V. Procedure and Notice of Appeal

• Jurisdiction: North Carolina

V. PROCEDURE AND NOTICE OF APPEAL

The first step in initiating an appeal is timely filing a Notice of Appeal with the clerk of the bankruptcy court that rendered the decision. Fed. R. Bankr. P. 8003(a); Fed. R. Bankr. P. 8004(a); see Bankruptcy Manual Form No. 54, "Notice of Appeal and Statement of Election (Form B 417A; Official Form 417A)." The process for initiating certification of a direct appeal to the court of appeals also begins with the timely filing of a notice of appeal, and if necessary, a motion for leave to appeal. Fed. R. Bankr. P. 8006(a). Upon notice from the court of appeals that a direct appeal or direct cross-appeal has been authorized, an additional fee must be collected.

A. Content of Notice of Appeal

The notice of appeal must comply substantially with the official form Notice of Appeal and must be accompanied by the judgment, order or decree being appealed, as well as the required fee. Fed. R. Bankr. P. 8003(a)(3); Fed. R. Bankr. P. 8004(a); see also Bankruptcy Manual Form No. 54, "Notice of Appeal and Statement of Election (Form B 417A; Official Form 417A)."

B. Time for Filing Notice of Appeal

The notice of appeal must be filed within 14 days of the date of the entry of judgment, order or decree from which the appeal is taken. Fed. R. Bankr. P. 8002(a)(1). Although some courts have held that this 14-day deadline is jurisdictional, recent decisions have held that the time for filing a notice of appeal is mandatory but not jurisdictional. Compare In re Sobczak-Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016) with In re VeroBlue Farms, USA, Inc., 6 F.4th 880, 887 (8th Cir. 2021). One party's notice of appeal triggers a 14-day deadline for any other party to also notice out an appeal. Fed. R. Bankr. P. 8002(a)(3). A notice of appeal filed after the announcement of a decision but before the entry of an order is treated as filed immediately after the entry of the order. Fed. R. Bankr. P. 8002(a)(2).

Except with regard to certain orders denominated in Bankruptcy Rule 8002(d)(2), the amount of time for filing such a notice may be extended by a written motion made before the time for filing notice of appeal has expired. Fed. R. Bankr. P. 8002(d)(1). The extension may not exceed 21 days from the expiration of the initial 14-day period or 14 days from the date of entry of the order granting the motion, whichever is later. Fed. R. Bankr. P. 8002(d)(3); see Bankruptcy Manual Form No. 123, "Motion for Extension of Time Period to File Notice of Appeal." Upon a showing of excusable neglect, the court may extend the filing period for a notice of appeal even after the appeal period has expired if the appeal is made within 21 days after the 14-day appeal period ended. Fed. R. Bankr. P. 8002(d)(1)(b).

If a notice of appeal is mistakenly filed with the district court, the district court shall note the date of filing and forward it to the bankruptcy clerk, and it shall be deemed filed with the bankruptcy clerk on the date it was filed with the district court. Fed. R. Bankr. P. 8002(a)(4).

For appeals involving final judgments in adversary proceedings when Fed. R. Civ. P. 58(a) applies, entry of the judgment, order, or decree being appealed occurs at the earlier of: (i) when the judgment, order, or decree is set out in a separate document on the docket; or, (ii) when 150 days have run from entry of the judgment, order, or decree entered on the docket under Rule 5003(a). Fed. R. Bankr. P. 8002(a)(5)(A)(ii). A bankruptcy court's failure to set out a judgment, order, or decree in a separate document when required by Fed. R. Civ. P. 58(a) does not affect the validity of an appeal...