Chаpter 7 debtors Massoud and Susan Vasseli (“Vasselis”) appeal the Bankruptcy Appellate Panel’s (“BAP”) revеrsal of the bankruptcy court’s award of attorney’s fees to the Vasselis pursuant to 11 U.S.C. § 523(d) (1988).
We have jurisdiction pursuant to 28 U.S.C. § 158(d) (1988). We review the decisions of the BAP de novo.
In re Dewalt,
On appeal^ the Vasselis claim the BAP erred in holding that the bankruptcy court did not have the authority to award them attorney’s fees incurred in an appeal to the district court. We reject the Vasseli’s argument and affirm the BAP’s order.
The Vasselis are debtors in a chapter 7 bankruptcy proceeding. Wells Fargo Bank, N.A. (“Wells Fargo”) is a creditor which filed a complaint in the bankruptcy court to determine whether the debt incurred by the Vas-selis’ use of a Wells Fargo credit card was dischargeable. Wells Fargo requested a money judgment pursuant to 11 U.S.C. § 523(a) (1988). The Vasselis filed a motion for summary judgment which was granted by the bankruptcy court. The bankruptcy court also awarded $1,000 in attorney’s fees to the Vasselis pursuant to § 523(d) as part of the judgment.
*353 Wells Fargo appealed the award of attorney’s fees and the grant of summary judgment to thе district court. The district court properly dismissed the appeal for lack of jurisdiction, because the notice of appeal was untimely filed pursuant to Bankruptcy Rule 8002(a). 1
The Vasselis returned to the bankruptcy сourt and asked for additional attorney’s fees in the amount of $8,719.25 for the cost of the appeal to thе district court. The Vasselis based their motion on 11 U.S.C. § 523(d), which empowers the bankruptcy court to award the debtor аttorney’s fees when a creditor is unsuccessful in challenging a determination that, a debt was dischargeable. The Vasselis had made no motion for attorney’s fees on appeal to the district court.
■ Wells Fargo filed аn opposition to the Vas-selis’ motion for additional attorney’s fees. However, the bankruptcy court refused to allow Wells Fargo to argue its opposition to the additional attorney’s fees because thе opposition was unsigned and untimely filed in violation of U.S. Bankruptcy Court (E.D.) Local Rule 3 and Bankruptcy Rule 9011. The bankruptcy court granted a default judgment in favór of the Vasselis and awarded the Vasselis additional attorney’s fees in the amount of $4,354.25 for the cost of the appeal to the district court and for the costs of the motion for аttorney’s fees via the default judgment.
Wells Fargo appealed the bankruptcy court’s award of these attorney’s fees to the BAP. The BAP, relying on Federal Rule of Appellate Procedure 38 (“Rule 38”), reversed the bankruptcy court’s award of attorney’s fees for the cost of the appeal to the district court. Rule 38 states that,
If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.
Fed.R.App.P. 38. The BAP held that Rule 38 empowers only appellate courts, not bankruptcy courts to award damages, attorney’s fees, and other expenses incurrеd by an ap-pellee in response to a frivolous appeal. The BAP used Rule 38 to demonstrate that although an appellate court has the authority to award fees for appellate represеntation, it does not have authority to delegate this power to a bankruptcy court. We agree.
The Vаsselis contend that the bankruptcy court had the authority to award attorney’s fees for the cost of their аppeal to the district court under the Bankruptcy Code § 523(d). Section 523(d) states,
[i]f a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the сourt shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney’s fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the cоurt shall not award such costs and fees if special circumstances would make the award unjust.
11 U.S.C. § 523(d) (1988). The Vasselis arguе that while section 523(d) does not specifically give the bankruptcy court the authority to award attorney’s fees for the costs of an appeal, such authority can be implied. We hold that while § 523(d) does authorize аttorney’s fees for the debtor, it does not grant the bankruptcy court authority to award attorney’s fees to the debtor for appellate representation, and refuse to read the authority to award fees inсurred on appeal into § 523(d).
The appellate court, not the bankruptcy court, has the authority under Rulе 38 to award damages for a frivolous appeal.
In re American President Lines, Inc.,
*354 Under Rule 38 any fee request for attorney’s fees incurred by a prevailing party must be made to the appеllate court. Section 523(d) does not give a bankruptcy court the power to award attorney’s fees incurred on appeal. In this case, the Vasselis should have applied to the district court, not the bankruptcy court, for costs incurred on their appeal pursuant to Rule 38.
AFFIRMED.
Notes
. Bankruptcy Rule 8002(a) allows only 10 days to file the notice of appeal from the bankruptcy court to the district court.