The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter comes before the Court on appeal by Sobel WP,
L.L.C., from Orders by the United States Bankruptcy Court for the
District of New Jersey denying Appellant's motion for return of
its deposit and motion for reconsideration. For the reasons set
forth below, the Bankruptcy Court's decision is affirmed.
In December 2000, Appellant Sobel WP, L.L.C., ("Sobel") and
East West Trade Partners, Inc., ("East-West") negotiated an
Agreement of Sale ("the Agreement") providing for Sobel to
purchase a tract of undeveloped property in Philadelphia,
Pennsylvania from East-West for $3,800,000.00. Prior to the
Agreement at issue, East-West and entities associated with Sobel
had twice entered into agreements of sale, the first in October 1996 and the second in October 1997. In both instances, the deal
was never completed because the buyer was unable to find a
In January 2001, East-West and Sobel signed the Agreement
presently before the Court; East-West signed the Agreement on
January 5, 2001 and Sobel signed on January 23, making January 23
the Agreement's Effective Date. The Agreement provided for a due
diligence period, which was to expire thirty days after the later
of the Effective Date or the date East-West delivered copies of
required due diligence documents. The closing date was set for
180 days after the expiration of the due diligence period. Under
this calculation, the earliest possible closing date fell on
August 21, 2001.*fn1 The Agreement also granted Sobel the
right to extend the closing date for three additional successive
periods of 180 days, provided that Sobel paid a deposit for the
second and third extension.
Per the Agreement, Sobel tendered a $50,000.00 deposit to be
put in escrow. In the event of a breach by either party, the
escrow company was to convey the deposit to the nonbreaching
party. This deposit is the subject of the present appeal.
The Agreement also required East-West to provide copies of due
diligence documents within ten business days following the Effective Date.*fn2 It is uncontested that East-West
provided no such documents after the Effective Date. However,
East-West did send Sobel a letter on February 16, 2001 notifying
Sobel that all relevant documents had been provided prior to the
Effective Date and that no new documents existed. Whether Sobel
actually received this notification appears to be in dispute.
However, it is clear that Sobel did not contact East-West about
documents until a letter written by Sobel's counsel to East-West
on August 10, 2001, notifying East-West that no title documents
had yet been received and requesting copies.
On August 16, 2001, East-West's counsel wrote to the escrow
company, stating that "the Buyer has not performed" and
requesting the $50,000.00 deposit.*fn3 Although, the
Agreement required East-West to provide notice and a five day cure period
to Sobel in the event of a default, East-West contacted the
escrow company directly and did not adhere to the Agreement's
Sobel's counsel responded by letter on August 21, 2001,
informing East-West that Sobel did not believe it was in default
and that it considered the agreement in full force and effect. On
October 17, 2001, Sobel filed suit against East-West in the
United States District Court for the Eastern District of
Pennsylvania, seeking specific performance of the Agreement. On
June 27, 2003, East-West filed a Chapter 11 petition in the
Bankruptcy Court, staying the District Court case.
Sobel filed an initial motion for return of its deposit in
Bankruptcy Court on August 6, 2004. The Honorable Gloria M. Burns
ruled that the deposit should be paid to East-West because
Sobel's failure to consummate settlement prior to the closing
date constituted a default of the Agreement. The Court found that
East-West's failure to provide a five day cure period was not a
material breach since Sobel was clearly unprepared to close by
the closing date and because, while Sobel had the ability to
extend the closing period as of August 16, it failed to do so.
The Court rejected Sobel's argument that because East-West had never produced documents, the 180-day closing period had not
yet begun to run. Instead, the Court found that Sobel's failure
to request any documents prior to August 10 was a waiver of
East-West's requirement to produce. Judge Burns also rejected
Sobel's argument that East-West's August 16 letter constituted an
anticipatory repudiation of the Agreement, which would have
relieved Sobel of any further duties to perform.
On December 10, 2004, Judge Burns denied Sobel's motion for
reconsideration of this order, holding that the motion for
reconsideration presented no new facts or law that the Court did
not have before it or which could have been brought before it in
the original motion.
II. Jurisdiction and Standard of Review
This Court has appellate jurisdiction over a final order of the
Bankruptcy Court pursuant to 28 U.S.C. § 158(a)(1). Under Rule
8013 of the Federal Rules of Bankruptcy Procedure, a district
court cannot set aside the factual determinations of a bankruptcy
court unless they are "clearly erroneous." Fed.R.Bankr.P.
8013; In re Cellnet Data Systems, Inc., 327 F.3d 242, 244 (3d
Cir. 2003). A factual finding is clearly erroneous only where
"the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
Id. (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)). The Court reviews the Bankruptcy Court's legal conclusions de
novo and applies a dual standard to mixed questions of law and
fact. Id.; see also In re Brown, 951 F.2d 564, 567 (3d Cir.
1991) ("Mixed questions of law and fact must be divided into