OVERVIEW OF BANKRUPTCY APPEALS JUNE 2011

8/6/2019 OVERVIEW OF BANKRUPTCY APPEALS JUNE 2011

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June 1, 2011 OVERVIEW OF BANKRUPTCY APPEALS

Tenth Circuit Bankruptcy Appellate Panel | Table of Contents 2

Table of Contents

TABLE OF CONTENTS ............................................................................................................................................ 2

SECTION I: INTRODUCTION TO BANKRUPTCY APPEALS .......................................................................... 4

PART A:THE APPEALS PROCESS ............................................................................................................................... 4PART B:HIGHLIGHTS OF PRACTICE BEFORE THE TENTH CIRCUIT BAP .................................................................... 4

1. The BAP Website ........................................................................................................................................ 42. Electronic Filing ......................................................................................................................................... 4 3. Oral Argument ............................................................................................................................................ 54. Friendly Service .......................................................................................................................................... 55. BAP appeals are processed and resolved quickly ...................................................................................... 5 6. BAP appeals have the benefit of three specialized Judges ......................................................................... 5

SECTION II: FILING THE NOTICE OF APPEAL ............................................................................................... 6

PART A:GENERAL REQUIREMENTS........................................................................................................................... 6PART B:CROSS APPEAL ............................................................................................................................................ 6PART C:INTERLOCUTORY APPEAL ............................................................................................................................ 6PART D:PREMATURE NOTICE OF APPEAL ................................................................................................................. 7PART E:BANKRUPTCY COURT DOCKETING OF APPEAL,TRANSMISSION TO BAP ..................................................... 7

SECTION III: DISTRICT COURT ELECTIONS .................................................................................................. 8

PART A:GENERAL RULE ........................................................................................................................................... 8PART B:APPELLANT=S ELECTION .............................................................................................................................. 8PART C:APPELLEE=S ELECTION................................................................................................................................. 8PART D:ELECTIONS IN CROSS APPEALS.................................................................................................................... 8

SECTION IV: THE RECORD ON APPEAL ........................................................................................................... 9

PART A:DESIGNATION OF RECORD AND STATEMENT OF ISSUES............................................................................... 9PART B:ORDERING A TRANSCRIPT............................................................................................................................ 9PART C:NO SEPARATE RECORD ON APPEAL ............................................................................................................. 9

SECTION V: DEADLINES AND INITIAL BAP FILINGS ................................................................................. 10

PART A:INITIAL NOTICE AND DEADLINES .............................................................................................................. 10PART C:INITIAL REQUIRED FILINGS........................................................................................................................ 10PART D:BRIEFING SCHEDULE ................................................................................................................................. 10

SECTION VI: MEDIATION .................................................................................................................................... 11

PART A:TRIAL MEDIATION PROGRAM.................................................................................................................... 11PART C:MEDIATION PROCEDURES.......................................................................................................................... 11PART D:POST-MEDIATION PROCEDURES ................................................................................................................ 11

SECTION VII: BRIEFS AND APPENDICES ........................................................................................................ 12

PART A:FORM AND PAGE LIMITS OF BRIEFS........................................................................................................... 12PART C:BRIEFS IN CROSS APPEALS ........................................................................................................................ 12PART D:CONTENT OF APPENDICES ......................................................................................................................... 12PART E:FORM OF APPENDICES................................................................................................................................ 13PART F:SEALED DOCUMENTS ................................................................................................................................. 13PART G:NUMBER OF COPIES................................................................................................................................... 13

SECTION VIII: MOTION PRACTICE .................................................................................................................. 14


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Tenth Circuit Bankruptcy Appellate Panel | Section I: Introduction to Bankruptcy Appeals 4

SECTION I:INTRODUCTION TO BANKRUPTCY APPEALS

PART A:THE APPEALS PROCESS

In circuits that do not have bankruptcy appellate panels,1 appeals from bankruptcy court decisionsare heard by the district court. In circuits that have established bankruptcy appellate panels,

2

appeals are heard (absent a timely election to have the appeal heard by the district court) by thebankruptcy appellate panel for that circuit. Appealswhether heard by a bankruptcy appellatepanel or a district courtare are governed by Part VIII of the Federal Rules of BankruptcyProcedure and any applicable local rules. Appeals from decisions of a bankruptcy appellate panelor a district court are heard by the U.S. Court of Appeals for that circuit.

