Opinion
No 10-CV-1684 (JFB).
August 29, 2011
Appellant is proceeding pro se.
Appellee is represented by Natalie Ann Grigg, Steven J. Baum P.C., Amherst, New York.
MEMORANDUM AND ORDER
The instant case is an appeal from the voluntary bankruptcy proceeding of debtor Henry H. Ray ("Ray" or "appellant"), under Chapter 13 of the Bankruptcy Code, in the United States Bankruptcy Court for the Eastern District of New York (the "Bankruptcy Court"). In particular, appellant pro se appeals from the Decision and Order Modifying Stay dated November 25, 2009 (the "November 25 Order") of the Honorable Alan S. Trust. In the November 25 Order, the Bankruptcy Court modified the bankruptcy stay to permit Chase Home Finance, LLC ("Chase" or "appellee") to continue with a post-foreclosure eviction against appellant. On December 11, 2009, appellant filed a Notice of Appeal (the "Notice of Appeal") of the November 25 Order. Appellee now moves to dismiss the instant appeal on the grounds that it is untimely pursuant to Rule 8002(a) of the Federal Rules of Bankruptcy Procedure. For the reasons set forth below, the Court grants appellee's motion to dismiss the appeal. Specifically, the Notice of Appeal is untimely and, thus, the Court lacks jurisdiction to consider it. In any event, even assuming arguendo that the Notice of Appeal had been filed timely, the Court concludes that the appeal fails on the merits.
Appellee also argues, inter alia, that appellant's brief was late pursuant to Rule 8009 of the Federal Rules of Bankruptcy Procedure. For the reasons stated below, the Court is not relying on that procedural defect.
As discussed infra, in addition to appellant's opposition to appellee's motion to dismiss, the Court granted appellant further opportunity to address the jurisdictional and procedural defects argued by appellee. Specifically, although appellant failed to file a brief pursuant to Rule 8009 of the Federal Rules of Bankruptcy Procedure, in an abundance of caution, the Court granted appellant an opportunity to file his appellate brief, while reserving the issue of jurisdictional and procedural defects cited by appellee. In other words, for the purposes of the Court's analysis, the Court has considered appellant's opposition to appellee's motion to dismiss, which was filed on June 15, 2010 (hereinafter "Appellant's Opp."), as well as appellant's brief (hereinafter "Appellant's Mem. of Law") and reply (hereinafter "Appellant's Reply"), which were filed on July 27, 2010 and September 30, 2010.
The Court notes that, in addition to his appeal of the November 25 Order, appellant raises several other arguments on the merits that were not raised below. As a threshold matter, there is no basis for the Court to consider these arguments being raised for the first time on appeal, as no manifest injustice will result. See Greene v. U.S., 13 F.3d 577, 586 (2d Cir. 1994); In Re Rymsbran, 177 B.R. 163, 172 (E.D.N.Y. 1995). In any event, the Court finds these additional arguments to be without merit for the reasons set forth in appellee's brief.
I. BACKGROUND A. Judgment of Foreclosure and Sale
In October 2006, Chase filed a foreclosure action in Suffolk County, New York under Index No. 06-28809, concerning real property located at 170 Burrs Lane, Dix Hills, NY 11746. ( See November 25 Order at 1-2.) Ray was a named defendant in the foreclosure action. ( Id. at 2.) A Judgment of Foreclosure and Sale was entered on October 30, 2007. ( Id.)B. Prior Bankruptcy Proceedings
Chase's efforts to conduct a foreclosure sale were stayed, in part, by Ray filing three bankruptcy cases beginning on December 17, 2007. ( Id. at 2-3.)
Ray's prior filings are summarized as follows: (1) the first case, docket no. 07-075202-dte, a Chapter 13 case, was filed on December 17, 2007 and was dismissed on January 29, 2008, (2) the second case, 08-71870-ast, a Chapter 7 case, was filed on April 16, 2008 and was dismissed on June 3, 2008 and, (3) the third case, 08-74207-ast, a Chapter 7 case, was filed on August 4, 2008 and was discharged on January 30, 2009. ( Id. at 2.)
