Pollak v. Homeside Lending Inc

United States Court of Appeals
Fifth Circuit
F I L E D
February 27, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-20673
Summary Calendar
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IN THE MATTER OF
RICHARD J. POLLAK,
Debtor.
RICHARD J. POLLAK,
Appellant,
VERSUS
HOMESIDE LENDING, INC.,
Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:06-CV-1269
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
A bankruptcycourt denied Richard Pollak’s
motion to extend the time for filing a notice of
* Pursuant to 5TH CIR. R. 47.5, the court has de-
(continued...)
*(...continued)
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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appeal. We affirm.
I.
Pollak brought an adversary bankruptcy
action against Homeside Lending, Inc.
(“Homeside”), in regard to Homeside’s ser-
vicing of his home mortgage loan. He was
awarded some damages, but the bankruptcy
court denied some of his claims. He did not
file a notice of appeal within the time allotted
under Federal Rule of Bankruptcy Procedure
8002(c)(2). Four days after that deadline, he
filed a motion to extend the time for filing a
notice of appeal, but the bankruptcy court de-
nied the motion.
Pollak testified that after he was awarded
his judgment, his attorney gave him the im-
pression that he could appeal within 20 to 30
days of the judgment. His attorney informed
him that she would not represent him on ap-
peal. Pollak sought other representation. In
the course of obtaining other counsel, he
spoke to one lawyer who told him time was of
the essence for his appeal. Finally, when he
met with his current attorney, Pollak learned
that the time to appeal had expired.
II.
A bankruptcy court may permit a late filing
“where the failure to act was the result of ex-
cusable neglect.” FED. R. BANKR. P. 9006-
(b)(1). A court determining whether a party’s
conduct resulted from excusable neglect must
take into account all relevant circumstances
surrounding the failure, including the danger of
prejudice to the debtor, the length of delay and
its potentialimpact on judicialproceedings, the
reason for the delay, and whether the debtor
acted in good faith. Christopher v. Diamond
Benefits Life Ins. Co. (In re Christopher), 35
F.3d 232, 236 (5th Cir. 1993) (citing Pioneer
Inv. Servs. Co. v. Brunswick Assocs., 507 U.S.
380, 395 (1993)). We review the bankruptcy
court’s findings of fact for clear error and its
legal conclusions de novo. Universal Seismic
Assocs., Inc. v. Harris County (In re Universal
Seismic Assocs., Inc.), 288 F.3d 205, 207 (5th
Cir. 2002). We review for abuse of discretion
the court’s finding that Pollak’s failure to file
a timely notice of appeal was not due to ex-
cusable neglect. See Pioneer, 507 U.S. at 398.
Pollak argues that his late filing was caused
by excusable neglect: It was occasioned by
misinformation, he urges, and Homeside
would not be prejudiced by the short delay.
Also, he asserts that nothing in the record sup-
ports a finding of bad faith.
The bankruptcy court, applying the correct
legal standards, found Pollak’s failure to file
timely did not result from excusable neglect.
During the ten-day window in which Pollak
could have timely filed his appeal, he had been
told that time was of the essence, so the reason
for the delay was within his control. He knew
he needed to file an appeal within a specific
time, but he did not seek to determine what
that time frame was. This is merely a usual
case of failing to file on account of “inadver-
tance, ignorance of the rules, or mistakes con-
struing the rules.” Pioneer, 507 U.S. at 392.
There is no abuse of discretion.
The judgment of the district court is AF-
FIRMED.

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