PART B:HIGHLIGHTS OF PRACTICE BEFORE THE TENTH CIRCUIT BAP

1. THE BAPWEBSITEThe Tenth Circuit Bankruptcy Appellate Panel (the BAPor the Court) website, located

atwww.bap10.uscourts.gov, contains a wealth of information related to practice before the BAP.The website contains, among other things, the following information:

The BAP Guide, which is a practitioners guide to practicing before the BAP, and includesanECF Users Manual,ECF Procedures and Guidance, and a Quick Reference Guide

explaining the federal and local rules which govern BAP appeals.BAP Local Rules (with applicable Federal Rules of Bankruptcy Procedure)

Free access to all opinions issued by the BAP since its formation

Contact information for the BAP Clerks Office

Forms and Fee Schedules

Future and historical argument calendars

BAP General Orders

2. ELECTRONIC FILINGEffective May 1, 2010, the BAP adopted mandatory electronic filing using the CM/ECFAppellate system (AECF@). An ECF Users Manual, ECF Procedures and Guidance, and system

1 The Second, Third, Fourth, Fifth, Seventh, Eleventh and D.C. Circuits do not have bankruptcy appellate panels.

2 The First, Sixth, Eighth, Ninth and Tenth Circuits have bankruptcy appellate panels.
http://www.bap10.uscourts.gov/http://www.bap10.uscourts.gov/http://www.bap10.uscourts.gov/http://www.bap10.uscourts.gov/


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Tenth Circuit Bankruptcy Appellate Panel | Section II: Filing the Notice of Appeal 5

requirements are posted on the BAP website. For persons exempt from mandatory electronicfiling, the BAP accepts filings by hand delivery, mail, fax, and e-mail. A document is consideredtimely filed if it is received before 12:00 midnight (Mountain Time) on the date the paper is due,

except for briefs and appendices, which are deemed filed on the date mailed. If the document isnot filed electronically, then an original signature is required on the document and the certificate ofservice. For e-filed documents, use of an ECF login and password constitutes the e-filer=s signatureon the document.

3. ORAL ARGUMENTThe BAP generally allows oral argument when a party requests it, generally schedules oral

argument sessions at a convenient location in the district from which the appeal arose, and allowsparties to present oral argument by telephone or (where available) videoconference.

4. FRIENDLY SERVICEThe staff of the BAP Clerk=s Office is always available to answer questions or provide an

update about the progress of an appeal. The BAP Clerk=s Office is dedicated to providing friendlyand efficient quality service to the bench, the bar, and the public.

5. BAP APPEALS ARE PROCESSED AND RESOLVED QUICKLYThe BAP does not require a completed record on appeal before it processes an appeal. As

a result, appeals are transmitted electronically by bankruptcy courts to the BAP immediately uponthe filing of the notice of appeal. Generally, the BAP is able to process an appeal and assign acase number on the same day that a notice of appeal is filed in the Bankruptcy Court. The BAPsets briefing deadlines as soon as an appeal is processed so the case can proceed quickly, and theBAP monitors deadlines to ensure that the appeal is being prosecuted. BAP appeals are resolvedquickly, with an average of less than 60 days from the time the appeal is submitted to a panel to thetime that a decision is entered. The average time from the filing of the notice of appeal to theentry of a decision is approximately 160 days.

6. BAP APPEALS HAVE THE BENEFIT OF THREE SPECIALIZED JUDGESAppeals to the BAP are decided by a panel of three bankruptcy judges from the Tenth

Circuit, who have specialized expertise desirable for resolution of bankruptcy appeals. Pursuant to28 U.S.C. ' 158(b)(6), a BAP judge may not hear an appeal originating from his or her own districtand may elect not to hear an appeal from a district where the judge has a temporary assignmentpursuant to 28 U.S.C. ' 155(a).


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SECTION II:FILING THE NOTICE OF APPEAL

PART A:GENERAL REQUIREMENTS

Every appeal begins with the filing of a notice of appeal, which must be filed with the clerk of thebankruptcy court within fourteen (14) days after entry of the bankruptcy court=s order or judgment.See Fed. R. Bankr. P. 8002 and 9006. If an appeal is untimely, the BAP will issue an order toshow cause why the appeal should not be dismissed, and unless the time for filing the notice ofappeal is extended by the bankruptcy court, the BAP will dismiss the appeal.

The notice of appeal must conform to Official Form 17 and contain the names of all parties to theorder or judgment along with the names, addresses, and telephone numbers of counsel for allparties to the order and judgment. See Fed. R. Bankr. P. 8001. Separate notices of appeal,together with the prescribed fees, are required for each order being appealedparties may not seekreview of multiple orders using a single notice of appeal. See 10th Cir. BAP L.R. 8001-1.

