NOTE ON THIS MEMORANDUM: This memorandum is written as a procedure guide for court staff. However, it provides much information about how the court processes appeals and the mechanics of appellate procedure. If you have questions, call the court at 522-8115.

Appeals from orders of this court to either the Bankruptcy Appellate Panel [BAP] or to the U.S. District Court can be confusing because the BAP and the District Court have different requirements for processing appeals. In addition, many appeals are filed by pro se litigants whose understanding of appellate procedure may be limited. Here is a brief outline of our role in preparing appeals which may help you to understand this area of practice.

Notice of Appeal and choice of appellate review: An appeal is properly filed when this court receives a notice of appeal and when the appeal fee of $255.00 is paid to the court. A notice of appeal should not be rejected because the appeal fee is not paid. However, a notice of defective filing form should be given or sent to the filer and a copy should be given to Amy so that she can take action to collect the debt. A notice of appeal is required to substantially conform to the official form (B17). The official form includes a section which requires the appellant to list the names of all parties to the appeal and their legal counsel. Appeals should be accepted in any format presented. Defects in the form of the notice is a matter for the parties or the appellate court to raise and decide.

Motion for Leave to Appeal: A Motion for Leave to Appeal may be filed with a notice of appeal. This motion indicates that a party needs permission from the BAP or the District Court to appeal an order which is not a final order. Such motions should immediately be sent to the BAP with a copy of the appeal, the order being appealed, and the docket sheet of the case. If an election of District Court has been filed, then the same documents should be sent to the District Court.

PLEASE NOTE! When an appeal is filed together with a motion for leave to appeal, the fee is only $5.00. The remaining $250 is paid if and when the motion is granted. If the motion is denied, the appeal has ended. If the motion is granted, then the appeal process begins as noted above. And the court is now owed $250 for the appeal docketing fee.

Election of Appellate Court: The parties to an appeal may elect to have the U.S. District Court hear an appeal rather than the Bankruptcy Appellate Panel.

Cases Arising Before October 22, 1994: The procedure for processing bankruptcy appeals varies slightly depending on whether the appeal arises in a case filed before or after October 22, 1994. The date of the bankruptcy case is used — not the date of the adversary proceeding if the appeal is from an order or judgment in an adversary. If the bankruptcy case was filed before that date, then the appellant is not required to file an election at the time the appeal is filed. When the appeal is filed, the case administrator must send a copy of the appeal together with a copy of the Amended Order Establishing and Continuing the Bankruptcy Appellate Panel of the Ninth Circuit dated October 15, 1992 together with a copy of the Notice of Requirement for Record on Appeal (for bankruptcy cases filed prior to October 22, 1994) to all parties. This must be done within 3 days of filing of the appeal. A copy of the notice of appeal should also be sent to the Bankruptcy Appellate Panel with the transmittal form and the appropriate documents. The parties [including the appellant] then have 21 days to file an election to have the appeal heard by the District Court. If such an election is filed with the BAP the case will be transferred by the BAP to District Court.

Cases Arising On or After October 22, 1994: If an appeal is filed and no election is made by the debtor to have the appeal heard in the District Court, then the BAP is designated to hear the appeal. Please note that an appellant's election to have the U.S. District Court hear an appeal must be filed as a separate pleading on the same day that the notice of appeal is filed. A statement in the body of the notice of appeal is not sufficient to confer jurisdiction on the District Court. A copy of the appeal and the order [or orders] being appealed should immediately be sent to the BAP together with a docket sheet of the case or adversary proceeding. Complete the transmittal form and use this as a cover letter. If it is an enormous case only send the last 10 pages of the docket sheet. If the appellant files an election to have the appeal heard by the U.S. District Court with the notice of appeal, it is not necessary to send the notice of appeal to the District Court.

If the appellant files a valid election with the appeal opting to have District Court hear the appeal, then the BAP is not notified of the appeal. When the record on appeal is complete [as described below], we will transmit all documents directly to the District Court.

Notifying the Parties of the Appeal: Although the appellant is obligated to list the names and addresses of the parties and their counsel on the notice of appeal, they frequently provide an incomplete list. If the case administrator feels that necessary parties or their counsel have not been listed [e.g. the U.S. Trustee], these persons should be added to the service list. The case administrator should send a copy of the notice of appeal to each of these parties together with a copy of the notice. The case administrator should complete the certificate of service at the bottom of this form showing that service has been accomplished. Note that parties [other than the appellant] have 30 days from the date of service of the notice of appeal to file an election to have the appeal heard in District Court. Also note that appellees filing an election to have an appeal heard in District Court are required to file that election with the BAP. When the notice is filed, the BAP will send this court a notice that the appeal has been transferred to District Court. This notice should be docketed and filed. If the party mistakenly files the election with this court, we should "receive stamp" the document and send it on to the BAP.

Untimely Notice of Appeal: The Federal Rules of Bankruptcy Procedure require that a notice of appeal be filed with this court within 10 days of entry of the judgment, order or decree being appealed from. It is not unusual that an appeal is filed outside this time period. If the appeal is filed before entry of the order or judgment, the appeal is deemed to be filed on the date of entry of the order. But if it is filed after the 10 day appeal period has ended, it is likely that the appeal will be dismissed. The question is "By which court?" If the appeal is going to the Bankruptcy Appellate Panel, then the issue of whether the appeal has been filed late will be decided by the BAP. You should process the appeal in the usual manner. If a motion for dismissal is filed on this ground, it should likewise be sent to the BAP for resolution. However, if the appeal is being heard in the U.S. District Court, then this issue will be decided in the Bankruptcy Court. Local Bankruptcy Rule 8005-2 gives this court authority to dismiss an appeal because the notice of appeal was not timely filed under FRBP 8002. This issue can be raised by a party or by the court on its own motion. Appeals which are filed after the 10 day appeal period should be brought to the attention of the Clerk.

