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Ioane v. Collins (In Re Ioane)
Citations: 227 B.R. 181; 98 Daily Journal DAR 11831; 98 Cal. Daily Op. Serv. 8487; 1998 Bankr. LEXIS 1444; 33 Bankr. Ct. Dec. (CRR) 628; 1998 WL 808205Docket: BAP No. NC-98-1477, Bankruptcy No. 98-51454-JRG
Court: United States Bankruptcy Appellate Panel for the Ninth Circuit; November 10, 1998; Us Bankruptcy; United States Bankruptcy Court
Michael Scott Ioane, the appellant, challenges the jurisdiction of the Bankruptcy Appellate Panel (BAP) to hear his appeal, seeking to transfer the case to the United States District Court for the Northern District of California. He argues that he submitted a timely statement of election under 28 U.S.C. § 158(c) and Federal Rule of Bankruptcy Procedure (FRBP) 8001(e). However, the BAP overruled his objection, determining that his statement of election was filed after the notice of appeal, rendering it untimely. The notice of appeal was filed on June 30, 1998, while the statement of election was submitted on July 6, 1998, although the order being appealed was not entered until July 16, 1998. Under 28 U.S.C. § 158(c)(1), an appeal is to be heard by the BAP unless the appellant elects to have it heard by the district court at the time of filing the appeal. FRBP 8001(e) provides specific procedures for making this election. The BAP emphasized that the plain language of the statute indicates that such an election must occur concurrently with the filing of the appeal, affirming its jurisdiction to hear the case. An appellant must file a separate written statement of election at the same time as the notice of appeal to comply with 28 U.S.C. 158(c)(1) and FRBP 8001(e). Failure to do so, as established in *Arkansas Teachers Retirement Sys. v. Official Investment Pool Participants Comm.* and *In re Linder*, results in an untimely objection to the Bankruptcy Appellate Panel (BAP) jurisdiction. This requirement promotes judicial efficiency by clarifying the appellant's intentions and preventing unnecessary jurisdictional disputes that could delay resolutions. Although a premature appeal is officially recognized when the order on appeal is entered, it does not affect the timing of the election to appeal to the district court. A premature statement of election, filed after the notice of appeal but before the order is entered, is considered untimely. Consequently, the objection to jurisdiction raised by Ioane is overruled.