Lornes v. McAllister

Filing 4

ORDER DISMISSING Bankruptcy Appeal. Signed by Judge Gonzalo P. Curiel on 9/11/17.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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In re:

Case No.: 3:17-cv-01599-GPC-DHB

HERMAN LORNES, JR.,

ORDER DISMISSING
BANKRUPTCY APPEAL

Debtor.
__________________________________

[ECF No. 1.]
HERMAN LORNES, JR.,
Appellant,

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v.

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THOMAS H. BILLINGSLEA, chapter 13
trustee; DAN MC ALLISTER,

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Appellees.
On August 9, 2017, Appellant Herman Lornes, Jr. (“Appellant”) filed a Notice of
Appeal purportedly electing to seek the district court’s review and challenging the
Bankruptcy Court for the Southern District of California’s Order Granting Trustee’s

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3:17-cv-01599-GPC-DHB

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Motion and Dismissing Case with 180-Day Bar to Re-Filing a further Chapter 13

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bankruptcy plan. (Case No. 3:17-bk-03061, Dkt. No. 26).1 2
In the instant case, Lornes has purportedly chosen to seek the district court’s

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jurisdiction by checking the form box to “elect to have the appeal heard by the United

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States District Court rather than by the Bankruptcy Appellate Panel.” (Dkt. No. 1 at 2.)

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However, this document does not appear to have ever been filed in the bankruptcy court,

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which referred the appeal to the Bankruptcy Appellate Panel. On August 7, 2017,

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Appellant filed a Notice of Appeal and Statement of Election with the bankruptcy court

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where he did not elect to have his appeal heard by the United States District Court,

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thereby defaulting to an appeal by the Bankruptcy Appellate Panel. (Case No. 3:17-bk-

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03061, Dkt. No. 32 at 2). An amended notice of referral to the Bankruptcy Appellate

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Panel similarly did not include an election for this Court to hear his appeal. (Case No.

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3:17-bk-03061, Dkt. No. 34 at 2). As a result, the bankruptcy court issued a Notice of

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Referral of Appeal to the Bankruptcy Appellate Panel, (Case No. 3:17-bk-03061, Dkt.

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No. 33) and a Transmittal Memorandum to the Bankruptcy Appellate Panel. (Case No.

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3:17-bk-03061, Dkt. No. 43). On August 11, 2017, the Bankruptcy Appellate Panel

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acknowledged the appeal and assigned the case No. SC-17-1227. (Case No. 17-1227,

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ECF No. 1). On August 25, 2017, Appellant filed a Designation of Record and Statement

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of Issues with the Bankruptcy Appellate Panel. (Case No. 17-1227, ECF No. 6).

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Appellant’s Opening Brief in the appeal is due October 2, 2017. (Case No. 17-1227,

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ECF No. 4).

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Accordingly, this Court lacks jurisdiction to review an appeal that is (1)

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simultaneously pending before the Bankruptcy Appellate Panel and (2) for which the

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Appellant never filed with the bankruptcy court a written election for the district court to

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This Court previously dismissed Lornes’ appeal of a BAP order for lack of jurisdiction in Case No.
3:16-cv-02341-GPC-DHB, Dkt. No. 5 and again dismissed for lack of jurisdiction in Case No. 3:17-cv00503, Dkt. No. 4.
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All citations to the record refer to the pagination generated by the CM/ECF system where available.
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3:17-cv-01599-GPC-DHB

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hear the appeal. See 28 U.S.C. § 158(c)(1) (requiring appellant to elect district court

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jurisdiction at “the time of filing of appeal”); In re Woodman, 698 F.3d 1263, 1267 (10th

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Cir. 2012) (finding in a similar simultaneous appeal to the BAP and district court that the

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district court lacked jurisdiction to review bankruptcy court decision where notice of

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appeal to district court was defective). The Tenth Circuit observed that policy

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considerations weighed against simultaneous appeals stating that: “[b]ankruptcy appellate

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panels were designed to provide an alternative, not a supplement, to an appeal to the

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district court. Nothing in the statutory language creating the panels suggests that

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Congress would tolerate the confusion and waste of resources that would result from

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simultaneous appeals of the same bankruptcy-court decision to both the district court and

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a panel.” In re Woodman, 698 F.3d at 1266. Since Appellant unambiguously did not

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elect to have his appeal heard by the district court in the Notice of Appeal filed before the

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bankruptcy court, and has participated in appellate briefing before that court, this Court

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lacks jurisdiction to review the bankruptcy court’s opinion.

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Accordingly, the Court DISMISSES Appellant’s appeal.

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IT IS SO ORDERED.
Dated: September 11, 2017

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3:17-cv-01599-GPC-DHB