C. The Foreclosure Sale
During the pendency of appellant's third case, a foreclosure sale was conducted on November 21, 2008, and Chase was the successful bidder. ( Id. at 3.) On August 26, 2009, appellant filed his fourth bankruptcy case. ( Id. at 2.) On September 22, 2009, Chase made a Motion for Relief from Stay to continue with a post-foreclosure eviction action against Ray. ( Id. at 1.) Ray opposed the motion arguing that Chase impermissibly foreclosed during the pendency of his third bankruptcy case filed on August 4, 2008. ( Id.) On November 25, 2009, the Bankruptcy Court modified the stay to permit Chase "to exercise its remedies with respect to the Property, including continuation of the eviction action." ( Id. at 6.) With respect to whether stay was in effect at the time of the foreclosure sale on November 21, 2008, the Bankruptcy Court determined that the foreclosure sale was not held in violation of the stay. ( Id. at 4-5.) The Bankruptcy Court found that the stay had expired thirty days after filing, on September 3, 2008, because Ray's third case was filed on August 4, 2008, less than one year later than the second case which was dismissed on June 3, 2008. ( Id.)
With respect to fourth case, the Bankruptcy Court found that, although the automatic stay was in effect when it was filed on August 26, 2009, the stay should be modified because Chase was now the owner of the property, and, thus, the property was not necessary to an effective reorganization. ( Id. at 4-5.)
The Court determined that the stay was in effect at the time of filing because the fourth case was filed more than one year after his first two cases were dismissed and, because Ray received a discharge in his third case, 11 U.S.C. § 362(c)(3) did not apply. ( Id. at 4-5.)
D. Procedural History of the Instant Action
On December 11, 2009, appellant filed a Notice of Appeal of the Bankruptcy Court's Judgment. On April 15, 2010, appellant's Notice of Appeal was filed in this Court. On April 19, 2010, the Notice of Docketing of Bankruptcy Appeal was filed. Appellant failed to file a brief within the allotted fourteen days pursuant to Rule 8009. By Order dated May 27, 2010, the Court ordered appellant to submit a letter to the Court by June 4, 2010 explaining why the instant appeal should not be dismissed for failure to comply with the Bankruptcy Rules. On May 28, 2010, appellee moved to dismiss on the grounds that the instant appeal is untimely pursuant to Rule 8002(a). With respect to the Court's May 27, 2010 Order directing appellant to explain why his appeal should not be dismissed for failure to comply with the Bankruptcy Rules, appellant replied by letter on June 3, 2010 and requested a continuance along with an application for the appointment of counsel. By Order dated June 7, 2010, the Court denied appellant's application for the appointment of counsel and directed appellant to file his brief by June 28, 2010.
On June 15, 2010, appellant filed an affidavit in response to appellee's motion to dismiss. Appellant did not address whether his appeal is timely. By letter dated June 23, 2010, appellant requested an additional thirty days to file his appellate brief. On June 25, 2010, appellee opposed appellant's request arguing that appellant cannot overcome the jurisdictional and procedural defects that exist in his appeal. By Order dated June 28, 2010, the Court, citing appellant's pro se status, granted the extension to file his brief by July 28, 2010, "while reserving on the issue of whether appellant can overcome any of the jurisdictional and procedural defects that appellee argues already exist." (ECF No. 13.)
On July 22, 2010, appellant filed an Order to Show Cause. That same day, having construed the Order to Show Cause as a request for a stay of the November 25 Order pending appeal so as to prevent his eviction from proceeding, the Court denied appellant's application. ( See Order dated July 22, 2010, ECF No. 15.) Specifically, the Court denied appellant's application because appellant "failed to demonstrate any likelihood of success on the merits in this appeal. Specifically, appellant has not demonstrated that he is likely to overcome the jurisdictional issues and procedural defects with the appeal." ( Id. at 1-2.) In addition, the Court held that, having conducted an independent review, the November 25 Order did not reveal any legal or factual errors. ( Id. at 3.)
On July 23, 2010, appellant filed a Notice of Appeal of the Court's Order. (ECF No. 16.) By mandate entered on April 27, 2011, the United States Court of Appeals for the Second Circuit deemed appellant's appeal to be in default and dismissed the appeal effective August 16, 2010. (ECF No. 29.)
On July 27, 2010, appellant filed his brief. On August 25, 2010, appellee filed its opposition. On September 30, 2010, appellant filed his reply. This matter is fully submitted and the Court has considered all submissions and arguments of the parties.
On October 20, 2010, in an application for a Temporary Restraining Order, appellant requested the Court direct appellee and the Suffolk County Sheriff's Department to discontinue eviction actions until his appeal is decided. The Court noted the factual similarity to appellant's July 22, 2011 Order to Show Cause, and, thus, to the extent appellant's application was a motion for reconsideration of the Court's July 22 Order, the Court denied appellant's application for the reasons previously stated in that Order. (ECF No. 28.)
