Appeal from an order entered in the United States District Court for the Eastern District of New York, George C. Pratt, Judge, ordering successor bankruptcy judge to try de novo a discharge proceeding which had been halted mid-trial when the term of the bankruptcy judge originally assigned to the matter expired. Affirmed.
Before Kaufman, Chief Judge, Oakes and Meskill, Circuit Judges.
Defendant-appellee Lee Schoenfield (hereinafter "the bankrupt") filed a voluntary petition in bankruptcy on April 25, 1975, and was adjudicated bankrupt on that date. One year later, plaintiff-appellant Steven H. Dickman, as Trustee in Bankruptcy of Lee Schoenfield, instituted two adversary proceedings in connection with the Schoenfield matter. One of these proceedings involved the trustee's objection to the discharge of the bankrupt on the grounds, Inter alia, that the bankrupt had given false testimony under oath, had fraudulently concealed assets belonging to the estate, and had destroyed or concealed or failed to keep records of his business transactions. See section 14-c of the Bankruptcy Act, 11 U.S.C. § 32(c) (repealed 1979); See also 18 U.S.C. § 152. In the second proceeding, which was directed against both the bankrupt and his wife Louise and which has been referred to by the parties as the "plenary action," the trustee sought a declaratory judgment with respect to certain properties involved in allegedly fraudulent transfers by the bankrupt to his wife. Although both cases were set down for trial before Bankruptcy Judge William J. Rudin on July 7, 1976, because of numerous adjournments the trials were not commenced until 1978 the discharge proceeding in February and the plenary action in May. Most important for purposes of this appeal is the fact that neither trial had been concluded when Bankruptcy Judge Rudin's term of office expired in July of 1978.
Upon the expiration of Bankruptcy Judge Rudin's term, the Schoenfield matter was referred to Bankruptcy Judge Robert John Hall. The bankrupt immediately moved for a trial De novo in each of the two pending adversary actions. In a decision signed October 12, 1978, Bankruptcy Judge Hall stated:
In the court's opinion, it would be unconscionable to have to start the trial over again since more than three (3) years have gone by since the trials have commenced and the estate cannot bear the burden of new trials.
The defendants have not shown any pressing need, in this case, why trials de novo should be granted.
In an order dated November 2, 1978, Bankruptcy Judge Hall made clear his intention to pick up the trials where they had left off:*fn1
Ordered, that the trial of the above proceedings be continued before me with the same effect as though I had presided at the trials thereof from the beginning and the trial of said proceedings shall continue where they were left off until each is concluded, and it is further
Ordered, that pursuant to the preceding paragraph, I will consider the transcripts of the evidence thus far and the exhibits of the parties.
The bankrupt appealed to the district court. In a decision and order dated December 12, 1978, District Judge George C. Pratt of the United States District Court for the Eastern District of New York reversed the orders of Bankruptcy Judge Hall and directed him to commence trials De novo. The district court order was in turn appealed to this Court by the trustee. On April 3, 1979, a panel of this Court dismissed the appeal insofar as it challenged the order of a trial De novo in the plenary action.*fn2 Consequently we review today only so much of Judge Pratt's order as applies to the discharge proceeding.
I. APPELLATE JURISDICTION
Before reaching the merits of the case, we must consider the bankrupt's challenge to the appealability of the portion of the district court order that pertains to the discharge proceeding. Our appellate jurisdiction is based on § 24(a) of the Bankruptcy Act, 11 U.S.C. § 47(a) (repealed 1979), which provides:
The United States courts of appeals . . . are invested with appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy, to review, affirm, revise, or reverse, both in matters of law and in matters of fact . . . .
The bankrupt concedes that the hearing on the trustee's objection to the discharge of the bankrupt was a "proceeding in bankruptcy," and that "the general rule is that an appeal from an order or decree entered in a "proceeding in bankruptcy,' either interlocutory or final, may be taken as of right, without any necessity for the securing of an allowance from the court of appeals." 2 Collier on Bankruptcy P 24.11(3) at 734 (14th ed.) (footnote omitted). See also id. P 24.24. The bankrupt contends, however, that the order appealed from falls within the "triviality exception," which significantly modifies the general rule. To be appealable, an interlocutory order in a proceeding in bankruptcy " "must have the character of a formal exercise of judicial power affecting the asserted rights of a party; that is, it must substantially determine some issue or decide some step in the ...