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Margaret Kinney v. HSBC Bank USA

Summarizing by Lars Fuller

Ozenne v. Chase Manhattan Bank (In re Ozenne)

Ozenne v. Chase Manhattan Bank (In re Ozenne), Case No. 11-60039 (9th Cir. Nov. 9, 2016) (en banc)
Sitting en banc, the Ninth Circuit vacated the BAP's order and remanded the case with instruction to dismiss the mandamus petition for lack of jurisdiction.
Procedural context:
Appeal from the BAP's order denying Debtor Ozenne's petition for a writ of mandamus.
After multiple attempts to reopen or set aside the bankruptcy court's dismissal of his chapter 13, Ozenne filed a motion for sanctions for alleged violations of 362(a). The bankruptcy court denied the motion for lack of jurisdiction because the chapter 13 was dismissed and closed. Ozenne did not appeal the denial and instead petitioned the BAP for a writ of mandamus. The BAP determined that it had jurisdiction to issue a writ of mandamus but denied the petition on the basis that Ozenne had not met his burden to establish the writ was warranted. Ozenne appealed the BAP order. En banc, the Ninth Circuit did not address the constitutional question of the BAP's authority to issue writs and instead vacated and remanded because the petition for writ of mandamus was filed after the deadline to appeal the bankruptcy court's order and was intended to serve the same function. As a result, the BAP lacked jurisdiction to hear an "appeal labeled as a mandamus petition."
Thomas, Kozinski, Graber, McKeown, Paez, Berzon, Callahan, Smith, Watford, Owens, Friedland

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