Filing 5

ORDER granting 3 Motion to Dismiss. Signed by Honorable Robert T. Dawson on December 21, 2009. (lw)

I N THE UNITED STATES DISTRICT COURT W ES T E R N DISTRICT OF ARKANSAS F O R T SMITH DIVISION

IN RE: RONALD BELILES and SANDRA BELILES

CASE NO.: 2:09-cv-2115-RTD

On Appeal from United States Bankruptcy Court, Western District of Arkansas, Case No.: 2:08-bk-73231 ORDER
B y order dated August 12, 2009, the United States Bankruptcy C o u r t for the Western District of Arkansas set aside the Discharge o f the Petitioners/Debtors (Doc. 1-3) due to the debtors' failure t o comply with the court's order to file an Amended Exemption Schedule. On September 18, 2009, Petitioners appealed that order On November 6, 2009, the Trustee, R. Ray Fulmer, For

t o this Court.

I I , filed a motion to dismiss the appeal as untimely. (Doc. 3) t h e reasons reflected herein, the motion is GRANTED.

O n August 15, 2008, Petitioners filed a Chapter 7 Bankruptcy P e t i t i o n , case number 2:08-bk-73231, with the Bankruptcy Court for t h e Western District of Arkansas. On September 5, 2008, the

T r u s t e e filed objections to the bankruptcy petition's exemptions. On November 5, 2008, an order sustaining those objections was e n t e r e d by the bankruptcy court, and Petitioners were ordered to a m e n d their claimed exemptions. On November 13, 2008, a discharge

w a s granted to the Petitioners under Chapter 7 of the Bankruptcy Code. On July 20, 2009, the Trustee requested a revocation of the

d i s c h a r g e based on 11 U.S.C.A. § 727(e)(2), because the Petitioners

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f a i l e d to comply with the court's order to amend their claimed exemptions. On August 11, 2009, a hearing was held, and on August

1 2 , 2009, an order was issued granting the Motion to Vacate and Set A s i d e the Discharge. (Doc. 3-1). On August 31, 2009, Petitioners

f i l e d their Notice of Appeal with the United States Bankruptcy C o u r t for the Western District of Arkansas. (Doc. 3-1)

P e t i t i o n e r s filed their appeal with this Court on September 1 8 , 2009. An appeal from a bankruptcy court's order to a district

c o u r t shall be taken by filing a notice of appeal within ten days o f the filing of that order.

Fed. R. Bankr.P. 8001(a) & 8002(a)

(2009).1

The Trustee alleges that the Notice of Appeal was not

f i l e d within ten days of the date of entry of the dismissal as r e q u i r e d by Fed. R. Bankr.P. 8002. Under the time computation for

t h e rule, the ten day time period would have expired on August 26, 2 0 0 92 . By failing to appeal within the statutory time period, the d i s t r i c t court lacks subject matter jurisdiction to review the b a n k r u p t c y court's order. see Veltman v. Whetzal, 93 F.3d 517, 521

( 8 t h Cir. 1996); In re McMullan, 198 F.3d 250, 250 (8th Cir. 1999). Petitioners' failure to comply with the time period to file t h e i r notice of appeal results in the dismissal of their case u n l e s s an exception to the ten day period applies. Bankruptcy Rule

8 0 0 2 allows for a demonstration of excusable neglect for the late

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F e d . R. Bankr.P. 8002 was amended in 2009, and implemented a change of all 10 day periods to 14 days beginning D e c e m b e r 1, 2009. F e d . R. Bankr.P. 9006 (2009).

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a p p e a l . Fed. R. Bankr.P. 8002(c)

Excusable neglect may be found

w h e r e a party did not learn of a judgment, or in extraordinary c a s e s where injustice would otherwise result, but not when delay i s caused by an attorney's oversight or schedule. Jacobson v. N i e l s e n , 932 F.2d 1272, 1272 (8th Cir. 1991). As Petitioners have

n o t responded to the Trustee's motion, the Court cannot find e x c u s a b l e neglect for failing to timely appeal the Bankruptcy C o u r t ' s order. The notice of appeal (Doc. 1) was filed untimely

w i t h the court clerk, and therefore, this Court does not have j u r i s d i c t i o n over the appeal. Because the Petitioners failed to file their notice of appeal w i t h i n the statutory time period and have failed to respond to the T r u s t e e ' s motion in a timely manner, the Court must dismiss the action. The Court, being well advised, and Petitioners having

f i l e d no response, finds the Motion should be GRANTED. I T IS SO ORDERED this 21st day of December, 2009.

/s/ Robert T. Dawson Honorable Robert T. Dawson U n i t e d States District Judge

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