In re ABC-Naco Inc.

Full title: IN RE ABC-NACO INC

Court: United States District Court, N.D. Illinois

Date published: Apr 16, 2004

No. 03 C 9348 (N.D. Ill. Apr. 16, 2004)

Opinion

No. 03 C 9348.

April 16, 2004

JAMES ZAGEL, District Judge

GE Canada Leasing Services Co. ("GE Canada") now moves to dismiss the Debtors' appeal of the Bankruptcy Court's November 6, 2003 order. In that order, the Bankruptcy Court granted GE Canada's motion to modify the automatic stay, allowing GE Canada to commence and prosecute proceedings against debtor National Castings, Inc. in Canada. GE Canada argues that the order modifying the automatic stay is not a final order and is, therefore, not appealable as a right. However, the prevailing Seventh Circuit law is to the contrary. The Seventh Circuit has consistently held that an order lifting the automatic stay is a final order immediately appealable as a right. In re Doctors Hosp. of Hyde Park, Inc., 337 F.3d 951, 954 (7th Cir. 2003) ("The district court's order granting the state's motion to lift the automatic stay was final and therefore appealable to us."); Colon v. Option One Mortg. Corp., 319 F.3d 912, 916, n. 1 (7th Cir. 2003) ("All courts that have considered the matter agree that an order lifting the automatic stay is a final judgment . . . We see no reason to disagree with the other circuits."); In re Boomgarden, 780 F.2d 657, 659-60 (7th Cir. 1985) ("We believe that the bankruptcy court's lifting of the automatic stay here . . . is a final order.").

GE Canada recognizes this general rule but argues that it does not apply to the specific facts of this case. In finding that lifting or modifying the automatic stay was a final decision, the Seventh Circuit reasoned that "foreclosures typically will follow close on the heels of lifting the stay. If the debtor were required to wait to appeal the judgment, the property would likely have been sold, leaving no relief for the debtor." Colon, 319 F.3d at 916 n. 1. Here, GE Canada argues, there is no such danger because the November 6^th order did nothing more than direct the venue of a discrete, subsidiary issue in a larger claim proceeding. However, I disagree. The November 6^th will ultimately lead a Canadian court to decide a small yet discrete portion of this bankruptcy action. This decision will resolve substantive rights of the parties and will, like a completed foreclosure action, leave the debtor without further remedy from the Bankruptcy court.

For the reasons stated herein, GE Canada's Motion to Dismiss this Appeal is DENIED.