Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 737 (9th Cir. 1990)

In re Ken BYRNES and Una Kay Byrnes, Debtors.AETNA CASUALTY & SURETY, Plaintiff-Appellee,v.Ken BYRNES, Una Kay Byrnes, Defendants-Appellants.In re Gerald M. DINI and Patricia Ann Dini, Debtors.AETNA CASUALTY AND SURETY COMPANY, INC., Appellee,v.Gerald M. DINI, Debtor,andPatricia Ann Dini, Appellant.

No. 89-15734.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 18, 1990.Decided Aug. 14, 1990.

Before TANG, NOONAN and RYMER, Circuit Judges.

ORDER* 

Ken and Una Kay Byrnes and Gerald and Patricia Ann Dini appeal the district court's order reversing the bankruptcy court's dismissal of Count III of Aetna Casualty and Surety Co.'s complaint, lifting the stay of related state court proceedings, and remanding to the bankruptcy court for further proceedings. We dismiss the appeal for lack of jurisdiction, as the district court's order was not final. See 28 U.S.C. § 158 (d);1  In re Stanton, 766 F.2d 1283, 1285-87 (9th Cir. 1985).2 

The district court in this case could not decide whether the debt was dischargeable without further factual findings by the bankruptcy court. It did not merely reverse or affirm, but instead, remanded to allow the bankruptcy court to determine whether Appellants' debts to Aetna were dischargeable in bankruptcy. It also lifted the automatic stay of the state court proceedings to allow the state court to make factual determinations which would aid the bankruptcy court's determination of dischargeability. Compare In re Sambo's Restaurants, Inc., 754 F.2d 811 (9th Cir. 1985), with In re Martinez, 721 F.2d 262 (9th Cir. 1983); see also Stanton, 766 F.2d at 1287. The remand in this case achieved the purpose, recognized in Stanton, of "maintain [ing] the trial court's role as a fact-finder." Id. at 1287.

Neither is the court's order lifting the automatic stay final. See In re Teleport Oil Co., 759 F.2d 1376, 1377-78 (9th Cir. 1985).

Because we do not have jurisdiction, this appeal is DISMISSED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

This statute provides the exclusive basis for the Ninth Circuit's jurisdiction over bankruptcy cases. In re Teleport Oil Co., 759 F.2d 1376, 1377-78 (9th Cir. 1985)

 2

In Stanton, the parties appealed from the bankruptcy court to the bankruptcy appellate panel. However, we noted that the finality analysis would be the same whether the case were appealed to the bankruptcy appellate panel or to the district court. 766 F.2d at 1285 n. 4. Thus, Stanton is not distinguishable on the grounds that it involved an appeal to the bankruptcy appellate panel

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