Weaver v. ABN AMRO Mortgage Group, Inc. ( 2009 )

Not for Publication in West's Federal Reporter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 28
U.S.C. § 158(d)(2),1 added by section 1233(a)(2)(B) of the
Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA),
Pub. L. No. 109-8, 119 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, 542 F.3d 257, 259
(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.
28 U.S.C. § 158(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.
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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." Id. 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.
Id.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).
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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,
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 Rodríguez-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
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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, 542 F.3d at 259.
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.
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