For all parties other than the United States government, the required fee is $255.00, due at the timeof filing the notice of appeal. See 28 U.S.C. '' 1930(b). This fee includes a $250.00 docketingfee and a $5.00 filing fee. For the United States government, a $5.00 filing fee is due at the timeof filing the notice of appeal. For trustees or debtors-in-possession, the $250.00 docketing feemay be deferred until there are assets in the estate. These fees must be paid to the bankruptcycourt. See 10th Cir. BAP L.R. 8001-5. If an appeal is not accompanied by the proper filing anddocketing fee, the BAP will issue a notice of deficiency, and if the fee is not paid within the timespecified, the BAP will dismiss the appeal.

PART B:CROSS APPEAL

After a party has filed a timely notice of appeal, any other party may file a notice of appeal within14 days after the date the first notice of appeal was filed. A cross-appeal is considered a notice ofappeal and must be accompanied by the appropriate filing and docketing fees, paid to thebankruptcy court. See Fed. R. Bankr. P. 8002(a).

PART C:INTERLOCUTORY APPEAL

If the order or judgment being appealed is not a final order or judgment, it is interlocutory. Anappeal of an interlocutory order or judgment may be made only with leave of Court. A partyseeking review of an interlocutory order or judgment should file a notice of appeal accompaniedby a motion for leave to appeal. When an appellant seeks leave to appeal an interlocutory order,the appellant is initially required to pay only the $5.00 filing fee. The remaining $250.00 docketingfee is not due unless the appellate court grants leave to appeal. See 28 U.S.C. ' 158; Fed. R. Bankr.


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P. 8003. If an interlocutory appeal is filed without a motion for leave to appeal, the BAP willissue an order to show cause why the appeal should not be dismissed as interlocutory.

PART D:PREMATURE NOTICE OF APPEAL

Under certain circumstances, a notice of appeal is considered to be premature. First, a notice ispremature when it is filed after the decision of the bankruptcy court has been announced, butbefore an order or judgment has been entered on the bankruptcy court=s docket. See Fed. R.Bankr. P. 8002(a). Second, a notice is premature when it has been filed while a tolling motion isstill pending, such as a motion for rehearing. See Fed. R. Bankr. P. 8002(b)(4).

An appeal is not invalid because it is premature; it is merely temporarily ineffective. After thebankruptcy court enters the order or judgment, or rules on the tolling motion, the notice of appeal

becomes effective. See Fed. R. Bankr. P. 8002(a), (b)(4). The bankruptcy court=s ruling on atolling motion is not automatically part of the appeal; the appellant must amend the notice ofappeal to include it. Fed. R. Bankr. P. 8002(b)(4).

If an appeal before the BAP is premature, both the appellant and the bankruptcy court will bedirected to notify the BAP when the order or judgment is entered or the tolling motion is ruledupon, to ensure that the appeal is promptly resumed.

PART E:BANKRUPTCY COURT DOCKETING OF APPEAL,TRANSMISSION TO BAP

When a notice of appeal is filed, the clerk of the bankruptcy court will docket the notice of appeal,serve a copy on all parties identified in the notice of appeal, and notify the BAP through theCM/ECF system of the filing of the notice of appeal. Fed. R. Bankr. P. 8004; 10th Cir. BAP L.R.8007-2(a). The clerk of the bankruptcy court must also notify the BAP of the filing of any motionto extend time to file the notice of appeal and the order disposing of the motion; any post-judgmentmotion regarding the appealed judgment or order and the order disposing of the motion; and of anyelections. 10th Cir. BAP L.R. 8007-2. This notice constitutes Atransmission of the record.@10th Cir. BAP L.R. 8007-2(c).


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Tenth Circuit Bankruptcy Appellate Panel | Section III: District Court Elections 8

SECTION III:DISTRICT COURT ELECTIONS

PART A:GENERAL RULE

All appeals are heard by the BAP unless a party timely files a proper statement of election for theappeal to be heard by the district court. See 28 U.S.C. ' 158(c); Fed. R. Bankr. P. 8001(e).

PART B:APPELLANT=S ELECTION

If the appellant wants the appeal to be heard by the district court, the appellant must file an electionwith the bankruptcy court that meets the following requirements:

(1) It must be filed at the time the notice of appeal is filed;(2) It must be a written statement separate from the notice of appeal; and(3) It must clearly state the election to proceed before the district court.

