Rehap A. Hoshan

UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re 	: 	Chapter 13
REHAP A. HOSHAN 	:
Debtor 	: 	Bankruptcy No. 07-15824bif
.................................................
ORDER
.................................................
AND NOW, this 9th day of October 2007, the pro se debtor having filed a
chapter 13 bankruptcy case on October 2, 2007,
And the debtor had also filed pro se a chapter 13 bankruptcy case on March
30, 2007, docketed at Bankr. No. 07-11889bif. That case was dismissed by order dated
April 23, 2007 for failure to file all required documents,
And in this prior case, on April 30, 2007, the debtor filed an “Application to
Reinstate Chapter 13 Petition.” By order dated May 3, 2007, I denied this request,
And on May 14, 2007, the debtor filed a “Motion for Reconsideration of
Debtor’s Motion to Reinstate.” By order dated June 4, 2007, I denied this request,
And on June 22, 2007, the debtor filed notice of intent to appeal my May
3rd order, and filed an appeal with the District Court for the Eastern District of
Pennsylvania on July 17, 2007. See Hoshan, et al., 2:07-cv-02931 (E.D. Pa.). That
appeal is still pending,
And accordingly, the debtor now has two cases pending: her appeal of the
denial to reinstate Bankr. No. 07-11889 and thus vacate dismissal of a chapter 13 petition;
and the chapter 13 case just filed, Bankr. No. 07-15824,
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Indeed, based upon this general principle, the Fifth Circuit Court of Appeals1
concluded that a district court had no power to grant plaintiffs leave to amend a complaint after
an interlocutory appeal had been filed from a district court order denying a motion to dismiss part
of the original complaint. Dayton Independent School Dist. v. U.S. Mineral Products Co., 906
(continued...)
2
And in Freshman v. Atkins, 269 U.S. 121 (1925), the Supreme Court held
that an individual with a pending bankruptcy case cannot file a second bankruptcy case
seeking to discharge the same debts. In part, the Court based the dismissal of the second
case “in accordance with the general rule that the law will not tolerate two suits at the
same time for the same cause.” Id., at 123; see, e.g., In re Peia, 204 B.R. 310 (Bankr. D.
Conn. 1996); In re Doss, 133 B.R. 108 (Bankr. N.D. Ohio 1991) (chapter 13 case filed
when chapter 7 still pending must be dismissed); Matter of Lunsford, 39 B.R. 490, 491
(Bankr. N.D. Ga. 1984); see also Prudential Ins. Co. v. Colony Square Co., 40 B.R. 603
(Bankr. N.D. Ga. 1984), aff’d, 62 B.R. 48 (N.D. Ga. 1985) (debtor may not file a chapter
11 case while its chapter XII case is still pending); see generally In re Turner, 207 B.R.
373 (B.A.P. 2d Cir. 1997) (discussing the problems of simultaneous bankruptcy filings),
And, in general, it has long been an established principle of federal
jurisprudence that the filing of a notice of appeal has the effect of automatically
transferring “jurisdiction” over that case from the trial to the appellate court. See Hovey
v. McDonald, 109 U.S. 150, 157 (1883). A “federal district court and a federal court of
appeals should not attempt to assert jurisdiction over a case simultaneously.” Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). “The filing of a notice of
appeal is an event of jurisdictional significance—it confers jurisdiction on the court of
appeals and divests the district court of its control over those aspects of the case involved
in the appeal.” Id., at 58, 1
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(...continued)1
F.2d 1059, 1063-64 (5th Cir. 1990); see In re Bialac, 694 F.2d 625, 627 (9th Cir. 1982) (“Even
though a bankruptcy court has wide latitude to reconsider and vacate its own prior decisions, not
even a bankruptcy court may vacate or modify an order while on appeal.”); Matter of Eddis, 37
B.R. 217 (E.D. Pa. 1984) (same).
The Third Circuit Court of Appeals has also held that if there is an appeal taken
from an order dismissing a complaint, the district court cannot permit the plaintiff to file an
amended complaint, even with the consent of the defendant. Thompson v. Harry C. Erb, Inc.,
240 F.2d 452, 454 (3d Cir. 1957) (“The attempted substitution of the amended complaint is
ineffective. The signature of the district judge on the stipulation gives no life to the amended
complaint as the taking of the appeal had divested the district court of jurisdiction of the cause of
action and transferred the latter to this tribunal.”); accord Holton v. Crozer-Chester Medical
Center, 560 F.2d 575, 578 (3d Cir. 1977).
3
And since an appeal empowers an appellate court to act in connection with
the case, it would appear that the debtor’s March 2007 bankruptcy case is still pending in
the sense used by the Court in Freshman. Although the March 2007 case has been
dismissed in this court, by filing a timely appeal the debtor caused “jurisdiction” over her
earlier case to be transferred to the district court where it remains in full force. If the
District Court reverses the decision of the Bankruptcy Court, the debtor’s March 2007
bankruptcy petition would return to this court for administration. Such an administration
could be inconsistent and confusing with the administration of the second October 2007
case. For example, if the bankruptcy stay is not in effect or has been lifted in favor of one
or more creditors in connection with the October 2007 case, would an order of the district
court sustaining the debtor’s appeal recreate the bankruptcy stay arising from the March
2007 petition?
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Moreover, the filing of a second bankruptcy case while the first is still pending2
upon appeal could be viewed as a questionable attempt to trigger the bankruptcy stay in lieu of a
stay pending appeal. Indeed, it is not easy to understand the legitimate purpose behind an
individual filing an appeal from the dismissal of one chapter 13 case while filing another case
while that appeal is pending.
4
And, as a result, this October 2007 bankruptcy petition appears to give rise
to the existence of two pending bankruptcy cases, involving the same debtor, the same
assets and the same creditors, 2
And relying upon the holding of Freshman, courts have determined that an
individual may not file a new bankruptcy case while the appeal from the dismissal of a
prior case is pending. See, e.g., In re Wead, 38 B.R. 658 (Bankr. E.D. Mo. 1984) (a
second chapter 11 filing while an appeal from the dismissal of an earlier chapter 11 filing
was still pending must be dismissed); In re Borg, 105 B.R. 56, 57 (Bankr. D. Mont. 1989)
(chapter 12 case dismissed when appeal of dismissal of prior case still pending); In re
Stahl, Asano, Shigetomi Associates, 6 B.R. 232 (Bankr. D. Haw. 1980) (chapter 11 case
was dismissed while appeal from earlier case filed under Chapter XII of the Act was still
pending),
Accordingly, it is hereby ordered that, as the instant October 2007 case is an
improper second filing while a prior case is pending, this case is dismissed. 11 U.S.C. §§
105(a), 1307(c).
____________________________________
BRUCE FOX
United States Bankruptcy Judge
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5
Copies to:
Mrs. Rehap A. Hoshan
10123 Jeanes Street
Philadelphia, PA 19116
William C. Miller, Esq.
Chapter 13 Trustee
111 S. Independence Mall, Suite 583
Philadelphia, PA 19106
United States Trustee
Office of the U.S. Trustee
833 Chestnut Street, Suite 500
Philadelphia, PA 19107
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