If you are currently going through bankruptcy in New York, and you feel mistakes are being made in court, you do have options.

The Complexities of Bankruptcy Court

Bankruptcy Courts run somewhat differently than other state and federal courts. One of the main differences is that bankruptcy procedures have a series of decisions, running step by step through the process (unlike regular cases that usually have one big decision at the end). But like other courts, Bankruptcy Courts have an appeals process if you feel that something has gone wrong. And due to the Bankruptcy Court’s series of decisions, you can (and should) appeal a decision during the bankruptcy process without have to wait to the end.

What Decisions Can Be Appealed?

Here are some examples of what type of decisions can be appealed in Bankruptcy Court:

• Conversion of a Chapter 11 or 13 case to Chapter 7 – If you started the bankruptcy process looking to reorganize your debts, the last thing you want is to have the court transfer your case to Chapter 7 against your will. This can happen if the court suspects fraud, financial mismanagement, or simply feels it needs to protect your remaining assets for the benefit of your creditors. If your bankruptcy judge decided to convert your case, and you believe they were wrong in doing so, you and your bankruptcy attorney may have the right to appeal.
  
• Dismissal of a Chapter 11 or 13 case – Similar to an unwanted conversation, a bankruptcy court can also dismiss your bankruptcy case completely, leaving you the mercy of your creditors. Dismissals are usually triggered by suspected fraud, failure make plan payments, and even simply forgetting to file the right paperwork. If your bankruptcy judge has dismissed your case, and you believe they were wrong in doing so, you and your bankruptcy lawyer may have the right to appeal.

• Vacating the automatic stay in your bankruptcy case – As soon as you declare bankruptcy, and your paperwork is submitted to the court, an automatic stay kicks in. This prevents most people and companies from trying collect the money you owe them. Most debtors and bill collectors must immediately stop trying to call, write, or email you. While there are a few exceptions (such as family support and taxes), most creditors fall into the automatic stay category. If your bankruptcy judge is allowing a creditor to collect, even with an automatic stay in place, you and your bankruptcy attorney may have the right to appeal.
  
• A ruling in adversary or contested proceedings – Any time any part of your bankruptcy process is contested by others (such as an objection to discharge) it is considered an adversary proceeding. Your creditors must offer the court any burden of proof for their objection. The court can then deny either your entire bankruptcy discharge or deny the discharge of the single contented debt. If your bankruptcy judge ruled against you in an adversary proceeding, and you believe they were wrong in doing so, your bankruptcy lawyer can begin the appeal process of resolving the objection, mediating with the creditor for a settlement, or prepare to litigate the case before a judge and jury.
  
• A decision by a Chapter 7 trustee to reject settlement and to pursue an asset – Even if you and an individual creditor came to an agreement about your debt (say, a mortgage on a second home), a bankruptcy trustee may reject that agreement in order to liquidate the asset. Many times, the court will listen to the trustee, but mistakes can be made. If you trustee is insisting on selling an asset you feel entitled to keep, you and your bankruptcy attorney may have the right to appeal.
  
• You are ordered to pay back a debt that should have been considered dischargeable – While not all debts are discharged via Chapter 7 bankruptcy, many are. If one of your creditors mistakenly claims to be exempt from having their debt be discharged, and the court agrees, you and your bankruptcy lawyer may have the right to appeal.

When Should I Appeal?

There are a number of deadlines you need to be aware of when it comes to appealing a Bankruptcy Court decision. Because bankruptcy is a multi-step process, each step of the process is based on a previous step. This means you need to look into the appeal process as soon as you feel as wrong decision is made, or it will affect every step forward.

How Do Appeals Work?

Having the right bankruptcy attorney by your side is critical in this process. They will be able to catch these mistakes as they happen and will know the right way to fight back, including:

• Understanding that miscommunications happen. The Bankruptcy Trustee may have been mistaken in the information they sent to the court, leaving the court to direct an incorrect judgement. This is known as Clear Error of Factual Findings. The standard of “clear error” is met when the reviewing court is left with a definite and firm conviction that a factual mistake was made, despite having some evidence to support the conclusion reached by the lower court. The standard of “clear error” does not give the appellate court as much discretion over factual findings as with legal conclusions, where the appellate court can come to a totally independent conclusion. Your bankruptcy lawyer should be able to gather the evidence and have the judgement corrected.
  
• When to litigate on “unsettled law”. Bankruptcy case law is complex and everchanging, and as a result various courts can interpret the law differently. Bankruptcy statutes and cases are often ambiguous and leave room for varied reasonable interpretations. There is a great deal of room for debate over the meaning, intent, history, and context of bankruptcy statutes and rules, and there is a rich supply of strong but divided bankruptcy cases interpreting the same statutes. The advantage of filing an appeal in a bankruptcy case is that decisions often involve unsettled law and unclear facts that allow for different opinions and conclusions as to the correct outcome of case. The right bankruptcy attorney can use they knowledge of “unsettled law” to get you the best judgement possible.

The Next Step

Bankruptcy is an exhausting, emotional, and complex legal process. The last thing you want to worry about is mistakes made in your case. Having an experienced bankruptcy lawyer, who isn’t afraid to litigate if things go wrong, is one way to keep the process running smoothly.

If you’d like to talk directly to a compassionate, knowledgeable, human being, reach out to New York bankruptcy attorney Ronald Weiss for a free consultation. He can review what you want to do, and help you get your case started. Call 631-271-3737 and take the first step to a fresh start.