Docketing of Documents related to an Appeal: All documents filed with this court and all documents prepared by the court as part of the appeal should be docketed, scanned and filed as quickly as possible. The Bar and Public need access to these documents. Please do not hold original documents at your work station. In addition, documents such as a copy of the letter to the court reporter or transcriber requesting the transcript of a hearing should be docketed and filed — even though this type of correspondence is not usually docketed and filed.

Designation of Issues and Record on Appeal: The appellant has 10 days from the filing of the notice of appeal to designate items to be included in the record on appeal and to provide a statement of issues to be considered by the appellate court. The appellant should also file a certificate of service showing that these documents have been served on other parties. The appellee has 10 days from the service of the designation of items and statement of issues to designate additional items for the record -- and, if there is a cross appeal, to designate further issues for appeal. A designation of new issues gives the cross appellee 10 more days to designate further items for the record. The designations of items for the record and the statement of issues should not be sent to the BAP when received. Copies should be attached to the Certificate of Readiness or the Status Report when that document is sent to the BAP.

The procedure for appeals to the BAP and to the District Court is slightly different. The BAP wants the Bankruptcy Court to review the docket sheet 45 days after the appeal is filed to determine whether the record is complete. For their purposes, a record is complete when the following documents have been filed: (1) the designation of items for the record, (2) the statement of issues to be presented and (3) any transcripts which have been designated as items for the record. When these three criteria have been satisfied, the case administrator should send to BAP a Certificate of Readiness to Transmit the Record on Appeal. If after 45 days the record is not complete then a Status Report should be created, filed, docketed and sent to the BAP. Status reports should continue to be sent each 30 days until the appeal has been decided or the record is complete and a Certificate of Readiness has been sent. Please prepare and docket a certificate of service each time a Certificate of Readiness or a Status Report is prepared and sent to the BAP. It is not necessary to send a copy of the status report to the parties.

There is no need to send anything to the U.S. District Court until the designation of items for the record, the statement of issues on appeal and the transcripts designated by the parties as items for the record on appeal] are filed with the court. The bankruptcy court no longer assembles the record for the District Ct. and sends copies of all designated items with the record. When the record is complete it should be sent to the District Court with a form transmittal letter. Should the Bankruptcy Court dismiss an appeal because of a defective record, the decision may be appealed by filing a motion for review of the decision. I expect that this will be filed in the Bankruptcy Court. When received, the motion for review, together with all documents filed in the appeal to that date should be transmitted to the District Court.

Motions heard by the Bankruptcy Court: There are two common motions which must be heard by the Bankruptcy Judge if filed prior to transmittal of the appeal to the appellate court: Motions for extension of the time for filing an appeal and Motions for a stay pending appeal. These should be docketed and transmitted to chambers when they are received. Other types of motions should be brought to the attention of the Clerk.

Closing the Bankruptcy Case or Adversary Proceeding: The bankruptcy case or adversary proceeding should remain open until the BAP or the District Court has sent a mandate to the Bankruptcy Court and the appeal period to the Ninth Circuit Court of Appeals has expired [30 days from entry of mandate by BAP or District Court]. The mandate is a certified copy of the order of dismissal or judgment. It would be a good idea to call the BAP or the District Court after the period has ended and ask them to check the docket before assuming that no appeal has been filed.

Direct Appeals to the U.S. Court of Appeals: The new bankruptcy reform legislation contains a provision to allow appeals directly to the US Court of Appeals. This direct appeal only applies to BK cases filed on or after 10/17/2005 and to adversary proceedings related to those cases. The procedure for filing an appeal remains the same. However, after the notice of appeal is filed, the Bankruptcy Court, the District Court or the Court of Appeals may certify that for reasons stated in 28 U.S.C. an appeal may be heard by the U.S. Court of Appeals. The certification can be done sua sponte by the court with jurisdiction of the appeal or may be requested by a party. The Court of Appeals must agree to hear the case. If they do, then jurisdiction over the appeal is transferred to the Court of Appeals. See Interim FRBP 8001 and 8003. A certification form will be prepared and posted to the forms section of the court intranet shortly.

If a request for certification is filed with this court, it should be sent to chambers if we have not yet sent the Certificate of Readiness to either the BAP or to the District Court. However, if the case has been transferred to one of these courts, then the request for a certification by a party should be sent on to the appropriate appellate court. A request for certification must be served on all parties that were served with the notice of appeal.

If this court receives a certification filed by all of the parties to the appeal, or if this court issues a certification sua sponte, it must be sent to the U.S. Court of Appeals together with a copy of the Notice of Appeal and the Docket Sheet and any statements in support of the certification which may be filed by a party. If the Court of Appeals notifies this court that they will accept the case, then the record will be sent directly to the U.S. Court of Appeals. The certification must also be served upon all parties served with the notice of appeal.

If you have other questions about appeal procedure please see the Clerk.