In Re Valerie Lopez

Filing 19

ORDER DENYING APPELLANTS MOTION FOR RECONSIDERATION WITHOUT PREJUDICE, PENDING CLARIFICATION FROM THE NINTH CIRCUIT 17 by Judge Dean D. Pregerson. (lc) Modified on 6/8/2012 (lc).

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VALERIE LOPEZ, Appellant, 12 Plaintiff, 13 14 v. WELLS FARGO BANK NA., Appellee, 15 Defendants. 16 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 12-00040 DDP ORDER DENYING APPELLANT’S MOTION FOR RECONSIDERATION WITHOUT PREJUDICE, PENDING CLARIFICATION FROM THE NINTH CIRCUIT [Docket No. 17] 17 18 Presently before the court is Appellant’s Motion for 19 Reconsideration and to Re-Open the Case (“Motion”). 20 2012, this court issued an Order dismissing Appellant’s appeal of a 21 bankruptcy court order. 22 filed her Notice of Appeal with the Ninth Circuit’s Bankruptcy 23 Appellate Panel (“BAP”). 24 Notice of Appeal with this court. 25 Election/Designation of Interlocutory Appeal, however, Appellant 26 expressly elected to appeal to the BAP. 27 dismissed her appeal here, since she had legally chosen to appeal 28 the bankruptcy court order to the BAP. On April 6, As this court explained, Appellant first Shortly after, Appellant also filed a In her Statement of This court therefore 1 In her Motion for Reconsideration, Appellant explains that, 2 prior to this court’s Order, the BAP had issued its own Order 3 transferring the appeal to this district court. 4 Appellant, the BAP Order did not appear on the docket at the time 5 of this court’s prior Order, due to an administrative error. 6 Appellant also attaches a copy of the BAP Order, which confirms the 7 procedural history but transfers the appeal to this court. 8 9 According to As mentioned, however, Appellant expressly elected to appeal the bankruptcy court order to the BAP. Also, no other party has 10 elected to have the appeal heard by the district court. 11 to 28 U.S.C. § 158(c)(1), “each appeal . . . shall be heard by . . 12 . the [BAP]” unless “the appellant elects at the time of filing the 13 appeal” or “any other party elects, not later than 30 days after 14 service of notice of the appeal[,] to have such appeal heard by the 15 district court.” 16 election to have an appeal heard by the district court under 28 17 U.S.C. § 158(c)(1) may be made only by a statement of election 18 contained in a separate writing filed within the time prescribed by 19 28 U.S.C. § 158(c)(1).”); In re Davis, No. CV 10-1077, 2010 WL 20 2609548, at *1 (D. Ariz. June 28, 2010) (“By requiring a separate 21 Statement of Election, Congress intended that debtors appeal their 22 bankruptcy cases to the Bankruptcy Appellate Panel by default and 23 only to the district court where ‘an actual election [was] 24 knowingly and informatively made.’” 25 Jewelry, Inc., 218 B.R. 439, 441 (8th Cir. BAP 1998))). 26 Pursuant See also Fed. R. Bankr. P. 8001(e)(1) (“An (quoting In re Sullivan Accordingly, it appears to this court that it may not have 27 jurisdiction under 28 U.S.C. § 158 to hear the appeal, in 28 contravention of the parties’ choice to proceed in front of the 2 1 BAP. It also appears to this court that the BAP may not have been 2 aware of this issue in ordering the appeal to be transferred here. 3 Of course, if this court is mistaken, the Ninth Circuit can provide 4 further clarification, in which case Appellant can file another 5 motion for reconsideration. 6 appears that the appeal is properly heard by the BAP. The court 7 therefore DENIES Appellant’s Motion without prejudice. Again, 8 Appellant may file another motion for reconsideration if the Ninth 9 Circuit indicates its disagreement with this Order. At the present time, however, it 10 11 IT IS SO ORDERED. 12 13 14 Dated: June 8, 2012 DEAN D. PREGERSON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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