August 19, 2019

Archives for December 2, 2013

Revised Federal Rules of Appellate Procedure and Tenth Circuit Local Rules Available Now; Fees to Increase

On December 1, 2013, changes to the Federal Rules of Appellate Procedure will take effect. Primary changes are to Rules 28 and 28.1, which address briefing requirements. The changes allow parties to combine a statement of the case and the factual recitation for the appeal into a single section. The current rule(s) require separate sections. In addition, Rules 13, 14, and 24 have been updated to clarify procedures in cases coming from the Tax Court, including permissive interlocutory appeals.

The revised Tenth Circuit Local Rules will take effect January 1, 2014. A memorandum outlining the more substantive changes to the Local Rules and the FRAP is available on the court’s website here. A redline version of both revisions is available here and a link to the complete 2014 FRAP and Local Rules is available here.

The court also announced an increase in the fee schedule. Effective December 1, 2013, the docketing fee for filing an appeal or original proceeding will increase to $505 from $450. The filing fee will be $500 for Petitions for Review and other original proceedings which require a fee. The record retrieval fee for archived materials will increase on the same date to $64 from $53.

Tenth Circuit: Filing Lis Pendens Does not Create a Transfer of Interest in Property Under Bankruptcy Code

The Tenth Circuit Court of Appeals published its opinion in Ute Mesa Lot 1, LLC v. First-Citizens Bank & Trust on Monday, November 25, 2013.

Ute Mesa is a real estate developer in Colorado. In October 2007, it received a $12 million loan from Defendant-Appellee United Western Bank (“Bank”) to finance the construction of a single family home. First-Citizens Bank & Trust acquired United’s interest in the loan and state court claims. To secure the loan, the Bank prepared a deed of trust incorrectly identifying Ute Mesa’s sole member as the owner rather than Ute Mesa. Because the grantor under the deed of trust was not the owner of the property, the deed of trust was ineffective in giving the Bank a lien on the property.

In May 2010, the Bank filed suit in Colorado state court seeking reformation of the deed of trust and a declaration that it had a first priority lien on the property. Two days later, the Bank filed a notice of lis pendens in the Pitkin County real property records. In August 2010, Ute Mesa petitioned for Chapter 11 bankruptcy relief. Ute Mesa continued as debtor in possession of the property. In April 2011, Ute Mesa filed an adversary proceeding against the Bank seeking to avoid the lis pendens as a preferential transfer. The bankruptcy court granted the Bank’s motion to dismiss, and the federal district court affirmed.

Ute Mesa argued that under 11 U.S.C. § 547(e)(1)(A), a “transfer of an interest in property” occurs when a bona fide purchaser cannot acquire an interest superior to that of a creditor. According to Ute Mesa, because the lis pendens prevents a bona fide purchaser from acquiring an interest in the property superior to the Bank’s interest, the lis pendens qualifies as a transfer of an interest in the property. The Bank argued that the first and only step of the analysis is to determine whether an underlying property interest exists under state law. Because a lis pendens is merely a notice and does not constitute a lien, no transfer occurred. The Tenth Circuit agreed with the Bank and affirmed.

Tenth Circuit: Two Life Sentences for Violation of 18 U.S.C. § 2113(e) Violated Double Jeopardy

The Tenth Circuit Court of Appeals published its opinion in United States v. Jackson on Tuesday, November 26, 2013.

Defendant-Appellant Jeremiah Jackson robbed a bank and, while fleeing, lost control of his vehicle and crashed into another car, killing two women. He was convicted of one count of bank robbery and two counts of killing a person while attempting to avoid apprehension for bank robbery, in violation of 18 U.S.C. § 2113(e). The district court vacated the count of bank robbery as a lesser included offense of § 2113(e) and sentenced Jackson to two concurrent life terms.

On appeal, Jackson argued that sentencing him for two violations of § 2113(e) constituted double jeopardy because the two deaths arose from only one bank robbery-related accident, relying on the interpretation of similar statutory language held ambiguous such that lenity applies. The Tenth Circuit held that the phrase “any person” in § 2113(e) was sufficiently ambiguous as to require lenity. Thus, the two life sentences violated double jeopardy.

The court disagreed with Jackson’s contention that he should have been granted a mistrial. The prosecutor’s remarks during closing argument  were not directed to his decision to remain silent and any problems were cured by the limiting instruction given.

Jackson made several arguments based on the court’s failure to instruct the jury that he must have acted knowingly in committing the traffic accident that caused the deaths. The Tenth Circuit rejected them all and affirmed the trial court, with the exception of remanding for resentencing.

Tenth Circuit: Unpublished Opinions, 11/27/13

On Wednesday, November 27, 2013, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Espinoza

United States v. Davis

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 11/26/13

On Tuesday, November 26, 2013, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

Gardner v. Arrowichis

United States v. Brantley

Frye v. Raemisch

Adams v. Fedex Ground Package System

Maley v. State of Kansas

Savannah v. Collins

Washington v. Correia

Johnson v. United States

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.