CUSTOM WRITTEN APPEALS



                           Bankruptcy Court Appeals

 

A. Time and Method for Filing a Notice of Appeal

A notice of appeal must be filed with the bankruptcy court within 10 days of entry of the judgment, order, or decree appealed from.

 B. Tolling Motions

If, within court mandated days of entry of the judgment, order or decree, a party files a motion to amend or make additional findings of fact  to alter or amend the judgment, or for a new trial, then the the days for filing an appeal runs from the entry of the order disposing of the last such motion.

C. Premature Notice of Appeal

A premature notice of appeal (a notice of appeal filed after the announcement of a decision but before entry of the judgment or order) is treated as filed after such entry and on the day thereof.

 D. Appeal Fees and In Forma Pauperis Motions

A filing and docketing fee is required and should be made payable to the Clerk of Court. The fee should be paid to the bankruptcy court at the same time the notice of appeal is filed. The BAP routinely transfers In Forma Pauperis motions to the district court from which the appeal arises for the limited purpose of granting or denying the motion; the cases are then returned to the BAP for determinations on the merits.

E. Election to the District Court (Opt-Out)

The appeal from the bankruptcy court automatically goes to the BAP unless a party timely elects to have the appeal heard by the district court.

F. Petition to Appeal Directly to Court of Appeals

  • Where the underlying bankruptcy case was filed on or after October 17, 2005, the parties may petition for permission to appeal directly to the Court of Appeals.
  •  Before the parties file their direct appeal petitions with the Circuit Clerk, they generally must first obtain a certification from either the bankruptcy court, the district court or the BAP,
  •  A request for certification must be filed in and determined by:

i. the bankruptcy court, until a Certificate of Readiness has been received and filed by the BAP or district court, or a motion for leave or ii. the BAP, after: (a) the BAP receives and files a Certificate of Readiness; or (b) the BAP grants leave to appeal; or iii. (if an election has been timely filed) the district court, after: (a) the district court receives and files a Certificate of Readiness; or (b) the district court grants leave to appeal.

iv. The court in which the certification request is properly filed must serve the request on all parties to the appeal.

v. If all of the parties to the appeal unanimously agree that a direct appeal is appropriate, then their self certification must be filed in the appropriate court. While there is a sixty-day time limit for certification requests made pursuant to 28 U.S.C. § 158(d)(2)(B) there is no express time limit specified for self-certifications, or for a court certification made on the courts own motion.

vi. Once a certification is entered on the court's docket, the parties have 30 days to file their petition to appeal to the Court of Appeals with the Clerk of the Court of Appeals.

vii. Absent an order to the contrary, neither the issuance of a certification nor the Circuits granting of a petition for permission to appeal suspends prosecution of an appeal before the BAP or the district court.

viii. If leave to appeal is required by 28 U.S.C. § 158(a) and has not yet been granted by the BAPor district court, the authorization of a direct appeal by a court of appeals under 28 U.S.C.§ 158(d)(2) shall be deemed to satisfy the requirement for leave to appeal. In general, the BAP has jurisdiction to hear bankruptcy appeals from final judgments, orders, and decrees. See 28 U.S.C. § 158. In addition, the BAP has jurisdiction to hear appeals from two types of interlocutory orders:

(1) Orders under 11 U.S.C. § 1121(d) increasing or reducing exclusivity time periods.

(2) Interlocutory orders as to which the BAP grants a motion for leave to appeal. The BAP lacks jurisdiction to hear appeals from interlocutory orders (except § 1121(d) orders) unless and until the BAP grants leave to appeal.

 G. Definition of Finality

The standard for determining finality in the bankruptcy context is more flexible than in other areas. In contrast to an ordinary civil case where a complete act of adjudication ends the litigation on the merits and leaves nothing for the court to do but execute the judgment, a bankruptcy order is final if it end[s] any interim disputes from which appeal would lie. An order can be appealed under the flexible finality doctrine if it 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.

Examples of orders held to be final include orders:

  • Granting or denying relief from stay,
  • Regarding adequate protection
  • Confirming a chapter 11 debtors reorganization plan,
  • Allowing or disallowing an exemption
  • Substantively consolidating bankruptcy cases,
  • Approving a final application for compensation of professional
  • For sale of property to good-faith purchasers
  • Dismissing an action, even without prejudice.

Examples of orders held to be interlocutory include orders:

  • Denying a motion to dismiss a bankruptcy case or adversary proceeding
  • Granting a trustees motion to employ a professional pursuant to 11 U.S.C. § 327
  • Denying a motion for summary judgment
  • Granting partial summary judgment without the certification required by the law.
  • Imposing monetary sanctions against an attorney,
  • Granting a motion to reopen a bankruptcy case,
  • Dismissing a complaint with leave to amend

 H. Separate Document Rule

FRBP 9021 requires that the order/judgment appealed must be entered on a separate document. The separate document rule applies in both contested matters and adversary proceedings, and any order that does not comply with the rule may be held to be not final.

