In Re Louis D. Amir

• Citation: 436 B.R. 1
• Decision Date: 05 August 2010
• Docket Number: Nos. 09-8002, 09-8012, 09-8017, 09-8051.,s. 09-8002, 09-8012, 09-8017, 09-8051.
• Parties: In re Louis D. AMIR, Debtor. David O. Simon, Chapter 7 Trustee, Plaintiff-Appellee, v. Louis D. Amir, Defendant-Appellant.
• Court: Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Sixth Circuit

436 B.R. 1

In re Louis D. AMIR, Debtor.David O. Simon, Chapter 7 Trustee, Plaintiff-Appellee,

v.Louis D. Amir, Defendant-Appellant.

Nos. 09-8002, 09-8012, 09-8017, 09-8051.

United States Bankruptcy Appellate Panelof the Sixth Circuit.

Aug. 5, 2010.

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ON BRIEF: Robert D. Barr, Lisa A. Vardzel, Dettelbach, Sicherman & Baumgart, Cleveland, Ohio, for Appellee. Louis D. Amir, Gates Mills, Ohio, pro se.

Before BOSWELL, McIVOR, and RHODES, Bankruptcy Appellate Panel Judges.

OPINION

G. HARVEY BOSWELL, Bankruptcy Judge.

The debtor in this case, Louis D. Amir (“Amir”), pro se, filed four separate notices of appeal for eight orders from the Bankruptcy Court for the Northern District of Ohio. First, Amir appeals the bankruptcy court's January 12, 2009, Order avoiding a pre-petition transfer of real property in Gates Mills, Ohio, (“Gates Mills property”) pursuant to 11 U.S.C. §§ 544 and 547. Second, Amir appeals the bankruptcy court's February 25, 2009, Order denying his emergency motion to strike the petition and retroactively annul the automatic stay. Third, Amir appeals a February 25, 2009, Order denying his emergency motion to void the sale of his 2007 Bentley. Fourth, Amir appeals the bankruptcy court's March 17, 2009, Order denying his emergency motion to dismiss pursuant to 11 U.S.C. § 521(i). Lastly, Amir appeals four bankruptcy court orders issued on August 3, 2009. These orders (1) clarified that there is no stay in effect pending appeal, (2) granted the motion for authority to change the locks on the Gates Mills property filed by the chapter 7 Trustee, David O. Simon (“Trustee”), (3) granted the Trustee's motion to sell the Gates Mills property, and (4) granted the Trustee's application to employ a realtor to sell the Gates Mills property. The appeals have been consolidated.

For the following reasons, the Panel AFFIRMS the bankruptcy court's February 25, 2009, Order denying Amir's motion to strike and retroactively annul the automatic stay and the bankruptcy court's March 17, 2009, Order denying Amir's emergency motion to dismiss. The Panel DISMISSES the appeals of the following orders for lack of jurisdiction: (1) January 12, 2009, Order avoiding the pre-petition transfer of the Gates Mills property; (2) February 25, 2009, Order denying Amir's motion to void the sale of his 2007 Bentley; and (3) August 3, 2009, Orders: a) clarifying that there is no stay in effect pending appeal, b) granting the Trustee's motion to change the locks, c) granting the Trustee's motion to sell the Gates Mills property, and d) granting the Trustee's application to employ a realtor.

I. JURISDICTION AND STANDARD OF REVIEW

The United States District Court for the Northern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel (“Panel”), and no party has timely elected to have these appeals heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). The Panel has jurisdiction to hear appeals from “ final judgments, orders, and decrees....” 28 U.S.C. § 158(a)(1) (emphasis added). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted).

A. February 25, 2009, and March 17, 2009, Orders denying Amir's motions to dismiss

An order which denies a motion to dismiss a bankruptcy petition is not a final order for purposes of appeal. Jefferson County Bd. of County Comm'rs v. Voinovich (In re The V. Cos.), 292 B.R. 290, 292 (6th Cir. BAP 2003). An interlocutory, or non-final, order may only be appealed with leave of the court. 28 U.S.C. § 158(a)(3). Leave of court is generally sought by filing a motion for leave to appeal; however, in appropriate circumstances, the Panel may consider a notice of appeal as a motion for leave to appeal and decide the appeal. See Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 843 (6th Cir. BAP 1998); Fed. R. Bankr.P. 8003(c); 28 U.S.C. §§ 158(a)(3) and (b). If the Panel decides that exercising jurisdiction over an interlocutory order is not appropriate, it lacks jurisdiction over the appeal. 28 U.S.C. § 158(a)(3).

