In Re Earsie L. Walker, Debtor.earsie L. Walker, Plaintiff-appellant, v. Federal National Mortgage Association, Defendant-appellee, 948 F.2d 1291 (6th Cir. 1991)Annotate this Case
Nov. 22, 1991
Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.
Plaintiff-Debtor appeals from the order of the district court denying her motion for a stay pending appeal of the bankruptcy court's order dismissing her chapter 13 petition and annulling the automatic stay in favor of Federal National Mortgage Association ("FNMA"). FNMA now seeks dismissal of the appeal for lack of jurisdiction, as no final, appealable order has been entered in the district court as required by 28 U.S.C. § 158(d) (1988).
A direct appeal of the district court's order does not fall within this court's jurisdiction under either § 158(d) or 28 U.S.C. § 1292 (1988). See In re Atencio, 913 F.2d 814, 816 (10th Cir. 1990); National Bank of Commerce v. Barrier (In re Barrier), 776 F.2d 1298, 1299 (5th Cir. 1985). However, plaintiff-debtor may be entitled to a review of the order in mandamus. See In re Atencio, 913 F.2d at 816; Hester v. NCNB Texas Nat'l Bank (In re Hester), 899 F.2d 361, 365 (5th Cir. 1990). This court has, when appropriate, construed a notice of appeal as a petition for a writ of mandamus. Beard v. Carrollton R.R., 893 F.2d 117, 120 (6th Cir. 1989).
The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations where the petitioner can show a clear and indisputable right to the relief sought. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662 (1978); Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976). There must be a demonstration of a clear abuse of discretion or conduct amounting to usurpation of judicial power in order to grant such a writ. In re Kings World Prods., Inc., 898 F.2d 56, 58 (6th Cir. 1990). On review of the pleadings, we conclude that this case is not appropriate for the issuance of a writ of mandamus.
It therefore is ORDERED that FNMA's motion to dismiss is granted and that relief in mandamus is denied.