Opinion
Case No. SA CV 12-00040 DDP
06-08-2012
VALERIE LOPEZ, Appellant, Plaintiff, v. WELLS FARGO BANK NA., Appellee, Defendants.
ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION WITHOUT
PREJUDICE, PENDING CLARIFICATION FROM THE NINTH CIRCUIT
[Docket No. 17]
Presently before the court is Appellant's Motion for Reconsideration and to Re-Open the Case ("Motion"). On April 6, 2012, this court issued an Order dismissing Appellant's appeal of a bankruptcy court order. As this court explained, Appellant first filed her Notice of Appeal with the Ninth Circuit's Bankruptcy Appellate Panel ("BAP"). Shortly after, Appellant also filed a Notice of Appeal with this court. In her Statement of Election/Designation of Interlocutory Appeal, however, Appellant expressly elected to appeal to the BAP. This court therefore dismissed her appeal here, since she had legally chosen to appeal the bankruptcy court order to the BAP.
In her Motion for Reconsideration, Appellant explains that, prior to this court's Order, the BAP had issued its own Order transferring the appeal to this district court. According to Appellant, the BAP Order did not appear on the docket at the time of this court's prior Order, due to an administrative error. Appellant also attaches a copy of the BAP Order, which confirms the procedural history but transfers the appeal to this court.
As mentioned, however, Appellant expressly elected to appeal the bankruptcy court order to the BAP. Also, no other party has elected to have the appeal heard by the district court. Pursuant to 28 U.S.C. § 158(c)(1), "each appeal . . . shall be heard by . . . the [BAP]" unless "the appellant elects at the time of filing the appeal" or "any other party elects, not later than 30 days after service of notice of the appeal[,] to have such appeal heard by the district court." See also Fed. R. Bankr. P. 8001(e)(1) ("An election to have an appeal heard by the district court under 28 U.S.C. § 158(c)(1) may be made only by a statement of election contained in a separate writing filed within the time prescribed by 28 U.S.C. § 158(c)(1)."); In re Davis, No. CV 10-1077, 2010 WL 2609548, at *1 (D. Ariz. June 28, 2010) ("By requiring a separate Statement of Election, Congress intended that debtors appeal their bankruptcy cases to the Bankruptcy Appellate Panel by default and only to the district court where 'an actual election [was] knowingly and informatively made.'" (quoting In re Sullivan Jewelry, Inc., 218 B.R. 439, 441 (8th Cir. BAP 1998))).
Accordingly, it appears to this court that it may not have jurisdiction under 28 U.S.C. § 158 to hear the appeal, in contravention of the parties' choice to proceed in front of the BAP. It also appears to this court that the BAP may not have been aware of this issue in ordering the appeal to be transferred here. Of course, if this court is mistaken, the Ninth Circuit can provide further clarification, in which case Appellant can file another motion for reconsideration. At the present time, however, it appears that the appeal is properly heard by the BAP. The court therefore DENIES Appellant's Motion without prejudice. Again, Appellant may file another motion for reconsideration if the Ninth Circuit indicates its disagreement with this Order. IT IS SO ORDERED.
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DEAN D. PREGERSON
United States District Judge