The decision to grant leave to appeal is within the Panel's discretion and should be made by examining the standards found in 28 U.S.C. § 1292(b). U.S. Trustee v. Eggleston Works Loudspeaker Co. (In re Eggleston Works Loudspeaker Co.), 253 B.R. 519, 521 (6th Cir. BAP 2000). Section 1292(b) defines the Courts of Appeals' jurisdiction over interlocutory orders and, while the Panel is not constrained by the standards set forth in 28 U.S.C. § 1292(b), they are instructive. Wicheff, 215 B.R. at 844. The Sixth Circuit has adopted a four-part test for use in determining whether to grant leave to appeal an interlocutory order pursuant to 28 U.S.C. § 1292(b):

(1) The question involved must be one of “law”; (2) it must be “controlling”; (3) there must be substantial ground for “difference of opinion” about it; and (4) an immediate appeal must “materially advance the ultimate termination of the litigation.”

Cardwell v. Chesapeake & Ohio Ry. Co., 504 F.2d 444, 445 (6th Cir.1974).

The Panel finds that the appeals of the February 25, 2009, and March 17, 2009, Orders denying Amir's motions to dismiss involve controlling questions of law on which there is substantial ground for difference of opinion. The February 25, 2009, Order denying Amir's emergency motion to strike the petition and retroactively annul the automatic stay was based on the bankruptcy court's interpretation of 11 U.S.C. § 109(h) and Federal Rule of Bankruptcy Procedure 9011. The March 17, 2009, Order denying Amir's emergency motion to dismiss was based on the bankruptcy court's interpretation of 11 U.S.C. § 521(i). Both 11 U.S.C. § 109(h) and § 521(i) were added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Since their enactment, courts have strongly disagreed over the meaning of both sections. See, e.g., Wirum v. Warren (In re Warren), 568 F.3d 1113 (9th Cir.2009); In re Spencer, 388 B.R. 418 (Bankr.D.D.C.2008); In re Giles, 361 B.R. 212 (Bankr.D.Utah 2007); In re Hess, 347 B.R. 489 (Bankr.D.Vt.2006). The result is a split of authority among the courts.

The Panel also finds that allowing an immediate appeal of the two bankruptcy court orders denying Amir's motions to dismiss would “materially advance the ultimate termination of the litigation.” Wicheff, 215 B.R. at 844. If the Panel affirms the bankruptcy court's decisions, Amir's case will continue and the Trustee will be able to complete the liquidation of estate assets. If the Panel instead decides that the bankruptcy court should be reversed, Amir's bankruptcy case will be dismissed and the Trustee will not be able to distribute any assets to creditors. Amir's appeals of the February 25, 2009, and March 17, 1009, Orders meet the criteria for pursuing an appeal of an interlocutory order. Therefore, the Panel concludes it is appropriate to grant leave to appeal the February 25, 2009, and March 17, 2009, Orders denying Amir's motions to dismiss.

On appeal, rulings on motions to dismiss a bankruptcy case are reviewed for an abuse of discretion. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir.2007). “An abuse of discretion occurs only when the [trial] court relies upon clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.” Kaye v. Agripool, SRL (In re Murray, Inc.), 392 B.R. 288, 296 (6th Cir. BAP 2008). “An abuse of discretion is defined as a ‘definite and firm conviction that the [court below] committed a clear error of judgment.’ ” Mayor of Baltimore v. West Virginia (In re Eagle-Picher Indus., Inc.), 285 F.3d 522, 529 (6th Cir.2002) (citing Soberay Mach. & Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 770 (6th Cir.1999)). In reviewing a lower court's decision under the “abuse of discretion” standard,

“[t]he question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court's decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion.” Barlow v. M.J. Waterman & Assocs. (In re M.J. Waterman & Assocs.), 227 F.3d 604, 608 (6th Cir.2000) (citations omitted).

Geberegeorgis v. Gammarino (In re Geberegeorgis), 310 B.R. 61, 64 (6th Cir. BAP 2004).

B. January 12, 2009, Order avoiding the pre-petition transfer of the Gates Mills property and August 3, 2009, Order granting the Trustee's motion to sell the property

Although neither party to this appeal raised the issue of Amir's standing to appeal the June 12, 2009, Order avoiding the pre-petition transfer of real property, or the August 3, 2009, Orders relating to the sale of the real property, it is appropriate for the Panel to raise the issue sua sponte. SEC v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665 (6th Cir.2001). The lack of standing is a jurisdictional bar to appellate review. Harker v. Troutman (In re Troutman Enters.), 286 F.3d 359, 364 (6th Cir.2002). An appellate court must therefore raise the issue of standing sua sponte because it is “under an independent obligation to police its own jurisdiction.” Basic Energy, 273 F.3d at 665.

“Appellate standing in bankruptcy cases is more limited than Article III standing or the prudential requirements associated therewith.” Troutman, 286 F.3d at 364 (citation omitted). In order to have standing to appeal a bankruptcy court order, an appellant must be a “person aggrieved” by the bankruptcy court's order. Fidelity Bank, Nat'l Ass'n v. M.M. Group, Inc., 77 F.3d 880, 882 (6th Cir.1996) (citations omitted). This doctrine limits standing to those persons who “have been directly and...