In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-2564

IN RE:

HAROLD WADE and LORRAINE WADE,

Debtors-Appellants.

____________________

Appeal from the United States Bankruptcy Court for the 

Northern District of Illinois, Eastern Division.

No. 15-BK-01035 — LaShonda A. Hunt, Bankruptcy Judge.

____________________

ARGUED FEBRUARY 6, 2019 — DECIDED JUNE 14, 2019

____________________

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Debtors Harold and Lorraine Wade 

moved for sanctions against Kreisler Law, P.C., alleging that 

the law firm violated the automatic stay arising from their 

bankruptcy petition by filing a lien against Lorraine’s home. 

The couple had voluntarily dismissed a prior bankruptcy 

petition just a few months earlier, so the bankruptcy judge

denied their motion based on 11 U.S.C. § 362(c)(3), which 

lifts the automatic stay after 30 days in the case of a successive petition. But the bankruptcy courts are divided over the 

proper interpretation of § 362(c)(3), so the judge certified her 
2 No. 18-2564

order for direct appeal to this court under 28 U.S.C. 

§ 158(d)(2)(A). A timely notice of appeal followed.

But the Wades never filed a petition for permission to 

appeal as required by Rule 8006(g) of the Federal Rules of 

Bankruptcy Procedure. Kreisler moved to dismiss the appeal 

based on this omission. We provisionally accepted the 

appeal and directed the parties to address the effect of the 

procedural violation in their merits briefs.

We now dismiss the appeal. Rule 8006(g) is a mandatory 

claim-processing rule, and if properly invoked, it must be 

enforced. See Hamer v. Neighborhood Hous. Servs. of Chi., 

138 S. Ct. 13, 17 (2017). Because Kreisler properly objected, 

the appeal must be dismissed. 

I. Background

The Wades filed a Chapter 13 bankruptcy petition in 

January 2015, which automatically stayed any collection 

actions against their property. See 11 U.S.C. § 362(a). But the 

petition was successive—they had voluntarily dismissed a

different petition two months earlier—and § 362(c)(3) states

that if a prior petition “was pending within the preceding 

1-year period but was dismissed,” the automatic stay “shall 

terminate with respect to the debtor on the 30th day after the 

filing of the later case.”

Just how much of the stay was lifted became relevant after the Wades discovered that Kreisler recorded a lien 

against Lorraine’s home in April 2015. Because their bankruptcy case was active at that time, the Wades moved in the 

bankruptcy court to sanction Kreisler for violating the stay.

The parties disagreed about the meaning of § 362(c)(3). 

Kreisler contended that it lifts the entire stay. The Wades 
No. 18-2564 3

argued that the phrase “with respect to the debtor” limits

the statute’s effect so that it lifts the stay only for non-estate

property. In their view the stay still prevented Kreisler from 

recording the lien because Lorraine’s house was estate 

property.

The bankruptcy judge denied the Wades’ motion, concluding that the entire stay lifted in February 2015, which 

validated Kreisler’s April 2015 lien. The Wades appealed to 

the district court. But they also asked the bankruptcy judge 

to certify her order for direct appeal to this court under 

§ 158(d)(2)(A). The judge granted that request and issued a 

certification order. The Wades then filed a notice of appeal,

but they never filed a petition for permission to appeal as 

required by Rule 8006(g) of the Federal Rules of Bankruptcy 

Procedure. Kreisler moved to dismiss based on this procedural oversight. We provisionally accepted the appeal but 

instructed the parties to brief the dismissal motion with the 

merits. 

II. Discussion

We begin (and end) with the question whether the failure 

to file a petition for permission to appeal requires dismissal 

of this appeal. We are permitted to consider a direct appeal 

from an order of the bankruptcy court if the bankruptcy 

judge certifies the order for appeal and we “authorize[] the 

direct appeal.” 28 U.S.C. § 158(d)(2)(A). The Federal Rules of 

Bankruptcy and Appellate Procedure jointly set forth the 

procedural steps to obtain authorization for a direct appeal.