 I. Minute Entries / Minute Orders

A minute entry is a final order if it states that it is an order, was mailed to counsel, is signed by the clerk who prepared it, and is entered on the docket sheet.  To be a final order, a minute entry also must include dispositive language sufficient to put the losing party on notice that his entire action -- and not just a particular motion or proceeding within the action -- is over and that his next step is to appeal.

 J. Leave to Appeal

To appeal an interlocutory order, one must file a notice of appeal along with a motion for leave to appeal. Although filed in the bankruptcy court, the leave motion is to the Panel. The Panel is the court that grants or denies leave. The motion for leave to appeal must contain:

  • A statement of facts necessary to an understanding of the questions to be presented by
  • the appeal;
  • A statement of the questions to be presented;
  •  A statement of the reasons why the appeal should be heard; and
  •  A copy of the judgment, order, or decree complained of and any opinion or memorandum.

K. Standard for Granting Leave to Appeal

Leave to appeal is usually limited to situations that would avoid wasteful litigation, involve a controlling question of law as to which there is substantial ground for difference of opinion, and would materially advance the ultimate termination of the litigation. The BAPs decision to deny leave to appeal is an exercise of discretion and generally is not open to review by the Court of Appeals.

 L. Perfection of the Appeal

Within court mandated days after filing the notice of appeal, the appellant must file with the clerk of the bankruptcy court and serve on the appellee a designation of items to be included in the record (DOR) on appeal and must file and serve a Statement of Issues on Appeal. For appeals pending before the BAP, a DOR is not a copy of every item to be included in the record. It is a list of the items that make up the record, usually identified by docket number and filing date, as well as a description of the item (e.g. For appeals pending before the district court, litigants should check their district courts local rules for requirements regarding the DOR.

 M. Completion of the Record

When the reporter completes the transcript, the reporter files it with the clerk of the bankruptcy court. The reporter is supposed to complete the transcript within 30 days, but may ask the clerk for an extension. When the record is complete, the clerk of the bankruptcy court transmits a Certificate of Readiness to Transmit Record to the clerk of the BAP.

 N. Consequences of Incomplete Record

The burden of presenting a proper record to the appellate court is on the appellant. Unless the record before the appellate court affirmatively shows the matters on which appellant relies for relief, the appellant may not argue those matters on appeal.

 O. Motions

Motions that are not case dispositive (e.g., extension of time to file briefs) may be decided by one or two judges, or by the BAP clerk, based on delegated authority.

 P. Motions for Stay Pending Appeal

Requests for a stay pending appeal normally should be presented to the bankruptcy judge first. Parties may file a motion for stay pending appeal directly with the appellate court only if an explanation is given why relief was not first sought from the bankruptcy court. The bankruptcy court may require the posting of a bond as a condition of granting a stay pending appeal.

 Q. Motions to Dismiss for Lack of Jurisdiction.

Appellants occasionally appeal an issue that the BAP does not have jurisdiction to consider for various reasons, including the appellants lack standing, the notice of appeal was untimely, or the appeal has become moot.

 R. Emergency Motions

  •  If the motion requests immediate action in order to avoid irreparable harm, the word EMERGENCY should appear in the title.
  • Always attach a declaration stating the nature of the emergency.
  •  Notify opposing counsel and state in a declaration when and how counsel was notified; there is a specific duty on the movant to make every practicable effort to notify opposing counsel in time for counsel to respond to the motion.
  • Include an appendix that contains a conformed copy of the notice of appeal and the entered judgment, order or decree from which the appeal was taken.

 S. Legal Briefs

  • Historically, a briefing schedule was issued after the BAP clerk received a Certificate of Record from the bankruptcy clerk, and the appellants opening brief and excerpts of record were due 15 days hereafter.
  • Now, however, the BAP issues a briefing order in most appeals shortly after the appellant files the notice of appeal.
  • Briefs are deemed filed on the day of mailing.
  • The briefing order also sets a due date for the appellees responsive brief, usually 21 days after service of appellants opening brief. If the appellee has filed a cross-appeal, the brief shall contain the issues and argument pertinent to the cross-appeal, denominated as such, and the response to the appellants brief.
  • Reply Briefs. If the appellant elects to file a reply brief, it typically is due 14 days after service of the appellees brief.
  • Contents of Briefs.
  1. A table of contents, table of cases, statutes and other authorities, with references to the pages of the brief where they are cited;
  2. A statement of the basis of appellate jurisdiction;
  3. A statement of the issues presented and the applicable standard of review;
  4. A statement of the case;
  5. A statement of facts with appropriate references to the record;
  6. An argument; and
  7. A short conclusion stating the precise relief sought.
8. Length of Briefs. Except with leave of the Panel, the appellants and appellees initial briefs shall not exceed 30 pages and reply briefs shall not exceed 20 pages, exclusive of pages containing table of contents, tables of citations and addendums.

9. Reference to Excerpts of Record (Appendix). The briefs must make specific references to the relevant portions of the record.

