The Who, What, When, & Where of Bankruptcy Appeals

31 May The Who, What, When, & Where of Bankruptcy Appeals

The who, what, when, and where of bankruptcy appeals can be tricky. The following is a brief and very general roadmap to bankruptcy appeal filing:

Who: The Debtor

What: In non-core matters, the bankruptcy judge does not issue final orders. The judge merely recommends to the district judge. In this case, an appeal to the district court is not appropriate. Rather, written objections to the proposed findings should be filed. Fed. R. Bank. P. 9033. For final orders, and or orders governing plan exclusivity, a notice of appeal should be filed. 28 U.S.C. 158(a)(1). For interlocutory orders, one can only appeal with leave of court. 28 U.S.C. 158(a)(3). A notice of appeal and a request for leave to appeal should be filed.

When: Bankruptcy Rule 8002 provides that appeal shall be filed within ten days of the order appealed from. Note that this time period is shorter than the typical thirty-day appeal period one may be used to in Federal practice.

Where: Appeals generally go to the district court. In some circuits where Bankruptcy Appellate Panels have been created, the appeal goes to the BAP. 28 U.S.C. 158(d)(2) contains certain provisions for when an appeal can bypass the district court or the bankruptcy appellate panel. A party may take direct appeal to the circuit court where “there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or [if the case] involves a matter of public importance.” 28 U.S.C. 158(2)(a)(i).

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