Revised April 19, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-20626

Summary Calendar

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In the Matter of:

JORGE A. LENTINO, M.D.,

and

EDUARDO P. LENTINO,

Also Known as EDUARDO PEDRO LENTINO,

Also Known as E.P. LENTION, M.D.,

Debtors.

JORGE A. LENTINO, M.D.,

and

EDUARDO P. LENTINO,

Also Known as EDUARDO PEDRO LENTINO,

Also Known as E.P. LENTION, M.D.,

Appellants,

VERSUS

LOWELL T. CAGE, Trustee,

Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

March 5, 19991 Marta Lentino, wife of Eduardo Lentino, has also been deeply involved in

the litigation, though she was not a party to the original loan agreements

between the Lentino b rothers and Cullen Bank. She has not filed a notice of

appeal and is not a party to this proceeding. Accordingly, we do not consider

the Lentinos’ claims made on her behalf.

2 Cullen Center Bank a nd Trust merged with Frost National Bank in 1993.

The Lentinos charge that the district court erred by continuing to name Cullen

as a party in the bankruptcy proceedings, but they have not explained why this

prejudices their interests.

3 Cullen alleged fraud, fraudulen t transfers, breach of contract,

conspiracy, negligence, and negligent misrepresentation. The jury awarded Cullen

$1,817,525.42 in actual damages and $2,500,000 in exemplary damages against each

of the Lentino broth ers, plus attorneys’s fees, prejudgment interest, postjudgment interest, and costs of court. The combined judgment against both

brothers exceeded $12 million.

2 Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Proceeding pro se

, Eduard o and Jorge Lentino appeal the

distric t court’s decision to lift the automatic stay issued

pursuant to 11 U.S.C. § 362(a). Finding no error, we affirm.

I.

This appeal results from a long history of litigation between

Jorge and Eduardo Lentino 1 (the “Lentinos”) and Cullen Center Bank

and Trust (“Cullen”). 2 In 1993, Cullen won a judgment against the

Lentinos of over $12 million, 3 forcing th e Lentinos to file

voluntary petitions for bankruptcy relief under chapter 7. These

petitions triggered the automatic stay provisions of 11 U.S.C.

§ 362(a), which prevented Cullen from taking any further action to

collect its judgment. Cage, the appellee, was appointed trustee of3

those estates.

The Lentinos and the Trustee appealed the state court

judgment. The state court of appeals vacated and remanded for

retrial. See Lentino v. Cullen Ctr. Bank & Trust , 919 S.W.2d 743

(Tex. Civ. App SS

Houston [14th Dist.] 1996, writ denied).

To pursue the remanded case in Texas district court, C ullen

then filed a motion in the bankruptcy court seeking relief from the

a utomatic stay. The Trustee and the Lentinos (including Marta)

objected to Cullen’s motion. The bankruptcy court held two

hearings on the motion. In the first hearing, on May 8, 1997, only

Marta Lentino appeared, and there was no explanation of Jorge’s and

Eduardo’s absence. The motion was carried to the second hearing

scheduled for June 3, 1997. Before this hearing, however, Eduardo

and Marta Lentino withdrew their objections to the Cullen motion,

and Cullen agreed to abate its motion until June 17, 1998, to allow

the Trustee to retain special counsel to represent the Lentino

estate. This promising settlement was foiled by Jorge Lentino, who

on June 2, 1997, filed objection to lifting the stay.

The district cou rt withdrew its reference to the bankruptcy

court and held a status hearing on June 5, 1997. Jorge Lentino did

not attend this hearing, and neither Marta nor Eduardo Lentino

objected to the Trustee’s abatement plan. Accordingly, when the

Trustee was authorized to retain counsel in the Cullen litigation

on June 11, 1998, the district court lifted the automatic stay.4 See Official Committee of Unsecured Creditors v. Cajun Elec. Power Coop.,

Inc. (In re Cajun Elec. Power Coop., Inc.) , 119 F.3d 349, 353 (5th Cir. 1997).

4 The Lentinos appeal only the lifting of the stay.

II.

Although the parties have not addressed the question whether

we have jurisdiction to review a district court's lifting of an

automatic stay, “we are obligated to examine the basis for our

jurisdiction, sua sponte

, if necessary.” W illiams v. Chater

,

87 F. 3d 702, 704 (5th Cir. 1996). The posture of this case is

somewhat unusual. Normally, we would assert juris diction under

28 U.S.C. § 158(d), which authorizes appellate review of orders of

district courts sitting in their appellate capacity over orders of

bankruptcy courts. Because the district court withdrew its

reference to the bankruptcy court and issued its order lifting the

automatic stay while exercising its original, rather than

appellate, jurisdiction, however, we can assert jurisdiction, if at

all, only on the basis of 28 U.S.C. § 1291, which governs appeals

of final orders from district courts. 4

Asserting jurisdiction under § 1291 might have made a

difference, because this court’s determination of whether an order

is final (and therefore appealable) is more liberal in the5 See Foster Sec., Inc. v. Sandoz (In re Delta Servs. Indus.)

