Delaney v. Messer (In re Delaney)
- Summarized by David Treacy , U.S. Bankruptcy Court, Eastern District of Kentucky
- 1 year 6 months ago
- Case Type:
- Consumer
- Case Status:
- Dismissed
- Citation:
- No. 23-434 (L) (2nd Circuit, Aug 08,2024) Published
- Tag(s):
-
- Ruling:
- For lack of appellate jurisdiction under 28 U.S.C. § 158(d)(1), the U.S. Court of Appeals for the Second Circuit dismissed a chapter 7 debtor's appeal of an order denying his motion to dismiss his case under 11 U.S.C. § 707(a). In doing so, the court explained "the denial of a motion to dismiss a bankruptcy petition is a nonfinal order under [28 U.S.C.] § 158(a)." It also held it lacked jurisdiction to review the district court's decision to deny the debtor leave to appeal under 28 U.S.C. § 158(a)(3).
- Procedural context:
- After the bankruptcy court denied the debtor's motion to dismiss his chapter 7 case, he filed a notice of appeal. The district court treated the notice as a motion for leave to appeal an interlocutory order under 28 U.S.C. § 158(a)(3) and denied leave after applying the test set forth in 28 U.S.C. § 1292(b),. The district court also held it lacked appellate jurisdiction to review the order denying the motion to dismiss under 28 U.S.C. § 158(a)(1). It thus dismissed the debtor's appeal. The debtor filed a subsequent appeal to the Second Circuit. It appears likely the Second Circuit published this decision because the district court's order dismissing the debtor's initial appeal stated "the Second Circuit has 'not definitively ruled' on the question whether a bankruptcy court’s denial of a motion to dismiss a bankruptcy petition constitutes a final order."
- Facts:
- Chapter 7 Debtor Andrew Delaney filed a chapter 7 petition in the U.S. Bankruptcy Court for the Eastern District of New York. He then filed five separate motions to dismiss his case under 11 U.S.C. § 707(a). After the bankruptcy court denied the last motion--concluding dismissal would not be in the interest of all parties and rejecting Debtor's jurisdiction and venue arguments--Debtor appealed the order denying the motion to dismiss to the U.S. District Court for the Eastern District of New York.
- Judge(s):
- JACOBS, PARK, and NATHAN
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