Hi, I'd like to assist you with your bankruptcy questions today.
"How does a Debtor know if an order by a Judge is a "final order" for the purpose of an appeal (Fed.Bankr.P. 8001(b), 8003(a)vs. an Interlocutory order requiring a motion for leave to appeal pursuant to 28 USC 158(a)(3)?"
A: This is actually a very tricky legal question that depends on exactly what the Debtor is trying to appeal. Can you provide any more specific information?
yes I can. Can you look at doc 258 and 259 to see what I am trying to do?
"Also, when filing a "Notice of Appeal," my understanding that a "Separate Notice" of election to have the appeal heard in Federal District Court vs. by the Bankruptcy Appellant Panel 28 USC 158(c)(1)(B)."
A: In the 11th Circuit, this is not possible, as there is no BAP.
is this the circuit that I am in?
Yes, Florida is in the 11th Circuit. Appeals from dispositive orders of bankruptcy judges may be taken to the district court.
(since there's no BAP)
What about how "specific" on the issues being appealed in the "notice? and the Refief being sought "in the notice"?
Here's a link to the basic instructions for filing a Notice of Appeal: http://www.ehow.com/how_6657782_file-appeal-bankruptcy-court-attorney.html
Also, can an one appeal a Court's decision on an issue raised and advocated for orally in open court? Or must it have been officially "pled" in writing?
Do you know where the best place for me to go to find a well written sample bankruptcy appellate brief?
The appellate process will be very difficult to handle yourself; it is highly recommended that you retain an attorney to help you with your appeal.
Let me take a look for a decent brief... please give me a moment.
There is also one issue I might want to mediate vs. move forward with. What is the Fed.Bankr.P. Rule allowing for and describing the procedures to request such a mediation "order?"
Can an indigent debtor request all fees associated with an appeal to be waived? If so, even in district court? Rule(s)?
Which docket entry is the final order?
you still there Fritz?
checking for doc No.. give me a sec.
In the Middle District of Florida, there's no real procedure for mediation that I know of other than a Motion for Mortgage Modification Mediation in a Chapter 13.
You can try to file a Motion for Mediation, but it would be entirely discretionary as to whether the Judge would grant the Motion. There's no rule on point (other than for Mortgage Modification Mediations).
While I don't think it's all that likely the Judge would grant your Motion, filing a Motion for Mediation wouldn't be completely out of line. It's a relatively reasonable request.
Doc 275 has preserved my appeal rights
Let me take a look...
also Docs 253 and 254
D.E. numbers 253 through 257 may be "final orders" you can properly appeal.
Arguably a few of them may not be, but you should include them all in your appeal so you don't waive anything by mistake.
One of the appeal issues in contraversary is whether or not the UST conducted a "proper" fact-finding investigation prior to re-opening my bankruptcy which was done vis ex-parte "generic" motion with no supporting facts whaich was later found out to be done by a vindictive ex-spouse who started sending complaints to the UST office nearly a year eairlierer and past the "bar" date for the ex-spouse to file a complaint. UST basiclly threw speggatti against the wall just prior to her being "time bared" to see if it would stick. If the "true" complaintant is an ex-spouse - -who was "barred" from re-opening my case, but later used the UST wh filed all docs showing it was ex-spouse under "seal" which were previously undiscoverable, but are now in view for the public, pursuant to rule 60D,I was denied the right to be heard. Also, my 2004 deposiion was used contstantly for opposing to get more oreders from the court when an objection at the onset of the 2004 was put on the record stating that I was under the influence and my doctor say I would not be able to give an accurate deposituon, and under rule 32, a hearing would be required prior to the use of the 2004; which never happened.
Here's a sample of an appellate brief: http://www.scribd.com/doc/18484321/lawrence-appellee-brief-0710295-eleventh-circuit-appeal
Note that this particular brief is for an appeal to the 11th Circuit Court of Appeals, whereas your appeal is to the Federal District Court for the Middle District of Florida (if you lose that appeal, you could then appeal to the 11th Circuit Court of Appeals).
You should raise all of the above issues. As you can see, an appellate brief is comprehensive. If you don't raise an issue, you won't be able to argue it at hearing, so you want to raise every potential legal issue you can that was addressed by the bankruptcy court below.
Quite often, an appellate court will decide a case based on a "throw-in" argument rather the the main argument that was extensively briefed.
So any viable legal argument is worth including in your brief.
Here's a link to the cover sheet for an appeal in the Middle District of Florida: http://www.flmb.uscourts.gov/forms/documents/appealcoversheet.pdf
Great.. I have only done a few appellate brifes and only one was a "real one" done as an intern. The other were from school for grade in Crim. Law.
What about the rule for waiving filing fees?
great form. Thanks
Here's the fee rule: http://www.law.cornell.edu/uscode/text/28/1930
Basically, only Chapter 7 Debtors may be entitled to a fee waiver, and then only by following specific procedures.
Hypothetically, you could file the appeal along with an Affidavit demonstrating inability to pay, and the Court could grant a waiver... but it's simply too risky, as your appeal will be DENIED if the waiver is not approved.
Thank you. Don't hesitate to request me again if you have other questions.
Hello Fritz - -see two seperate questions posted for you.
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