UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE VIRGIL F. LIPTAK, also known

as Designated Financial Service,

Debtor.

BAP No. WO-10-053

VIRGIL F. LIPTAK,

Appellant,

Bankr. No. 10-10461

 Chapter 11

v. ORDER DISMISSING APPEAL AS

INTERLOCUTORY

ERIC H. HOLDER, JR., JUNE

MATTINGLY, and UNITED STATES

TRUSTEE,

Appellee.

August 13, 2010

Before MICHAEL, RASURE, and KARLIN, Bankruptcy Judges.

On July 28, 2010, this Court issued its Order to Show Cause Why Appeal

Should Not be Considered For Dismissal as Interlocutory (“OSC”). On August 4,

2010, this Court issued a Notice of Deficiency for failure to file the Statement of

Issues and Designation of Record with the bankruptcy court (“NOD”). Appellant

Virgil F. Liptak (“Appellant”) filed various papers in response, including:

1) Response to NOD on August 5, 2010; 2) Response to NOD on August 6, 2010;

3) Motion for Stay Pending Appeal and Memorandum in Support of Stay, Leave

and Certification for Direct Appeal to this Circuit’s Court of Appeals, filed on

August 6, 2010 (“Motion and Response to OSC”); and 4) Letter dated August 9,

2010, requesting this Court send Appellant confirmation of receipt of Appellant’s

filings by email. Regarding the first two items, the deficiency noted in the NOD

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is satisfied. Regarding the last item, this Order shall constitute confirmation of

Appellant’s filings by email.

Appellant seeks to appeal the bankruptcy court’s order dated July 21, 2010,

which denied Appellant’s verified bill of exceptions and motion to stay transfer

and to vacate order of transfer or for leave to appeal, including brief (the

“Order”). In the Order, the bankruptcy court construed Appellant’s motion as one

under Federal Rule of Bankruptcy Procedure 9023 to reconsider its ruling of June

11, 2010, which granted the United States Trustee’s Motion to transfer the

Appellant’s bankruptcy case to the Bankruptcy Court for the Northern District of

Texas. 

This Court has jurisdiction to hear appeals from final orders, final collateral

orders, and, with leave of court, interlocutory orders. 28 U.S.C. § 158;

Personette v. Kennedy (In re Midgard Corp.), 204 B.R. 764, 768 (10th Cir. BAP

1997). An order is considered final if it “‘ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.’” Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United States, 324

U.S. 229, 233 (1945)). Orders regarding transfer of venue are interlocutory. 

Dalton v. United States (In re Dalton), 733 F.2d 710, 714 (10th Cir. 1984) (noting

that venue orders merely involve the selection of the forum in which final

decisions will be ultimately reached, and thus do not finally end the litigation);

United States Trustee v. Sorrells (In re Sorrells), 218 B.R. 580, 583 (10th Cir.

BAP 1998) (“We find no reason to carve out an exception to the Traditional Strict

Test for Interlocutory Review for venue orders entered by bankruptcy courts.”). 

Appellate courts grant leave to appeal interlocutory orders only in rare

instances. As this Court has stated:

Leave to hear appeals from interlocutory orders should be granted

with discrimination and reserved for cases of exceptional

circumstances. Appealable interlocutory orders must involve a

controlling question of law as to which there is substantial ground for

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difference of opinion, and the immediate resolution of the order may

materially advance the ultimate termination of the litigation.

Personette, 204 B.R. at 769 (citing 28 U.S.C. § 1292(b)). In his Motion and

Response to OSC, Appellant contends that leave to appeal should be granted for

various reasons, including “to avoid mootness, manifest injustice, and the great,

immediate and irreparable harm as detailed below.” In the alternative, Appellant

argues that this Court should hear this appeal under “All Writs” or mandamus

jurisdiction, 28 U.S.C. § 1651(a), and Cessna Aircraft Co. v. Brown, 348 F.2d 689

(10th Cir. 1965). 

This Court has carefully reviewed the Appellant’s Motion and Response to

OSC and determined that this appeal does not meet the requirements for granting

leave to appeal. Most importantly, Appellant has not shown that his appeal

involves a controlling question of law as to which there is substantial ground for

difference of opinion. The bankruptcy court determined that venue for

Appellant’s bankruptcy case was improper in the Western District of Oklahoma

because Appellant had no domicile, residence, principal place of business, or

assets located there within the 180 days immediately preceding the filing of the

bankruptcy case. 28 U.S.C. § 1408. A bankruptcy court may not retain an

improperly venued case for the convenience of the parties. In re Sorrells, 218

B.R. at 590 (10th Cir. BAP 1998) (“[B]ankruptcy petitioners must file their cases

in the proper venue as defined by sections 1408 through 1410. If proper venue is

inconvenient, the bankruptcy court of proper venue may transfer the case to a

more appropriate forum under section 1412. If, on the other hand, bankruptcy

petitioners file their case in an improper venue their case may be dismissed or, in

the interests of justice, transferred to a proper venue pursuant to section

1406(a).”).

BAP Appeal No. 10-53 Docket No. 26 Filed: 08/13/2010 Page: 3 of 5
1 On August 6, 2010, counsel for Appellee June Mattingly filed an

application to appear pro hac vice in this appeal, which Appellant opposed. 

Because we dismiss this appeal, the application and the response are moot.

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 Among Appellant’s various arguments why his appeal should be allowed to

proceed is his assertion that he is barred from filing bankruptcy in his home

district of Northern Texas. First, there is nothing in the record before this Court

to verify that assertion. Secondly, and more importantly, the future of

Appellant’s bankruptcy case in the court to which the matter is transferred is a

matter between Appellant and that court. The transferee court is the proper court

to determine whether his bankruptcy case may properly proceed in that venue. If

that court determines the bankruptcy cannot proceed because of some bar against

filing in that court, Appellant will ultimately be able to appeal that determination

to an appropriate appellate court. 

Appellant also contends that this Court should hear his appeal under the All

Writs Act, 28 U.S.C. § 1651(a). In Dalton, a debtor presented a similar argument

and the Tenth Circuit Court of Appeals denied that extraordinary remedy.

(“Indications are that Dalton is searching for a court that has not had extensive

exposure to his problems, and at the same time is seeking to avoid facing up to

the ultimate decision. Finally, we are convinced that this court lacks appellate

jurisdiction to review the district court’s . . . transfer of venue orders.”). Dalton,

733 F.2d at 718-19. Similarly, we reject Appellant’s argument here.

Because this Court lacks jurisdiction over this appeal under Dalton, this

Court has no jurisdiction to entertain that portion of Appellant’s Motion and

Response to OSC that requests a stay of the Order or a direct certification to the

United States Court of Appeals.1

 

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Accordingly, it is HEREBY ORDERED that:

(1) The relief requested in Appellant’s Motion and Response to OSC is

DENIED; and 

(2) This appeal is DISMISSED for lack of jurisdiction.

For the Panel:

Blaine F. Bates, Clerk of Court

By:

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