GENERAL INFORMATION - NOTICE OF APPEAL
I. Notice of Appeal to be Filed in Bankruptcy Court - Bankruptcy Rule 8001 (a)
1. An appeal from a final judgment, order, or decree of a bankruptcy judge to the district court (there is no appellate panel in the Western District of Virginia) shall be taken by filing a notice of appeal with the bankruptcy clerk within the time allowed by Bankruptcy Rule 8002.
2. An appeal from an interlocutory judgment, order or decree of a bankruptcy judge as permitted by 28 U.S.C. §158(a)(3) shall be taken by filing a notice of appeal, accompanied by a motion for leave to appeal prepared in accordance with Rule 8003 and with proof of service in accordance with Rule 8008.
II. Fees - Bankruptcy Rule 8001(a); 28 U.S.C. §1930(c); Bankruptcy Court Miscellaneous Fee Schedule
1. The notice of appeal must be accompanied by a $5.00 fee for filing the notice of appeal and a $293.00 fee for docketing a proceeding on appeal.
2. Separate fees must be paid by each party filing a notice of appeal. Thus, a party filing a cross appeal must also pay a $293.00 docketing fee and $5.00 notice fee. Parties filing a joint notice of appeal, however, are required to pay only the $293.00 docketing fee and $5.00 notice fee required for one notice of appeal.
3. If the notice of appeal is accompanied by a motion for leave to appeal, only the $5.00 notice fee is required at the time of filing. If the motion for leave to appeal is granted, the $293.00 docketing fee must then be paid.
4. For direct appeals and cross appeals to circuit court, the notice of appeal must be accompanied by a $5.00 notice fee and a $293.00 docketing fee. If the direct appeal or cross appeal are accepted by circuit court, then an additional $207.00 fee is paid.
III. Required Form - Bankruptcy Rule 8001(a)
A notice of appeal must conform "substantially to the appropriate Official Form." It should contain the names of all parties to the judgment, order or decree appealed from, and the names, addresses and telephone numbers of their respective attorneys.
Example: Notice of Appeal in Adversary Proceeding or Motion
In re: XYZ Corporation, Case No._______________
Debtor. Chapter _______
v. Adversary Proceeding No.____________
XYZ Corporation (Appellant)
John Doe, Trustee
Example: Notice of Appeal in Case File
In re: XYZ Corporation, Case No.__________________
IV. Time for Filing Notice of Appeal - Bankruptcy Rule 8002(a)
A notice of appeal must be filed with the bankruptcy clerk within 14 days of the date of the entry on the docket of the judgment, order, or decree from which the appeal is taken. Notices of appeal filed after the announcement of a decision by the court but before the entry of the judgment or order is treated as filed after the entry and on the day thereof. Pursuant to Bankruptcy Rule 9006(a), intermediate Saturdays, Sundays, and legal holidays are not excluded in computing the 14 day time period. The 14 day time period for filing the notice of appeal may not be reduced by the court. B.R. 9006(c)(1). Extensions of the filing period are set out in Bankruptcy Rule 8002.
V. Service of Notice of Appeal by Clerk - Bankruptcy Rule 8004
The bankruptcy clerk must serve the notice of appeal on counsel of record for each party to the appeal, excluding the appellant, and transmit it to the United States Trustee. If a party is proceeding pro se, the clerk must send the notice of appeal to the party’s last known address. Service will be made by electronic noticing to those parties that have subscribed to CM/ECF.
The bankruptcy clerk must promptly transmit the notice of appeal to the district clerk. Service will be made by automatic email to district court.
VI. Stay Pending Appeal - Bankruptcy Rule 8007 and Local Rule 8005-1
Although a motion for a stay of the judgment, order, or decree of a bankruptcy judge, approval of a supersedeas bond, or other relief pending appeal must ordinarily be presented first to the bankruptcy judge, a motion may be made to the district court. In such instance, the motion must state why the relief, modification, or termination was not obtained from the bankruptcy judge.
VII. Record on Appeal - Bankruptcy Rule 8009 and Local Rule 8006-1
1. The Bankruptcy Rules expressly require the parties to the appeal to take any "action necessary to enable the clerk to assemble and transmit the record."
2. Counsel for the appellant is to file with the clerk and serve on the appellee(s) a Designation of Record and Statement of Issues within 14 days after the filing of the notice of appeal or the entry of an order granting leave to appeal. Each item should be listed separately and give enough information to allow the clerk to easily locate same.
Example: Date Entered; Docket entry number; Description of Order
3. The appellee has 14 days after service of the statement of the appellant within which to file and serve on the appellant a Designation of Additional Items to be included in the Record on Appeal.
4. A party designating items not previously filed using the court’s electronic filing system as part of the record on appeal shall provide copies of the items to the bankruptcy clerk. If the party fails to provide copies within 14 days of the filing with the bankruptcy clerk of a designation, the bankruptcy clerk shall prepare copies at the party's expense pursuant to 28 U.S.C. §1930(b) and the Bankruptcy Court Miscellaneous Fee Schedule, unless previously filed as noted on the docket within the CM/ECF application, pursuant to Local Rule No. 8006-1.
VIII. Transcripts - Bankruptcy Rules 8007(a) and 8009(b) and (c)
1. The party who files a designation which includes a transcript of any proceeding is required, "immediately" after filing the designation, to deliver to the court reporter and file with the bankruptcy clerk a written request for an original and one copy of the transcript, pursuant to Local Rule No. 8007-1, and make satisfactory arrangements with the court reporter for payment of costs involved, unless previously filed as noted on the docket within the CM/ECF application, pursuant to Local Rule No. 8006-1.
2. The court reporter, upon receipt of the written request, is required to acknowledge the request on the date it is received, provide the expected date of completion and transmit the request, with the expected date of completion noted, to the bankruptcy clerk. If the court reporter is unable to complete the transcript within 30 days of the receipt of the written request, then they shall file with the bankruptcy clerk a written request for extension of time.
3. Refer to Bankruptcy Rule 8009(c) any time a transcript is unavailable.
IX. Transmittal of Record to District Court - Bankruptcy Rules 8003(d); 8004(c); 8010(b) and Local Rule 8007-1
1. The bankruptcy clerk is required to transmit a copy of the record on appeal to the clerk of the district court upon filing of a notice of appeal and when the record is complete.
2. Upon receipt of the record on appeal, the clerk of the district court is required to enter the appeal in the docket of the district court and give notice "promptly" to all parties to the appeal of the date on which the appeal was docketed. At this time the clerk will also furnish the civil docket number assigned by the district court to the record on appeal. Once the appeal has been docketed in district court, future correspondence or pleadings concerning the appeal should be to the district court not the bankruptcy court.
X. Sealed Documents - Bankruptcy Rule 8009
If a sealed document is designated as part of the record on appeal, the party making the designation must file a motion requesting the clerk of the court where the appeal is pending to accept the sealed document. The bankruptcy court will not transmit the sealed document without an order from the court where the appeal is pending. Upon receipt of the order accepting the sealed document, the bankruptcy clerk must promptly transmit the sealed document to the clerk of the court where the appeal is pending.
XI. Dismissal - Bankruptcy Rule 8023
Any motion to dismiss must be filed in the district court.
Refer to Official Form 17C regarding briefs and brief preparation.