Howe v. PNC Mortgage

Filing 8

ORDER REMANDING EMERGENCY MOTION FOR STAY PENDING APPEAL TO BANKRUPTCY COURT FOR CONSIDERATION re 7 MOTION to Stay Pending Appeal filed by Karina Lee Howe. Signed by Judge Yvonne Gonzalez Rogers on 10/26/15. (fs, COURT STAFF) (Filed on 10/26/2015)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE KARINA LEE HOWE,
Debtor.

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For the Northern District of California

United States District Court

No. C 15-03876 JSW

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KARINA LEE HOWE,
Appellant,

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ORDER REMANDING EMERGENCY
MOTION FOR STAY PENDING APPEAL
TO BANKRUPTCY COURT FOR
CONSIDERATION
Docket No. 7

v.
PNC MORTGAGE,
Appellee.
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On October 22, 2015, Appellant filed an emergency motion for stay pending appeal. In the

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motion, Appellant seeks relief on an emergency basis because the bankruptcy estate is to be

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liquidated by November 30, 2015, and the marketing of the real properties at issues is already

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underway. The motion is based on Appellant’s contention that a conflict of interest exists for the

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Bankruptcy Judge and/or the Disbursing Agent because the Disbursing Agent was, until recently, a

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senior law clerk of the Bankruptcy Judge, and this information was not disclosed to Appellant.

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Appellant did not seek a stay in the bankruptcy court before filing the motion for a stay in

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this Court. Ordinarily, a party must move first in the bankruptcy court for a stay pending appeal.

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Fed. R. Bankr. P. 8007(a)(1), (b)(2). This is true even for emergency motions. See Fed. R. Bankr.

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P. 8013(d)(2)(B) (providing that an emergency motion must “state whether all grounds for it were

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submitted to the bankruptcy court and, if not, why the motion should not be remanded for the

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bankruptcy court to consider”).

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Appellant contends that moving first in the bankruptcy court would be “impracticable” due

motion for recusal or disqualification may be presented in the first instance to the bankruptcy judge

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whose recusal or disqualification is sought. See 28 U.S.C. § 455 (providing that a judge shall

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disqualify herself under enumerated circumstances); Fed. R. Bankr. P. 5004 Advisory Committe

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Note to 1987 Amendments (“The bankruptcy judge before whom the matter is pending determines

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whether disqualification is required.”). If a bankruptcy judge may rule on a motion for her recusal

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or disqualification, then she may also rule on whether a stay pending appeal is warranted due to a

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For the Northern District of California

to the claimed conflict of interest. See Fed. R. Bankr. P. 8007(b)(2)(A). This Court disagrees. A

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United States District Court

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question relating to recusal or disqualification.

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Accordingly, Appellant’s emergency motion for stay pending appeal (Docket No. 7) is

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REMANDED to the bankruptcy court for consideration in the first instance. The bankruptcy court

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is requested to set an expedited schedule for the response to the motion and any reply, and to rule at

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the bankruptcy court’s earliest convenience so that this motion is not rendered moot.

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If necessary, Appellant may file a renewed emergency motion for stay pending appeal in this
Court.
IT IS SO ORDERED.
Dated: October 26, 2015

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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for

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JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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