28 U.S.C. ' 158(c)(1)(2); Fed. R. Bankr. P. 8001(e); 10th Cir. BAP L.R. 8001-3. If the appellantdoes not file an election that satisfies all three requirements, the appeal is sent to the BAP. TheBAP will open the appeal and issue briefing and other deadlines, subject to the filing of a properappellees election.

PART C:APPELLEE=S ELECTION

An appellee is allowed, within thirty days after the date the bankruptcy court serves the notice ofappeal, to file an election to have the appeal heard by the district court. This election must be filedwith the BAP. 10th Cir. BAP L.R. 8001-3. Note that papers are not filed until they are receivedby the BAP. Fed. R. Bankr. P. 8008(a).

PART D:ELECTIONS IN CROSS APPEALS

A cross-appellant seeking to have its cross-appeal and the appellant=s appeal heard in the district

court must follow both rules, filing a separate statement of election with the bankruptcy court atthe time the notice of cross-appeal is filed and filing a separate statement of election with the BAPwithin 30 days after service of the appellant=s appeal. 10th Cir. BAP L.R. 8001-3.


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Tenth Circuit Bankruptcy Appellate Panel | Section IV: The Record On Appeal 9

SECTION IV:THE RECORD ON APPEAL

PART A:DESIGNATION OF RECORD AND STATEMENT OF ISSUES

An appellant must, within 14 days after filing the notice of appeal, file with the bankruptcy court adesignation of the record on appeal and a statement of issues to be presented on appeal. Anappellee may designate additional items to be included in the record within 14 days after service ofthe appellant=s designation. A cross-appellant must, within 14 days after service of the appellant=sdesignation of record and statement of issues, file a designation of record and statement of issuesto be presented on the cross-appeal. Fed. R. Bankr. P. 8006. Sample forms are available on theBAP=s website. If an appellant or cross-appellant in a BAP appeal does not file a designation ofrecord and statement of issues with the bankruptcy court, the BAP, after notice and order to show

cause, will dismiss the appeal for failure to prosecute. See 10th Cir. BAP L.R. 8018-4(c).

PART B:ORDERING A TRANSCRIPT

If a party wishes to include a transcript of a hearing as part of the record on appeal, that party must,immediately after filing the designation of record, file with the bankruptcy court and deliver to thecourt reporter a written request for the transcript. The party ordering the transcript must makesatisfactory arrangements for payment of the cost of the transcript. The court reporter is requiredto complete the transcript within 30 days of receipt of a request for a transcript. If the courtreporter will not be able to meet the deadline, the court reporter must file a request for an extension

of time with the bankruptcy court. The court reporter must file the completed transcript with thebankruptcy court. See Fed. R. Bankr. P. 8006, 8007.

PART C:NO SEPARATE RECORD ON APPEAL

The BAP does not require parties to file with the bankruptcy court copies of the items designatedas the record on appeal. Instead, the parties must include the items, including transcripts orportions of transcripts, in the appendix to their brief required by Fed. R. Bankr. P. 8009(b) and 10thCir. BAP L.R. 8009-3. See 10th Cir. BAP L.R. 8006-1. Any item not included in an appendixwill not be considered by the Court, and an appeal may be summarily affirmed if sufficient items

are not included in the appendix.


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Tenth Circuit Bankruptcy Appellate Panel | Section VI: Mediation 11

SECTION VI:MEDIATION

PART A:TRIAL MEDIATION PROGRAM

Pursuant to General Order No. 4, the BAP implemented a one year Pilot Mediation Programbeginning October 1, 2009. All appeals, other than appeals involving apro se party, were eligiblefor participation in the trial mediation program. During this initial trial, a BAP Motions Panelreviewed each eligible appeal and made an individual determination of whether or not the appealshould be referred to the Circuit Mediator.

On September 30, 2010 the BAP entered General Order No. 6, which extended the Pilot MediationProgram for an additional year (until September 30, 2011) and modified the program to providethat all appeals filed after October 1, 2010, except those filed bypro se parties or those withjurisdictional defects, would be automatically referred to the Circuit Mediator.3 Appeals thatappear to be jurisdictionally defective, but are otherwise eligible for the Pilot Mediation Program,are referred to the Circuit Mediator if the jurisdictional defect is resolved.

PART C:MEDIATION PROCEDURES

The Circuit Mediator has authority to schedule and conduct mediation conferences for any casesreferred by the BAP. After an eligible appeal has been filed and docketed, the BAP ClerksOffice notifies the Circuit Mediator that the appeal is being referred to mediation. The CircuitMediator then issues and serves a Mediation Conference Notice on all parties to the appeal, whichidentifies the date of the initial mediation conference and contains other pertinent information.

