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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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