In Re San Cristobal Development Corp., Debtor, Appellant, 581 F.2d 304 (1st Cir. 1978)

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US Court of Appeals for the First Circuit - 581 F.2d 304 (1st Cir. 1978) Argued June 9, 1978. Decided Aug. 18, 1978

Rafael A. Rivera-Cruz, San Juan, P. R., with whom Reginald J. Barney, San Juan, P. R., and Robert J. Griswold, San Juan, P. R., were on brief, for appellant.

Horacio R. Subira, San Juan, P. R., with whom Quetglas, Subira, & Rebollo, San Juan, P. R., was on brief, for appellees.

Before CAMPBELL and BOWNES, Circuit Judges, PETTINE, Chief Judge* .


This appeal raises the question whether by applying to the bankruptcy court for appointment of a receiver to manage mortgaged realty, the holder of the mortgage subjected itself to the summary jurisdiction of the court over the action brought by the debtor-mortgagor for breach of the lending agreement.

The facts are set forth in Bankruptcy Judge Asa S. Herzog's opinion, In Re San Cristobal Development Corporation, 17 CBC ______ (1978). Judge Herzog ruled that by filing the application in the Chapter XI proceedings, the mortgagee did not impliedly consent to the bankruptcy court's summary jurisdiction over the breach of contract action, which was commenced after the application was filed. The contract action was therefore dismissed for lack of jurisdiction by Judge Herzog. On appeal to the district court, the judgment of the bankruptcy judge was affirmed. The instant appeal was taken from the judgment of the district court.

Upon due consideration of the record, briefs, and applicable law, we uphold the district court's judgment. As we are in agreement with the analysis contained in Judge Herzog's comprehensive opinion, we affirm on the basis of the reasoning set forth therein.** 



Of the District of Rhode Island, sitting by designation


The debtor-mortgagor's conclusory allegations concerning the mortgagee's conduct at the first meeting of creditors, including the mortgagee's request that the meeting not be continued and that the Chapter XI proceeding be dismissed, also fail to convince us that the bankruptcy court erred in holding that the mortgagee did not impliedly consent to the court's summary jurisdiction over the debtor-mortgagor's contract action