Stay Pending Appeal

(a) Relevant Parts of the Record. The relevant parts of the record referred to in Fed. R. Bankr. P. 8007(b)(3)(C) must include a copy of the bankruptcy court’s order denying a motion for stay or a copy of the 24 transcript of the bankruptcy court’s hearing on the motion unless the motion was not first presented to the bankruptcy court. (b) Emergency Motion. Any motion that requests a ruling before the filing of a response must comply with Fed. R. Bankr. P. 8013(d) and 10th Cir. BAP L.R. 8013-1(b). (c) Required Showing. A motion for a stay pending appeal must include a clear statement of the specific relief requested. A motion for stay pending appeal that does not address all the following issues shall be summarily denied: (A) the likelihood of success on the merits of the appeal; (B) the likelihood the movants will suffer irreparable injury unless the stay is granted; (C) whether a stay will substantially harm other interested parties; and (D) whether the public interest will be served by granting a stay. 25 Rule 8008. Indicative Rulings (a) Motion for Relief Filed When an Appeal Is Pending; Bankruptcy Court’s Options. If a party files a timely motion in the bankruptcy court for relief that the court lacks authority to grant because an appeal has been docketed and is pending, the bankruptcy court may: (1) defer considering the motion; (2) deny the motion; (3) state that it would grant the motion if the court where the appeal is pending remands for that purpose; or (4) state that the motion raises a substantial issue. (b) Notice to the Court Where the Appeal Is Pending. If the bankruptcy court states that it would grant the motion or that the motion raises a substantial issue, the movant must promptly notify the clerk of the court where the appeal is pending. (c) Remand After an Indicative Ruling. If the bankruptcy court states that it would grant the motion or that the motion raises a substantial issue, the district court or BAP may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the district court or BAP remands but retains jurisdiction, the parties must promptly notify the clerk of that court when the bankruptcy court has decided the motion on remand. No local rule. 26 Rule 8009. Record on Appeal; Sealed Documents (a) Designating the Record on Appeal; Statement of the Issues; Content of the Record. (1) Appellant’s Designation and Statement of the Issues. The appellant must: (A) file with the bankruptcy clerk a designation of the items to be included in the record on appeal and a statement of the issues to be presented; and (B) file and serve the designation and statement on the appellee within 14 days after: • the notice of appeal as of right becomes effective under Rule 8002; or • an order granting leave to appeal has been entered. Premature service is treated as service on the first day on which filing is timely. (2) Appellee’s and Cross-Appellant’s Designation and Statement of the Issues. (A) Appellee. Within 14 days after being served, the appellee may file with the bankruptcy clerk and serve on the appellant a designation of additional items to be included in the record. (B) Cross-Appellant. An appellee who files a cross-appeal must file and serve a designation of additional items to be included in the record and a statement of the issues to be presented on the cross-appeal. (3) Cross-Appellee’s Designation. Within 14 days after the cross-appellant’s designation and statement have been served, a cross-appellee may file with the bankruptcy clerk and serve on the cross-appellant a designation of additional items to be included in the record. 27 (4) Record on Appeal. The record on appeal must include: • • • • the docket entries kept by the bankruptcy clerk; items designated by the parties; the notice of appeal; the judgment, order, or decree being appealed; • any order granting leave to appeal; • any certification required for a direct appeal to the court of appeals; • any opinion, findings of fact, and conclusions of law relating to the issues on appeal, including transcripts of all oral rulings; • any transcript ordered under (b); • any statement required by (c); and • any other items from the record that the court where the appeal is pending orders to be included. (5) Copies for the Bankruptcy Clerk. If paper copies are needed and the bankruptcy clerk requests copies of designated items, the party filing the designation must provide them. If the party fails to do so, the bankruptcy clerk must prepare them at the party’s expense. (b) Transcript of Proceedings. (1) Appellant’s Duty to Order. Within the time period prescribed by (a)(1), the appellant must: (A) order in writing from the reporter, as defined in Rule 8010(a)(1), a transcript of such parts of the proceedings not already on file as the appellant considers necessary for the appeal, and file a copy of the order with the bankruptcy