            duty to preserve the value of the estate, see M.R.R. Traders,                                                      ___ _______________            Inc., 788 F.2d  at 818, be fulfilled by a  proposed sale to a            ____            party     apparently   unable   to   meet  future   financial            obligations,  and which  might face  additional obstacles  in            obtaining  approval of  the  license transfer  from the  FCC.            Thus,  we  conclude that  the  district  court's decision  to                                            ____________________            12.  A "grossly inadequate" sale  price is also an acceptable            ground  for vacating a sale, see Chung King, 753 F.2d at 550,                                         ___ __________            but such ground is not a factor in this case.             13.  Although  the district  court described  the conduct  of            PRFC  and   its  principals   as  fraudulent,  we   need  not            necessarily  ascribe evil intent  to PRFC in  order to affirm            the lower court's ruling.  Instead, we rest our conclusion on            the "compelling equities" of the present situation.  However,            as noted infra, the district  court's partial reliance on the                     _____            thirty-day   provision  in   the  bidding   instructions  was            erroneous.   Given the other circumstances  surrounding PRFC,            this  error  does not  affect  our  conclusion regarding  the            decision to vacate confirmation.                                         -14-                                          14            vacate its confirmation of the PRFC sale was not  an abuse of            discretion.                        In  challenging  the  court's forfeiture  decision,            PRFC  argues that  the district court  erred in  finding that            PRFC accepted the terms  of the APA and its  incorporation of            both the bidding instructions and its forfeiture provision.                      Our standard of review  mandates that we accept the            district court's findings unless they  are clearly erroneous.            Malden Mills Industries, Inc., v. Ronald Alman, 971 F.2d 768,            _____________________________     ____________            773  (1st Cir. 1992);   In re Halmar  Distributors, Inc., 968                                    ________________________________            F.2d 121,  129 (1st Cir.  1992).   See also Fed.  R. Civ.  P.                                               ___ ____            52(a); Bankr.  R. 8013.   Findings are not  clearly erroneous            unless "the reviewing  court on the  entire evidence is  left            with the firm and definite conviction that a mistake has been            committed."   Anderson v. City  of Bessemer City,  N.C.,  470                          ________    _____________________________            U.S. 564, 573 (1985).                      As  noted  above,  only  the  bidding  instructions            indicate that  the deposit  would be  forfeited  if the  sale            failed to materialize.  The APA, on the other hand, refers to            possible  forfeiture only of  a later down  payment, equal to            ten percent of the purchase price, but is silent with respect            to forfeiture of the deposit at issue.                      The district  court, relying on the  fact that PRFC            had possession of both the APA and bidding instructions prior            to the confirmation of the sale,  ruled that both were a part                                         -15-                                          15            of the  sale agreement.   We disagree.  While  the exact date            that  PRFC received the two documents is unclear, the trustee            acknowledges furnishing  them to  PRFC prior to  the original            auction,  a time  frame  not directly  contradicted by  PRFC.            This  is consistent with the  position taken by  PRFC that it            was prepared  to attend the  auction but  for the  dissuasive            representations made by Ponce. See supra note 6.  The trustee                                           ___ _____            further stated that she provided PRFC with another set of the            same documents  following the auction in  order to facilitate            negotiations,  and that  the  parties agreed  that all  those            documents  were part of the overall agreement to sell WPRV to            PRFC.   With respect to  the APA  and notice  of sale,  which            ostensibly outlined the  terms and contents  of the   private            sale,  the  record supports  the  trustee's  assertion.   The            bidding instructions, however, are another matter.                      Simply put, there is nothing apparent from the face            of  bidding instructions,  nor anything  else in  the record,            from which  one could conclude that  the bidding instructions            are anything  more than that--general instructions related to            bidding  at  the public  auction.    Many  of the  provisions            contained therein are irrelevant to a private sale, including            the timing and minimum amount of sealed bids.  Several others            differ from the terms of the APA, including the amount of the            deposit and the time within which the buyer must apply for an                                         -16-                                          16            FCC   license.14     Moreover,   while  the   APA  explicitly            indicates that the terms of the notice of private sale are to            become part  of the APA,  no similar  mention is made  of the            bidding  instructions.    Finally,  we  note  that  the  only            evidence  in the record of an agreement to incorporate is the            trustee's oft-repeated statement that "the parties agreed" to            incorporate  the bidding instructions. Considering the above-            described deficiencies, however, the lack of details or other            evidence of such an incorporation agreement militates against            incorporation.  In sum, the district court's finding that the            auction bidding instructions became  part of the private sale            agreement  does   not  comport  with  the   language  of  the            instructions,  the APA,  or the  circumstances surrounding  a            private sale.  Accordingly, we find that the district court's            decision to uphold the forfeiture of the $100,000  is clearly            erroneous and must  be reversed.15   Thus, PRFC is  entitled,            now  that the proposed sale has been cancelled, to the return            of its deposit.            B.  Ponce's Appeal            B.  Ponce's Appeal            __________________                                            ____________________            14.  The bidding instructions call for a $150,000 deposit and            FCC  filing within 30 days of confirmation.  The APA reflects            a  $100,000 deposit and mandates FCC filing within 15 days of            executing the APA.            15.  Because  we  reverse  the  district  court's  forfeiture            decision  based on  the  "incorporation" issue,  we need  not            address PRFC's argument that  the trustee's Notice of Private            Sale was legally deficient.                                         -17-                                          17                      We note at the outset that Ponce's objection to the            PRFC sale is now moot, as confirmation of the latter has been            vacated.   Ponce's only other  argument is that  it should be            entitled  to  purchase WPRV  because  it  was the  successful            bidder  at the  auction.   We need  look no further  than the            bidding instructions  themselves to  refute this claim.   The            instructions  clearly state  that the  "trustee reserves  the            right to, in her sole discretion, . . . (c) reject any or all            bids."   This statement plainly dovetails  with the trustee's            statutory  role as the sole representative of the estate.  11            U.S.C.   323.   Here, where the Ponce bid  would yield little            benefit to  the estate and  other creditors, the  trustee was            well within her discretion in not recommending the Ponce  bid            for  confirmation, and  the  court  correctly denied  Ponce's            motion.  See  In re Gilbern  Indus. Inc., 526  F.2d 627,  628                     ___  __________________________            (1st Cir. 1975)  ("It is hornbook law that if the highest bid            submitted  at a  judicial sale  is manifestly  inadequate, it            need not  be accepted.").   Ponce,  meanwhile,  has cited  no            authority  to  the contrary.16   The  cases upon  which Ponce            relies vest  some right  in a potential  purchase only  after                                                                    _____            confirmation,   when,  as   we  have   previously  discussed,                                            ____________________            16.  We note our displeasure with Ponce's decision instead to            devote  a  significant  portion  of its  appellate  brief  to            hurling invectives at the  trustee.  The debtor in  this case            has  been in bankruptcy purgatory for over five years.  Given            this  unfortunate  situation,  Ponce's  appellate  style does            little to aid us in unsnarling this legal tangle.                                         -18-                                          18            discretion to  vacate confirmation  is narrowed.   See, e.g.,                                                               ___  ____            Chung King, Inc., 753 F.2d at 549; In re  F.A. Potts, 86 B.R.            ________________                   _________________            at  858.   Accordingly,  we find  no  error in  the  district            court's treatment of Ponce's objection.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the reasons stated herein, the judgments of the            district  court are affirmed  in part, and  reversed in part.                                ________  __ ____       ________ __ ____            Each side to bear its own costs.  The papers in the  case are            remitted to the  district court  for such actions  as may  be            required to implement the foregoing.                                         -19-                                          19
