OpenJurist

917 F2d 566 Stroke Stroke v. Goldberg

917 F.2d 566

Unpublished Disposition

In the Matter of Gerald J. STROKE, Debtor,
Gerald J. STROKE, Plaintiff-Appellant,
v.
Martin GOLDBERG and Mary Ross, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 89-55899.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1990.*
Decided Nov. 5, 1990.

3

Before BEEZER and TROTT, Circuit Judges, and CROCKER,* District Judge.

4

MEMORANDUM**

5

Gerald J. Stroke, a Chapter 11 debtor, appeals pro se the district court decision affirming the bankruptcy court's order denying his Fed.R.Civ.P. 60(b)(4) motion.

6

On January 30, 1987, the bankruptcy court entered an order approving a compromise and settlement agreement between the bankruptcy trustee and a claimant compromising claims against Stroke's estate. The only issue before this court is whether or not the district court erred in denying Stroke's Rule 60(b)(4) motion. We affirm.

7

The January 30, 1987 order of the bankruptcy court approved the marital compromise and settlement agreement between the trustee and claimant Mary Stroke Ross, the debtor's former wife, compromising Ross' claims 18, 19 and 20. Stroke did not appeal this order. On March 17, 1987, Stroke filed a motion to vacate the January 30, 1987 order pursuant to Fed.R.Civ.P. 60(b). This motion was denied on June 26, 1987. There was no appeal from this order.

8

On March 3, 1988, Stroke filed a second motion to vacate the January 30, 1987 order pursuant to Rule 60(b)(3) on the basis of fraud, and Rule 60(b)(4) contending that the court was without jurisdiction to enter the order. The bankruptcy court denied the motion on May 17, 1988, and Stroke sought review in the district court. The district court affirmed the bankruptcy court denial of the motion, and Stroke appeals that order.

9

Because this court is in as good a position as the district court to review the findings of the bankruptcy judge, our review of the district court's decision is de novo. In re Jee, 799 F.2d 532, 534 (9th Cir.1986); In re Center Wholesale, Inc., 759 F.2d 1440, 1445 (9th Cir.1985). We therefore review the bankruptcy court's findings of fact under the clearly erroneous standard and its conclusions of law de novo. In re Camino Real Landscape Maint. Contractors, 818 F.2d 1503, 1505 (9th Cir.1987); In re Jee, 799 F.2d at 534.

10

A judgment is void for purposes of Rule 60(b)(4) if it was entered by a court without jurisdiction or in contravention of due process of law. It is not void merely because it is erroneous. In Re Center Wholesale, Inc., 759 F.2d at 1448; In re Texlon Corp., 596 F.2d 1092, 1099 (2nd Cir.1979).

11

A court's determination of its own jurisdiction is subject to the principles of res judicata. That determination generally may not be challenged in a collateral attack. Insurance Corp. v. Compagnie Des Bauxites, 456 U.S. 694, 702 n. 9 (1981); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940) (party challenging the judgment is barred from raising lack of subject matter jurisdiction if he has the opportunity to raise the issue and fails to do so). See also Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 774 (9th Cir.), cert. denied, 479 U.S. 987 (1986) and Picco v. Global Marine Drilling Co., 900 F.2d 846, 850 (5th Cir.1990).

12

The bankruptcy court had jurisdiction over the debtor and the property, and the authority under bankruptcy law to compromise the claims which were properly before the court. This determination of jurisdiction, while appealable, cannot now be attacked collaterally through Rule 60(b)(4). Id.

13

Stroke's arguments that he was denied due process are equally without basis. The records in the bankruptcy and district courts clearly reveal that Stroke was before the court when the order was entered, and he had notice of it, and full and fair hearings were had. There is no indication that he was impeded from challenging the court's jurisdiction by appeal. There was a fully contested hearing on the first Rule 60(b) motion where all parties, including Stroke, presented arguments. There was no appeal from the denial of this motion. Stroke may not now relitigate the question of jurisdiction by way of successive Rule 60(b) motions.

AFFIRMED

*

Honorable Myron D. Crocker, United States District Judge, Eastern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3