Appealing to the BAP v District Court

I am told that bankruptcy appeals have been going 56% to the district court and 46% to the BAP.  Judge Jury thinks that one reason for that might be that the BAP is perceived to be more casual about granting extensions of time to file briefs than the district court.  I doubt that myself.  She also commented to me that district court rulings are appealed to the 9th Circuit more than BAP rulings.

My own guess re why the district court is higher is that non-bankruptcy lawyers think that the BAP will “hometown” them or “rubber-stamp” the ruling of their buddy.  But I have also heard people say that district court judges rubber-stamp the bankruptcy court since they don’t know anything about bankruptcy anyway.  Both of those views are silly.  I suppose that there is the lazy judge here or there that rubber-stamps stuff but my perception is that judges try to get it right.

Judge Laura Taylor made a great comment at a program I attended – that if the party is pretty sure that the case is going to go to the 9th Circuit no matter what, the appeal should go to the BAP.  She said, rightly so, that the BAP will understand the issue a little better and will “set it up” for the 9th Circuit.  ”We will see where this is going and try to explain that to the 9th Circuit for the parties.” Good point.

2 Replies to Appealing to the BAP v District Court

  1. Michael Avanesian says:

    Now that I have been an attorney for about 5 years, I understand that when it comes to many critical/important issues, there is no right answer. Each side argues their position and whoever convinces the judge wins. When each side’s argument is equally meritorious, “getting it right” becomes arbitrary. So I agree that every judge tries to get it right but I believe what is “right” to a particular judge is fairly arbitrary.

    For example, bankruptcy judges, and I suspect the BAP, tend to be more forgiving when Chapter 13 Trustees make technical mistakes during a case. If you want a ruling against a Chapter 13 Trustee based on a technicality, it will be rare for the a bankruptcy judge or the BAP to rule against the trustee. Those cases should be taken to the district court who will be more likely to apply the law as strictly to the trustee as any other litigant.

  2. Great points Mike! I don’t agree that the BAP might be more forgiving. I have heard judges make comments about how the chapter 13 trustees – at least some – are not particularly good at their jobs. A district court would be more likely to think that its a big job and give the trustee the benefit of the doubt.

    Thanks for the comment.

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