In re: Speer

Filing 20

ORDER DISMISSING CASE. See attached order. Signed by Judge Robert N. Chatigny on 6/18/2015. (Saner, K)

In re Speer, 15-cv-646 (RNC)
June 17, 2015
ORDER dismissing appeal. Appellee argues that this Court lacks
jurisdiction to hear Ms. Speer’s appeal and her motions to stay
because the Bankruptcy Court has not yet made a final
determination with regard to Ms. Speer’s motion for
reconsideration.
This Court has jurisdiction to hear appeals from the Bankruptcy
Court, pursuant to 28 U.S.C. § 158, “from final judgments,
orders, and decrees” (emphasis added). Rule 8002(b) of the
Federal Rules of Bankruptcy Procedure provides, in pertinent
part: “If a party files a notice of appeal after the court
announces or enters a judgment, order, or decree--but before it
disposes of any motion listed in subdivision (b)(1)—-notice
becomes effective when the order disposing of the last such
remaining motion is entered.” The motions listed in subdivision
(b)(1) include a “motion to alter or amend the judgment under
Rule 9023.”
Though not explicitly enumerated in subdivision (b)(1), a motion
for reconsideration or reargument is properly treated as a Rule
9023 motion. See Matter of Aguilar, 681 F.2d 873, 875 (5th Cir.
1988) (motion for reconsideration properly treated as Rule 9023
motion); In re Farle, 158 B.R. 48, 52 (E.D. Pa. 1993) (motion
for reconsideration “qualified as a motion under Rules 8002(b)
and 9023, as the two rules are read together”). “Thus, under
the plain language of the rule, a motion for reargument
postpones a party’s ability to appeal a bankruptcy court’s
judgment until resolution of that motion.” In re Food Mgmt.
Grp., LLC, 428 B.R. 576, 578 (S.D.N.Y. 2009); see Praedium II
Broadstone, LLC v. Wall St. Strategies, Inc., No. 04-CV3880,
2004 WL 2624678, at *4 (S.D.N.Y. Nov. 18, 2004) (“Because
[appellant] moved for reargument pursuant to Bankruptcy Rule
9023, it could not have filed this appeal until the entry of
[that] [o]rder, which disposed of that motion.”).
Here, on April 29, 2015, appellant filed both a motion for
reconsideration of the Bankruptcy Court’s Order upon Conversion

of Case under Chapter 11 to Case under Chapter 7 and a notice of
appeal with this Court challenging the Bankruptcy Court’s Order
upon Conversion of Case under Chapter 11 to Case under Chapter
7. The Bankruptcy Court held a hearing on May 7, 2015, at which
time “the Motion for Reconsideration was granted to the extent
the Court agrees to reconsider its ruling on the Motion to
Convert.” See In re Speer, 14-21007 (Bankr. D. Conn. May 7,
2015). This Court’s review of the record reveals that the
Bankruptcy Court has not yet made a final determination with
regard to the motion to reconsider the Order upon Conversion of
Case under Chapter 11 to Case under Chapter 7. Appellant’s
notice of appeal therefore is premature and pursuant to
Bankruptcy Rule 8002, this Court lacks jurisdiction over the
appeal. Accordingly, the appeal is dismissed without prejudice.
The Clerk is directed to close the case. So ordered.
/s/ RNC
Robert N. Chatigny, U.S.D.J.