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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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