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By Diane Davis
July 14 — The U.S. Court of Appeals for the Ninth Circuit is going to rehear a debtor's case to decide whether Bankruptcy Appellate Panels have the power to issue writs of mandamus ( Ozenne v. Chase Manhattan Bank (In re Ozenne), 9th Cir., No. 11-60039, order 7/13/16 ).
The Ninth Circuit July 13 ordered under Federal Rule of Appellate Procedure 35(a), and Circuit Rule 35-3 that a case previously heard by a panel March 29 be reheard.
In that case, a three-judge panel held that BAPs aren't “established by Act of Congress” and lack jurisdiction to issue writs of mandamus under the All Writs Act, 28 U.S.C. § 1651(a) (28 BBLR 408, 3/31/16).
Senior Circuit Judge J. Clifford Wallace vacated the BAP's denial of a petition for a writ of mandamus and remanded the case for it to be dismissed for lack of jurisdiction.
The appeals court also overruled In re Salter, 279 B.R. 278 (B.A.P. 9th Cir. 2002), which held that the BAP's powers “must include the traditional power to issue writs that aid in their jurisdiction.”
The Ninth Circuit's July 13 order states that the three-judge panel opinion “shall not be cited as precedent by or to any court in the Ninth Circuit.”
The rehearing date has not yet been calendared and could be this year or next year, according to the Ninth Circuit's calendar unit. The rehearing date will be made public 10 weeks prior to the rehearing date, the court's calendar unit told Bloomberg BNA July 14.
Appellant/debtor Gary Lawrence Ozenne, Corona, Calif., represented himself, pro se; Jeffrey S. Allison and Eric D. Houser of Houser & Allison, Irvine, Calif., represented appellees Chase Manhattan Bank, Ocwen Loan Servicing, and Ocwen Federal Bank FSB.
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