Dean & Dean v. Lane (In re Lane)

Case Type:
Case Status:
File Name: 19b0005p.06; No. 8-8042 (6th Circuit, Apr 29,2019) Published
Sixth Circuit Bankruptcy Appellate Panel dismissed appeal by a creditor of an interim fee award granted to Debtor's counsel finding that: (i) the interim fee award was not a final order, and (ii) if the BAP treated the creditor's notice of appeal as a request for leave to appeal under 28 U.S.C. 158(a)(3) (see Fed. R. Bankr. P. 8004 (d)), the BAP found that the appeal did not raise any novel questions of law and it would not materially advance the litigation - and the BAP declined to grant the creditor leave to appeal.
Procedural context:
State court judgment creditors filed objections to a Chapter 13 Debtor's counsel's interim fee application. The interim fee application was approved by the bankruptcy court after some modification and fees were awarded. The creditor filed a timely notice of appeal and an amended notice of appeal to the BAP. The Debtor challenged the appeal as not ripe as the fee award was not final and the creditor did not seek leave to appeal. The BAP agreed with Debtor's argument and held the fee award was not final as an interim award of fees is always subject to modification. The BAP cited 28 U.S.C. 158(a)(1) as the basis for its ruling as well as established Sixth Circuit case law. The BAP declined to treat the notice of appeal as a motion for leave to appeal under 28 U.S.C. 158(a)(3) finding that the elements of the four part test established by the Sixth Circuit were not met.
Homeowner sold her residence to purchasers who then discovered mold in the basement. State court granted purchasers judgment for $126,895.57 against homeowner. Homeowner filed a Chapter 13 to address the debt. Purchasers began a war against the Debtor but the Debtor confirmed her Chapter 13 plan. Creditors then filed several adversary proceedings and appeals. Creditors were sanctioned and fees were awarded against the creditors. Several other issues remain before the BAP as a result of other appeals by Creditors.
BAP Judges Wise, Buchanan and Dales

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