Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 09-8004

IN RE LINDA LYNN WEAVER, DEBTOR ____________________

LINDA LYNN WEAVER,

Plaintiff, Respondent,

v.

HARMON LAW OFFICES, P.C., ET AL.,

Defendants, Petitioners.

____________________

PETITION FOR LEAVE TO APPEAL FROM THE BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William C. Hillman, U.S. Bankruptcy Judge]

Before

Lipez, Selya and Howard, Circuit Judges.

David M. Rosen, Harmon Law Offices, P.C., and Walter Oney on response to order to show cause and petition for leave to appeal.

April 6, 2009 Per Curiam. This is the defendants' second attempt to

take a direct appeal from a bankruptcy court order under

(d)(2),1 added by section 1233(a)(2)(B) of the

Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA),

Stat. 23, 202-03 (2005). We denied the

previous petition because of "[t]he existence of a serious

jurisdictional question,2 and the substantial possibility that

jurisdiction would ultimately be found lacking," leaving us to

fear "that allowing the appeal to proceed m[ight] not serve the

purposes of section 158(d)." In re Weaver,

(1st Cir. 2008) (per curiam). We further stated that "if, as the

bankruptcy court found in certifying this appeal, there are

hundreds of cases pending in the Bankruptcy Court for the

1 The pertinent part of that subdivision provides as follows:

The appropriate court of appeals shall have jurisdiction of appeals [from bankruptcy court judgments, orders, and decrees, including interlocutory orders with leave of the district court or bankruptcy appellate panel] if the bankruptcy appellate panel involved, acting on its own motion or on the request of a party to the judgment, order, or decree . . ., or all the appellants and appellees (if any) acting jointly, [make certain certifications] and if the court of appeals authorizes the direct appeal of the judgment, order, or decree.

(d)(2)(A). 2 The jurisdictional question was whether this court had jurisdiction despite the appellant's failure to file a timely notice of appeal or to seek permission from this court to appeal.

-2- District of Massachusetts raising the same issue certified here,

it would be preferable to resolve that issue in a case not

raising the potentially fatal procedural problems presented

here."

We cautioned both lower courts and litigants to

avoid such problems in future cases by carefully following the

procedures set forth in section 158 and in the applicable rules.

Rather than waiting for a procedurally clean case, the

defendants attempted to cure the procedural problems with this

case by moving for reconsideration of the interlocutory order in

question and then assaying a direct appeal from the bankruptcy

court's denial of that motion. In so doing, they created other

procedural problems, which prompted us to issue an order to show

cause why this case should not be transmitted to the district

court.3 Without deciding whether the procedural problems

identified in the show-cause order would preclude us from

authorizing a direct appeal, we exercise our discretion to deny

such authorization because, even if the certified issue is

sufficiently important to warrant a direct appeal (a matter on

3 The problems identified in the order to show cause were the bankruptcy court's transmission of the notice of appeal and motion for leave to take an interlocutory appeal to this court rather than to the district court as required by Fed. R. Bankr. P. 8003(b) and the defendants' failure to file a timely petition for leave to take a direct appeal in this court as required by Fed. R. Bankr. P. 8001(f)(5).

-3- which we take no view), this case is not an appropriate vehicle

for resolving that issue. We explain briefly.

In their response to the show-cause order, the

defendants identify the issue warranting a direct appeal as

"[w]hether or not the act of postponing a mortgage foreclosure

sale during a pending bankruptcy violates the automatic stay."

The bankruptcy court resolved that issue adversely to the

defendants in its decision issued on March 27, 2008, denying the

defendants' motion for summary judgment and granting partial

summary judgment to the plaintiff. But the defendants failed to

file a timely notice of appeal from that decision. See Weaver,

. Despite this omission, the defendants' present

notice of appeal purports to appeal not only from the bankruptcy

court's recent denial of their motion for reconsideration but

also from the original summary judgment decision itself.

Given that sequence of events, granting leave to take

a direct appeal now would present the same jurisdictional issue

that we previously found unsettling. See Rodríguez-Antuna v.

Chase Manhattan Bank Corp.,

(1st Cir. 1989)

(holding that "a punctual appeal from an order denying . . . a

[post-judgment] motion [other than one of the timely filed

motions specified in Fed. R. App. P. 4(a)(4)(A)] does not

automatically produce a Lazarus-like effect; it cannot resurrect

appellants' expired right to contest the merits of the underlying

-4- judgment, nor bring the judgment itself before [the appellate

court] for review"). The continued existence of that issue again

makes it unlikely that authorizing a direct appeal would result

in a "definitive resolution of the underlying legal question by

this court." Weaver,

.

We need go no further. For these reasons, we deny the

request for leave to take a direct appeal to this court under

(d)(2) and direct the Clerk to transmit the case to

the district court for docketing and for a ruling on whether to

grant defendants' petition for leave to take an interlocutory

appeal. See Fed. R. Bankr. P. 8003(b) & (d), 8007(b).

So ordered.

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