I am a bankruptcy attorney and I would be happy to assist you. Most jurisdictions have held that a district court and a bankruptcy court lack authority to grant a stay pending appeal. Bankruptcy Rule 8017(b) provides: “If before the expiration of a stay...there is an appeal to the court of appeals by the party who obtained the stay, the stay shall continue until final disposition by the court of appeals.” Some courts have held, on the basis of this language, as well as practical considerations and the interests of clarity and efficiency, that the filing of a notice of appeal to an appellate court divests the district court of jurisdiction to grant a stay pending appeal under Rule 8017(b). Thus, a district court or appellate panel arguably has authority to grant a stay only in the period before the filing of the appeal to the court of appeals. Since you already filed the notice of appeal, you are unable to request that the district court or bankruptcy court reconsider or do anything else regarding the stay. Therefore, based on the foregoing law, the District Court and Bankruptcy Court are precluded from ruling any further on the matter. The issue is now in the governance of the BAP. Since time is of the essence, you should complete your appeal to the BAP immediately. Under Section 8017(b), if you complete the filing of your appeal before the stay expires per the original court's order granting the creditor's motion for relief from stay, then the stay would extend until the appeal was heard by the BAP, as long as you posted a bond. However, if the stay has already been lifted, there is nothing you can do to prevent the creditor from moving forward with disposing of the property. But if you win on appeal, since the matter is involving real property, the creditor could potentially be ordered to return the property to you and would be responsible for any damages you incurred as a result of the creditor taking the property.
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I am a little confused. Neither the district judge or opposing counsel said anything about not having jurisdiction. They both made detailed arguments about the "four prongs" but said nothing about a lack of jurisdiction. The judge was only appointed last November but he was a bankruptcy attorney before that. We are in Alaska but I don't think that makes any difference.
Are you saying that if I complete the filing of my appeal within 14 days of the entry of the original Order to Provide Relief From Stay (and posted a bond) that the automatic stay would extend until the appeal is heard by the BAP? When you say complete the filing do you include filing the brief? Also, who decides the amount and terms of the bond?
What about Rule 8005. Stay Pending Appeal? My understanding is that I had to file with the District Court first (and wait for an answer) because that is where the case is being heard. Does that change anything about the time limit?
"A motion for a stay of the judgment, order, or decree of a bankruptcy judge, for approval of a supersedeas bond, or for other relief pending appeal must ordinarily be presented to the bankruptcy judge in the first instance. Notwithstanding Rule 7062 but subject to the power of the district court and the bankruptcy appellate panel reserved hereinafter, the bankruptcy judge may suspend or order the continuation of other proceedings in the case under the Code or make any other appropriate order during the pendency of an appeal on such terms as will protect the rights of all parties in interest. A motion for such relief, or for modification or termination of relief granted by a bankruptcy judge, may be made to the district court or the bankruptcy appellate panel, but the motion shall show why the relief, modification, or termination was not obtained from the bankruptcy judge. The district court or the bankruptcy appellate panel may condition the relief it grants under this rule on the filing of a bond or other appropriate security with the bankruptcy court."
Thanks for your help. I will give you a 4.
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