10.  Appendix to Brief (Excerpts of the Record). Appellant must serve and file with appellants brief excerpts of the record as an Appendix in all BAP appeals of the following:

(a) complaint and answer or other equivalent pleadings;

(b) any pretrial order;

(c) judgment, order, or decree from which

the appeal is taken;

(d) any other orders relevant to the appeal;

(e) the opinion, findings of fact, or

conclusions of law filed or delivered

orally by the court and citations of the

opinion if published;

(f) any motion or response on which the

court rendered decision;

(g) the notice of appeal;

(h) the relevant entries of the bankruptcy

docket; and

(i) the transcript or pertinent portion

thereof.

T. Service

Copies of all papers filed by any party (and not required by the rules to be served by the clerk of the BAP) shall, at or before the time of filing, be served by the party or a person acting for the party on all other parties to the appeal. Service on a party represented by counsel shall be made on counsel.

 U. Motions for Extension of Time

1. Procedure. If a party seeks to file a brief but is unable to do so within the time prescribed by the BAPs scheduling order, the party may move for an extension of time for filing a brief.

2. Contents. The motion shall be supported by a declaration stating the time when the brief is due, how many extensions of time, if any, have been granted, when the brief was first due, and whether any previous requests have been denied or denied in part. The motion shall also state the reasons why such an extension is necessary and the amount of time requested. Finally, the motion shall state the position of the opponent(s) in respect to the motion or state why the moving party has been unable to obtain a statement of such position(s).

 V. Issues on Appeal

1. Generally, appellate courts do not consider arguments that are not properly raise[d] in the
trial courts.
2. The Court of Appeals recognizes three narrow, discretionary exceptions to the general rule: (1) to prevent a miscarriage of justice or to preserve the integrity of the judicial process; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one.
3. In addition, the BAP must consider matters affecting its jurisdiction sua sponte even if not
briefed by the parties.
4. The law requires appellant to file a statement of issues to be decided. The Panel may nevertheless consider an issue not so listed if the issue is purely one of law and there is no prejudice.
5. An appellate court generally will not consider an issue raised by an appellant for the first time in a reply brief.

W. ORAL ARGUMENT

1. Oral argument is scheduled in nearly all fully-briefed cases. The BAP clerk typically sets oral argument to occur 30-45 days after the briefs are filed.
2. Submission without Argument. Counsel usually has the option of electing to submit their case on their briefs without attending oral argument. In that event, unless the Panel dispenses with oral argument entirely, opposing counsel may appear and argue without opposition. Counsel choosing not to present oral argument must notify the clerk and opposing counsel of that election as soon as practicable.

 X. SANCTIONS

Sanctions for frivolous appeals, in the form of just damages and single or double costs are awarded only upon a separately-filed motion or after notice from the BAP and reasonable opportunity to respond.The panel usually ignores requests for sanctions made in the briefs.

 Y. DECISIONS

The judges confer immediately after the hearing to come to a tentative decision. The judge assigned to write the disposition then circulates a draft for formal votes. Once all comments have been considered by the lead judge, and any concurrences or dissents have been prepared, the lead judge transmits the disposition to the BAP clerk, who files it on behalf of the Panel and serves the parties. Most BAP appeals are decided within eight months of filing of the notice of appeal.

 Z. Dos and Don'ts for an Effective Appeal

DO:

  • Know what relief you want (and why).
  • Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.
  • Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, the appellate court is also concerned with the overall impact of its ruling on the general body of bankruptcy law.
  • Clarify the standard of review and frame arguments around that standard.
  • Simplify the story. Write with punch - short, crisp, essential facts.
  • Organize your brief with short headings, rather than long sentence headings.
  • Paraphrase quotes whenever possible. Long block quotes are soporific.
  • Focus your appellant's argument on areas where the judge's ruling is most susceptible to being reversed.
  • Provide an adequate record, and know what is in it. Follow the rules with respect to organizing, paginating and tabbing the record (appendix), so that the judges and law clerks can find pertinent excerpts quickly.
  • Be honest and direct in answering the Panel member's questions. Acknowledge the weaknesses of your case. Use policy arguments sparingly, if at all.
  • Listen to the questions being asked of your opponent and be ready to fill in the blanks on matters of concern to the Panel.

DON'T:

  • Use many words when a few will do.
  • Make convoluted arguments.
  • Make grammatical or typographical errors.
  • Write in a disorganized and unintelligible manner.
  • Attack the trial judge or opposing counsel.
  • Use block quotes extensively.
  • Plagiarize/fail to attribute quoted sources
  • Overuse policy arguments.
  • Avoid direct answers to the judges' questions.
  • Deflect the question and distract the judge if it is not the question you wanted to hear.
  • Cut off the judge's question in mid-sentence.
  • Be ignorant of the record or mischaracterize the record.
  • Blame your unfamiliarity with the record on the fact that you did not handle the case at the trial level. (The SODDI excuse - some other dude did it).
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