## 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 State s 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 t ransfer this appeal to the United States District Court for the Eastern District of Missouri
. Because we conclude that the appeal is properly before thi s 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 Ja nuary 15, 1998) were entered granting the plaintiff summary jud gment in this adversary proceeding. On January 27, 1998 , th e defendant filed a notice of appeal. While he did not use th e official form and the caption of the notice of appeal was inaccura te in a number of respects, the appeal did properl y iden tifythe January 16, 1998, order and judgment as thos e be ing appealed from. In pertinent part, the notice of appeal stated: WILLIAMSULLIVAN, ROSE SULLIVAN AND TINA

LLO YD, and Roger M. Hibbits appeal to th e United States District Court. . . . 1 Because Hibbits did not file any s eparate election to have his appeal heard by the district court, the clerk of the bankruptc y court transmitted the appeal to this court. Hibbits has no w fi led a motion to transfer the appeal to the district cour t al leging that the appeal was “erroneously transferred to this cour t” and that “there was no consent to such transfer an d th erefore 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. Rathe r th e current statute and rule provide that an appeal will b e hea rd by the bankruptcy appellate panel unless a party make s anaffirmative election to have an appeal heard by the distric t co urt. Significant changes in this regard were made by th e3

Bankruptcy Reform Act of 1994. Pu b. 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: Th e judicial council of a circuit may establish a ban kruptcyappellate panel, comprised of bankruptc y judges from districts within the circuit, to h ear and determ ine, 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 th e co nsent of all parties to the appeal before that appeal would be heard by a bankruptcy appellate panel. The Bankruptcy Rule s implemented this consent procedure: Consent to Appeal to Bankruptcy Appellate Panel
. Un less otherwise provided by a rule promulgate d pu rsuant to Rule 8018, consent to have an appea l heard by a bankruptcy appellate panel may be g iven in a separate statement of consent executed by a part y or contained in the notice of appeal or cross appeal. Th e statement of consent shall be filed before th e tran smittal of the record pursuant to Rule 8007(b) , or w ithin 30 days of the filing of the notice o f appeal, whichever is later. Fed. R. Bankr. P. 8001(e) (prior to 1997 amendment). Thus, the statute and rules previously required th e consent of the parties before an appeal could be heard by a ban kruptcyappellate panel and if the former statute and th e old rule were in effect, the appellant’s motion would hav e merit.
The Current Statute and The New Rule5

However, the statute was amended by the Bankruptcy Reform Ac t of 1994, Pub. L. No. 103-394, 108 Stat. 4106 (1994). The Act su bstantially amended § 158 regarding the process fo r creatingbankruptcy appellate panels and the operative languag e of § 158(b)(1) quoted above was de leted and a new § 158(c) was enacted, which provides:6

Su bject to subsection (b), each appeal unde r subsection (a) shall be heard by a 3-judge panel o f the bankruptcy appellate panel service establishe d 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 3 0 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 absolut e right of any party to have an appeal heard by the distric t court, that right must be affirmatively exercised by a n el ection by the appellant at the time of filing the appeal or by any o ther party within thirty days after its service. I n the a bsence of such an election an appeal is heard by th e ban kruptcyappellant panel. To implement this change in th e statute, the bankruptcy rule was also changed effectiv e December 1, 1997. It now reads: Electi onto Have Appeal Heard by District Cour t Inst ead of Bankruptcy Appellate Panel. An electio n to have an appeal heard by the district court unde r 28 U.S.C. § 158(c)(1) may be made only by a st atement or el ection contained in a separate writing file d within the tim e prescribed by 28 U.S.C. § 158(c)(1). Fed. R. Bankr. P. 8001(e). Thus, the rule implements the statute by requiring a n aff irmative informed election to have an appeal heard by th e district court. Thus, although the notice of appeal in thi s ca se states that the appeal is to the district court, that is bo ilerplate language (not conforming to the official form for a noti ce of appeal) and does not qualify as an election. I t certainly

is not contained in a separate writing as is require d7

by Fed. R. Bankr. P. 8001(e). By requiring such a separat e document, the rule implements Congressional intent that appeal s to the bankruptcy appellate panel be the default process an d the statutory language that the right to proceed with an appea l to the district court be made by an actual “election” knowingl y and informatively made.8 CONCLUSION Since the appellant did not make an election in conformi ty withthe statute and the rule, the appeal is properly befor e this c ourt. We therefore deny his motion to transfer th e appe al to the United States District Court for the Easter n District of Missouri.

February 23, 1998

Order Entered at the Direction of the Panel:

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