The referral of an appeal to mediation does not extend any existing deadlines, including briefingdeadlines. While the appeal is in mediation, requests for extensions of time to order transcripts orfile briefs are obtained by contacting the Circuit Mediator instead of filing a motion with the Court.

Counsel is required to participate in all scheduled mediation conferences and related discussions.Parties have the option to participate, but are not required to unless the Circuit Mediator directsthat they participate. Mediation conferences are generally conducted telephonically unless theCircuit Mediator indicates otherwise. Counsel is also required to obtain as much authority aspossible from their clients to settle the case.

PART D:POST-MEDIATION PROCEDURES

If mediation is successful, the BAP generally receives a voluntary motion to dismiss the appealfrom the appellant. If mediation is unsuccessful, the BAP is notified by the Circuit Mediator, andthe appeal will continue before the BAP.

3 Appeals filed by attorneys or trustees representing themselvespro se, however, are referred to the Circuit Mediator.


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Tenth Circuit Bankruptcy Appellate Panel | Section VII: Briefs and Appendices 12

SECTION VII:BRIEFS AND APPENDICES

PART A:FORM AND PAGE LIMITS OF BRIEFS

The requirements for the form ofboth an appellants and an appellees brief are set forth in Fed. R.Bankr. P. 8010 and 10th Cir. BAP L.R. 8010-1. Parties should carefully read and follow therequirements set forth therein. Failure to file a conforming brief may result in a notice ofdeficiency and, in the case of a deficient appellants brief that is not corrected, dismissal of the

appeal.

The appellant=s and the appellee=s principal briefs are limited to 50 pages, and the appellant=s replybrief is limited to 25 pages, exclusive of the table of contents, table of citations, addendum,statement of reasons for oral argument, and statement of related case(s). Word processor ortypewriter text must be no smaller than 12-point font and, except for indented quoted material orfootnotes must be double-spaced. Each page must have 1@ margins on all sides. Pages must beprinted on only one side, and briefs must be firmly bound along the left margin.

PART C:BRIEFS IN CROSS APPEALS

When the appeal includes a cross-appeal, the briefing schedule is combined as follows:

(1) The appellant/cross-appellee files the first brief, which must comply with therequirements of an appellant=s brief and address the issues presented in theappellant=s appeal.

(2) The appellee/cross-appellant files the second brief, which combines the appellee=sresponse brief (addressing the issues presented in the appellant=s appeal) and thecross-appellant=s opening brief (complying with the requirements of an appellant=sbrief and addressing the issues presented in the cross-appeal).

(3) The appellant/cross-appellee files the third brief, which combines the appellant=sreply brief (addressing the appellee=s response brief) and the cross-appellee=sresponse brief (addressing the cross-appeal).

(4) The appellee/cross-appellant files the fourth brief, which is a reply brief addressingthe cross-appeal.

PART D:CONTENT OF APPENDICES

The appellant is required to provide an appendix to the brief containing all papers necessary for theCourt=s review. Fed. R. Bankr. P. 8009(b). An appellee may file an appendix containing anypapers that the appellant failed to provide. Id. The appellant=s appendix must contain thefollowing:


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Tenth Circuit Bankruptcy Appellate Panel | Section VII: Briefs and Appendices 13

(1) The complaint and answer or other equivalent pleadings;(2) Any pretrial order;(3) The judgment, order, or decree from which the appeal is taken;

(4) Any other orders relevant to the appeal;(5) The opinion, findings of fact, or conclusions of law filed or delivered orally by the

bankruptcy court and citations of the opinion if published;(6) Any motion and response on which the bankruptcy court rendered decision;(7) The notice of appeal;(8) The relevant entries in the bankruptcy court docket; and(9) All transcripts, or portions of transcripts, that are necessary for the Court=s review.

Where the appellant seeks to overturn a finding of fact by the bankruptcy court, theentire transcript should be provided. See Rubner & Kutner, P.C. v. United StatesTrustee (In re Lederman Enters., Inc.), 997 F.2d 1321, 1323 (10th Cir. 1993).

PART E:FORM OF APPENDICES

The appendix must be filed separately from the briefs. The appendix must be consecutivelypaginated and must have a table of contents with the page number at which each item appears.When more than one party files an appendix, the parties should avoid including items alreadyincorporated in a previous appendix and should incorporate items by reference. 10th Cir. BAPL.R. 8009-3.

PART F:SEALED DOCUMENTS

Copies of documents filed under seal with the bankruptcy court should be filed in paper in anaddendum separate from the appendix, accompanied by a motion to place the addendum under sealwith the BAP. 10th Cir. BAP L.R. 8009-3(k).

