USCA1 Opinion

October 4, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_______________

No.

96-1339

JUAN M. COFIELD,
Appellant,

v.

JOHN O. DESMOND, TRUSTEE AND

FEDERAL DEPOSIT INSURANCE CORPORATION,
Appellees.

_____________________

ERRATA SHEET

The opinion of this Court issued

on September 26, 1996 is amen

as follows:

On page 2, 3rd line from the bottom, change "11" to "7"

October 1, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1339

JUAN M. COFIELD,

Appellant,

v.

JOHN O. DESMOND, TRUSTEE AND

FEDERAL DEPOSIT INSURANCE CORPORATION,

Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Juan M. Cofield on brief pro se.

_______________
John O. Desmond on brief pro se.
_______________
Kathryn R. Norcross, Ann S. Duross and
___________________ _____________

Thomas L. Hindes on
________________

for appellee Federal Deposit Insurance Corporation.

____________________

____________________

br

Per Curiam.
__________

the district

Appellant Juan M. Cofield appeals from

court's affirmance of a

bankruptcy court order

which permitted appellant to convert his chapter 7 bankruptcy

case

to

reconverted

reviewing

case

the case

chapter

back to

11,

but

chapter 7.

the briefs and the record,

court's judgment

Memorandum

under

for essentially

then immediately

After

carefully

we affirm the district

the reasons stated

and Order, dated January

26, 1996.

in its

We add only

the following comments.

1.

U.S.C.

notice of conversion,

filed pursuant to

706(a), is not effective on filing.

1017(d) provides that conversion under

motion

filed and

9013, in

shall

be

served as

by written

motion."

Rule 9013."

Rule

request for an order

. . .

Thus, "[t]hese

indicate that a motion to convert pursuant to

______

effective in and

of itself, but

court order of conversion."

_____

(10th

correct

Cir. 1992).

As

Bankruptcy Rule

706(a) "shall be on

required by

turn, states that "[a]

rather is

provisions

706(a) is not

a request for

In re Calder, 973 F.2d 862,

____________

a result,

11

the bankruptcy

867

court was

in treating appellant's "notice" as a motion and the

conversion was not effective on January 13, 1995, when it was

filed.

2.

Even assuming that "cause" for reconversion to

chapter 7 must exist at the

such

"cause" existed

here.

time a

The

706(a) motion is filed,

bankruptcy court's

cause

-2-

determination

rested

primarily

on

the

futility

of

reorganization.

The court based the futility finding on the

speculative nature of

court entered
_______

filed his

the Fannie Mae lawsuit.

these findings

706(a) notice,

as long

been pending.

is, if

dependent on the success

little

months after

it plainly was

futility had existed

_______

That

three

Although the

determining that

as the Fannie

Mae action

had

funding for reorganization

was

of the lawsuit and the

chance of succeeding,

appellant

lawsuit had

the reorganization

was futile

when appellant filed the conversion notice.

3.

also fail.

Appellant's

process arguments

He first maintains that the bankruptcy court made

a determination

deny

procedural due

conversion.

prior to holding the hearings

________

There is

simply no support

that it would

in the record

for

this

description of

asserts that

hearings

reading

what

although the

happened.

bankruptcy court noticed

as non-evidentiary, it

of

otherwise.

the

transcripts

The court

Second, appellant

only

took evidence

from

these

ordered

the two

at them.

hearings

appellant to

shows

produce

certain documents at a future time.

______

4.

Appellant's

court's actions

Constitution

and

substantive due

arguments

constituted a

that

the

that

the

bankruptcy

"taking" in violation

bankruptcy

process clause were

-3-

of the

court violated

not raised

below.

the

As

such, they are waived.

Technology, 950
__________

See McCoy v. Massachusetts Inst. of

___ _____
_______________________

-4-

F.2d

13,

(1992).

22 (1st

Cir. 1991),

Affirmed.
________

cert. denied, 504

_____________

U.S. 910

-5-