[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-17173
August 22, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-22076-CV-MGC
NICOLAS LAURENT,
Plaintiff-Appellant,
versus
NANCY N. HERKERT,
United States Trustee,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 22, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Nicholas S. Laurent, a Chapter 13 debtor proceeding pro se, again appeals
the district court’s order relating to his motion to proceed with an interlocutory
appeal from the bankruptcy court’s Order Granting the Chapter 13 Trustee’s
Motion to Redirect Payment. We previously vacated the district court’s dismissal
order, which was based on the district court’s understanding that it lacked
jurisdiction. See In re Laurent, 149 F. App’x 833 (11th Cir. Aug. 22, 2005) (not
published). We held that the district court had jurisdiction to render a decision on
Laurent’s motion. Id. Accordingly, we directed the district court to decide, on
remand, whether or not to grant the debtor leave to proceed with an interlocutory
appeal from the bankruptcy court. On remand, the district court denied leave to
proceed. Laurent now appeals that decision. We affirm.
The district court in a bankruptcy appeal functions as an appellate court in
reviewing the bankruptcy court’s decision. Equitable Life Assurance Soc’y v.
Sublett, 895 F.2d 1381, 1383-84 (11th Cir. 1990). District courts may grant leave
to hear appeals of interlocutory orders entered by a bankruptcy judge. See 28
U.S.C. § 158(a). “Because [28 U.S.C. § 158(a)] does not provide the district court
any criteria for determining whether to exercise their discretionary authority to
grant leave to appeal, the court[s] look[] to 28 U.S.C. § 1292(b) which governs
discretionary interlocutory appeals from district courts to the court of appeals.” In
re Charter Co., 778 F.2d 617, 620 n.5 (11th Cir. 1985). In order to obtain leave to
proceed under 28 U.S.C. § 1292(b), a party must demonstrate that: (1) the order
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presents a controlling question of law; (2) over which there is a substantial ground
for difference of opinion among courts; and (3) the immediate resolution of the
issue would materially advance the ultimate termination of the litigation. See 28
U.S.C. § 1292(b).
Here, the bankruptcy court’s order granting the Trustee’s motion to redirect
payment and ordering that any remaining funds, including those returned from
Bank Atlantic, be refunded to Laurent, did not meet the criteria warranting leave to
file an interlocutory appeal. The order did not present any issue of controlling law
over which there is disagreement among courts, but rather, it resolved the practical
issue concerning to whom the Trustee should pay the funds she still held.
Moreover, the order does not materially advance the outcome of the litigation. At
the time of the order, the bankruptcy court had closed the case and discharged the
Trustee, and Bank Atlantic, for whom the contested funds had been ear-marked,
had rejected the funds. Finally, as noted by the district court, resolution on the
merits of an appeal of the order to redirect funds would not grant Laurent the relief
he sought: title to the guardianship property had already passed to the guardian,
making the guardian the legal owner. Therefore, the district court did not err by
denying leave to proceed with an interlocutory appeal.
AFFIRMED.
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