UPDATED: The BAP granted my Motion for Waiver of Oral Argument and it has been removed from the docket for February 24, 2012.
I have two separate appeals on file right now: one in the Bankruptcy Court and one before the District Court. You may recall that the Defendants in my case failed to file a Proof of Claim or make an appearance in the bankruptcy. I wrote about this here and here.
Well, things got very interesting when the Defendants filed their Motion to Dismiss in the District Court case, and basically argued that they don’t have to come forward during the bankruptcy. They have to make this argument because it suits their whim and because the banks think they can do whatever they want. These are issues of first impression, however, and I’m hoping that that the BAP will address these issues. My position is that their failure to come forward during the bankruptcy has resulted in a due process issue that has deprived me of my constitutional rights under the United States Constitution.
The Fourteenth Amendment says that Americans are entitled to a hearing before their property is taken, and since the Defendants didn’t come forwarding during the bankruptcy, and the District Court dismissed my case, I have been deprived of my due process rights.
Someone has to give me a hearing on the merits and whether it’s the BAP or the Ninth Circuit or both, I look forward to having a chance to be heard on the merits of my case.
Back when I filed my Notice of Appeal in the Bankruptcy Court, I requested a waiver of oral argument, so I was pretty surprised when I got this notice. I am unopposed on this appeal – the Defendants didn’t file a brief and the Trustee did not either.
The BAP sent out a notice in mid-December to the Trustee instructing him to file a brief by January 2 or waive his rights to oral argument.
The Defendants didn’t file a brief because they would have had to explain why they didn’t come forward during the bankruptcy, and they don’t want to have to explain that. Beyond that, it would have been a large legal expense, and they must have decided it was better to see what happens and deal with that rather than deal with a potentially embarrassing rebuke from the BAP.
As such, I believe that this was scheduled because the Panel has questions about the facts in my case that are not shown in the record. Most of my attorney clients believe this hearing is a good sign that the BAP is going to rule on the merits and come up with a well-reasoned opinion.
I am going to appear on behalf of myself that day. The hearing is scheduled for Friday, February 24, 2012 at 9:00 a.m. at the United States Bankruptcy Court in downtown Phoenix.
I am the last case on the docket that day, presumably because I am pro se, and the Panel may have a lot of questions. I anticipate being asked about why I have two appeals pending in two different courts (because the issues are different but related), what do I expect to gain, and I wouldn’t be surprised if the “free house” comment is made from at least one member of the Panel, although if the judge makes a comment about that, it would seem that he/she isn’t familiar with the record. The facts of my case are not the same as the facts in other cases.
Here’s the Notice of Case Set for Hearing from the BAP:
Here’s the Docket for the hearing date and the sheet I had to return to the BAP acknowledging receipt of the hearing notice:
Remember, I’m not an attorney and cannot answer legal questions about these documents.