Nicolas Laurent v. Nancy N. Herkert, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT

FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

N o . 05-17173

A u g u s t 22, 2006

N o n - A r g u m e n t Calendar T H O M A S K. KAHN

CLERK

D . C. Docket No. 04-22076-CV-MGC

N IC O L A S LAURENT,

Plaintiff-Appellant,

versus

NANCY N. HERKERT,

United States Trustee,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(A u g u st 22, 2006)

B efo re DUBINA, HULL and MARCUS, Circuit Judges.

P E R CURIAM:

N ic h o las S. Laurent, a Chapter 13 debtor proceeding pro se, again appeals

th e district court's order relating to his motion to proceed with an interlocutory

ap p ea l from the bankruptcy court's Order Granting the Chapter 13 Trustee's M o tio n to Redirect Payment. We previously vacated the district court's dismissal o r d e r , which was based on the district court's understanding that it lacked ju risd ic tio n . See In re Laurent, 149 F. App'x 833 (11th Cir. Aug. 22, 2005) (not p u b lish ed ). We held that the district court had jurisdiction to render a decision on L au ren t's motion. Id. Accordingly, we directed the district court to decide, on r e m a n d , whether or not to grant the debtor leave to proceed with an interlocutory ap p eal from the bankruptcy court. On remand, the district court denied leave to p ro ceed . Laurent now appeals that decision. We affirm.

T h e district court in a bankruptcy appeal functions as an appellate court in rev iew in g the bankruptcy court's decision. Equitable Life Assurance Soc'y v. S u b lett, 895 F.2d 1381, 1383-84 (11th Cir. 1990). District courts may grant leave to hear appeals of interlocutory orders entered by a bankruptcy judge. See 28 U .S .C . § 158(a). "Because [28U.S.C. § 158(a)] does not provide the district court an y criteria for determining whether to exercise their discretionary authority to g ran t leave to appeal, the court[s] look[] to 28U.S.C. § 1292(b) which governs d is cr eti o n a r y interlocutory appeals from district courts to the court of appeals." In re Charter Co., 778 F.2d 617, 620 n.5 (11th Cir. 1985). In order to obtain leave to p r o c e e d under 28U.S.C. § 1292(b), a party must demonstrate that: (1) the order p resen ts a controlling question of law; (2) over which there is a substantial ground f o r difference of opinion among courts; and (3) the immediate resolution of the issu e would materially advance the ultimate termination of the litigation. See 28 U .S .C . § 1292(b).

H e re , the bankruptcy court's order granting the Trustee's motion to redirect p aym en t and ordering that any remaining funds, including those returned from B an k Atlantic, be refunded to Laurent, did not meet the criteria warranting leave to f ile an interlocutory appeal. The order did not present any issue of controlling law o v e r which there is disagreement among courts, but rather, it resolved the practical is s u e concerning to whom the Trustee should pay the funds she still held.

M o reo v er, the order does not materially advance the outcome of the litigation. At th e time of the order, the bankruptcy court had closed the case and discharged the T ru stee, and Bank Atlantic, for whom the contested funds had been ear-marked, h ad rejected the funds. Finally, as noted by the district court, resolution on the m e rits of an appeal of the order to redirect funds would not grant Laurent the relief h e sought: title to the guardianship property had already passed to the guardian, m ak in g the guardian the legal owner. Therefore, the district court did not err by d en yin g leave to proceed with an interlocutory appeal.

A F F IR M E D .

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