Menu    7 ABR 323 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA




In Re: Gold King Mines, Inc. )  
____________________________________ )  
  )  
Stephen Oliver, )  
  )  
Appellant,       )  
  )  
vs. )  
  )  
  ) O R D E R
William Barstow et al, )  
Trustee ) Motion to Dismiss
  )  
Appellee.        ) and
  ) Related Matters
____________________________________ )

 

Appellant has filed the following motions: Motion for stay pending appeal, 1 Footnote Motion to join the United States as additional appellee 2 Footnote and a Motion for interim equitable relief, for joinder of parties and to shorten time. 3 Footnote These motions are in response to an order entered by the U.S. Bankruptcy Court for the District of Alaska on July 25, 2002: Order Granting Trustee’s Motion to Settle Litigation and Sell Estate’s Interest in Gold King Claims Free and Clear of Claims to United States Government.


The Trustee has filed a Motion to dismiss the appeal. 4 Footnote


Oral argument has not been requested and is not deemed necessary.


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FACTS

Appellant is Steven Oliver. Appellee is William Barstow, Trustee.

Appellant is an un-secured creditor with a claim against the bankrupt Gold King Mines, Inc.

On July 25, 2002, the U.S. Bankruptcy Court for the District of Alaska approved the sale of the Gold King Claims. By a settlement agreement, the Trustee, William Barstow, and co-owners, Lisa Rogers and Marianne Pilant, agreed to quitclaim to the United States Government the Gold King Claims for $1,000,000. The proceeds of the sale were to be paid in the amount of $678,942 to the Trustee and $331,058 to the Hughes Thorsness Law Firm, in joint trust to Lisa Rogers and Marianne Pilant. The order approving this settlement also determined that any liens or interests against the property would attach to the proceeds of the sale in the same priority as in the underlying property. Finally and most importantly, the settlement order established the bona fide purchaser status of the Government under 11 U.S.C. § 363(m).

Appellant, filed two motions for stay pending appeal with the Bankruptcy Court, July 12 and July 31, 2002, respectively. On August 6, 2002 the Bankruptcy Court entered an Order Denying Motion for Stay Pending Appeal by Steven Oliver. The Bankruptcy Court held that: 1) the settling parties may be harmed by any delay in closing; 2) Appellant did not file a bond to cover any losses if the appeal was unsuccessful; 3) there was little likelihood that Appellant will be successful on appeal, and; 4) public interest favors a settlement which preserves the Gold King claims for the public.

On August 12, 2002, Appellant renewed his motion for stay pending appeal with the U.S. Bankruptcy Appellate Panel for the Ninth Circuit. However, the Trustee asked that the appeal
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be referred to the United States District Court. Appellant re-filed the motion for stay pending appeal with this court on August 27, 2002; the briefing was completed September 16, 2002.

On August 26, 2002, based upon the approval of settlement by the Bankruptcy Court, the United States government deposited a check in the amount of $1,000,000 with the court. On August 27, 2002, co-owner Lisa Rogers executed a quitclaim deed conveying her interest in the mining claims to the U.S. Government. On August 28, 2002, the Trustee delivered to the United States a quitclaim deed conveying the Trustee’s interest in the mining claims. And on August 30 co-owner Marianne Pilant executed a quitclaim deed conveying her interest in the mining claims to the Government.

Trustee then filed a motion to dismiss the appeal on August 30, 2002. According to Trustee the appeal is moot because the Appellant failed to obtain a stay pending appeal. The settlement has already been consummated and the Government was a bona fide purchaser under 11 U.S.C. § 363(m).

DISCUSSION

In bankruptcy the mootness doctrine applies if, “appellant neglected to obtain a stay pending appeal and the rights of third parties have intervened.” In re Spirtos, 992 F.2d 1004, 1006 (9th Cir. 1993). Here, the Appellant has failed to obtain a stay which is critical to this appeal because a third party has intervened and purchased the property under the umbrella of 11 U.S.C. § 363(m) which protects bona fide purchasers in a bankruptcy sale.

Appellant argues that the only circumstance in which a court may find mootness is where the Debtor could have filed for a stay but did not do so. In Re Ewell, 958 F.2d 276 (9th Cir. 1992). This is an over-broad view of Ewell. The court
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in Ewell ruled that the debtor did not file a timely motion for stay pending appeal and therefore his appeal was moot. Id. at 279. But this holding is only part of the bigger issue, that is, whether the party has obtained a stay pending appeal at all. Obviously, obtaining a stay is dependant on timely filing. But its only one of the factors looked at in determining mootness. While, Appellant in this case filed a timely motion for stay pending appeal that does not prevent this appeal from being moot when no stay is obtained and third party rights intervene.
5 Footnote The Bankruptcy Court denied Appellant’s motion for stay and the property was sold to the Government. Thus both the motion for stay pending appeal and the appeal itself are moot.

CONCLUSION

For the foregoing reasons, Appellant’s motion for stay pending appeal and Appellant’s appeal are moot.

Trustee’s motion to dismiss appeal pursuant to the mootness doctrine is granted.

Because this appeal is moot, Appellant’s motion to join the United States as an additional appellee is also moot and is denied. Appellant’s motion for interim equitable relief is denied as moot.

DATED at Anchorage, Alaska, this 25th day of September, 2002.

 

 

_________________________

H. Russel Holland, Judge

District of Alaska

 

 



N O T E S:

1.    Clerk’s Docket No. 6.

2.    Clerk’s Docket No. 4.

3.    Clerk’s Docket No. 17.

4.    Clerk’s Docket No. 10.

5.    Appellant misreads In Re Exennium, Inc., 715 F.2d 1401, 1403-1404 (9th Cir. 1983). The court in Exennium based its opinion on the fact that the party did not obtain a stay.

Appellant likewise misreads In Re Onouli-Kona Land Co. 846 F.2d 1170, 1172 (9th Cir. 1988), which makes an exception to the mootness rule where property is sold to a creditor who is party to the appeal. That is not the case here.