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APPEAL ISSUES

 

Stuart v. Koch, 109 F.3d 1285 (8th Cir. 1997).

http://www.wulaw.wustl.edu/8th.cir/Opinions/970328/961541.P8

Exemptions orders are appealable because they can and frequently do determine entire course of bankruptcy proceeding.

 

Lewis v. U.S., 992 F.2d 767 (8th Cir. 1993)

A bankruptcy court's order which denied confirmation of a chapter 13 debtor's proposed plan, outlined the elements of an acceptable plan, and gave the debtor ten (10) days in which to submit a conforming plan or face dismissal was not a final appealable decision. The bankruptcy court had not effectively resolved the merits of the controversy as the order neither confirmed a plan nor dismissed the underlying petition.

 

Olive Street Investment, Inc. v. Howard Savings Bank, 972 F.2d 214 (8th Cir. 1992) (per curiam) (before Chief Judge Arnold, Henley, Senior Circuit Judge, and Magill, Circuit Judge)

Once bankruptcy proceeding is dismissed, debtor’s right to automatic stay does not continue to exist. The Court of Appeals held that appeal had become moot after bankruptcy court had dismissed the case, district court had affirmed that dismissal, and debtor chose not to pursue appeal to Court of Appeals. Appeal was dismissed.

 

First National Bank in Sioux City, Iowa v. Dahlquist (In Re Dahlquist), 751 F.2d 295 (8th Cir. 1985) (Bowman) (before Arnold, Fagg, and Bowman)

Dismissal of underlying bankruptcy proceeding prior to district court’s order affirming payment of interim compensation to the attorneys made the order of district court one which was final and appealable. While dismissal of a bankruptcy action indicates discontinuation of the attempt to restructure debtor’s financial affairs under the auspices of a federal court, it does not necessarily moot all issues collateral or ancillary to the bankruptcy proceedings. Issue as to propriety of order granting interim compensation to debtors’ attorneys was not rendered moot by order dismissing underlying bankruptcy proceeding or by appellant’s failure to obtain a stay of the order awarding interim compensation.

 

Funding Corp. v. Simpson (In Re Simpson), No. 99-6030EA (B.A.P. 8th Cir. November 5, 1999) (Judge Kressel) (before Koger, Kressel, and Dreher) (Chapter 13)

http://ls.wustl.edu/cgi-bin/8th/baprelease.pl (2nd case)

Confirmation of chapter 13 plan made moot challenges to earlier orders on relief from stay and foreclosure. The appeal was dismissed for lack of jurisdiction

 

Waterman v. Ditto (In Re Waterman), No. 99-6075EM (B.A.P. 8th Cir. November 5, 1999) (per curiam) (unpublished)

Debtor/Appellant failed to make a separate election to transfer the case to the district court as required by 28 U.S.C. § 158(c)(1994) and Federal Rule of Bankruptcy Procedure 8001(e). Therefore, the appeal was properly before the Bankruptcy Appellate Panel which denied the appellant's motion to transfer his appeal to the U.S. District Court for the Eastern District of Missouri.

 

Crockett v. Lineberger, No. 97-6002EA (B.A.P. 8th Cir. 1997)

(Judge Kressel) (before Kressel, Hill, and Schermer)

http://ls.wustl.edu/8th.cir/Opinions/BAP/970307/976002.P8

Appellate Court dismissed appeal. Rule 8002(a) requires the appellant to file a notice of appeal "within 10 days of the date of the entry of the judgment, order, or decree appealed from." Crockett's appeal was untimely since she failed to file her notice of appeal within ten days of the entry of the December 13, 1996 order. Rule 8002(a)'s ten-day time frame is both "mandatory and jurisdictional." Failure to comply with Rule 8002(a) "deprives the district court of jurisdiction to review" the bankruptcy court's order.

 

Agate Holdings, Inc. v. Ceresota Mill Ltd, 211 B.R. 315 (B.A.P. 8th Cir. 1997) (Chapter 11)

http://ls.wustl.edu/8th.cir/Opinions/BAP/970815/976012.P8

Bankruptcy Court did not abuse its discretion in refusing to consider untimely objections to a request for attorney fees.

 

Arleaux v. Arleaux, No. 97-6037 (B.A.P. 8th Cir 1997)

http://ls.wustl.edu/8th.cir/Opinions/BAP/970716/976037.P8

The Appellate Court affirmed the Bankruptcy Court's decision denying the debtor's motion to reopen his bankruptcy case to discharge his post petition debt for alimony and support. 11 U.S.C. § 350 governs the reopening of bankruptcy cases. The decision to reopen "is committed to the court's discretion." Accordingly, such decisions are reviewed for an abuse of discretion. No abuse of discretion was found here where the debtor's dischargeability claim was without merit.

 

Forbes v. Forbes (In Re Forbes), 215 B.R. 183 (B.A.P. 8th Cir. 1997) (Hill, J.) (before Kressel, Hill, and Dreher) (3:0)

The appellant is the former spouse and, by virtue of a divorce decree award, a creditor of the chapter 13 debtor, the appellee herein. In these consolidated appeals the former spouse appeals from the bankruptcy court's approval of post-confirmation modification of the appellee's confirmed chapter 13 plan over her objection and from an order denying her motion for reconsideration of its order approving the sale of real property in which she claimed a lien.

 

The Court held that entry of discharge at completion of payments did not moot appeal of approval of modified plan because discharge order was also appealed.

 

Moix-McNutt v. Coop, No. 97-6064EA (B.A.P. 8th Cir. 1997)

(Judge Dreher) (before Kressel, Koger, and Dreher)

http://ls.wustl.edu/8th.cir/Opinions/BAP/971006/976064.P8

Appeal dismissed because Bankruptcy Court order sustaining objection to confirmation of debtor's proposed chapter 13 plan and allowing debtor twenty days in which to file a motion to convert the case is not a final judgment, order, or decree within the meaning of 28 U.S.C. § 158(a)(1). Appellate Court recited the Circuit's three-part test for determination of a final order - namely,

  1. the extent to which the order leaves the Bankruptcy Court nothing to do but to execute the order;
  2. the extent to which delay in obtaining review would prevent the aggrieved party from obtaining effective relief;
  3. the extent to which a later reversal on that issue would require recommencement of the entire proceedings.

See Groves v. LaBarge, 39 F.3d 212 (8th Cir. 1994); Lewis v. Farmers Home Admin., 992 F.2d 767 (8th Cir. 1993).

 

In Re Jesse H. Dean, Bk. No. 92-80879 (Bankr. D. Neb. February 8, 1994) (Judge Timothy J. Mahoney)

This matter came on for a hearing upon the debtor’s motion for a stay pending appeal. The Bankruptcy Court reviews the standards governing discretionary stays pending appeal and grants the debtor’s motion.

 

 

 

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