ZERBE v. OLYMPIC MORTGAGE BANKERS CORP

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Case: Cas 3ci6sw0 1534/DRD FilRneanidiiS EFitsdOQR8H0021:2ake 1 eeac: Main
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

OLYMPIC MORTGAGE BANKERS CORP.,
Appellant, Civil No. 06-1534 (DRD)
JOHN A. ZERBE,

Appellee.

OPINION AND ORDER

Pending before the Court is a Motion In Compliance With Order To Show Cause And Request The
Appeal Not Be Dismissed filed by appellant, Olympic Mortgage Bankers Corp. (Docket No. 4). For the
reasons set forth below, appellant’s motion is DENIED.
Jurisdiction
This Court has jurisdiction to entertain bankruptcy appeals pursuant to 28 U.S.C. § 158(a)(1).
Issue
The question before the Court is whether appellant may be allowed to proceed with the instant
appeal, notwithstanding that the notice of appeal was filed late, pursuant to Rules 8001, 8006 and 9006(b)(1)

of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”).

Factual and Procedural Background

The record of the bankruptcy court shows that, on May 5, 2006, the Hon. Michael J. Deasy entered
a Memorandum Opinion in Adversary Proceeding No. 04-300 (AP Docket No. 36)' and Order entering
Judgment (AP Docket No, 37). According to the bankruptcy court record, first class mail notification was
provided on May 7, 2007 by the Bankruptcy Noticing Center of both the Memorandum Opinion and Order

entering Judgment (AP Docket entries No. 38 and 39). Appellant claims that electronic notice was not

! “AP Docket No.” refers to the docket entry number of Adversary Proceeding Number 04-300, as

opposed to “Docket No.” which refers to the entries in the instant case.

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available to the appellant (counsel not duly registered) by the Clerk of the Bankruptcy Court, on May 5 nor
May 7, 2006, and that notice was received through regular mail; on May 15, 2006. The bankruptcy court
record shows that Notice Of Appeal was filed on May 23, 2006 (AP Docket No. 44).

On May 31, 2006, Appellant's Brief was filed in this Court (Docket No. 1). The Notice Of Appeal
from the bankruptcy court was filed on June 13, 2006 (Docket No. 2). An Order To Show Cause was entered
by this Court, on June 16, 2006 (Docket No. 3), granting the appellant until June 23, 2006 to show cause why
this case should not be dismissed. The appellant timely replied (Docket No. 4), and informed the Court that
the bankruptcy court’s electronic notice of the Memorandum Opinion and Order entered on May 5, 2006
were never received by the appellant, simply because counsel’s electronic address was not registered with
the Clerk of the Bankruptcy Court at the time (Docket No. 4). Based on this premise, our analysis follows.

Applicable Law and Discussion

Whether or not the notice of appeal was timely filed is a jurisdictional matter, as provided by
Fed.R.Bankr.P, 8002 and applicable case law. Rule 8002(a) provides that:

The notice of appeal shall be filed with the clerk within 10 days of the date
of the entry of the judgment, order, or decree appealed from. Ifa timely
notice of appeal is filed by a party, any other party may file a notice of
appeal within 10 days of the date on which the first notice of appeal was
filed, or within the time otherwise prescribed by this rule, whichever period
last expires. A notice of appeal filed after the announcement of a decision
or order but before entry of the judgment, order, or decree shall be treated
as filed after such entry and on the day thereof. If a notice of appeal is
mistakenly filed with the district court or the clerk of the bankruptcy
appellate panel, the clerk of the district court or the bankruptcy appellate
panel shall note thereon the date on which it was received and transmit it
fo the clerk and it shall be deemed filed with the clerk on the date so noted.

