Denial of a motion to show authority is an exercise of the Bankruptcy Court's equitable authority under 11 U.S.C. § 105(a) and is reviewed for abuse of discretion. See, e.g, In re Howes, 563 B.R. 794, 804 (D. Md. 2016) (stating that “
The United States Court of Appeals for the Fifth Circuit has used a "functional test" when deciding whether a notice of appeal divests a bankruptcy court of jurisdiction over certain issues: "once an appeal is pending, it is imperative that a lower court not exercise jurisdiction over those issues which, although not themselves expressly on appeal, nevertheless so impact the appeal so as to interfere with or effectively circumvent the appeal process." Scopac v. Pacific Lumber Co. (In re Scopac ), 624 F.3d 274, 280 (5th Cir. 2010) (quoting Whispering Pines Estates, Inc. v. Flash Island, Inc. (In re Whispering Pines Estates, Inc. ), 369 B.R. 752, 759 (1st Cir. BAP 2007) ), opinion modified on denial of reh'g , 649 F.3d 320 (5th Cir. 2011) ; In re Howes , 563 B.R. 794, 806-07 (D. Md. 2016) (applying the Scopac test). Here, Green's adversary proceeding was filed the same day that he filed a Notice of Appeal of the ruling on the Proof of Claim, which resulted in the 2270 Appeal.
This same principle applies to bankruptcy courts. See In re Howes, 563 B.R. 794, 806 (D.Md. 2016). However, in the absence of a stay pending appeal, “[a]lthough a district court may not alter or enlarge the scope of its judgment pending appeal, it does retain jurisdiction to enforce the judgment.'”
The standard of review of a bankruptcy appeal in district court is the same standard used by appellate courts in reviewing a district court proceeding. See 28 U.S.C. § 158(c)(2) (A bankruptcy appeal “shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts....”); see also In re Howes, 563 B.R. 794, 804 (D. Md. 2016) (citing 28 U.S.C. § 158(c)(2)); Conrad v. Schlossberg, 555 B.R. 514, 515-16 (D. Md. 2016) (same).
Accordingly, the Court construes those facts as part of the record evidence. See, e.g., In re Howes, 563 B.R. 794, 797 n.3 (D. Md. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); White v. White, 886 F.2d 721, 722- 23 (4th Cir. 1989) (explaining that a court has an “obligation to construe liberally the pleadings of a pro se litigant”). Except where otherwise indicated, the facts recounted below are undisputed.
See, e.g., In re Howes, 563 B.R. 794, 797 n.3 (D. Md. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989) (explaining that a court has an “obligation to construe liberally the pleadings of a pro se litigant”). III.
"Generally, the filing of a notice of appeal divests a bankruptcy court of its 'control over those aspects of the case involved in the appeal.'" In re Howes, 563 B.R. 794, 806 (D. Md. 2016) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). However, Bankruptcy Rule 8008, which "conforms bankruptcy practice to that of [Rule 62.1 of] the Federal Rules of Civil Procedure and [Rule 12.1 of] the Federal Rules of Appellate Procedure," 10 COLLIER ON BANKRUPTCY, ¶ 8008.
This decision is reviewed for abuse of discretion. See Arenas v. U.S. Tr. (In re Arenas), 535 B.R. 845, 849 (B.A.P. 10th Cir. 2015) ("An order granting or denying a motion to convert under § 1307(c) is reviewed for abuse of discretion . . . ."); In re Howes, 563 B.R. 794, 805 (D. Md. 2016) ("[A] bankruptcy court's decision to order relief, pursuant to the authority granted to it under § 105(a), is reviewed for abuse of discretion." (collecting cases)).
"[T]he filing of a notice of appeal divests a bankruptcy court of its 'control over those aspects of the case involved in the appeal.' " In re Howes, No. ELH-16-840, 2016 WL 7188444, at *10 (D. Md. Dec. 12, 2016) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam)). But "when a notice of appeal has been filed in a bankruptcy case, the bankruptcy court retains jurisdiction to address elements of the bankruptcy proceeding that are not the subject of the appeal."