In Re MacKey

232 B.R. 784
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedMarch 29, 1999
DocketBAP No. CC-98-1852, Bankruptcy No. LA-97-42201-SB, Adversary No. LA-98-99907-SB
StatusPublished
Cited by2 cases

This text of 232 B.R. 784 (In Re MacKey) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MacKey, 232 B.R. 784 (bap9 1999).

Opinion

232 B.R. 784 (1999)

In re Paul David MACKEY, dba David Mackey Drywall, Debtor.
HBI, Inc., and Noble Construction Company, Inc., Appellants,
v.
Sessions Payroll Management, Inc., and Helen Ryan Frazer, Chapter 7 Trustee, Appellees.

BAP No. CC-98-1852, Bankruptcy No. LA-97-42201-SB, Adversary No. LA-98-99907-SB.

United States Bankruptcy Appellate Panel of the Ninth Circuit.

March 29, 1999.

*785 Karen M. Andrews, Los Alamitos, CA, for HBI, Incorporated.

Lisa G. Stanhope, Temecula, CA, for Noble Construction Company, Inc.

Helen Ryan Frazier, Cerritos, CA, for Chapter 7 Trustee.

Paul A. Beck, Tuttle & Taylor, Los Angeles, CA, for Sessions Payroll Management, Inc.

Before MEYERS, PERRIS, and KLEIN, Bankruptcy Judges.

ORDER

KLEIN, Bankruptcy Judge.

The question is whether the appellees timely filed their statement of election to have this appeal heard by the district court. If the statement of election was not timely filed, then it remains with the bankruptcy appellate panel ("BAP"). We conclude that it was timely filed, but only because of the 3-day extension mandated by rule when service of notice is by mail.

This is our third installment in assessing the nuances of Judicial Code § 158(c)(1), which provides that parties may "elect" to have an appeal heard by the district court instead of the BAP. 28 U.S.C. § 158(c)(1). First, we held that the election had to be in the form of a separate document. Arkansas Teachers Retirement Sys. v. Official Inv. Pool Participants Comm. (In re County of Orange), 183 B.R. 593 (9th Cir. 1995). Then, we held that the appellant's statutory deadline for making the election is the time the notice of appeal is filed, even if the notice of appeal is filed prematurely. Ioane v. Collins (In re Ioane), 227 B.R. 181 (9th Cir. BAP 1998), construing 28 U.S.C. § 158(c)(1)(A). Now, we wrestle with the statutory 30-day deadline for "any other party" (including appellees) under 28 U.S.C. § 158(c)(1)(B) in the context of a premature notice of appeal.

We publish to reduce the potential for blunders due to confusion about which appellate court is handling the appeal. The problem is particularly acute when early emergency motions are made. The rules of procedure implement the statutory scheme in a manner designed to enable one to determine which appellate court will hear the appeal merely by looking at the bankruptcy court docket.

FACTS

The appellees waited 31 days after service of the notice of the appeal before filing a statement of election to have the appeal heard by the district court.

A joint notice of appeal was filed on November 25, 1998, after the bankruptcy court announced its decision but before the order was entered. The notice of appeal was not accompanied by a separate statement of election in favor of the district court. The bankruptcy court clerk served the notice of the appeal on the appellees by mail on November 30, 1998. The order being appealed was entered on December 21, 1998.

*786 The appellees filed their statement of election in favor of district court on December 30, 1998, some 31 days after service of notice of the appeal. Judicial Code § 158(c)(1)(B) requires the election by appellees to be made "not later than 30 days after service of notice of the appeal". 28 U.S.C. § 158(c)(1)(B). The appellees argue that their election was timely because the order being appealed was not entered until December 21, 1998.[1]

DISCUSSION

I

We begin by reviewing the statute, rules, and prior decisions interpreting the statement of election to have the appeal heard by the district court.

A

An appeal from a bankruptcy court in a district served by a BAP is to be heard by the BAP unless an election is made to have it heard by the district court. 28 U.S.C. § 158(c)(1). The appellant must make the election to reject the BAP "at the time of filing the appeal". 28 U.S.C. § 158(c)(1)(A). Any other party must make the election "not later than 30 days after service of notice of the appeal". 28 U.S.C. § 158(c)(1)(B).

The fact that the statute includes such phrases as "at the time" and "not later than 30 days after" implies that Congress desired to draw an unambiguous line separating the parallel appellate tracks so as to avoid confusion. Hence, we construe the statutory provisions in a fashion that implements a bright line.

Judicial Code § 158(c)(1) is supplemented by bankruptcy rules (two being relevant here) that are also consistent with bright lines. Federal Rule of Bankruptcy Procedure 8001(e) requires the election to be in the form of "a statement of 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). And Federal Rule of Bankruptcy Procedure 8004 requires that the clerk be the one to serve notice of the filing of a notice of appeal and that the clerk do so by mail, noting in the docket the date of the mailing. Fed.R.Bankr.P. 8004.

In addition, Federal Rule of Bankruptcy Procedure 9006(f) adds three days whenever "there is a right or requirement to do some act or undertake some proceedings within a prescribed period after service of a notice or other paper and the notice or paper other than process is served by mail". Fed.R.Bankr.P. 9006(f).

B

As noted, this is our third installment in assessing the nuances of the statement of election required by § 158(c)(1).

In the first installment, we strictly construed the provision in § 158(c) that parties may "elect" the district court as contemplating that the election be in the form of a separate document. Arkansas Teachers Retirement Sys., 183 B.R. 593. The separate writing requirement was subsequently embodied in Rule 8001(e). Fed. R.Bankr.P. 8001(e) (election "may be made only by a statement of election contained in a separate writing"); DeWoskin v. Hibbits (In re Sullivan Jewelry, Inc.), 218 B.R. 439, 440-41 (8th Cir. BAP 1998).

In the second installment, we construed an appellant's

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: Luevina Henry
Ninth Circuit, 2018
DPW Employees Credit Union v. King (In Re King)
235 B.R. 658 (Tenth Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
232 B.R. 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mackey-bap9-1999.