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How long do I have to file an appeal in a Chapter 11?
Anonymous2 views4 answers
Do I fist file a notice of appeal in the bankruptcy court then appeal to the district court. If I go over this time period because of new information is there still a way to file an appeal?
If the court entered the order on the Wednesday do I count from Wednesday as the start of the time period?
Is this for an 11 or a 13? If it's for an 11 you most likely should have a lawyer (unless it's an individual 11, and those are not common). If it's for a 13 you should find yourself a lawyer because appellate work is tricky and it might be your last chance to correct a ruling you think is in error.
To answer your questions, you file the notice of appeal on the docket, and then proceed with the appeal. If you are out of time you can ask for them to consider your appeal out of time but it's more difficult. The first day for purposes of filing the appeal is the day after the order was entered.
Appeals of Bankruptcy decisions are governed by the Rules in the 8000's of the Federal Rules of Bankruptcy Procedure.
You file the notice of appeal with the clerk of the Bankruptcy Court. Bankruptcy Rule 8001(a). There are certain circumstances where you can appeal directly to the Court of Appeals, but you should consult an attorney specializing in Bankruptcy Law to determine whether your case merits such an appeal.
You then file the appeal with the District Court. Note: If the appeal is being filed in a Circuit where there is a Bankruptcy Appellate Panel (an alternative Court that hears appeals from the bankruptcy court), you have specifically request the District Court, if that's the court you want to hear the appeal. See Bankruptcy Rule 8001(e).
You have 14 days to file the notice of appeal pursuant to Bankruptcy Rule 8002(a). You do not count the day that the order being appealed is entered. Bankruptcy Rule 9006(a)(1)(A). You start with Thursday (today).
Regarding new information you have, you should consider filing a motion to reconsider or a motion to amend or make additional findings of fact under Bankruptcy Rule 7052 (if the case is an adversary proceding) rather than an appeal. There are also other motions you can make that will toll the time to file an appeal. See Bankruptcy Rule 8002(b). However, this is a decision that you should make only after speaking with an experienced bankruptcy practioner. The normal rule is that an appellate court will only consider evidence that was presented to the bankruptcy court judge.
Yes, you must file a Notice of Appeal in the Bankruptcy Court and file the appeal in the District Court. However, depending on what type of Order you are appealing, you may need to file a Motion for Reconsideration in the Bankruptcy Court before you right to appeal is ripe. If you find "newly discovered evidence" you may be entitled to file a Motion for Reconsideration after the time to appeal has run. There is a lot to your questions that would require more information and analysis.
If you do not have a lawyer and cannot afford a lawyer, you should consider seeking assistance from legal services. The District of New Jersey Bankruptcy Court has a link with very helpful information: http://www.njb.uscourts.gov/content/finding-lawyer
Assuming that that judge in your case has already signed and filed the Order you wish to appeal, bear in mind that time is of the essence and you need to act quickly.
Good luck!