Olslund v. Bellinger

Filing 11

MEMORANDUM ORDER affirming the Bankruptcy Court's Order Overriding Objection of the Debtor to Trustee's Notice of Intent to Sell Estate's Interests in Certain Real Property Dated August 26, 2011, in Case No. 11-12646-JS (DC 41); granting 4 Motion of Appellee to Dismiss Appeal; directing Clerk to close this case. Signed by Judge Richard D. Bennett on 1/25/2012. (c/m 1/25/2012; bf2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID P. OLSLUND, SR.

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Appellant,

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v.

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Civil No. RDB-11-2800

JOSEPH J. BELLINGER, et al.

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Bankruptcy No. 11-12646

Appellee.
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MEMORANDUM ORDER

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Presently pending before this Court is the Appellee’s Motion to Dismiss Appeal (ECF#4)
on the grounds that the Pro Se Appellant failed to timely file the Notice of Appeal of an Order of
the United States Bankruptcy Court for this District, and failed to timely file the designation of
record and issues upon appeal.
BACKGROUND
The Appellant David P. Olslund, Sr., a licensed attorney, filed a Pro Se Petition for Relief
under Chapter 7 of the United States Bankruptcy Code on February 11, 2011. The Appellee
Joseph J. Bellinger was appointed Trustee. At the time of the filing in bankruptcy the Appellant
and Mary Olslund owned, as tenants in common, real property in Severn, Maryland, which
constituted property of the bankruptcy estate pursuant to 11 U.S.C. §541(a). The Trustee
ultimately filed a Notice of Intent to Sell that interest in property to Mary Olslund for $10,000.
The Appellant filed an objection to the proposed sale and the Bankruptcy Court held a hearing on
the proposed sale and Appellant’s objection on August 12, 2011. The Bankruptcy Court
overruled the objection to sale at the conclusion of the hearing. On August 26, 2011 the Court
entered an order overruling objection of the Appellant to Trustee’s Notice of Intent to Sell the

interest in the subject property. On August 31, 2011 the Trustee delivered the deed to the buyer
Mary Olslund.
On September 13, 2011, 18 days following the entry of the order, the Appellant filed a
Notice of Appeal with the Bankruptcy Court. The Appellant did not seek a Stay Pending Appeal
as required by Rule 8005 of the Bankruptcy Rules. Then, 33 days after filing the notice of
appeal, the Appellant filed the Designation of the Record and Statement of Issues, with the
Bankruptcy Court.
STANDARD OF REVIEW
This appeal is brought pursuant to Rule 8001 of the Federal Rules of Bankruptcy
Procedure. On appeal from the Bankruptcy Court, this Court acts as an appellate court and
reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo.
In re Merry-Go-Round Enterprises, Inc., 400 F.3d 219, 224 (4th Cir. 2005); In re Kielisch, 258
F.3d 315, 319 (4th Cir. 2001). A factual finding is clearly erroneous “when although there is
evidence to support it, the reviewing court on the entire evidence is left with a firm and definite
conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948).
ANALYSIS
The Appellant clearly did not timely file a Notice of Appeal. Rule 8002(a) of Federal
Rules of Bankruptcy Procedure states that such a notice must be filed within 14 days of the entry
of the order being appealed. This is a jurisdictional requirement. Failure to comply with this
requirement results in the dismissal of an appeal. See Ballard v. Tamojira, Inc., 106 F.3d 389
(4th Cir. 1997). This Court has consistently enforced this rule. See Hallock v. Key Federal

Savings Bank, 169 B.R. 349 (D. Md. 1994). Quite simply, the Appellant was required to file
notice of appeal by September 9, 2011 and did not do so until September 13, 2011.
Furthermore, the Appellant did not timely file the Designation of Record and Issues on
Appeal. Pursuant to Rule 8006 of the Federal Rules of Bankruptcy Procedure, Appellant was
required to file this designation within 14 days of the filing of the Notice of Appeal, i.e. by
September 27, 2011. In fact, the designation was not filed until October 17, 2011.
In addition, as a result of the Appellant’s failure to obtain a stay from the Bankruptcy
Court, that Court authorized the transfer of the deed of subject property pursuant to the $10,000
sale. Accordingly, this appeal is MOOT pursuant to 11 U.S.C.§363(m). See Barker v. Stearns,
181 F.3d 86 (4th Cir. 1999).
Accordingly, IT IS HEREBY ORDERED this 25th day of January, 2012, that the
Bankruptcy Court’s Order Overriding Objection of the Debtor to Trustee’s Notice of Intent to
Sell Estate’s Interests in Certain Real Property Dated August 26, 2011, in Case No. 11-12646-JS
(DC 41) is AFFIRMED;
IT IS FURTHER HEREBY ORDERED that the Motion to Dismiss Appeal (ECF#4) is
GRANTED;
AND IT IS FURTHER ORDERED that the Clerk of the Court CLOSE THIS CASE.

/s/
Richard D. Bennett
United States District Judge