Opinion
No. 78 B 175
March 3, 1980
Former Bankruptcy Act — Bankruptcy Rules — Time for Filing Notice of Appeal — Late Filing.
A party's failure to file a notice of appeal within the requisite time under the Bankruptcy Rule or within such extended time as the court may allow is a jurisdictional defect. Thus, even though the creditors were allegedly prevented from meeting the deadline under Rule 802(a) of the Bankruptcy Act, the court had no discretion but to dismiss the appeal since the appeal was filed 20 days late and there was no showing that the filing was made as soon as was reasonably possible after the event. See Rule 802 at ¶ 20,302 and Rule 803 at ¶ 20,303.
[Digest of Opinion]
The sole issue presented by the instant motion was whether the notice of appeal was filed in a timely fashion.
The creditors, who had filed a joint claim in the Bankruptcy Court for payment of services rendered in connection with their organizing a construction program for the debtor, were appealing an order of the bankruptcy court issued on December 5, 1979. The debtor contended that application of the governing statutory provisions and rules required dismissal of the appeal.
The court first found, that the notice of appeal was filed on January 3, 1980, nearly thirty days after the entry of the bankruptcy Judge's order and beyond the expiration of the ten-day period required in Rule 801(a) of the Bankruptcy Rules. Further, no request to extend the time for filing the notice of appeal in accordance with Rule 802(c) was filed either within or after the ten-day period.
Hence, the creditors further argued "that tardiness is not jurisdictional, and this court has the jurisdiction to, and must retain the appeal." The court found, however, that the discretion to retain jurisdiction despite an untimely notice of appeal as was exercised in two cases cited by the creditor did not survive the 1960 amendment to Section 39(c) of the Bankruptcy Act. Thus, the govering statute and rules, the court said, were mandatory in operation.
The creditors cited, In re Mutual Leasing Corp., 424 F.2d 999 (5th Cir. 1970) where the court held that Section 39(c) does not preclude the tolling of the time limitation if the party is in fact prevented from complying by circumstances completely beyond his control. However, the court found that even had the creditors been prevented from meeting the deadline, as they contended, they did not make a filing "as soon as was reasonably possible after the event." Therefore, the court concluded that the notice of appeal was untimely and that consequently this court had no jurisdiction to entertain the appeal.