                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1996



HUSSEIN BARAKE,

                                                           Appellant,

          versus


GEORGE ROBERTS HILL, III,

                                                            Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CA-04-327-2; BK-03-75686; BK-7191-AP)


Submitted:   December 17, 2004            Decided:   January 12, 2005


Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Hussein Barake, Appellant Pro Se.    Brian Gay, GAY, CIPRIANO &
ARRINGTON, P.C., Virginia Beach, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Hussein E. Barake appeals from the district court’s

orders dismissing his appeal from the bankruptcy court’s order

denying his objection to the discharge of an indebtedness in the

underlying bankruptcy proceeding. The district court dismissed the

appeal because Barake failed to file a brief on time.       We vacate

and remand for further proceedings.

            Barake timely appealed to the district court from the

bankruptcy court’s order and filed a designation of the record and

statement of issues for appeal, as required by Fed. R. Bankr. P.

8006.    His brief was due by June 11, 2004.    See Fed. R. Bankr. P.

8009.     The district court dismissed Barake’s appeal on June 30,

2004, for failure to file a brief.      Barake’s brief was received by

the district court the next day.        On July 7, the district court

denied Barake permission to file the late brief, noting that it had

already dismissed his appeal. Barake noted a timely appeal to this

court.

            Rule 8009 provides that an appellant must serve and file

a brief within fifteen days after entry of the appeal on the

docket.     However, adherence to Rule 8009 is non-jurisdictional.

See Bankr. R. 8001(a) (providing that an appellant’s failure to

“take any step other than the timely filing of a notice of appeal

does not affect the validity of the appeal, but is ground only for

such action as the district court . . . deems appropriate, which


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may include dismissal of the appeal”). Although the district court

has the discretion to dismiss an appeal if the appellant fails to

comply with the procedural requirements of the bankruptcy rules,

the court must exercise its discretion under Rule 8001(a).                In re

SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995).                   In applying Rule

8001(a), the district court must take one of the four steps

outlined in In re Serra Builders, Inc., 970 F.2d 1309 (4th Cir.

1992).    Specifically, the court must:             “(1) make a finding of bad

faith    or   negligence;     (2)   give      the   appellant   notice   and    an

opportunity to explain the delay; (3) consider whether the delay

had any possible prejudicial effect on the other parties; or (4)

indicate      that   it   considered    the    impact   of   the   sanction    and

available alternatives,” keeping in mind that dismissal is a “harsh

sanction which the district court must not impose lightly.” Id. at

1311.    Proper application of the Serra Builders test requires the

court to consider and balance all relevant factors.                SPR Corp., 45

F.3d at 74.

              Here, the district court failed to consider any of these

factors.      Indeed, although the court refers to a letter sent to

Barake from the clerk’s office warning him of the risk of failing

to file a brief, there is no copy of the letter in the record nor

is there a clear indication in the docket that such a letter was

ever sent.




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          The district court’s failure to exercise its discretion

by examining Barake’s failure to file his brief in light of the

balancing test set forth in Serra Builders and explained in SPR

Corp. constitutes an abuse of its discretion.                 See James v.

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

          Accordingly,    we   vacate    the   district   court’s    orders

dismissing   Barake’s   appeal   and    remand   the   case    for   further

proceedings consistent with this opinion.         We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                   VACATED AND REMANDED




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