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Maverick
Maverick, Attorney
Category: Bankruptcy Law
Satisfied Customers: 3431
Experience:  Bankruptcy Law With An Accounting Degree - 13 + years as civil lawyer
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I filed a appeal in the appellate court and I am currently

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I filed a appeal in the appellate court and I am currently in a chpt 13 bk. all matters are stayed in the lower court until January 14, 2010 when the court will due a bk review. I filed a appeal on leave to amend my complaint on October 17, 2008 after losing a hearing. I just received a letter from the appellate court stating they want to updated their docket by inquiring into the status of my bk and assure that the petition has not been abandoned or become moot. I have to respond within in 20 days. How do I respond to this and will my bk affect the appeal I filled prior to my bk.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  Maverick replied 5 years ago.
Need a little clarification please. Can you please specifically identify which courts are involved.
Customer: replied 5 years ago.
santa clara county state superior court (lower court) and the other court is the sixth district appellate court of appeals
Expert:  Maverick replied 5 years ago.

Thank you for the update. Since you are in California, the 9th Circuit cases control on the issue you have presented here. The answer to your question is addressed by the Ingresoll case which you can find at the link below:

 

http://bulk.resource.org/courts.gov/c/F2/817/817.F2d.1424.86-6156.html

 

Basically, you appeal in the state court (6th district appellate ct) is stayed by the automatic stay that was evoked by your filing of the BK. Relief from an automatic stay is possible, however, under section 362(d). The bankruptcy court, under this section, may lift a stay upon request of a party in interest following notice and a hearing. 11 U.S.C. Sec. 362(d).

 

I would send a response to the appellate court that you believe the appeal is still pending and subject to the automatic stay as per the case that is at the above link. I would also let the court know that the BK court is not palnnin gon doing anything until 1/14/2010.

You may want to send copies of that letter to the lower court and opponents as well.

 

 

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Customer: replied 5 years ago.
I filed a appeal on Oct.17,2008 on a hearing that i lost in superior court on oct.7,2008. On feb. 27, 2009 i filed for bk. I then filed a stay in superior on april 21, 2009 and not in bk court. state superior court issued a order after i filed the stay setting a bk review hearing for 1/14/09. I just want to know if this will effect a appeal that was already filed and in process prior to filing bk.
Expert:  Maverick replied 5 years ago.

the 2/27/09 BK that you filed placed an automatic stay on the appeal that you filed on 10/17/08 and on the case you lost in superior court on 10/7/08. The stay you filed in superior ct on 4/21/09 was meaningless other than it provided the ct with notice that you had filed BK. The actual stay went into effect on both the state ct cases on 2/27/09.

 

Yes, the BK stay means that both the state court cases, the superior ct and the appellate, are at a stand still until the BK stay is lifted. That is why the appeals ct has sent you a letter asking you what is the status of your BK.

Maverick, Attorney
Category: Bankruptcy Law
Satisfied Customers: 3431
Experience: Bankruptcy Law With An Accounting Degree - 13 + years as civil lawyer
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