Sixth Circuit Pronounces a Two-Prong Test to Determine ‘Finality’

Appointed to the appeals court last year, Circuit Judge Amul Thapar attempted what no court or commentator has so far accomplished successfully: He formulated a test for deciding when an order is “final” and therefore appealable in the bankruptcy context. It is unclear, however, whether Judge Thapar’s test can predictably and fairly discriminate between appealable and non-appealable orders in all circumstances. The appeal to the Sixth Circuit involved a motion to lift the automatic stay, which was denied in bankruptcy court. The creditor who lost the motion did not appeal within 14 days. Instead, the creditor filed an appeal from the denial of the lift-stay motion months later when the bankruptcy judge sustained the debtor’s objection to the creditor’s claim. In his October 16 opinion, Judge Thapar upheld the district judge who had dismissed the appeal for being untimely.

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