In re Consolidated Equities, Inc.
In re Consolidated Equities, Inc.
Opinion of the Court
OPINION AND ORDER
Present before the Court is Consolidated Equities, Inc.’s application for leave to appeal the interlocutory order of United States Bankruptcy Judge, dated November 21,1983. Secured Creditor Trustees of Central States Southeast and Southwest Areas Pension Fund filed its opposition thereto.
The order of the Bankruptcy Judge consists of a denial of a change of date for a hearing on the appointment of a trustee. A hearing had been originally scheduled by the Bankruptcy Court for December 27, 1983; however, the hearing was advanced to November 30, 1983.
Appellant contends that the Bankruptcy Court erred in changing the date of the hearing sua sponte without the required twenty-day notice and/or without showing just cause for the change.
Pursuant to 28 U.S.C. § 1334(b),
An interlocutory order to be appeal-able has to have the character of a formal exercise of judicial power affecting the asserted rights of the party; that is, it must determine some issue or decide some step in the proceedings. 1 Collier on Bankruptcy, Sec. 3.03(7)(d)(j), 15th Edition, at 3-307; see also, Good Hope Refineries, Inc. v. Brashear, 588 F.2d 846 (1st Cir. 1978).
The Bankruptcy Court’s denial of a change of date for a hearing on the appointment of trustee conformed to procedural practice.
In Chapter 11 cases such as the present one, the statutory provisions relating to trustees are set forth in Sections 1104-1106 of Title 11, U.S.C.A. Section 1104(a) provides in pertinent part that: “(a)t any time after the commencement of the case but before confirmation of a plan, on request of a party in interest, and after notice and a hearing, the court shall order the appointment of a trustee.... ” The rule of con
The Bankruptcy Court’s order of November 21, 1983, is not appealable because it determines no substantial trial right of debtor nor does it substantially determine any issue. The order can be described as one which lacks the “character of a formal exercise of judicial power affecting the asserted right of a party”, Colliers, supra, at 3-307, or which lacks “definitive operative finality”. In re Durensky, 519 F.2d 1024, 1029 (5th Cir. 1978). See also, In re Continental Mortgage Investors, 578 F.2d 872, 877 (1st Cir. 1978); Cope v. AETNA Finance Co., 412 F.2d 635, 639 (1st Cir. 1969); Good Hope Refineries, Inc. v. Brashear, supra.
In view of the above, the Court hereby DENIES Consolidated Equities Inc.’s leave to appeal the Bankruptcy Court’s order of November 21, 1983.
IT IS SO ORDERED.
. The Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, Title IV, Sec. 405(c)(2), 92 Stat. 2549, 2685 (1978), made this section applicable during the transition period extending from October 1, 1979, through March 31, 1984.
. See Rule (e)(1) of the Emergency Rules of this Court in Bankruptcy Cases, issued on December 22, 1982.
. 11 U.S.C. § 102(1) provides in pertinent part:
In this title—
(1) After notice and a hearing, or a similar phrase—
(a) means after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing is appropriate in the particular circumstances, ...
Reference
- Full Case Name
- In the Matter of CONSOLIDATED EQUITIES, INC.
- Status
- Published