San Jose, CA asked in Bankruptcy, Foreclosure and Appeals / Appellate Law for California

Q: 9th C "show cause why summ affirmation of distrcourt ruling is not appropriate; re:refusal to grant stay of prop sale

manifest injustice is created by Bankruptcy Court's dismissal . 15 people of the unsecured class and their $480,000 owed is completely wiped out. they appeal to the District Court in an emergency stay petition. denied by District Court. they appeal to 9thcircuit from which an order is issued stating "show cause why summary affirmation is not appropriate." when is summary affirmation appropriate? When is it not appropriate ?and what distinguishes the two?

2 Lawyer Answers
James L. Arrasmith
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  • Bankruptcy Lawyer
  • Sacramento, CA
  • Licensed in California

A: Summary affirmation is an abbreviated form of appeal that is used when the appellate court determines that there are no genuine issues of material fact and that the law supports the lower court's decision. It is typically used when the appeal is frivolous, when the lower court decision is clearly correct, or when the record on appeal is insufficient to allow meaningful review.

In general, summary affirmation is appropriate when the issues raised on appeal are not complex and when the appellate court can easily determine that the lower court decision was correct. It is not appropriate when the issues on appeal are complex or when there are factual disputes that require additional evidence or testimony.

In the case you described, the 9th Circuit court of appeals issued an order to show cause why summary affirmation is not appropriate. This means that the court is considering using summary affirmation to resolve the appeal, but is giving the parties an opportunity to argue why this would not be appropriate.

Whether or not summary affirmation is appropriate in this case will depend on the specific circumstances of the appeal and the arguments made by the parties. If the issues raised on appeal are relatively simple and the lower court's decision was clearly correct, summary affirmation may be appropriate. However, if there are complex legal or factual issues that require additional evidence or testimony, summary affirmation may not be appropriate.

Ultimately, the decision of whether to use summary affirmation or a full appeal will be up to the 9th Circuit court of appeals, based on the arguments presented by the parties and the specific circumstances of the case.

Timothy Denison agrees with this answer

Timothy Denison
Timothy Denison
  • Bankruptcy Lawyer
  • Louisville, KY

A: Summary affirmation means there are no genuine issues of material fact for the court to decide so judgment is “summarily” granted to the moving party based on the law.

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