As relevant here, Bankruptcy Rule 8006(g) mandates that 

“[w]ithin 30 days after the [bankruptcy court’s] certification 

becomes effective ... , a request for permission to take a 
4 No. 18-2564

direct appeal to the court of appeals must be filed with the 

circuit clerk.” Ignoring this rule short-circuits our approval 

process, which is detailed in Rule 5 of the Federal Rules of 

Appellate Procedure. Rule 5 states that “[t]o request permission to appeal ... , a party must file a petition for permission 

to appeal.” FED. R. APP. P. 5(a)(1). Rule 5(b)(1) specifies the 

required contents of the petition, which include a statement 

of “the reasons why the appeal should be allowed and is 

authorized by a statute or rule.” Rule 5(b)(2) provides a tenday window for other parties to oppose the petition or file a

cross-petition. Whether opposed or not, under Rule 5(b)(3) 

the petition for leave to appeal is decided “without oral 

argument unless the court of appeals orders otherwise.”

Because Rule 8006(g) is a “time limitation ... found in a 

procedural rule, not a statute, it is properly classified as a 

nonjurisdictional claim-processing rule.” Nutraceutical Corp. 

v. Lambert, 139 S. Ct. 710, 714 (2019). The question here is 

whether Rule 8006(g) is a “mandatory” claim-processing 

rule, which “[i]f properly invoked ... must be enforced.”

Hamer, 138 S. Ct. at 7.

The Supreme Court’s recent decision in Nutraceutical

Corp. is instructive on this point. There the Supreme Court

considered Rule 23(f) of the Federal Rules of Civil Procedure, which permits an interlocutory appeal of a classcertification order if the appellant files a petition for permission to appeal “within 14 days after the order is entered.”

The Court held that Rule 23(f) is a mandatory claimprocessing rule, noting that “the Federal Rules of Appellate

Procedure single out Civil Rule 23(f) for inflexible treatment,” Nutraceutical, 139 S. Ct. at 715, because Rule 26(b)(1) 
No. 18-2564 5

bars courts from “extend[ing] the time to file ... a petition for 

permission to appeal,” FED. R. APP. P. 26(b).

That reasoning applies with equal force here. Like 

Rule 23(f), Rule 8006(g) speaks in mandatory terms. See FED.

R. BANKR. P. 8006(g) (petition “must be filed” before the 

deadline). And like Rule 23(f), Rule 8006(g) requires a petition for permission to appeal, so Rule 26(b)(1) “singles [it]

out ... for inflexible treatment.” Nutraceutical Corp., 139 S. Ct. 

at 715. Rule 8006(g) is thus a mandatory claim-processing 

rule. Because Kreisler properly invoked the rule, it “must be 

enforced.” Hamer, 138 S. Ct. at 17.

In response the Wades rely on the lead opinion in In re 

Turner, 574 F.3d 349 (7th Cir. 2009), and our decision in 

Marshall v. Blake, 885 F.3d 1065 (7th Cir. 2018). In both cases 

the appellants obtained certification from the bankruptcy 

court for a direct appeal but failed to file a petition for

permission to appeal as required by the Bankruptcy and 

Appellate Rules. In both cases we declined to dismiss the 

appeal, but the decisions rested on slightly different 

grounds.

The lead opinion in Turner, representing only the author’s 

views, concluded that the record transmitted from the 

bankruptcy court contained the information that a petition

for leave to appeal would have provided. See 574 F.3d at 352

(Posner, J.). Invoking the Supreme Court’s decision in Torres 

v. Oakland Scavenger Co., the lead opinion concluded that the 

record sent by the bankruptcy court brought 

the case within the principle that “if a litigant 

files papers in a fashion that is technically at 

variance with the letter of a procedural rule, a 
6 No. 18-2564

court may nonetheless find that the litigant has 

complied with the rule if the litigant’s action is 

the functional equivalent of what the rule requires.”

Id. (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–

17 (1988)). In the lead opinion’s view, dismissal was unwarranted because treating the bankruptcy-court record as the 

“functional equivalent” of a petition would not prejudice the 

appellee. Id.; see also id. at 356 (Van Bokkelen, J., concurring 

in the judgment).

