It is common knowledge that the legal process can be confusing, complicated, and nuanced. Attorneys spend years learning the ins and outs of their particular field of expertise, and even then, the rules change frequently. Bankruptcy is no exception to this rule. Even with the best of attorneys, however, your bankruptcy case may end in a way that you do not believe is fair or in accordance with the law. If that is the case for you, you need to talk to your attorney about a bankruptcy appeal.
It is essential to understand that, like other appeals, a bankruptcy appeal does not mean a totally new trial or hearing on all the issues as it happened before the initial bankruptcy court. Instead, the appeal could end up in front of a district court or a court of appeals, and instead of a whole new hearing, the attorneys for each side will brief the issues for the court. The court will review the written documents provided, sometimes hear oral argument from the attorneys, and then make a decision. In other words, this is not a “do over” of the same process you had at trial.
Another important point to know right away is that there is a much quicker timeline for bankruptcy appeals. For other federal appeals, you have thirty days to file a notice of appeal letting the court and the other parties know that you intend to appeal a court’s decision. However, in a bankruptcy appeal, you have just ten days. It is essential to file on or before that tenth day, as failure to do so will likely mean you waive your ability to ever appeal. In addition, your notice of appeal must include other information, such as designation of the items to be included in the record and a statement of the issues that will be presented to the appellate court. If you fail to include your issues in your notice of appeal, your issue will likely be waived and you will not be able to discuss it or have the appellate court make a ruling.
Bankruptcy rule 8001(a) is another important procedural step to keep in mind. Pursuant to that rule, an appeal may be dismissed if a party fails to continue to take necessary steps after the notice of appeal is filed. This means you cannot just file the notice of appeal, fail to take further action, and expect to be able to pick up the appeal later down the road when you have more time or money to do so. Certain steps that you will be required to take and move the case forward could include filing the brief on time or filing the appropriate record designations.
For most bankruptcy appeals, there will be an extra layer of review before the appeal reaches the circuit court of appeals. Typically the case will be adjudicated by a district court or bankruptcy appellate panel before the case moves on to the court of appeals. The court of appeals is not bound by the decisions from the lower courts and they are free to make a completely different decision on some or all of the issues presented to the other court. Moreover, the failure of the district court or BAP to address an issue does not preclude the circuit court of appeals from visiting and deciding those issues.
These are just a few of the issues involved with bankruptcy appeals. We have extensive experience with bankruptcy appeals and can talk with you about every step of the process. Call us today at (320) 299-4249 and schedule a consultation.