Local Rule DCt.LBR 8018.1-1: APPEALS IN WHICH THE BANKRUPTCY JUDGE LACKED AUTHORITY TO ISSUE THE JUDGMENT OR ORDER THAT IS ON APPEAL

DCt.LBR 8018.1-1 APPEALS IN WHICH THE BANKRUPTCY JUDGE LACKED AUTHORITY TO ISSUE THE JUDGMENT OR ORDER THAT IS ON APPEAL

(a) PRESERVING THE CONTENTION THAT BANKRUPTCY JUDGE LACKED AUTHORITY TO ISSUE THE JUDGMENT OR ORDER THAT IS ON APPEAL.

If:

(1) the Bankruptcy Court has issued a judgment or order deciding a proceeding;

(2) an appellant contends that the Bankruptcy Court lacked authority to issue the judgment or order deciding the proceeding; and

(3) the appellant wishes to preserve that contention, then, unless otherwise ordered by the District Court, the appellant must both appeal the Bankruptcy Court's order or judgment (to obtain an order vacating the order or judgment as unauthorized) and separately file in the Bankruptcy Court objections under Bankruptcy Rule 9033 to the Bankruptcy Court's findings of fact and conclusions of law as though they were proposed findings of fact and conclusions of law.

(b) APPELLEE'S DUTY TO RESPOND TO THE BANKRUPTCY RULE 9033 OBJECTIONS.

If an appellant files Bankruptcy Rule 9033 objections under paragraph (a) of this Rule, then unless otherwise ordered by the District Court, the appellee must, within the deadline set by Bankruptcy Rule 9033, respond to the Bankruptcy Rule 9033 objections as though the Bankruptcy Court's findings of fact and conclusions of law were proposed findings of fact and conclusions of law.

(c) APPLICABILITY OF DCt.LBR 9033-1 TO BANKRUPTCY RULE 9033 OBJECTIONS FILED UNDER THIS RULE When an appellant files Bankruptcy Rule 9033 objections under paragraph (a) of this Rule, DCt.LBR 9033-1 applies to the objections as though the Bankruptcy Court's findings of fact and conclusions of law were proposed findings of fact and conclusions of law.

(d) DISTRICT COURT'S DISPOSITION OF APPELLANT'S CONTENTION THAT BANKRUPTCY JUDGE LACKED AUTHORITY TO ISSUE THE JUDGMENT OR ORDER THAT IS ON APPEAL.

If the District Court agrees with the appellant's contention that the Bankruptcy Court lacked authority to decide the proceeding, it may treat the Bankruptcy Court's findings of fact and conclusions of law as proposed findings of fact and conclusions of law, and it may proceed to make a de novo review under Bankruptcy Rule 9033(d).

COMMENT TO DCt.LBR 8018.1-1. This rule addresses filing Bankruptcy Rule 9033 objections when the Bankruptcy Court entered a judgment or order deciding a proceeding but lacked authority to decide the proceeding, either because the proceeding was a non-core proceeding or because it fell within that subset of core proceedings that, under Stern v. Marshall, 131 S. Ct. 2594 (2011), and Executive Benefits Ins. Agency v. Arkison, 134 S.Ct. 2165 (2014), may not be decided by a bankruptcy judge. Many other district courts follow a similar approach. See, e.g., Amended Standing Order of Reference, No. M10-468 (S.D.N.Y.).