Lateral Appeal in BKR to District Judge Often Overlooked

The PHH case underscores the statistics and the substance of actions brought in U.S> Bankruptcy Court. The fact is that BKR judges, once called magistrates, do not have the jurisdiction or power of ordinary District Court Judges.

In addition out of the three possible venues for appeal from BKR rulings and decisions, the one that gets the most traction the most often is directly to the sitting District Court judge in whose courthouse the BKR proceedings are pending. District judges are the most likely to find that the BKR “judge” lacked jurisdiction or power to even hear many matters.

Let us write the narrative for your appeal: 202-838-6345
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Hat tip to Dan Edstrom

see PHH v Sensenich US Dist Lexis 207801

There are three possible routes for appeal. The one that gets the best results is rarely used for unknown reasons. So here are some pointers on bringing an appeal from a ruling or decision entered by a BKR judge:

  1. Lateral appeal to District Court Judge: Success rate around 50%
  2. Bankruptcy Appellate Panel (BAP): Success rate around 15%
  3. Direct appeal to the Circuit Court of Appeals: Success rate less than 15%.

This anomaly was first pointed out by a Bankruptcy Court Judge in Arizona who as presenting at a CLE Bar Seminar for Bankruptcy lawyers. The seminar was in 2009 and still we are waiting for BKR practitioners to pick up the ball.

An apparently little known fact is that BKR courts are courts of limited jurisdiction as to what they can hear and how they can hear the issues. Many practitioners avoid an appeal from BKR to the Federal District Court Judge because they think that the District judge is on the same level as the BKR judge. And they think that two judges on the same bench are not going to rule against each other.

This view is simply wrong. They are not on the same bench. District Judges have authority over everything that happens in BKR court. BKR court is itself broken up into two categories. One category is simple rulings on motions in the administrative court proceeding (which is why the BKR “Judges” were called magistrates).

Most of what happens in the administrative phase of a bankruptcy is ministerial. Rulings that cross the line of ruling from ministerial to substantive judgments on the law regarding consumer rights, foreclosures etc. are subject to challenge and are as likely to get overturned by the District Judge as not. This is the part most people have some familiarity.

The other category is Adversary actions. This means someone has filed a lawsuit in Bankruptcy Court that is separately served and subject to the same rules of procedure as an action filed in U.S. District Court. But the similarity ends there. Many adversary actions go far beyond the jurisdiction of the BKR judge.

Lack of jurisdiction means the judgment or ruling is void. Those void judgments are generally reversed by the District Court judge and not necessarily by the BAP or Circuit Court probably because nobody brings up the issue of whether the BKR action was in the correct court.

Generally speaking there are two categories of appeal: procedural and substantive. Appeals citing errors in procedure (including jurisdiction) generally get the most traction. Appeals citing substantive law or worse, citing errors in apprehending the evidence, have the lowest success rate.

In the case cited above, Federal District Court Judge Geoffrey Crawford reversed a bankruptcy judge’s ruling that had imposed sanctions against a creditor “based on Rule 3002.1(i) of the Rules of Bankruptcy Procedure, the bankruptcy court’s inherent authority, and Bankruptcy Code section 105.”

The sanctions were awarded in three cases where debtors had to make mortgage payments pursuant to chapter 13 plans.  The mortgage servicer had billed the debtors for fees that the bankruptcy trustee asserted were improper. At a trustee’s request, the bankruptcy court imposed sanctions against the servicer of $375,000: $25,000 for each case under Rule 3002.(i) and $300,000 total for violations of court orders under its inherent powers and section 105.

Rule 3002.1 permits bankruptcy courts to provide relief to debtors when mortgage creditors fail to disclose certain fees and charges. Rule 3002.1(i) allows courts to remedy violations of certain provisions of Rule 3002.1 by (among other things) “award[ing] other appropriate relief, including reasonable expenses and attorney’s fees caused by the failure.” Whether Rule 3002.1 authorizes punitive sanctions was a matter of first impression. Neither the parties nor the court had found a case where a bankruptcy court had invoked the rule to support sanctions in this manner.

Judge Crawford reasoned that, because Rule 3002.1 is a procedural rule, it cannot enlarge the substantive authority of the bankruptcy courts. If bankruptcy courts do not have the substantive authority under statute and case law to issue punitive sanctions, then a mere procedural rule cannot alter the lack of substantive authority. The court thus concluded that the question under Rule 3002.1(i) was reducible to the question under a bankruptcy court’s inherent powers and section 105.

For homeowners this ruling helps. Citing it puts the banks in the position of opposing a ruling that went in their favor, i.e., this PHH case.  This also puts the homeowner on notice to check carefully before filing an adversary action instead of a collateral action that is directly before the District Judge or even State Court.

The problem is that most BKR attorneys who mostly do Chapter 7 and Chapter 13, have little or no litigation experience. Thus it may be necessary to NOT  charge your BKR lawyer with there responsibility of filing an adversary or collateral action and to bring in separate trial counsel even if the decision is made to file an adversary complaint.

 

 

 

4 Responses

  1. Problem with interlocutory appeals in bk is that the bk judge has to give you permission to appeal; otherwise you have to wait for appeal on final decree/judgment of discharge. Why you putting crap out like this? …you know you’re being deceptive with suggesting there’s a lateral appeal, when it does not exist.

  2. No need to appeal if you make the right arguments. However, most homeowners are being scammed by incompetent “stall” attorneys and securitization/chain of title auditors.

    “Plaintiff attempts to “lodge” “[t]he facts and statements made in the securitization audit attached herein.” Frankly, the Court is astonished by Plaintiff’s audacity. Instead of providing the “short and plain statement” of facts required by the Federal Rules of Civil Procedure, Plaintiff requires the Court to scour a poorly copied, 45 page “Certified Forensic Loan Audit” in an attempt to discern the basic facts of his case. This alone would be sufficient for dismissal. However, the Court is equally concerned by Plaintiff’s attempt to incorporate such an “audit,” which is more than likely the product of “charlatans who prey upon people in economically dire situation,” rather than a legitimate recitation of Plaintiff’s factual allegations. As one bankruptcy judge bluntly explained, “[the Court] is quite confident there is no such thing as a ‘Certified Forensic Loan Audit’ or a ‘certified forensic auditor.’” In fact, the Federal Trade Commission has issued a “Consumer Alert” regarding such “Forensic Loan Audits.” The Court will not, in good conscience, consider any facts recited by such a questionable authority.” DEMILIO V CITIZENS HOME LOANS INC., Dist. Court, MD Georgia 2013

  3. Way to go everybody: the fees are always improper and violate the FDCPA as well as federal statutes relating to wire fraud and mail fraud, among others.

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