United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

 

No. 98-6013EM

 

In re: *

*

Sullivan Jewelry, Inc., *

*

Debtor. *

*

A. Thomas DeWoskin, Trustee, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * Bankruptcy Court for the

* Eastern District of Missouri.

Roger M. Hibbits, *

*

Defendant-Appellant. *

 

ORDER

 

Before KRESSEL, SCOTT, and DREHER, Bankruptcy Judges.

 

KRESSEL, Bankruptcy Judge.

The appellant moves to transfer this appeal to the United

States District Court for the Eastern District of Missouri.

Because we conclude that the appeal is properly before this

court, we deny the motion.
 William Sullivan, Rose Sullivan, and Tina Lloyd were not parties to this adversary 1

proceeding, so it is unclear why they appear both in the caption and as appellants. We treat this

only as an appeal by defendant Roger M. Hibbits.

2

BACKGROUND

On January 16, 1998, an order and a judgment (both dated

January 15, 1998) were entered granting the plaintiff summary

judgment in this adversary proceeding. On January 27, 1998,

the defendant filed a notice of appeal. While he did not use

the official form and the caption of the notice of appeal was

inaccurate in a number of respects, the appeal did properly

identify the January 16, 1998, order and judgment as those

being appealed from. In pertinent part, the notice of appeal

stated:

WILLIAM SULLIVAN, ROSE SULLIVAN AND TINA

LLOYD, and Roger M. Hibbits appeal to the

United States District Court. . . .1

Because Hibbits did not file any separate election to have his

appeal heard by the district court, the clerk of the bankruptcy

court transmitted the appeal to this court. Hibbits has now

filed a motion to transfer the appeal to the district court

alleging that the appeal was “erroneously transferred to this

court” and that “there was no consent to such transfer and

therefore this does not comply with Bankruptcy Rule 8001(e).”

DISCUSSION

While Hibbits may not have consented to his appeal being

heard by this court, actual consent is not required. Rather

the current statute and rule provide that an appeal will be

heard by the bankruptcy appellate panel unless a party makes

an affirmative election to have an appeal heard by the district

court. Significant changes in this regard were made by the
3

Bankruptcy Reform Act of 1994. Pub. L. No. 103-394, 108 Stat.

4106 (1994).
4

The Former Statute and The Old Rule

Appeals from bankruptcy court are governed by Section 158

of Title 28. Prior to the enactment of the Bankruptcy Reform

Act of 1994, § 158(b)(1) provided:

The judicial council of a circuit may establish a

bankruptcy appellate panel, comprised of bankruptcy

judges from districts within the circuit, to hear and

determine, upon the consent of all the parties,

appeals under subsection (a) of this section.

28 U.S.C. § 158(b)(1) (repealed 1994).

Thus, as previously written, the statute did require the

consent of all parties to the appeal before that appeal would

be heard by a bankruptcy appellate panel. The Bankruptcy Rules

implemented this consent procedure:

Consent to Appeal to Bankruptcy Appellate Panel.

Unless otherwise provided by a rule promulgated

pursuant to Rule 8018, consent to have an appeal

heard by a bankruptcy appellate panel may be given in

a separate statement of consent executed by a party

or contained in the notice of appeal or cross appeal.

The statement of consent shall be filed before the

transmittal of the record pursuant to Rule 8007(b),

or within 30 days of the filing of the notice of

appeal, whichever is later.

Fed. R. Bankr. P. 8001(e) (prior to 1997 amendment).

Thus, the statute and rules previously required the

consent of the parties before an appeal could be heard by a

bankruptcy appellate panel and if the former statute and the

old rule were in effect, the appellant’s motion would have

merit.

The Current Statute and The New Rule
5

However, the statute was amended by the Bankruptcy Reform

Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106 (1994). The

Act substantially amended § 158 regarding the process for

creating bankruptcy appellate panels and the operative language

of § 158(b)(1) quoted above was deleted and a new § 158(c) was

enacted, which provides:
6

Subject to subsection (b), each appeal under

subsection (a) shall be heard by a 3-judge panel of

the bankruptcy appellate panel service established

under subsection (b)(1) unless --

(A) the appellant elects at the time of filing

the appeal; or

(B) any other party elects, not later than 30

days after service of the notice of the appeal;

to have such appeal heard by the district court.

28 U.S.C. § 158(c).

While the statute as rewritten preserves the absolute

right of any party to have an appeal heard by the district

court, that right must be affirmatively exercised by an

election by the appellant at the time of filing the appeal or

by any other party within thirty days after its service. In

the absence of such an election an appeal is heard by the

bankruptcy appellant panel. To implement this change in the

statute, the bankruptcy rule was also changed effective

December 1, 1997. It now reads:

Election to Have Appeal Heard by District Court

Instead of Bankruptcy Appellate Panel. An election

to have an appeal heard by the district court under

28 U.S.C. § 158(c)(1) may be made only by a statement

or election contained in a separate writing filed

within the time prescribed by 28 U.S.C. § 158(c)(1).

Fed. R. Bankr. P. 8001(e).

Thus, the rule implements the statute by requiring an

affirmative informed election to have an appeal heard by the

district court. Thus, although the notice of appeal in this

case states that the appeal is to the district court, that is

boilerplate language (not conforming to the official form for

a notice of appeal) and does not qualify as an election. It

certainly is not contained in a separate writing as is required
7

by Fed. R. Bankr. P. 8001(e). By requiring such a separate

document, the rule implements Congressional intent that appeals

to the bankruptcy appellate panel be the default process and

the statutory language that the right to proceed with an appeal

to the district court be made by an actual “election” knowingly

and informatively made.
8

CONCLUSION

Since the appellant did not make an election in conformity

with the statute and the rule, the appeal is properly before

this court. We therefore deny his motion to transfer the

appeal to the United States District Court for the Eastern

District of Missouri.

February 23, 1998 

Order Entered at the Direction of the Panel:

Clerk, U.S. Bankruptcy Appellate Panel, Eighth Circuit