United States Bankruptcy Appellate Panel
                    FOR THE EIGHTH CIRCUIT



                          No. 98-6013EM


In re:                         *
                               *
Sullivan Jewelry, Inc.,        *
                               *
    Debtor.                    *
                               *
A. Thomas DeWoskin, Trustee,   *
                               *
    Plaintiff-Appellee,        *
                               *   Appeal from the United States
         v.                    *   Bankruptcy Court for the
                               *   Eastern District of Missouri.
Roger M. Hibbits,              *
                               *
    Defendant-Appellant.       *



                             ORDER


Before KRESSEL, SCOTT, and DREHER, Bankruptcy Judges.

KRESSEL, Bankruptcy Judge.

     The appellant moves to transfer this appeal to the United
States District Court for the Eastern District of Missouri.
Because we conclude that the appeal is properly before this
court, we deny the motion.
                                         BACKGROUND

     On January 16, 1998, an order and a judgment (both dated
January 15, 1998) were entered granting the plaintiff summary
judgment in this adversary proceeding. On January 27, 1998,
the defendant filed a notice of appeal. While he did not use
the official form and the caption of the notice of appeal was
inaccurate in a number of respects, the appeal did properly
identify the January 16, 1998, order and judgment as those
being appealed from. In pertinent part, the notice of appeal
stated:
          WILLIAM SULLIVAN, ROSE SULLIVAN AND TINA
          LLOYD, and Roger M. Hibbits appeal to the
          United States District Court. . . .1
Because Hibbits did not file any separate election to have his
appeal heard by the district court, the clerk of the bankruptcy
court transmitted the appeal to this court. Hibbits has now
filed a motion to transfer the appeal to the district court
alleging that the appeal was “erroneously transferred to this
court” and that “there was no consent to such transfer and
therefore this does not comply with Bankruptcy Rule 8001(e).”

                                         DISCUSSION

     While Hibbits may not have consented to his appeal being
heard by this court, actual consent is not required. Rather
the current statute and rule provide that an appeal will be
heard by the bankruptcy appellate panel unless a party makes
an affirmative election to have an appeal heard by the district
court. Significant changes in this regard were made by the



       1
         William Sullivan, Rose Sullivan, and Tina Lloyd were not parties to this adversary
proceeding, so it is unclear why they appear both in the caption and as appellants. We treat this
only as an appeal by defendant Roger M. Hibbits.


                                                 2
Bankruptcy Reform Act of 1994.       Pub. L. No. 103-394, 108 Stat.
4106 (1994).




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             The Former Statute and The Old Rule

     Appeals from bankruptcy court are governed by Section 158
of Title 28. Prior to the enactment of the Bankruptcy Reform
Act of 1994, § 158(b)(1) provided:
     The judicial council of a circuit may establish a
     bankruptcy appellate panel, comprised of bankruptcy
     judges from districts within the circuit, to hear and
     determine, upon the consent of all the parties,
     appeals under subsection (a) of this section.
28 U.S.C. § 158(b)(1) (repealed 1994).

     Thus, as previously written, the statute did require the
consent of all parties to the appeal before that appeal would
be heard by a bankruptcy appellate panel. The Bankruptcy Rules
implemented this consent procedure:
     Consent to Appeal to Bankruptcy Appellate Panel.
     Unless otherwise    provided by a rule promulgated
     pursuant to Rule 8018, consent to have an appeal
     heard by a bankruptcy appellate panel may be given in
     a separate statement of consent executed by a party
     or contained in the notice of appeal or cross appeal.
     The statement of consent shall be filed before the
     transmittal of the record pursuant to Rule 8007(b),
     or within 30 days of the filing of the notice of
     appeal, whichever is later.
Fed. R. Bankr. P. 8001(e) (prior to 1997 amendment).

     Thus, the statute and rules previously required the
consent of the parties before an appeal could be heard by a
bankruptcy appellate panel and if the former statute and the
old rule were in effect, the appellant’s motion would have
merit.

            The Current Statute and The New Rule




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     However, the statute was amended by the Bankruptcy Reform
Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106 (1994). The
Act substantially amended § 158 regarding the process for
creating bankruptcy appellate panels and the operative language
of § 158(b)(1) quoted above was deleted and a new § 158(c) was
enacted, which provides:




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    Subject to subsection (b), each appeal under
    subsection (a) shall be heard by a 3-judge panel of
    the bankruptcy appellate panel service established
    under subsection (b)(1) unless --

         (A) the appellant elects at the time of filing
             the appeal; or

         (B) any other party elects, not later than 30
         days after service of the notice of the appeal;

     to have such appeal heard by the district court.
28 U.S.C. § 158(c).

     While the statute as rewritten preserves the absolute
right of any party to have an appeal heard by the district
court, that right must be affirmatively exercised by an
election by the appellant at the time of filing the appeal or
by any other party within thirty days after its service. In
the absence of such an election an appeal is heard by the
bankruptcy appellant panel. To implement this change in the
statute, the bankruptcy rule was also changed effective
December 1, 1997. It now reads:
     Election to Have Appeal Heard by District Court
     Instead of Bankruptcy Appellate Panel. An election
     to have an appeal heard by the district court under
     28 U.S.C. § 158(c)(1) may be made only by a statement
     or election contained in a separate writing filed
     within the time prescribed by 28 U.S.C. § 158(c)(1).
Fed. R. Bankr. P. 8001(e).

     Thus, the rule implements the statute by requiring an
affirmative informed election to have an appeal heard by the
district court. Thus, although the notice of appeal in this
case states that the appeal is to the district court, that is
boilerplate language (not conforming to the official form for
a notice of appeal) and does not qualify as an election. It
certainly is not contained in a separate writing as is required

                               6
by Fed. R. Bankr. P. 8001(e). By requiring such a separate
document, the rule implements Congressional intent that appeals
to the bankruptcy appellate panel be the default process and
the statutory language that the right to proceed with an appeal
to the district court be made by an actual “election” knowingly
and informatively made.




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                          CONCLUSION

     Since the appellant did not make an election in conformity
with the statute and the rule, the appeal is properly before
this court.    We therefore deny his motion to transfer the
appeal to the United States District Court for the Eastern
District of Missouri.



                             February 23, 1998




Order Entered at the Direction of the Panel:



Clerk, U.S. Bankruptcy Appellate Panel, Eighth Circuit




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