United States District Court, D. New Mexico
ORDER DISMISSING BANKRUPTCY APPEAL
MATTER is before the Court on a bankruptcy appeal filed by
Appellant Moya Michael Alonzo Agency
(“Appellant”). In the Clerk's Certificate of
Service of Notice of Appeal and Election to Have Appeal Heard
by District Court, the bankruptcy court clerk indicates that
she is “unable to determine what document is being
appealed.” See In re Moya Michael Alonzo
Agency, 18cv0177 JCH/KBM, Doc. 1 (D.N.M. Feb.
22, 2018). From what the Court can surmise, Appellant appears
to be appealing the Order Dismissing Case with Prejudice and
Sanctioning Cynthia Moya and Mike Moya, which was entered by
the Honorable David T. Thuma of the United States Bankruptcy
Court for the District of New Mexico in case number
17-13261-ta7. See In re Moya Michael Alonzo Agency,
17-13261-ta7, Doc. 16 (Bankr. D.N.M. Feb. 5, 2018).
On February 27, 2018, the instant case was referred to the
Honorable Karen B. Molzen for a recommended disposition.
In re Moya Michael Alonzo Agency, 18cv0177 JCH/KBM,
Doc. 2 (D.N.M. Feb. 27, 2018). Following a sua
sponte review of this case, however, the Court now
revokes its Order of Reference and instead enters this Order
Dismissing the Bankruptcy Appeal.
to Federal Rule of Bankruptcy Procedure 8002(a), a notice of
appeal must be filed with the bankruptcy court clerk within
14 days of a judgment, order, or decree by the bankruptcy
court. Appeals from final judgments and orders are heard by
the Bankruptcy Appellate Panel unless the “the
appellant elects at the time of filing the appeal; or . . .
any other party elects [within] 30 days . . . to have such
appeal heard by the district court.” See 28
U.S.C. § 158(c)(1). Federal Rule of Bankruptcy Procedure
8005(a), in turn, provides that when electing to have an
appeal heard by the district court, rather than the
Bankruptcy Appellate Panel, an appellant must file a
statement of election that “conforms substantially to
the appropriate Official Form . . . [and] do so within the
time prescribed by 28 U.S.C. § 158(c)(1).” In the
case of a bankruptcy appeal, the appropriate Official Form is
B417A, which is entitled “Notice of Appeal and
Statement of Election.” See Bankruptcy
Appellate Form B417A, available at http://www.uscourts.
gov/forms/ bankruptcy-forms (attached hereto). Part 4 of
this form contains a check-box, where appellants may
“elect to have the appeal heard by the United States
District Court rather than by the Bankruptcy Appellate
Panel.” Id. at 2.
although Appellant filed a purported “Waiver of the
Bankruptcy Appellate Panel” which asserts a
“right to an appeal before the district court, ”
(Doc. 1-2 at 1), Appellant did not use a form that
appears to “conform substantially to the appropriate
Official Form.” Compare Bankruptcy Appellate
Form B417A at 2 with In re Moya Michael Alonzo
Agency, 18cv0177 JCH/KBM, Doc. 1-2 (D.N.M. Feb.
22, 2018). As such, it was not immediately apparent whether
Plaintiff had made a valid election
to have the appeal heard by this Court. The Bankruptcy Court
Clerk then chose to transmit Appellant's Notice of Appeal
to both this Court as well as to the Bankruptcy Appellate
Panel. See In re Moya Michael Alonzo
Agency, 18cv0177 JCH/KBM, Doc. 1 (D.N.M. Feb.
22, 2018); In re Moya Michael Alonzo Agency, BAP
Appeal No. NM-18-016, Doc. 1 (10th Cir. B.A.P. Feb.
21, 2018). Consequently, the same appeal is now currently
pending before both courts.
Bankruptcy Appellate Panel's docket indicates that
Appellant's election to have the appeal heard by the
district court, although timely, was “improper as
Appellant failed to include statement of election in the
notice of appeal.” See In re Moya Michael Alonzo
Agency, BAP Appeal No. NM-18-016, Doc. 2 Docket
Entry (10th B.A.P. Feb. 22, 2018). The court notes that the
Bankruptcy Appellate Panel has previously found invalid a
purported election to have an appeal heard by a district
court absent the use of Form B417A. For instance, in In
re Leonid Shifrin, BAP No. CO-17-012, 2017 WL 4161897
(10th Cir. B.A.P. Sept. 20, 2017), the appellant, like
Appellant here, filed a separate document apart from his
notice of appeal in which he purported to elect to have his
appeal heard by the district court. Id. at n.18. The
Bankruptcy Appellate Panel immediately determined that the
attempted election was invalid pursuant to Rule 8005-1(a) of
the Tenth Circuit's Local Rules of Bankruptcy Procedure,
which requires the statement of election to be included in
the notice of appeal. Id. When the appellant amended
his notice of appeal to include an election, the court denied
the election as untimely pursuant to 28 U.S.C. §
158(c)(1)(A), and the appellant's appeal continued before
the Bankruptcy Appellate Panel.
order to avoid inconsistent rulings by two different courts,
this Court concludes that the best course is to dismiss the
instant bankruptcy appeal, allowing the Bankruptcy Appellate
Panel to determine in the first instance whether Appellant
has made a valid election to have its appeal heard by the
district court. Appellant may object to any determination by
the Bankruptcy Appellate Panel that no valid election was
made, and it may do so in that forum.
IT IS HEREBY ORDERED that this appeal is
 Subsequent to the filing of this
Bankruptcy Appeal, the District of New Mexico Bankruptcy
Court implemented a protocol similar to a protocol used in
the District of Colorado, whereby the bankruptcy court clerk
will transmit a notice of appeal to only the Bankruptcy
Appellate Panel when an appellant does not use the Official
Form. Thereafter, the Bankruptcy Appellate Panel will
determine whether a valid election was made to have the
appeal heard by the district court and, if so, the ...