Section 2.33 Manner of Taking Appeal From Bankruptcy Court to District Court

• Library: Bankruptcy Practice (2007 Ed. + 2015 Cum Supp)

C. (§2.33) Manner of Taking Appeal From Bankruptcy Court to District Court

An appeal from a judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel as permitted by 28 U.S.C. § 158(a)(1) or (a)(2) is taken by filing a notice of appeal with the clerk within ten days of the date of the entry of the judgment, order, or decree appealed from. Fed. R. Bankr. P. 8001 and 8002. Time is computed according to Federal Rule of Bankruptcy Procedure 9006. The judgment is entered when it is docketed on a separate document. See Fed. R. Bankr. P. 9021 and 5003.

A request to extend the time for filing a notice of appeal must be made by written motion and filed before the time for filing a notice of appeal has expired, except that a motion filed within 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect. Rule 8002. An extension of time for filing a notice of appeal may exceed 20 days from the expiration of the time for filing a notice of appeal under Rule 8002 or 10 days from the date of entry of the order granting the motion for extension of time, whichever is later. Id.

In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership,507 U.S. 380 (1993), the Supreme Court ruled that a determination as to whether a creditor’s neglect in filing a proof of claim on time was excusable is essentially equitable in nature and is to be determined by weighing all relevant circumstances surrounding the failure to file, including:

· the danger of prejudice to the debtor;

· the length of the delay and its potential impact on judicial proceedings;

· the reason for the delay; and

· whether the movant acted in good faith.

In the context of a notice of appeal, the Eighth Circuit has limited the doctrine of Pioneer and ruled that the reason for missing the deadline outweighs the other circumstances considered. Lowry v. McDonnell Douglas Corp., 211 F.3d 457 (8^th Cir. 2000), cert. denied, 531 U.S. 929 (2000). In so holding, the Eighth Circuit opined, “counsel’s misapplication of clear and unambiguous procedural rules cannot excuse his failure to file a timely notice of appeal.” Id. at 464.

Timely filing a notice of appeal or requesting an extension of time to file the appeal is critical. SeeIn re Delta Eng’g Int’l, Inc.,270 F.3d 584 (8^th Cir. 2001) (the bankruptcy appellate panel did not have the jurisdiction to hear an appeal when notice of the appeal was not...