In Re Gloria Dean Wells

Filing 12

ORDER GRANTING APPELLANTS EX PARTE APPLICATION 10 by Judge Otis D. Wright, II: The Clerk shall transfer this matter to the Ninth Circuit Bankruptcy Appellate Panel, Case No. CC-16-1319, for further proceedings. Ninth Circuit Bankruptcy Appellate Panel, Case No. CC-16-1319. MD JS-6. Case Terminated. (lc)

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JS-6 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 In Re: Case № 2:16-cv-8003-ODW 12 GLORIA DEAN WELLS, U.S.B.C. Case No.: 2:15-bk-27834 13 Debtor, B.A.P. Case No.: CC-16-1319 14 15 ORDER GRANTING APPELLANT’S 16 EX PARTE APPLICATION [10] 17 18 19 On December 8, 2016, Appellant/Creditor Michael Griffith, appearing pro se, 20 filed an ex parte application seeking to transfer this matter back to the Ninth Circuit’s 21 Bankruptcy Appellate Panel. (ECF No. 10.) Griffith’s original Notice of Appeal 22 contained the statement, “COME NOW, Michael Griffith; and Appeal to the District 23 Court: from an Order: entered for the Debtor Gloria Dean Wells, and against the 24 Creditor; Michael Griffith . . . .” (ECF No. 1.) A three-judge panel of the BAP 25 construed this as a “timely and effective” election to have the appeal heard by the 26 district court, 28 U.S.C. § 157(c)(1), and sua sponte transferred the matter to this 27 Court. (ECF No. 8.) Griffith now argues that his statement “Appeal to the District 28 Court” was in error, and that he actually intended to state that he was appealing “from 1 the United States Bankruptcy Court of the California-Central District.” (ECF No. 10 2 (emphases added).) Griffith gave notice to Appellee/Debtor Gloria Dean Wells of this 3 application by: (1) informing Wells’ counsel by both phone and through the CM/ECF 4 System;1 and (2) serving a copy of the application by overnight mail on Wells’ last 5 known address. Wells has not submitted a timely opposition to the application. 6 Pursuant to the Local Rules governing bankruptcy appeals, a party may move 7 “to withdraw the election for the bankruptcy appeal to be heard by the district court 8 and to refer the matter to the Bankruptcy Appellate Panel.” C.D. Cal. Local Bankr. 9 Rule 5.2. Neither the Local Rules nor the Federal Rules of Bankruptcy Procedure 10 appear to state a standard for granting such a motion. Nonetheless, the Court sees no 11 reason not to grant the motion absent prejudice to the other party or bad faith on the 12 part of the movant. The Court concludes that nothing on the face of Griffith’s 13 application shows either prejudice or bad faith. Moreover, any argument Wells may 14 have that the application either caused her prejudice or was brought in bad faith is 15 waived by her failure to file a timely opposition. C.D. Cal. L.R. 7-12. Thus, the 16 Court GRANTS Griffith’s Application. (ECF No. 10.) The Clerk shall transfer this 17 matter to the Ninth Circuit Bankruptcy Appellate Panel, Case No. CC-16-1319, for 18 further proceedings. 19 20 IT IS SO ORDERED. 21 December 21, 2016 22 23 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 24 25 26 27 28 1 Debtor’s counsel apparently informed Griffith that they were no longer representing Debtor in this appeal. Nevertheless, they have not withdrawn as counsel of record in this appeal, and thus notice and/or service on them is adequate. Fed. R. Bankr. P. 8011(b). 2

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