BROWN v. FORESIGHT INVESTMENT
The Ninth Circuit Court of Appeals today released an opinion in BROWN v. FORESIGHT INVESTMENT, No. 05-15605, a bankruptcy appeal. The panel consisted of Stephen Reinhardt, Pamela Ann Rymer and Barry G. Silverman, Circuit Judges.
SILVERMAN, Circuit Judge:
A bankruptcy judge ruled in open court on cross-motions for summary judgment regarding debtor Thurman Brown’s claim that Wilshire Credit Corporation violated the Bankruptcy Code’s automatic stay. Later that day, the judge signed a minute entry stating that Wilshire’s motion for summary judgment was granted and that Brown’s was denied, and taking under advisement a related motion for sanctions. Brown filed his appeal nearly three months later when the court entered judgment awarding sanctions against his counsel. We hold today that a minute entry that merely grants summary judgment — without more — does not become a final, appealable judgment just because it has been signed by the judge. The minute entry in this case was the memorialization of a ruling, not a judgment, and thus did not trigger the 10-day window in which Brown was required to appeal. Accordingly, the district court erred in dismissing Brown’s appeal as untimely. BACKGROUND Because this opinion is limited to the timeliness of Brown’s appeal to the district court, we will just briefly summarize the facts. Brown obtained a loan from LaSalle National Bank secured by a deed of trust. Wilshire Credit Corporation serviced the loan for the bank. After Brown defaulted, Fidelity National Title Insurance Company, the foreclosure trustee on the deed of trust, scheduled a non-judicial foreclosure sale. The sale took place a few hours after Brown had filed for bankruptcy protection. Complications ensued. Ultimately, Brown brought an adversary proceeding against Wilshire alleging that Wilshire violated the automatic stay. . . .
RYMER, Circuit Judge, concurring in the judgment:
I agree that Brown’s appeal to the district court was timely, though for somewhat different reasons. Brown argues that the April 22 minute order was not final because it was intertwined with a sanctions motion on which the bankruptcy court had not yet ruled. If so, then the bankruptcy court’s June 30 order regarding sanctions was the final order, its July 6 judgment was the “separate document” required by Fed. R. Bankr. P. 9021, and the July 15 appeal was timely under Fed. R. Bankr. P. 8002(a). Alternatively, if the April 22 order is independent of the sanctions motion, then the question is whether the minute entry was a “document” within the meaning of Bankruptcy Rule 9021, which incorporates Fed. R. Civ. P. 58. We have held that a minute order denying post-judgment relief constitutes a “document” for purposes of Civil Rule 58 only “if it (1) states that it is an order; (2) is mailed to counsel; (3) is signed by the clerk who prepared it; and (4) is entered on the docket sheet.” Ingram v. ACandS, Inc., 977 F.2d 1332, 133839 (9th Cir. 1992) (citing Beaudry Motor Co. v. Abko Props., Inc., 780 F.2d 751, 754-55 (9th Cir. 1986)); Carter v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1188-90 (9th Cir. 1989). While it is possible that more should be required of a document purporting to set forth summary judgment than of a post-judgment order, certainly we should not require less. This being so, the minute entry here could not trigger the clock for filing an appeal because, at a minimum, it was not mailed to counsel. As the appeal would be timely even if the minute order were final, I wouldn’t venture to guess what more magic. . .