In Marshall we dropped any reliance on functional equivalence and instead emphasized Turner’s discussion of harmlessness. See 885 F.3d at 1073 (“[W]e have excused the failure 

to file a Rule 5 petition if the party filed a timely notice of 

appeal and ‘no one is harmed by the failure.’” (quoting 

Turner, 574 F.3d at 354)). Marshall found that the failure to 

comply with Rule 8006(g) was harmless in that case.

Turner was decided before Hamer clarified the effect of 

mandatory claim-processing rules. The lead opinion presumed that as long as a rule is not jurisdictional, courts 

could create equitable exceptions. See 574 F.3d at 354 (“[T]he 

failure to comply with a rule that is not jurisdictional ... is 

not fatal if no one is harmed by the failure ... .”). And 

Marshall postdates Hamer but does not mention the case. 

There the litigants framed the Rule 8006(g) objection in 

jurisdictional terms, and our opinion treated the issue accordingly, concluding that “we have jurisdiction to hear the 

direct appeal” after rejecting the appellee’s Rule 8006(g) 

objection. Marshall, 885 F.3d at 1074.
No. 18-2564 7

Marshall and Turner are irreconcilable with the Supreme 

Court’s recent decisions on the effect of noncompliance with 

mandatory claim-processing rules. Marshall’s harmless-error 

analysis cannot coexist with the Court’s decision in Manrique 

v. United States, 137 S. Ct. 1266, 1274 (2017), which held that

“mandatory claim-processing rules ... are not subject to 

harmless-error analysis.” More broadly, the Court’s recent 

decisions in this area have consistently compelled enforcement of mandatory claim-processing rules. See, e.g.,

Nutraceutical Corp., 139 S. Ct. at 714 (stating that mandatory 

claim-processing rules are “unalterable”); Hamer, 138 S. Ct. 

at 17 (stating that mandatory claim-processing rules “must 

be enforced”); Manrique, 137 S. Ct. at 1272 (“[T]he court’s 

duty to dismiss the appeal was mandatory.”) (quotation 

marks omitted). Adopting a harmless-error exception, as 

Marshall did, necessarily alters an “unalterable” claimprocessing rule. 

The approach of Turner’s lead opinion is also unsustainable in light of the Court’s recent cases. The Wades note that 

Torres remains on the books. True, but we’re not persuaded 

that we may accept the bankruptcy court’s certification order

as the functional equivalent of a petition for permission to

appeal. 

To start, it’s unclear if Torres itself ever extended that far. 

See 487 U.S. at 315–16 (“Permitting imperfect but substantial 

compliance with a technical requirement is not the same as 

waiving the requirement altogether ... .”). Regardless, the 

Court has now clearly rejected the reasoning of the lead 

opinion in Turner. In Manrique a criminal defendant failed to 

file a second notice of appeal after the lower court issued an 

amended judgment, as Rule 4 of the Federal Rules of Crimi-
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nal Procedure requires. The dissent reasoned that “the 

clerk’s transmission of the amended judgment to the Court 

of Appeals [was] an adequate substitute for a second notice 

of appeal.” Manrique, 137 S. Ct. at 1275 (Ginsburg, J., dissenting). But the Court didn’t agree. It treated Rule 4 as a mandatory claim-processing rule and held that the court of appeals

“may not overlook the failure to file a notice of appeal at 

all.” Id. at 1274 (majority opinion). Because that omission ran 

afoul of Rule 4, the appeal had to be dismissed. Id.

The same result is required here. We cannot overlook the 

Wades’ failure to file a petition for permission to appeal. 

Because Kreisler properly objected to the violation of

Rule 8006(g), our “duty to dismiss the appeal [is] mandatory.“ Id. at 1272 (quotation marks omitted). Based on the clear 

conflict with Nutraceutical Corp., Hamer, and Manrique, we 

overrule Turner and Marshall to the extent that they approved exceptions to compliance with Bankruptcy 

Rule 8006(g) and Rule 5(a)(1) of the Federal Rules of Appellate Procedure—whether based on the functionalequivalence doctrine, the harmless-error doctrine, or both.1

The Wades must pursue their appeal through the ordinary 

process, which starts with the district court.

APPEAL DISMISSED.

 1 Because this opinion overrules circuit precedent, we circulated it to all 

judges in active service. See 7TH CIR. R. 40(e). No judge favored rehearing 

en banc.