clerk; or (B) file with the bankruptcy clerk a certificate stating that the appellant is 28 not ordering a transcript. (2) Appellee’s Duty to Order as a Cross-Appellant. Within 14 days after the appellant has filed a copy of the transcript order—or a certificate stating that the appellant is not ordering a transcript—the appellee as cross-appellant must: (A) order in writing from the reporter a transcript of such additional parts of the proceedings as the cross-appellant considers necessary for the appeal, and file a copy of the order with the bankruptcy clerk; or (B) file with the bankruptcy clerk a certificate stating that the cross- appellant is not ordering a transcript. (3) Appellee’s or Cross-Appellee’s Right to Order. Within 14 days after the appellant or cross-appellant has filed a copy of a transcript order—or a certificate stating that the appellant or cross-appellant is not ordering a transcript—the appellee or cross-appellee: (A) may order in writing from the reporter a transcript of any additional parts of the proceeding that the appellee or cross-appellee considers necessary for the appeal; and (B) must file a copy of the order with the bankruptcy clerk. (4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter to pay for the transcript. (5) Unsupported Finding or Conclusion. If the appellant intends to argue on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all relevant testimony and a copy of all relevant exhibits. (c) When a Transcript is Unavailable. (1) Statement of the Evidence. If a transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The 29 statement must be filed within the time prescribed by (a)(1) and served on the appellee. (2) Appellee’s Response. The appellee may serve objections or proposed amendments within 14 days after being served. (3) Court Approval. The statement and any objections or proposed amendments must then be submitted to the bankruptcy court for settlement and approval. As settled and approved, the statement must be included by the bankruptcy clerk in the record on appeal. (d) Agreed Statement as the Record on Appeal. (1) Agreed Statement. Instead of the record on appeal as defined in (a), the parties may prepare, sign, and submit to the bankruptcy court a statement of the case showing how the issues presented by the appeal arose and were decided in the bankruptcy court. (2) Content. The statement must set forth only those facts alleged and proved or sought to be proved that are essential to the court’s resolution of the issues. If the statement is accurate, it—together with any additions that the bankruptcy court may consider necessary to a full presentation of the issues on appeal—must be: (A) approved by the bankruptcy court; and (B) certified to the court where the appeal is pending as the record on appeal. (3) Time to Send the Agreed Statement to the Appellate Court. The bankruptcy clerk must then send the agreed statement to the clerk of the court where the appeal is pending within the time provided by Rule 8010. A copy may be filed in place of the appendix required by Rule 8018(b) or, in the case of a direct appeal to the court of appeals, by Fed. R. App. P. 30. (e) Correcting or Modifying the Record. 30 (1) Differences About Accuracy; Improper Designations. If any difference arises about whether the record accurately discloses what occurred in the bankruptcy court, the difference must be submitted to and settled by the bankruptcy court and the record conformed accordingly. If an item has been improperly designated as part of the record on appeal, a party may move to strike that item. (2) Omissions and Misstatements. If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected, and a supplemental record may be certified and sent: (A) on stipulation of the parties; (B) by the bankruptcy court before or after the record has been sent; or (C) by the court where the appeal is pending. (3) Remaining Questions. All other questions about the form and content of the record must be presented to the court where the appeal is pending. (f) Sealed Documents. (1) In General. A document placed under seal by the bankruptcy court may be designated as part of the record on appeal. But a document so designated: (A) must be identified without revealing confidential or secret information; and (B) may be sent only as (2) prescribes. (2) When to Send a Sealed Document. To have a sealed document sent as part of the record, a party must file in the court where the appeal is pending a motion to accept the document under seal. If the motion is granted, the movant must notify the bankruptcy court, and the bankruptcy clerk must promptly send the sealed document to the clerk of the court 31 where the appeal is pending. (g) Duty to Assist the Bankruptcy Clerk. All parties to an appeal must take any other action needed to enable the bankruptcy clerk to assemble and send the record. 32