Opinion
No. 04 C 3006.
December 13, 2004
MEMORANDUM OPINION AND ORDER
I have before me a motion to dismiss this appeal for late filing of the notice of appeal. The response of the pro se Appellant is itself late, and he asks for leave to file it instanter.
The Appellant is right on the question of timely appeal. The order from which he appealed was made in his presence and signed the day it was made. The Appellant filed his notice of appeal too late if the order date started the clock ticking. But, the rule starts the clock when the order is entered, which was one day after it was singed, making Appellant's notice of appeal timely.
A more fundamental problem is that the appeal appears to be frivolous. What is appealed from is a second denial of an attempt to reverse an order lifting of the automatic stay. The stay was lifted to allow a mortgage foreclosure to proceed. Appellant has included the transcript of the argument made before Judge Wedoff whose ruling is challenged here. The only argument Appellant has made is that he wanted to convert his Chapter 7 proceeding into a Chapter 11 or 13 proceeding. Had he done so, the trustee would be selling the house instead of the Sheriff or the Special Commissioner. But, as Judge Wedoff pointed out, Appellant had not converted his Chapter 7 when the first Bankruptcy Judge denied his stay. The motion before Judge Wedoff out to be as frivolous as it appears, I shall consider whether I ought to impose sanctions against Appellant.
The Appellee's Motion to Dismiss the appeal as untimely is DENIED. On its own motion, this Court directs Appellant to show cause why the appeal should not be dismissed as clearly frivolous.