, 782 F.2d 1267,

1269 (5th Cir. 1986) (pointing out that courts properly vi ew finality more flexibly

under § 158(d) than under § 1291).

6 See Chunn v. Chunn (In re Chunn) , 106 F.3d 1239, 1241 (5th Cir. 1997).

7 See Cajun Elec. Power Coop., Inc. v. Central La. Elec. Co. (In re Cajun

Elec. Power Co.)

, 69 F.3d 746, 748 (5th Cir.), opinion on rehearing

, 74 F.3d 599

(5th Cir. 1996) (per curiam).

8 Accord Sonnax Indus., Inc. v. Tri Component Prods. Corp. (In re Sonnax

Indus. Inc.), 907 F.2d 1280 (2d Cir. 1990).

9 Mendoza v. Temple -Inland Mortgage Corp. (In re Mendoza) , 111 F.3d 1264, 1266

(5th Cir. 1997).

5 bankruptcy context. 5 Thus, while this court has already held that

the lifting of a § 362(a) automatic stay is a final order appealable under § 158(d), 6 we have not considered its appealability

under § 1291.

We have, however, decided to apply the liberalized final

judgment rule of § 158(d) when appellate jurisdiction is based on

§ 1291. 7 T herefor e, because we would hold the lifting of an

automatic stay appealable under § 158(d), we also conclude that it

is appealable under § 1291. 8

III.

We review a bankruptcy court’s lifting of an automatic stay

for abuse of discretion. 9 Neither party briefs the question

whether the same standard of review applies to a district court

exercising its original bankruptcy jurisdiction, and we have found

no caselaw from this circuit that gives guidance. We nevertheless

conclude that the district court’s de cision to lift an automatic10 See Sonnax

, 907 F.2d at 1288. (“[T]he lifting of the stay is committed to

the sound discretion of the court

. . . .”); see also Mitsubishi Motors v. Soler

Chrysler-Plymouth

, 814 F

. 2d 844, 847 (1st Cir. 1987) (“[W]e are left with the

troublesome question of whether the district court abused its discretion by vacating

the stay without first holding a hearing.”)

11 See River Hills Assocs., Ltd. (In re River Hills Apartments Fund) , 813 F.2d

702, 706 (5th Cir. 1987).

6 stay enjoys the same deferential standard as does a similar

decision from a bankruptcy court. In doing so, we follow other

circuits that have applied the abuse-of-discr etion standard in

reviewing a district court’s lifting of an automatic stay. 10

IV.

The Lentinos raise only one challenge to the lifting of the

automatic stay. They argue that the court erred by failing to

provide sufficient notice that lifting the stay was under

consideration and by failing to hold a hearing. They rely on the

language in § 362(d) governing the requirements for the lifting of

an automatic stay: “On request of a party in interest and after

notice and hearing, the court shall gr ant relief from the

stay . . . .”

Unfortunately for the Lentinos, this court has refused to

construe the phrase “after notice and a hearing” to require a

hearing in every case in which relief is sought from an automatic

stay. 11 Rather, we have followed the Bankruptcy Code’s definition

o f “after notice and a hearing” to mean “after such notice is

appropriate in the particular circumstances, and such opportunity

for a hearing as is appropriate in the particular circumstances.”12 We agree with the Trustee’s characterization of this appeal as mostly

frivolous. We note that the Lentinos have filed a number of other appeals in

this court. Although we have not reviewed the claims in those appeals, we

remind the Lentinos that “one acting pro se has no license to harass others, clog

the judicial machinery with meritless litigation, and abuse already overloaded

court dockets.” F arguson v. MBank Houston, N.A.

, 808 F.2d 3 58, 359 (5th Cir.

1986).

7 11 U.S.C. § 102(1)(A) (1986).

We agree with the Trustee that nothing in the record suggests

that the Lentinos were without opportunity to object to the lifting

of the stay. They received notice of both hearings before the

bankruptcy court and notice of the status h earing before the

district court.

Eduardo Lentino attended the June 9, 1997, status hearing. At

that time, both Lentinos had received notice of Cullen’s request to

lift the stay, and Eduardo had already withdrawn his objection in

hearings before the bankruptcy court. Jorge Lentino’s notice of

objection was filed on June 2, 1997 , but he failed to attend the

June 9 status hearing, despite Eduardo’s attempts to contact him.

The district court did not lift the stay until over a year

later, on June 12, 1998. Under the Bankruptcy Code's flexible

definition of “notice and hearing,” the district court did not

abuse its discretion when it lifted the automatic stay a full year

after first notifying the Lentinos and holding a status hearing.

AFFIRMED. 12