Opinion
BAP Nos. NV–15–1048 NV–15–1064. Bankruptcy No. 2:04–bk–19619–GS.
03-30-2015
In re Debra Leigh JACOBS, Debtor. Debra Leigh Jacobs, Appellant/Cross–Appellee, v. Brain Power America Inc. ; John W. Muije, Appellees/Cross–Appellants.
Christopher Patrick Burke, Manuel O. Montelongo, Las Vegas, NV, for Debtor.
Christopher Patrick Burke, Manuel O. Montelongo, Las Vegas, NV, for Debtor.
Before: KIRSCHER, PAPPAS and DUNN, Bankruptcy Judges.
ORDER OVERRULING UNTIMELY ELECTION
The Panel has received and considered the election filed by Brain Power America, Inc., and John W. Muije to have BAP appeal NV–15–1048 heard by the United States district court. Pursuant to Fed. R. Bankr.P. 8005, the Panel has examined the election for timeliness.
The deadline for a party to an appeal to file an election to the U.S. district court is governed by 28 U.S.C. § 158(c).
[E]ach appeal ... shall be heard by a 3–judge panel of the bankruptcy appellate panel service ... unless—(A) the appellant elects at the time of filing the appeal; or (B) 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.
The debtor filed her notice of appeal on February 10, 2015, and the appeal was referred to the BAP (appeal no. NV–15–1048). On February 24, 2015, Brain Power America, Inc., and John W. Muije filed their “notice of cross-appeal,” which was referred to the BAP (appeal no. NV–15–1064). A cross-appeal briefing order was issued in both appeals on February 25, 2015, superseding the initial briefing order issued in NV–15–1048.
On March 5, 2015, in appeal no. NV–15–1048, Brain Power America, Inc., and John W. Muije filed an election to have the appeal heard at the U.S. district court. The election identifies the electing parties as “Appellees/Cross–Appellants.”
Appellants and cross-appellants must file their election to have an appeal heard at the U.S. district court at the time of filing the notice of appeal or cross-appeal. 28 U.S.C. § 158(c)(1)(a). Appellants and cross-appellants are not “other parties” to an appeal or cross-appeal. See In re Snell, 237 B.R. 636, 638 (6th Cir. BAP 1999) (a cross-appellant must file its election when filing its cross-appeal, it cannot wait until the appellee election period expires in the main appeal).
We conclude appellees/cross-appellants' election is untimely and therefore it is OVERRULED.