Weaver v. Harmon Law Offices, P.C.
Opinion of the Court
This is the defendants’ second attempt to take a direct appeal from a bankruptcy court order under 28 U.S.C. § 158(d)(2),
Rather than waiting for a procedurally clean ease, 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.
In their response to the show-cause order, the defendants identify the issue warranting a direct appeal as “[wjhether 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, 542 F.3d at 258. 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 Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (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 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
We need go no further. For these reasons, we deny the request for leave to take a direct appeal to this court under 28 U.S.C. § 158(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.
. 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 appel-lees (if any) acting jointly, [make certain certifications] and if the court of appeals authorizes the direct appeal of the judgment, order, or decree.
28 U.S.C. § 158(d)(2)(A).
. The jurisdictional question was whether this court had jurisdiction despite the appellant's
. 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).
Reference
- Full Case Name
- In re: Linda Lynn WEAVER, Debtor Linda Lynn Weaver v. Harmon Law Offices, P.C.
- Status
- Published