Friday, April 20, 2007

Direct Appeal. In general, when a party wants to appeal from a decision of a bankruptcy court, the appeal is made to the district court in the first instance. One can, however, appeal directly to the Court of Appeals if you meet the criteria of 28 U.S.C. 158(d)(2)(A). That provision allows a direct appeal if the bankruptcy court certifies that either "(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision . . . or involves a matter of public importance; (ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or (ii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case." In such cases, the Court of Appeals has discretion to hear the appeal.

In Webber v. United States Trustee, a creditor sought to take a direct appeal to the Second Circuit to address the issue of whether the increase in the homestead exemption should be applied retroactively. The Second Circuit declined to hear the appeal, stating that there was not a conflict in the decisions and there was no reason to believe that resolution of the issue would result in a more rapid resolution of the case.

The decision can be found here.

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