Opinion
Case No. 399-00005, D.C. Civ. No. 01-221.
September 21, 2004
MEMORANDUM OPINION
THIS MATTER comes before the Court on Appellant Orpah Barbel's Notice of Appeal, docket item # 1 and Motion for Leave to Appeal, docket item # 6 through her counsel Vincent Fuller Jr.
I. Background
Appellant Barbel is appealing an order from the U.S. Bankruptcy Court dated November 19, 2001 which dismissed her Motion for Recusal on the grounds that it was improperly before the court and enjoined her from filing any further pleadings pro se while represented by counsel. Barbel originally moved to have Judge Joseph L. Cosetti of the U.S. Bankruptcy Court recused from both her Chapter 13 and adversary proceedings on November 1, 2001. The Bankruptcy Court dismissed Appellant's motion on the grounds that she was represented by counsel and was therefore not entitled to "hybrid representation" pro se and by counsel and after going through the merits effectively denied the motion for recusal. Appellee, Chase Manhattan Bank, has filed a cross motion to dismiss Appellant's motion on the grounds that it is an interlocutory order from which there is no right of appeal.
II. Standard of Review
Pursuant to 28 U.S.C. § 158 (1994), U.S. district courts have jurisdiction to hear appeals from bankruptcy courts. A district court reviews the bankruptcy court's conclusions of law de novo but may only review findings of fact that are clearly erroneous. Fed.R. Bk. P. 8013 (West 1987). In re Excalibur Auto. Corp., 859 F.2d 454, 457 (7th Cir. 1988).
III. Analysis
1. Interlocutory Order
Under 28 U.S.C.S. § 158(a), a district court has jurisdiction to hear appeals on final orders of the bankruptcy court and "with leave of the court, from interlocutory orders." 28 U.S.C.S. § 158(a) (1994). Generally, in bankruptcy cases a final order is one that directly affects the disposition of an estate's assets, determines the outcome of an individual proceeding, or irrevocably decides a dispositive issue of law or the rights of a party." In re Murray, 116 B.R. 6 (D. Mass. 1990). In this case, the Bankruptcy Court issued an order dismissing Appellant's Motion for Recusal. Recusal is not related to disposition of assets and both parties agree that the order is interlocutory not final.
The next issue before the Court is whether the interlocutory order in question is appealable. There is no statute in the Bankruptcy Code or the Rules that definitively determines when an interlocutory appeal is appropriate. In the absence of statutory guidelines, courts have used the standard three part test under 28 U.S.C. § 1292 (1976). "[R]eview of interlocutory orders should be granted where: 1) the appeal presents a controlling question of law; 2) over which there is substantial basis for difference of opinion, and 3) an immediate appeal may materially advance the outcome of the case." In re Energy Insulation, Inc., 143 B.R. 490, 495 (D. Ill. 1992). See also In re Lifshultz Fast Freight Corp., 127 Bankr. 418, 419 (N.D. Ill 1991). Some courts have used a more stringent standard, granting appeals only for "exceptional circumstances" In re Casco Bay Lines, Inc., 8 B.R. 784, 786 (Bankr. Fed. App. 1981).
In applying the commonly used 28 U.S.C. § 1292 standard to this case, the Court finds that a controlling question of law exists as to whether unbundling of legal services are permitted in bankruptcy cases. This question comes before the Court because Appellant is asking the Court to review the Bankruptcy Court's decision that she had counsel at the time she filed a pro se motion. Second, this issue has yet to be determined as a matter of law and is currently disputed. See In re Harry R. and Kelly A. Johnson, 291 B.R. 462, (Bankr. D. Minn. 2003), In re Danielle Christine Merriam, 250 B.R. 724, 736 (Bankr. D. Colo. 2000). Finally, allowing an appeal on this matter will likely advance the conclusion of the issues being litigated. This Court therefore finds that Appellant's motion is properly before the Court being an appealable interlocutory order and Appellee's cross-motion to dismiss is denied.
2. Pro se dismissal
The Court now turns to the first two issues on appeal regarding pro se representation. On November 19, 2001, Judge Joseph L. Cosetti of the U.S. Bankruptcy Court ruled that Appellant's Motion for Recusal was improperly before the court having been filed pro se while Appellant was represented by counsel and enjoined Appellant from filing further pro se pleadings while represented.
The Bankruptcy Court stated that "[a]s long as there are attorneys of record for Barbel, pro se filings will not be recognized or permitted." The Court finds that there were no attorneys of record for Barbel's Chapter 13 proceedings at the time she filed her motion for recusal. The record shows that Appellant was represented by attorney Gwendolyn Wilds in her Chapter 13 matter until August 2, 2001 when, according to docket item # 100, Attorney Wild's Motion to Withdraw as Counsel was granted. New counsel had not been appointed between August 2, 2001 and November 1, 2001 when Appellant filed her Motion for Recusal pro se. Whether or not Appellant had representation for her appellate or adversarial matters, it is clear that she was not represented in regards to her Chapter 13 proceeding at the time in question. Therefore, Appellant was within her right to represent herself pro se for the Motion for Recusal relating to her Chapter 13 proceeding. The Court finds that the Bankruptcy Court's factual conclusion was clearly erroneous based on the record and therefore will not reach the controlling question of law as to whether debtor's can have unbundled legal representation in bankruptcy matters.
3. Recusal
The third issue on appeal is whether recusal of the Judge Joseph L. Cosetti of the Bankruptcy Court was warranted under 28 U.S.C. § 455 (1994). Having found that Appellant's motion was properly before the Bankruptcy Court, this Court reviews the Bankruptcy Court's effective denial on the merits of Appellant's motion.
Section 455 provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (1994). See Sao Paulo the Federative Republic of Braz. v. American Tobacco Co., 535 U.S. 229, (U.S. 2002). The judge must use an objective reasonable person standard in determining whether to recuse.
Upon de novo review, this Court agrees with the Bankruptcy Court's finding that Appellant's motion did not cite any grounds upon which recusal would be warranted under 28 U.S.C. § 455. Appellant's motion complains of ex parte communications between Judge Cosetti and Appellant's counsel, Gwendolyn Wilds, and allege general actions by the Judge that constitute personal bias. These pleadings do not rise to the level to warrant recusal of a judge under Section 455. Therefore, this Court affirms the Bankruptcy Court's effective denial of Appellant's motion for recusal.
IV. Conclusion
For the foregoing reasons, the Court finds that the Bankruptcy Court's order dismissing Appellant's motion and enjoining further pro se pleadings was clearly erroneous. However, this Court affirms the Bankruptcy Court's effective denial of the Motion for Recusal on the merits.
ORDER
THIS MATTER comes before the Court on Appellant Orpah Barbel's Notice of Appeal, docket item #1 and Motion for Leave to Appeal, docket item #6, through her counsel Vincent Fuller Jr and on Appellee Chase Manhattan Bank's Cross-Motion to Dismiss, docket item # 8.For the reasons stated in the foregoing opinion, it is hereby
ORDERED that Appellant's motion is GRANTED. It is further
ORDERED that Appellee's cross-motion is DENIED.
ORDER
THIS MATTER comes before the Court on Appellant Orpah Barbel's Notice of Appeal, docket item #1 and Motion for Leave to Appeal, docket item #6, through her counsel Vincent Fuller Jr. For the reasons stated in the foregoing opinion, it is herebyORDERED that the Bankruptcy Court's dismissal of Appellant's Motion for Recusal is REVERSED. It is further
ORDERED that the Bankruptcy Court's effective denial of Appellant's Motion for Recusal is AFFIRMED.