• Appellate Jurisdiction,  Appellate Procedure,  Bankruptcy,  Federal Procedure

    Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable

    As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky.  28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from “final decisions, judgments, orders, and decrees entered” either by the district courts or the Bankruptcy Appellate Panel. In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”: Although the bankruptcy proceedings may continue, and here, in fact they…

  • Bankruptcy

    Double-Check — No, Triple-Check — the SSN on Your Bankruptcy Docs

    There’s only so far a creditor has to go to determine if a debtor in a bankruptcy notice to creditors is actually a debtor of that creditor. In Ellet v. Goldberg, case no. 05-16677 (9th Cir. Oct. 29, 2007), the court holds that the Franchise Tax Board was not required to track down the actual identity of the debtor when the notice it received bore an incorrect Social Security number that, according to the FTB’s records, did not match up to anyone owing taxes. Rather, the incorrect SSN made the notice ineffective and thus the FTB’s failure to file a proof of claim cannot justify discharge of the debtor’s tax…

  • Appellate Jurisdiction,  Appellate Procedure,  Bankruptcy,  Federal Procedure

    Bankruptcy Court Order Enjoining Arbitration is Appealable

    In Solidus Networks, Inc. v.  Excel Innovations, Inc., case no. 06-17288 (9th Cir. Sept. 7, 2001), the Ninth Circuit holds that an injunction issued pursuant to  11 U.S.C. § 105(a) to stay arbitration to which the debtor is not a party is an appealable order.  The court reasons that the injunction is effectively an extension of the automatic stay (11 U.S.C. § 362).  Since the automatic stay itself is effectively an injunction issuing from the bankruptcy court,and orders denying or granting relief from the automatic stay are appealable, the Ninth saw “no reason to treat the instant injunction differently.” The court took up the jurisdictional issue on its own, demonstrating…

  • Appellate Jurisdiction,  Appellate Procedure,  Bankruptcy,  Federal Procedure,  Ninth Circuit

    When is a Bankruptcy Court Order an Appealable Final Judgment?

    The Ninth Circuit gives a good summary of the rules applicable to this question in In re Brown, case no. 05-15605 (April 26, 2007). The court held that a minute order granting a creditor’s motion for summary judgment in an adversary action was an interim order that did not constitute a final judgment and thus did not trigger the time for debtor to appeal. The case gives excellent guidance for evaluating the language of an order and the procedural posture of the case as aids in determining appealability.