PART G:NUMBER OF COPIES

If a brief and an appendix to a brief are filed in paper by a party exempt from ECF, that party mustfile the original and three copies.


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Tenth Circuit Bankruptcy Appellate Panel | Section VIII: Motion Practice 14

SECTION VIII:MOTION PRACTICE

PART A:GENERAL PROCEDURES

If a party requests some form of relief from the Court (for example, to extend the time for filing apaper), the request must be made by motion. The general requirements for motions practice areset forth in Fed. R. Bankr. P. 8011 and 10th Cir. BAP L.R. 8011-1. The motion must contain thefollowing:

(1) A statement of the particular grounds on which the motion is based;(2) A statement of the order or relief sought;(3) Other than in a procedural motion or a motion for stay, a statement regarding

whether the motion is opposed;(4) Proof of service on all parties to the appeal; and(5) Anything required to accompany the motion by a specific provision of the Federal

Rules of Bankruptcy Procedure or the Local Rules.

PART B:RESPONSE TO MOTIONS,REPLY

Generally, a party is allowed seven days to respond to a motion. Fed. R. Bankr. P. 8011(a). TheCourt may shorten or extend this period. Id. The movant may file a reply to a response within 7days after service of the response. 10th Cir. BAP L.R. 8011-1(b).

If a party filing a motion or responding to a motion has not yet filed its Statement of InterestedParties as required by 10th Cir. BAP L.R. 8001-4(b), the motion or response must be accompaniedby a Statement of Interested Parties. See 10th Cir. BAP L.R. 8011-1(c).

PART C:NUMBER OF COPIES

If a party exempt from ECF files its pleadings in paper, that party must file an original and threecopies thereof.


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Tenth Circuit Bankruptcy Appellate Panel | Section IX: Oral Argument 15

PART D:EMERGENCY MOTION

A moving party may request expedited relief when the relief is necessary to avoid immediate andirreparable harm. Such a motion must include the following:

(1) The word AEmergency@ preceding the title of the motion;(2) An affidavit stating the nature of the emergency and when and how opposing

counsel was notified of the motion; if opposing counsel was not notified, theaffidavit must state why it was not practicable to do so;

(3) A statement as to whether all of the grounds presented to the BAP in support of themotion were presented to the bankruptcy court; if all the grounds were notpresented to the bankruptcy court, the motion must also state why the motionshould not be remanded to the bankruptcy court for reconsideration;

(4) The office addresses and telephone numbers of moving and opposing counsel; and

(5) An appendix containing a copy of (1) the notice of appeal, (2) the order orjudgment appealed, and (3) any other document filed with the bankruptcy court thatis necessary to decide the motion.

Fed. R. Bankr. P. 8011(d); 10th Cir. BAP L.R. 8011-4(b). Before filing an emergency motion,the moving party must give the Clerk of the BAP as much advance notice as possible. 10th Cir.BAP L.R. 8011-4(a). The moving party must also make every practicable attempt to notifyopposing counsel in sufficient time to allow opposing counsel to respond to the motion. Fed. R.Bankr. P. 8011(d). The motion should be filed with the Court and served on opposing counsel bythe quickest method available. 10th Cir. BAP L.R. 8011-4(a).

PART E:MOTION FOR STAY PENDING APPEAL

A motion for stay pending appeal should be filed with the BAP only after the bankruptcy court hasdenied the motion. Fed. R. Bankr. P. 8005. The motion must be accompanied by an appendixcontaining a copy of the Bankruptcy Court=s order or transcript of order denying the motion forstay (unless the motion was not first made to the Bankruptcy Court, in which case the movant mustexplain why it was not) and copies of all papers filed before the Bankruptcy Court that arenecessary to decide the motion. 10th Cir. BAP L.R. 8005-1(b). If the motion for stay is anemergency motion, the motion must also comply with Fed. R. Bankr. P. 8011(d) and 10th Cir.BAP L.R. 8011-1 and 8011-4.


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Tenth Circuit Bankruptcy Appellate Panel | Section IX: Oral Argument 16

SECTION IX:ORAL ARGUMENT

PART A:GENERAL PROCEDURE

The BAP allows oral argument in all cases unless the Court determines that oral argument is notnecessary after examining the briefs and appendices. See generally Fed. R. Bankr. P. 8012.Argument sessions will generally be scheduled in the district from which the appeal arose. Aparty may request, or the Court may determine, however, that oral argument be conducted bytelephone or videoconference. 10th Cir. BAP L.R. 8012-1(a).

