Opinion
Case No. 95-10759-SSM
February 19, 1998
Anne W. Stockvis, Alexandria, Virginia, for Debtor, pro se
MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE LATE APPEAL
Either the debtor or the clerk's office has incorrectly annotated the notice of appeal as being filed in Adversary Proceeding No. 95-1422. The order described in the notice of appeal was entered in the main case (not the adversary proceeding) in response to a motion by the debtor to avoid a storage lien held by Berry Van Lines. Adversary Proceeding No. 95-1422 was a separate "Motion for Order Enjoining Collection Activity" which was treated by the court as a complaint for an injunction and for which a separate adversary proceeding file was opened. F.R.Bankr.P. 7001. The debtor did not appear at a scheduled pretrial conference on April 23, 1996, and an order was entered on April 24, 1996, dismissing the adversary proceeding for failure to prosecute. Since the lien avoidance motion and the motion to enjoin collection activity were both captioned Anne W. Stockvis v. Berry Van Lines (In re Anne W. Stockvis), the confusion is understandable. However, all motions, notices, and orders in connection with this appeal should be filed in the main case.
Before the court is a motion filed by the debtor on January 10, 1997, to accept a late-filed appeal. With the motion, the debtor filed a notice of appeal to the United States District Court for the Eastern District of Virginia from an order of this court entered August 29, 1996, that denied the debtor's motion for reconsideration of an earlier order entered on October 6, 1995.
Under Federal Rule of Bankruptcy Procedure 8002(a), a notice of appeal from a final order of a bankruptcy judge must be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from. If the debtor files a timely motion to alter or amend the judgment under Federal Rule of Bankruptcy Procedure 9023 (which incorporates Federal Rule of Civil Procedure 59), the time for filing a notice of appeal runs from the entry of the order disposing of that motion. The time for filing a notice of appeal may be extended by the bankruptcy judge "for a period not to exceed 20 days from the expiration of the time otherwise prescribed." F.R.Bankr.P. 8002(c). If the motion is made before the expiration of the original appeal period, the motion may be granted on a showing of good cause. If it is made after the original appeal period has expired, but no more than 20 days after such period, the motion may be granted upon a showing of excusable neglect, provided the order is not one of certain specified types. There is no discretion on the part of the court, however, to enlarge the time beyond the 20-day extension allowed by Bankruptcy Rule 8002(c). F.R.Bankr.P. 9006(b)(3). The result, then, is that the court may not under any circumstances extend the time to file a notice of appeal beyond 30 days from the entry of the order sought to be appealed, nor may the court grant a motion to extend the time unless the motion itself is filed within 30 days of the order sought to be appealed. In re Mouradick, 13 F.3d 326 (9th Cir. 1994).
The original memorandum opinion and order denying the debtor's lien avoidance motion was entered on October 6, 1995. The debtor filed a motion for reconsideration on October 30, 1995. This court, by memorandum opinion and order entered August 29, 1996, treated the motion as a motion under Rule 9023; found that the debtor's failure to file the motion within the 10-day period required by Federal Rule of Civil Procedure 59(e) was due to excusable neglect and therefore treated the motion as timely; but denied the motion on the merits. The notice of appeal and the motion to file a late appeal were filed 134 days later. Under a plain reading of the Bankruptcy Rules, this court is entirely without power to grant the motion, even if the court were to find (which it does not) that the circumstances recited in the motion constituted excusable neglect.
The debtor complains that the court took ten months to rule on her motion for reconsideration. However, the debtor did not notice the motion for a hearing or otherwise bring it to the court's attention, with the result that it was simply docketed by the clerk and placed in the case file. A routine review of the case file by the clerk's office resulted in the motion being brought to the court's attention in late August, 1996, and the court's memorandum opinion and order were filed a few days later.
ORDER
For the foregoing reasons, it is ORDERED:
1. The motion to file late, which the court treats as a motion under F.R.Bankr.P. 8002(c) to enlarge the time for filing a notice of appeal, is denied.
2. The clerk shall mail a copy of this order to the debtor and to the respondent and shall forward a copy to the United States District Court for the Eastern District of Virginia as part of the record on appeal.