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Judges differ on allowance of trustee's appeal

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Judges on the 7th Circuit Court of Appeals, including Northern District Judge Joseph Van Bokkelen - who was sitting in designation - disagreed whether a bankruptcy trustee's appeal should be dismissed for lack of appellate jurisdiction because he didn't file a petition for permission to appeal.

Judge Diane Sykes dissented from Judges Richard Posner and Van Bokkelen in their decision in In Re: Joel Anthony Turner,  No. 08-2163, that the bankruptcy trustee's failure to file the petition doesn't prevent the Circuit Court from reaching a decision on the merits of the case. The two reversed the bankruptcy court's decision to allow Chapter 13 filer Joel Anthony Turner to continue to deduct more than $1,500 in monthly mortgage payments when he stated he planned to abandon the house to the mortgagee. The trustee in bankruptcy, representing the unsecured creditors, objected to the plan, and the Bankruptcy judge rejected the objection. The Bankruptcy judge certified his order for a direct appeal to the 7th Circuit.

That direct appeal is what caused the judges to dissent. The trustee didn't follow the specified temporary procedures in place at the time of the appeal under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 because he failed to file a petition for permission to appeal. The trustee filed his notice of appeal within the specified time, the bankruptcy court entered its certification order, and the clerk transmitted to the 7th Circuit the certification order and the trustee's request for certification.

Judges Posner and Van Bokkelen, who concurred in part and in the judgment with Judge Posner, determined none of the parties were harmed or inconvenienced by the trustee's failure to file the petition. Judge Posner wrote the filing in the 7th Circuit was both complete and timely, and that in essence, the petition was transferred by the court of the bankruptcy clerk rather than the trustee. The information sent by the clerk contained the same information the trustee would have sent.

"We don't mean to trivialize the requirement of filing a petition for review; in another case the failure to comply might well be fatal," wrote Judge Posner. "...Had Turner challenged the request for certification, it would have behooved the trustee to meet the challenge in a petition for review lodged with this court. But there was, as we said, no challenge, and hence the petition would have said nothing that was not in the request for certification-the request transmitted to us and treated by us as the petition for review, which in every respect except label it was."

The majority reversed the bankruptcy court's decision, agreeing with the 8th Circuit Court of Appeals that while the calculation of disposable income is a starting point for determining a debtor's projected disposable income, the final calculation can take into account changes that have occurred in the debtor's financial circumstances.

In her dissent, Judge Sykes would have dismissed the appeal for lack of appellate jurisdiction because of the trustee's failure to follow the act's requirements that he file a petition for permission to appeal.

"The trustee did not file the functional equivalent of a petition for permission to appeal within the applicable time limit for filing a petition; indeed, he did not file anything within the time limit for filing a petition," she wrote. "The majority permits the bankruptcy clerk's premature transmittal of a portion of the record to stand as the trustee's 'petition.' This is a significant and unwarranted expansion of the functional-equivalence principle."

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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