In Re Curtis Reed Johnson, Debtor.home State Bank of Lewis, Lewis, Kansas, Appellee and Cross-appellant, v. Curtis Reed Johnson, Appellant and Cross-appellee, 940 F.2d 609 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 940 F.2d 609 (10th Cir. 1991)

Aug. 12, 1991


W. Thomas Gilman of Redmond, Redmond & Nazar, Wichita, Kan., for appellant and cross-appellee.

Calvin D. Rider (Dennis E. Shay with him on the briefs) of Smith, Shay, Farmer & Wetta, Wichita, Kan., for appellee and cross-appellant.

Royce E. Wallace of Wallace & Zimmerman, Wichita, Kan., for amicus curiae Royce E. Wallace, Standing Chapter 13 Trustee.

Patricia A. Reeder of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for amicus curiae Kansas Bankers Ass'n.

Before BRORBY, Circuit Judge, BARRETT, Senior Circuit Judge, and WEST,*  District Judge.

ORDER ON REMAND

This matter is before us on Remand From the United States Supreme Court. Our opinion is found at 904 F.2d 563 (10th Cir. 1990).

We affirmed the district court, holding that as Johnson's personal liability had been discharged the Bank no longer had a claim against Johnson subject to rescheduling under Chapter 13. The Supreme Court reversed. See Johnson v. Home State Bank, --- U.S. ----, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991). The judgment of the Supreme Court has now been received. Accordingly, the previous judgment of this court is vacated. The Supreme Court remanded this case concerning the issues of good faith or feasibility. These issues were decided by the bankruptcy court, were raised by the Bank in its appeal from the bankruptcy court to the district court but were not decided by the district court.

This court, following its long established rule that it will not ordinarily decide a matter not addressed by the district court REMANDS this matter to the district court for such further proceedings as may be necessary.

IT IS SO ORDERED.

 *

The Honorable Lee R. West, United States District Judge for the Western District of Oklahoma, sitting by designation