Parties indicate whether they want oral argument or not on the Statement Regarding OralArgument, which must be filed within 14 days after the date of the Notice that the appeal has beendocketed with this court. See 10th Cir. BAP L.R. 8001-4(c). A party may amend its request nolater than the filing of its initial brief.

PART C:NOTICE OF ORAL ARGUMENT

When a case has been scheduled for oral argument, the Court will send all parties a Notice of OralArgument, which states the time and place of the scheduled argument, and includes an OralArgument Acknowledgment Form. Each attorney or unrepresented party is required to return theOral Argument Acknowledgment Form within 14 days, indicating whether the attorney or theparty intends to appear for oral argument. Any party who fails to file the required statement maynot participate in oral argument without leave of court. 10th Cir. BAP L.R. 8012-1(d).

PART D:CHANGE OF DATE OR PLACE OF ARGUMENT

After the date of the Notice of Oral Argument, the date or place of the argument will not bechanged without leave of Court. 10th Cir. BAP L.R. 8012-1(b).

PART E:GUIDELINES FOR ARGUMENT

Cross appeals, consolidated appeals, or companioned appeals will be argued as one case. Across-appellant is considered an appellee for purposes of oral argument. Argument time is

limited to 15 minutes for the appellant and 15 minutes for the appellee, but may be reduced orexpanded by the Court at the time of the hearing. The appellant is entitled to open and concludethe argument, and may reserve part of the time accordingly. An appellee is generally notpermitted to reserve time for rebuttal. The judges on the panel will have reviewed the record andbriefs and will be familiar with the facts and issues of the case. Argument should be devoted tokey points, clarifying issues as needed, and responding to questions raised by the judges.


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Tenth Circuit Bankruptcy Appellate Panel | Section X: The Courts Opinion and Post-DispositionProcedures

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SECTION X:THE COURTS OPINION AND POST-DISPOSITION

PROCEDURES

PART A:ENTRY AND NOTICE OF DISPOSITION OF THE APPEAL

Once the Court enters its decision on the appeal, the Clerk of the BAP will enter the judgment inthe docket and send notice, together with a copy of the decision, to all parties, the U.S. Trustee, andthe clerk of the bankruptcy court. Fed. R. Bankr. P. 8016.

PART B:MOTION FOR REHEARING

A party may file a motion for rehearing with the Court within 14 days after the date the judgmentwas entered. Fed. R. Bankr. P. 8015. Timely filing of the motion tolls the time for filing a noticeof appeal to the Tenth Circuit Court of Appeals. Id. The Court will consider only one motion forrehearing from each party to the appeal. 10th Cir. BAP L.R. 8015-1(b) & (c).

PART C:STAY PENDING APPEAL

The judgment of the Court is automatically stayed for 14 days from the date the judgment wasentered. Fed. R. Bankr. P. 8017(a). On motion of a party, the Court may extend the stay to 30

days from the date the judgment was entered. Fed. R. Bankr. P. 8017(b). A stay of longer than30 days may be granted for cause shown. Id. However, if the Court grants a 30-day stay, and anotice of appeal to the Tenth Circuit Court of Appeals is filed during the 30-day stay, the stayautomatically continues until the Court of Appeals finally disposes of the appeal.

PART D:MANDATE

After the time for filing a motion for rehearing has expired, the BAP will send to the bankruptcycourt a certified copy of the decision, which constitutes the mandate. The mandate returnsjurisdiction to the bankruptcy court. The mandate is automatically stayed while a timely-filed

motion for rehearing is pending, while the Court is considering a motion for stay under Fed. R.Bankr. P. 8017(b), or during the period of a stay granted under Fed. R. Bankr. P. 8017(b).


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Tenth Circuit Bankruptcy Appellate Panel | Section XI: Appeals to the Tenth Circuit Court of Appeals 18

SECTION XI:APPEALS TO THE TENTH CIRCUIT COURT OF APPEALS

PART A:GENERAL PROCEDURE

Appeals from decisions of the BAP are taken to the U.S. Court of Appeals for the Tenth Circuit. Anotice of appeal should be filed with the Clerk of the BAP. The time for filing an appeal is 30days from the date of entry of the judgment, or 60 days if the United States is a party. If a timelymotion for rehearing is filed, the time to appeal runs from the entry of the order denying rehearingor the entry of a subsequent judgment. Fed. R. App. P. 4(a)(1) (made applicable by Fed. R. App.P. 6); 10th Cir. BAP L.R. 8015-1. The filing fee for an appeal from the BAP is $455.00. No feeis charged for appeals filed by the United States. 28 U.S.C. ' 1913 (fee schedule).

