Filing 5

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

Download PDF
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 1 AO72A (Rev. 8/82) 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 1 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). 2 2 AO72A (Rev. 8/82) 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 3 AO72A (Rev. 8/82)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?