II. DISCUSSION
At the time that the Bankruptcy Court issued the November 25 Order, the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules") required that Notices of Appeal from bankruptcy court orders be filed within ten days of the entry of the order appealed from. See Fed.R.Bankr.Proc. 8002(a) ("The notice of appeal shall be filed with the clerk within 10 days of the date of entry of the judgment, order, or decree appealed from."). Construing this provision, the Second Circuit has held:
Unless otherwise noted, all citations to Rules 8002 and 9006 of the Bankruptcy Rules, which were amended on December 1, 2009, are to the version in effect at the time of the November 25 Order.
Under former Rule 9006(a) of the Bankruptcy Rules, weekends and holidays were included in the calculation of time under the Bankruptcy Code for a period of eight days or more.
We . . . 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.Siemon v. Emigrant Savings Bank, 421 F.3d 167, 169 (2d Cir. 2005) (quotation marks omitted) (agreeing with district court's dismissal of pro se appellant's bankruptcy appeal on grounds that district court lacked jurisdiction to hear appeal because Notice of Appeal was untimely pursuant to Rule 8002(a)); see also Delafield 246 Corp. v. City of New York, No. 07-CV-6238, 2007 U.S. Dist. LEXIS 85356, at *3-*4 (S.D.N.Y. Nov. 13, 2007) (dismissing bankruptcy appeal on jurisdictional grounds where appellant filed untimely Notice of Appeal); In re Norman Schapiro, No. 06 Civ. 2685, 2006 U.S. Dist. LEXIS 56474, at *4 (S.D.N.Y. Aug. 15, 2006) (holding that pro se "Appellant's Notice of Appeal was not timely filed. Compliance with Rule 8002 is mandatory and jurisdictional."); In re Premier Operations, 290 B.R. 33, 37 (S.D.N.Y. 2003) ("failure to file a timely notice of appeal deprives the district court of jurisdiction to review the bankruptcy court's orders.") As discussed supra in footnote 8, appellant's deadline to file a Notice of Appeal included weekends and holidays because the time-period was eight days or greater. Thus, appellant's time period of ten days to file a Notice of Appeal ran from November 26, 2009 until December 5, 2009. However, because the last day of the period fell on December 5, 2009, which is a Saturday, the period ran until Monday, December 7, 2009. ( See Fed.R.Bankr.Proc. 8002(a)) (if the last day of the period falls on a weekend or holiday, the period runs until the next day that is not one of the aforementioned days). In sum, pursuant to Rule 8002(a), appellant had until December 7, 2009, to file a timely Notice of Appeal of the November 25 Order. Here, however, sixteen days elapsed between the November 25 Order and the time appellant filed his Notice of Appeal on December 11, 2009. The Notice of Appeal is, therefore, untimely and the Court lacks jurisdiction to consider it.
In its motion to dismiss, appellee computed that appellant's Notice of Appeal was due on December 9, 2009. ( See Appellee's Aff. in Support of Mot. to Dismiss at 7 (appellee incorporated its legal arguments within its affidavit in support of its motion to dismiss the appeal)). Likewise, appellee computed that appellant's Notice of Appeal was filed twelve days after the November 25 Order, on December 11, 2009. ( Id. at 6.) The Court notes that it appears that appellee mistakenly excluded weekends from its computations. ( See footnote 8.) Based on the Court's independent computations, as stated above, appellant's last day to file his Notice of Appeal was December 7, 2009, and the date it was actually filed, December 11, 2009, is sixteen days from the November 25 Order. In any event, for the reasons stated herein, appellant's Notice of Appeal is untimely because it was filed more than ten days after the date of entry of the November 25 Order.
As indicated supra, Bankruptcy Rules 8002 and 9006 were amended on December 1, 2009. Rule 8002(a), as amended, provides that the notice of appeal shall be filed with the clerk within 14 days of the date of the entry of the judgment, order, or decree appealed from, and this time-period includes weekends and holidays pursuant to amended Rule 9006(a)(1)(B). Here, as noted above, appellant's Notice of Appeal was filed on December 11, 2009. Thus, appellant's Notice of Appeal was filed sixteen days, including weekends and holidays, after the November 25 Order, and, accordingly, would be untimely under Rule 8002(a) in its current form as well.
The Court is aware that Rule 8002 permits the bankruptcy judge to extend the time for filing a notice of appeal under certain circumstances — namely, "[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." Fed.R.Bankr.P. 8002(c)(2) Here, appellant failed to file any request for an extension to submit his Notice of Appeal, timely or otherwise.
III. CONCLUSION
For the foregoing reasons, appellee's motion to dismiss this appeal is granted.The Clerk of the Court shall close the case.
SO ORDERED.