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)

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