The Tenth Circuit Court of Appeals requires the appellant to file a docketing statement within 14days after the date of filing the notice of appeal. 10th Cir. R. 3.4. The docketing statement mustinclude a copy of the BAP docket sheet, which parties may obtain over the internet using PACER.

PART A:DIRECT APPEALS

1. EFFECTIVE DATEThe Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, effective

October 17, 2005, includes provisions allowing direct appeals from bankruptcy court orders to a

circuit court of appeals under certain circumstances. The applicable provisions governing these"direct" appeals are 28 U.S.C. ' 158(d)(2) and Bankruptcy Rules 8001(f) and 8003(d). The directappeals provisions apply only to appeals that arise from bankruptcy cases that are filed on or afterOctober 17, 2005, BAPCPA=s effective date.

2. EFFECTIVE APPEALSThe BAP may authorize a direct appeal only if an Aeffective@ appeal has been docketed by

the BAP. Otherwise, requests for direct appeal should be directed to the bankruptcy court, andnot the BAP. A notice of appeal is considered ineffective if it is untimely, premature, or if theorder appealed from is interlocutory. Until a notice of appeal becomes effective, only thebankruptcy court may grant a request for direct appeal. The BAP will provide written notice tothe parties and the bankruptcy court if a notice of appeal appears to be ineffective.


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3. PARTIES ACTING JOINTLYParties acting jointly may certify an order for direct appeal under 28 U.S.C. ' 158(d)(2)(A)

at any time by filing the appropriate Official Form, and no involvement by the BAP is needed.Assuming the appeal has been docketed by the BAP and is effective, this certification for directappeal is effective as soon as it is docketed by the BAP. The BAP will acknowledge docketing ofjoint certifications by letter informing parties of the docketing date. This docketing date triggersthe parties= 30-day deadline to file their petition for direct appeal with the Tenth Circuit.

4. PARTIES NOT ACTING JOINTLYIn cases where parties do not act jointly, one or more parties to an appeal may file a request

for certification pursuant to 28 U.S.C. ' 158(d)(2)(B) no later than 60 days after the entry of the

order which is being appealed. The BAP will serve a copy of such request on all parties.Untimely requests will be denied. If the request for direct appeal is filed by the majority of theAppellant(s) and Appellee(s), the Court shall grant certification and will direct the parties to filetheir petition with the Circuit within 30 days. If the request for certification is filed by less than amajority of the Appellant(s) and Appellee(s), the Court must determine whether any of the factorsset forth in the statute and rules are met. If the Court grants certification, the parties should filetheir petition for direct appeal with the Circuit within 30 days.

5. CERTIFICATION BY THE BAP FOR DIRECT APPEALThe BAP may also, on its own initiative, certify an issue for direct appeal at any time. 28U.S.C. ' 158(d)(2). In such event, the parties must file a petition with the Circuit within 30 days

after such certification is docketed. See Fed. R. Bankr. P. 8001(f)(5). The burden of filing apetition with the Circuit is solely on the parties; the BAP is not required to notify or transmitanything to the Circuit. See Fed. R. App. P. 5.

6. STAYS PENDING REQUESTS FOR DIRECT APPEALCertification does not stay a pending appeal. 28 U.S.C. ' 158(d)(2)(D). Parties may

wish to file a motion for stay of their BAP appeal pending the Circuit's response to their petition.Such motions are decided on a case-by-case basis. If the Circuit grants the petition, the Circuit

will notify the BAP, and the BAP will enter an order dismissing the BAP appeal. Note thatauthorization by the Circuit of a direct appeal pursuant to 28 U.S.C. ' 158(d)(2) satisfies therequirement for leave to appeal when it is required by 28 U.S.C. ' 158(a) but has not yet beengranted. See also Bankruptcy Rule 8003(d).


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PART F:FILE-STAMPED COPY

Most papers are imaged and available electronically. A party may obtain a file-stamped copy of apaper from PACER, which may be accessed from the BAP=s website.

PART G:PRIVACY PROTECTION

An appeal in a case or proceeding in which privacy protection was governed by Fed. R. Bankr. P.9037 is governed by the same rule on appeal. In all other appeals, privacy protection is governedby Fed. R. Civ. P. 5.2. The BAP does not redact personally identifiable information that the filerneglects to redact. 10th Cir. BAP L.R. 8008-5.

OVERVIEW OF BANKRUPTCY APPEALS JUNE 2011

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