Form of Appendix

In accordance with 10th Cir. BAP L.R. 8009-1, the appendix constitutes the record on appeal and must contain all excerpts or documents from the record relevant to the appeal. (a) Form. The appendix must be filed separately from a brief using a separate ECF event to create a separate docket entry. (b) Cover. The appendix must have a cover page containing the following: (1) the case caption; (2) (3) the title “Appendix,” with the name of the filing party; and the attorney or pro se party’s name, address, telephone number, and ECF email address (or for exempt filers, who consent to be served by email, an email address for service). (c) Table of Contents. The table of contents required by Fed. R. Bankr. P. 8018(c) must include the full name of each document contained in the appendix, the bankruptcy court docket number, and reference to the appendix page number where the document is located. 67 (d) Pagination. The appendix must be consecutively paginated in such a manner that the appendix page numbers are distinguishable from any existing page numbers on the underlying documents. (e) Transcripts. The appendix must contain all transcripts necessary for this Court’s review. Transcripts submitted to this Court must be prepared in accordance with Fed. R. Bankr. P. 5007(a) and Fed. R. Bankr. P. 8009(b). (f) Exhibits. Exhibits that are part of the record on appeal must be included in the appendix when they are relevant to an issue raised on appeal and are referred to in the brief. (g) Documents Considered. Only documents properly before the bankruptcy court may be included in the appendix and considered by this Court. When the admissibility of evidence is raised as an issue on appeal, any excluded evidence may be presented to this Court. A party referring to evidence whose admissibility is in controversy must cite in briefing the pages of the appendix or the transcript of the proceeding at which the evidence was identified, offered, and received or rejected. (h) Multiple Parties. Appellants or appellees may file joint briefs. If appellants or appellees file separate briefs, they may file separate appendices; however, they should not duplicate items included in a previously-filed appendix and may adopt the items by reference. (i) Bankruptcy Court Docket. Relevant entries in the bankruptcy docket as referenced in Fed. R. Bankr. P. 8018(b)(1)(A) shall mean a copy of the designated entries on the docket from which the order appealed originates. This copy of the docket should always be the first document in the appendix. 68 (j) No Other Appendix. No other appendix, exhibits, or attachments, except as provided in Fed. R. Bankr. P. 8018(b), may be filed except by order of the Court. (k) Sealed Documents. No later than the filing of a motion, brief, or appendix disclosing materials held under seal by another court, or that a party seeks to place under seal, the party must: (1) (2) (3) file a motion to place the documents under seal, which explains the basis for sealing and the period of time the seal is to be maintained; segregate the part of the document to be sealed by including those parts in a separate document; and file the segregated part of the document in the ECF system using the “Sealed Documents” event or, if the filer is exempt under 10th Cir. BAP L.R. 8001-2(a), file the document in accordance with 10th Cir. BAP L.R. 8001-2(b) with a label on the cover stating the document is to be filed under seal. 69 Rule 8018.1. Reviewing a Judgment That the Bankruptcy Court Lacked Authority to Enter If, on appeal, a district court determines that the bankruptcy court did not have authority under Article III of the Constitution to enter the judgment, order, or decree being appealed, the district court may treat it as proposed findings of fact and conclusions of law. No Local Rule. 70 Rule 8019. Oral Argument (a) Party’s Statement. Any party may file, or a district court or BAP may require, a statement explaining why oral argument should, or need not, be permitted. (b) Presumption of Oral Argument; Exceptions. Oral argument must be allowed in every case unless the district judge—or each BAP judge assigned to hear the appeal—examines the briefs and record and determines that oral argument is unnecessary because: (1) the appeal is frivolous; (2) the dispositive issue or issues have been authoritatively decided; or (3) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (c) Notice of Oral Argument; Motion to Postpone. The district court or BAP must advise all parties of the date, time, and place for oral argument and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably before the hearing date. (d) Order and Content of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, the record, or authorities. (e) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 8016(b) determines which party is the appellant and which is the appellee for the purposes of oral argument. Unless the district court or BAP directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument. (f) Nonappearance of a Party. If the appellee fails to appear for argument, the district court or BAP may hear the appellant’s argument. If the appellant fails to appear for argument, the district court or BAP may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs unless the district 71 court or BAP orders otherwise. 72 (g) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the district court or BAP may order that the case be argued. (h) Use of Physical Exhibits at Argument; Removal. Any attorney intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom unless the district court or BAP orders otherwise. The clerk may destroy or dispose of them if the attorney does not reclaim them within a reasonable time after the clerk gives notice to do so.