Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1989)

In re NORTHLAND DEVELOPMENT CORPORATION, DebtorJames F. ALDERSON, Appellant,v.John BOTHE, Trustee, Appellee.

No. 90-35173.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1990.Decided Oct. 1, 1990.



The appellant, James Alderson, is an accountant who did work for the debtor Northland Development Corporation and sought payment of his fees as an administrative expense in the bankruptcy proceedings involving that corporation. He seeks review of three 1988 orders of the Bankruptcy Court which denied him that compensation by affirming the sale of the debtor in possession's real estate assets, refusing to classify his fees as an administrative expense, and approving a $30,000 cash settlement. The appellant did not file a notice of appeal within ten days of each of those orders pursuant to Rule 8002, Rules of Bankruptcy Procedure. Rather, he attempted to appeal from the Bankruptcy Court's order approving the trustee's amended final account and report. The order of approval was filed March 8, 1989, and the appellant filed his notice of appeal on March 20, 1989.

The Bankruptcy Appellate Panel ("BAP") dismissed the appeal on the appellee's motion. The appellee argues that the appeal was untimely because the orders sought to be reviewed were final as to the appellant and no timely notice of appeal had been filed from any of them. Appellant contends that since he filed his appeal within ten days of the final order, the BAP had jurisdiction to consider his arguments on the merits with respect to the underlying orders.

The record reflects, however, that no stay was ever entered in the bankruptcy proceedings, and therefore on March 29, 1989, the settlement monies were distributed to the creditors. Thus the Bankruptcy Court is no longer in a position to offer any effective relief to the appellant. See Matter of Combined Metals Reduction Co., 557 F.2d 179 (9th Cir. 1977) (a trustee's sale and leases of various properties in the bankrupt's estate pursuant to orders entered by the district court rendered appeals moot). See also In re Cook, 730 F.2d 1324 (9th Cir. 1984); In re Clarke, 98 B.R. 979, 980 (9th Cir. BAP 1989). As the Bankruptcy Appellate Panel stated in In re Clarke, "it is now well recognized that when a stay of an order confirming a reorganization plan has not been obtained and the plan has been consummated, appeals seeking to attack the confirmed plan may be precluded." 98 B.R. at 980. Indeed appellant has acknowledged that he could have sought a stay but did not do so because of his inability to post the security he was told would be required.

Accordingly, any claim that the appellant could have made if he had appealed in a timely manner is now moot. The Bankruptcy Appellate Panel's dismissal of the appeal is AFFIRMED.


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