Opinion
11-CV-6491-CJS
10-06-2011
TIMOTHY P. WILLIAMS JR. and TINA WILLIAMS, Appellants, v. ESL FEDERAL CREDIT UNION and GEORGE M. REIBER, Chapter 13 Trustee, Appellees.
For Plaintiffs David D. MacKnight, Esq. Lacy Katzen LLP
MEMORANDUM and ORDER
APPEARANCE
For Plaintiffs
David D. MacKnight, Esq.
Lacy Katzen LLP
Siragusa, J. This matter is before the Court on Appellees' motion to dismiss the appeal begun in the Bankruptcy Court on Case No. 11-21242, a Chapter 13 Bankruptcy. Appellees have shown that Appellants filed a Bankruptcy Appeal Statement of Issues on August 31, 2011, in the Bankruptcy Court. (Appellees' Mot. Ex. C.) Bankruptcy Rule 8007(c) provides as follows: "If prior to the time the record is transmitted a party moves in the district court... for dismissal the clerk at the request of any party to the appeal shall transmit to the clerk of the district court... a copy of the parts of the record as any party to the appeal shall designate." Arguably, the Bankruptcy Appeal Statement of Issues could be seen as a notice of appeal, thereby divesting the Bankruptcy Court of jurisdiction. In re Overmyer, 136 B.R. 374, 376 (Bkrtcy. S.D.N.Y. 1992). If that is the case, then the district court is the only one with jurisdiction to address Appellees' motion to dismiss the appeal. Accordingly, it is hereby
ORDERED, that the Clerk of the Bankruptcy Court transmit to the Clerk of this Court a copy of the Bankruptcy Appeal Statement of Issues and a copy of the Docket in the Bankruptcy Court such that the Clerk of the District Court can open an appeal docket; and it is further
ORDERED, that the Clerk of the District Court open an appeal docket and docket the motion by Appellees to dismiss the allegedly unperfected appeal. So Ordered.
Dated: October 6, 2011
Rochester, New York
ENTER:
CHARLES J. SIRAGUSA
United States District Judge