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In re C.W. Mining Co.

United States Court of Appeals, Tenth Circuit

April 15, 2014

In the Matter of: C.W. MINING COMPANY, Debtor. GARY E. JUBBER, [*] Appellant,
v.
BANK OF UTAH; HIAWATHA COAL COMPANY, INC.; P.P.M.C., INC., Appellees

APPEAL FROM THE UNITED STATES BANKRUPTCY APPELLATE PANEL. (BAP No. 11-098-UT).

Michael N. Zundel (T. Edward Cundick with him on the briefs), Prince, Yeates & Geldzahler, Salt Lake City, Utah, for Appellant.

P. Matthew Cox, Snow Christensen & Martineau, and Steven J. McCardell, Durham Jones & Pinegar, P.C. (David F. Klomp and Jessica G. Peterson, Durham Jones & Pinegar, P.C.; Kim R. Wilson, Snow Christensen & Martineau; and Peter W. Guyon, The Law Office of Peter W. Guyon, P.C., with them on the briefs), Salt Lake City, Utah, for Appellees.

Before TYMKOVICH, BRORBY, and MURPHY, Circuit Judges.

OPINION

Page 896

MURPHY, Circuit Judge.

I. Introduction

The Chapter 7 Trustee in this matter (the " Trustee" ) filed a complaint with the bankruptcy court seeking to recover a post-petition transfer to the Bank of Utah (the " Bank" ). The bankruptcy court granted summary judgment in favor of the Bank, concluding the Bank was a fully secured creditor and, thus, the transfer caused no damage to the Estate. After the Bankruptcy Appellate Panel (" BAP" ) affirmed the ruling of the bankruptcy court, the Trustee brought this appeal.

Exercising jurisdiction pursuant to 28 U.S.C. § 158(d), we affirm the grant of summary judgment to the Bank.

II. Factual Background

The facts underlying the complex financial transactions entered into by the parties are not in dispute and have been fully set out by both the bankruptcy court and

Page 897

the BAP. Rushton v. Bank of Utah (In re C.W. Mining Co.), 477 B.R. 176, 180-81 (B.A.P. 10th Cir. 2012); Rushton v. Bank of Utah (In re C.W. Mining Co.), 465 B.R. 226, 229-30 (Bankr. D. Utah 2011). The facts set forth herein are limited to those relevant to this appeal.

In August 2007, C.W. Mining, an entity operating a coal mine in Utah, deposited $362,000 with the Bank; in turn, the Bank issued a certificate of deposit to C.W. Mining in that same amount. In January 2008, creditors filed an involuntary Chapter 11 bankruptcy petition against C.W. Mining. In November 2008, the Chapter 11 proceeding was converted to a Chapter 7 proceeding and Kenneth Rushton was appointed to administer the Estate. In February 2009, the Bank liquidated the certificate of deposit, which then had a value of $383,099. Utilizing its common-law right of offset, it applied the proceeds to the balance owing on two of three promissory notes executed by C.W. Mining in favor of the Bank in 2005, 2006, and 2007.[1] Although the Bank knew of the bankruptcy proceeding when it liquidated the certificate of deposit, it did not inform the ...


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