Appellant may file a late notice of appeal provided that a timely motion for extension of time for
appeal is filed, pursuant to Fed.R.Bankr.P. 8002(c). An extension of time may be granted by the bankruptcy
court, but only if the requirements of Fed.R.Bankr.P. 8002(c)(1) and (2) are met. Rule 8002(c)(2) provides

in its relevant part that:

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A request to extend the time for filing a notice of appeal must be made by
written motion filed before the time for filing a notice of appeal has
expired, except that such a motion filed not later than 20 days after the
expiration of the time for filing a notice of appeal may be granted upon a
‘showing of excusable neglect. An extension of time for filing a notice of
appeal may not exceed 20 days from the expiration of the time for filing a
notice of appeal otherwise prescribed by this rule or 10 days from the date
of entry of the order granting the motion, whichever is later.

It is well settled that “[c]ompliance with this requirement [Rule 8002(a) and (c)] is both mandatory
and jurisdictional.” Abdallah v. Donahue, 778 F.2d 75, 77 (1st Cir. 1985), cert. denied 476 U.S. 1116
(1986). (Citation omitted). “Untimely notice of appeal deprived the district court of jurisdiction to review
the bankruptcy court’s order.” fd. (Citation omitted). “While this may have had no practical effect over the
district court’s review of the order, this court’s jurisdiction can only be based on a proper exercise of
jurisdiction by the court below.” /d. In Siemon v. Emigrant Savings Bank, 421 F.3d 167, 169 (2nd Cir.
2005), the Court held that:

We therefore follow our sister circuits in holding that the time limit
contained in Rule 8002{a) is jurisdictional, and that, in the absence of a
timely notice of appeal in the district court, the district court is without
jurisdiction to consider the appeal, regardless of whether the appellant can
demonstrate “excusable neglect.”

The Court is not persuaded by appellant’s arguments, which are unsupported and devoid ofany legal
grounds, It is uncontested by appellant’s own admission, that notice from the Clerk of the Bankruptcy Court
was received by first class mail on May 15, 2006, that is, within the ten (10) day period to appeal, as provided
by Fed.R.Bankr.P, 8002(c). It is also uncontested by appellant, that the bar date to file the notice of appeal
was ten (10) days from the entry of judgment or order, that is, May 19, 2006. Notwithstanding, the appellant

chose not to comply with the mandatory and jurisdictional provisions of Rule 8002(c)(1).? The record of the

bankruptcy court is clear that (a) appellant’s Notice Of Appeal was filed late, on May 23, 2006; and (b)

a The Court reminds counsel of his duty to monitor the case docket, particularly in a case in which

counsel may wish to protest the order to be entered by the court. Mennen Company v. Gillette Company, 719 F.2d
568, 570 (2d Cir, 1983); O.P.M. Leasing Services, Inc. v. Far West Federal Savings and Loan Association, 769 F.2d
911 (2d Cir, 1985).

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appellant failed to. request an extension of time during the ten (10) day period, pursuant to
Fed.R.Bankr.P. 8002(c). Moreover, the record shows that, as of this date, the appellant never requested an
extension of time to appeal. Hence, this Court lacks jurisdiction to entertain in the instant appeal, as an
untimely notice of appeal deprives the district court of jurisdiction to review the bankruptcy court’s order.
Abdallah v. Donahue, 778 F.2d at 77.
Conclusion

In view of the foregoing, appellant’s Motion In Compliance With Order To Show Cause And Request
The Appeal Not Be Dismissed (Docket No. 4), is hereby denied, and the appeal is dismissed with prejudice
for lack of jurisdiction. Judgment will be entered accordingly.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 28th day of February, 2007.

s/Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE

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United States District Court
District of Puerto Rico

Notice of Electronic Filing

The following transaction was received from jam, entered on. 2/28/2007 at
7:46 PM AST and filed on 2/28/2007

Case Name: Olympic Mortgage Bankers Corp. v. Zerbe
Case Number: 3:06-cv-1534

Filer:

Document Number: 6

Docket Text:

JUDGMENT. See the Judgment for further details. IT IS SO ORDERED,
ADJUDGED AND DECREED. THIS CASE IS NOW CLOSED F OR ALL
ADMINISTRATIVE AND STATISTICAL PURPOSES. Signed by Judge
Daniel R. Dominguez on 2/28/2007. (jam)

The following document(s) are associated with this transaction:

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