Motion to Reinstate an Appeal

When an appellant fails to comply with the Federal Rules of Bankruptcy Procedure or these Rules, the clerk’s office will notify the appellant that the appeal may be dismissed for failure to prosecute unless the failure to comply is remedied within a designated time. If the appellant fails to comply within that time, the court may enter an order dismissing the appeal without further notice. The appellant may remedy the failure to comply after the appeal is dismissed within the 14-day rehearing period provided in Fed. R. Bankr. P. 8022. After such remedy, the clerk’s office shall reinstate the appeal. A motion to reinstate an appeal dismissed for failure to prosecute may not be filed unless the failure is remedied or the remedy for the failure accompanies the motion to reinstate. If an appellant remedies the failure without filing a motion to reinstate, the Court shall construe such remedy as a motion to reinstate. 79 Rule 8023. Voluntary Dismissal (a) Stipulated Dismissal. The clerk of the district court or BAP must dismiss an appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any court fees that are due. (b) Appellant’s Motion to Dismiss. An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the district court or BAP. (c) Other Relief. A court order is required for any relief beyond the dismissal of an appeal—including approving a settlement, vacating an action of the bankruptcy court, or remanding the case to it. (d) Court Approval. This rule does not alter the legal requirements governing court approval of a settlement, payment, or other consideration. No local rule. 80 Rule 8023.1 Substitution of Parties (a) Death of a Party. (1) After a Notice of Appeal Is Filed. If a party dies after a notice of appeal has been filed or while a proceeding is pending on appeal in the district court or BAP, the decedent’s personal representative may be substituted as a party on motion filed with that court’s clerk by the representative or by any party. A party’s motion must be served on the representative in accordance with Rule 8011. If the decedent has no representative, any party may suggest the death on the record, and the appellate court may then direct appropriate proceedings. (2) Before a Notice of Appeal Is Filed—Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the decedent’s personal representative—or, if there is no personal representative, the decedent’s attorney of record—may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution must be in accordance with (1). (3) Before a Notice of Appeal Is Filed—Potential Appellee. If a party against whom an appeal may be taken dies after entry of a judgment or order in the bankruptcy court, but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. After the notice of appeal is filed, substitution must be in accordance with (1). (b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any reason other than death, the procedure prescribed in (a) applies. (c) Public Officer: Identification; Substitution. (1) Identification of a Party. A public officer who is a party to an appeal or other proceeding in an official capacity may be described as a party by the public officer’s official title rather than by name. But the appellate court may require the public officer’s name to be added. (2) Automatic Substitution of an Officeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or 81 otherwise ceases to hold office, the action does not abate. Subject to Rule 2012, the public officer’s successor is automatically substituted as a party. Proceedings after the substitution are to be in the name of the substituted party, but any misnomer that does not affect the parties’ substantial rights may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution. No local rule. 82 Rule 8024. Clerk’s Duties on Disposition of the Appeal (a) Preparing the Judgment. After receiving the court’s opinion—or instructions if there is no opinion—the district or BAP clerk must: (1) prepare and sign the judgment; and (2) note it on the docket, which act constitutes entry of judgment. (b) Giving Notice of the Judgment. Immediately after a judgment is entered, the district or BAP clerk must: (1) send a notice of its entry, together with a copy of any opinion, to: • • • the parties to the appeal; the United States trustee; and the bankruptcy clerk; and (2) note on the docket the date the notice was sent. (c) Returning Physical Items. On disposition of the appeal, the district or BAP clerk must return to the bankruptcy clerk any physical items sent as the record on appeal.