Reig v. Wells Fargo Bank, N.A.

Filing 8

MEMORANDUM OPINION AND ORDER. Signed by Judge Paul W. Grimm on 6/25/2013. (kns, Deputy Clerk)(c/m 6/26/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

KATHERINE

VERONICA

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REIG,

Appellant,

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v.

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WELLS FARGO BANK, N.A.,

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Case No.: PWG-12-3518

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Appellee.

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MEMORANDUM

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OPINION AND ORDER

This Memorandum Opinion and Order addresses Appellee Wells Fargo Bank, N.A.'s
Motion to Dismiss for Lack of Jurisdiction over Bankruptcy Appeal, ECF NO.4;

pro se

Appellant Katherine Veronica Reig's Response, ECF No.6; and Appellee's Reply, ECF NO.7.
Having reviewed the filings, I find that a hearing is unnecessary in this case. See Fed. R. Bankr.
P. 8012. For the reasons stated herein, Appellee's Motion to Dismiss is GRANTED. This Order
disposes ofECF Nos. 4, 6, and 7.
Appellant is a co-debtor in a Chapter 13 bankruptcy proceeding before the United States
Bankruptcy Court for the District of Maryland, in which Jorge Eduardo Reig is the debtor.
Bankr. ECF No. 21. When the Debtor filed his Chapter 13 Voluntary Petition, most collection
actions against the Debtor and the Debtor's property were automatically stayed. See 11 U.S.c.

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362. On September 11,2012, Bank of America filed a Motion and Notice of Motion for Relief
from the Automatic Stay and Co-Debtor Stay in Bankruptcy Court. Bankr. ECF No. 21. Bank

of America sought relief from the automatic stay because the Debtor had failed to make three
monthly post-petition payments. Id. Bank of America sought to "exercise its remedies under its
Purchase Money Deed of Trust and Maryland law, including, but not limited to, foreclosure upon
the sale ofreal property located at 201 Galyn Drive, Brunswick, MD 21758 .... " Id. On October
22, 2012, the Bankruptcy Court entered its Order Granting Relief from the Automatic Stay and
Co-Debtor Stay. Bankr. ECF No. 32.
Appellant sought to appeal the Bankruptcy Court's Order by filing a Notice of Appeal on
November 8, 2012.

ECF No. 1. In its Motion to Dismiss, the Appellee contends that the

Appellant's Notice of Appeal was not timely filed.

Appellee's Mem. 3, ECF No. 4-1.

The

Appellee argues that this Court lacks jurisdiction to hear the appeal because the timely filing of a
notice of appeal is a jurisdictional

requirement, Appellee's Mem. 4, and therefore the appeal

must be dismissed.

Id. In response, the Appellant contends, inter alia, that she did not receive

any correspondence

concerning the bankruptcy proceeding prior to November 9, 2012.

Appellant's

See

Resp. 1. The Appellant argues that she was denied her "right to object to the

action .... " Id.

Additionally, the Appellant contends that any notices she received did not

allow her to make a "reasonably well-informed decision" as to whether she should object to the
proposed action.

Id. at 2. Appellee insists that Appellant was given notice of the Motion for

Relief from Automatic Stay and Co-Debtor Stay and the Bankruptcy Court's Order granting that
motion. Appellee's Reply 2.
This Court has jurisdiction to determine, as a threshold matter, whether a notice of appeal
has been timely filed, but it ultimately will lack jurisdiction to hear the appeal if the appeal was
not timely filed. AgSouth Farm Credit, ACA v. Bishop (In re Craig Lewis Bishop), 333 B.R.
746, 748 n.3 (D.S.C. 2005).

Bankruptcy Rule of Procedure 8002, "Time for Filing Notice of

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Appeal," provides that a "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."
Bankruptcy

Rule of Procedure

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

8002(a) has been "strictly construed"

and requires "strict

compliance" with its terms. AgSouth, 333 B.R. at 748 (quoting In re Hotel Syracuse, 154 B.R.
13, 15 (N.D.N.Y. 1993) (footnote omitted)).

As noted, on October 22, 2012, the Bankruptcy

Court entered an Order Granting Relief from the Automatic

Stay and Co-Debtor

Stay.

Therefore, the deadline to file a timely notice of appeal of the Bankruptcy Court's Order was
November 5, 2012.1 The Appellant's Notice of Appeal was received by the Bankruptcy Clerk's
Office on November 8, 2012. Bankr. ECF No. 35. The Appellant's Notice of Appeal in this
case was not timely filed. See Olslund v. Bellinger, Civ. No. RDB-11-2800,
at

* 1 (D.

2012 WL 246440

Md. Jan. 25, 2012) (finding, inter alia, that the pro se Appellant who was a licensed

attorney "clearly did not timely file a Notice of Appeal" because "Appellant was required to file
notice of appeal by September 9, 2011 and did not do so until September 13, 2011."); see also

1 Bankruptcy Rule of Procedure 9006(f) provides that "(w]hen there is a right or requirement to
act or undertake some proceedings within a prescribed period after service and that service is by
mail or under Rule 5(b)(2)(D), (E), or (F) F. R. Civ. P., three days are added after the prescribed
period would otherwise expire under Rule 9006(a)." However, the three day extension provided
by Bankruptcy Rule 9006(f) does not apply to the filing of a notice of appeal because the time
for filing an appeal runs from the date the order at issue was entered, not from the time of
service. See Fed. R. Bankr. P. 8002(a) ("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.") (emphasis
added); see also Parker v. N.C Agr. Fin. Auth., 341 B.R. 547, 554 (E.D. Va. 2006) (noting that
"an appeal from a bankruptcy court decision must be filed within 10 calendar days of the date of
entry of the order at issue .... ") (internal citation omitted); Arbuckle v. First Nat 'I Bank of Oxford
(In the Matter of Darrell Arbuckle, et al.), 988 F.2d 29, 31 (5th Cir. 1993) ("The time for filing a
notice of appeal from the bankruptcy court to the district court is governed by Bankruptcy Rule
8002(a). 'The notice of appeal shall be filed with the clerk of the bankruptcy court within 10 days
of the date of the entry of the judgment, order, or decree appealed from.' Id. (emphasis added).
The allegation that Debtors did not receive actual notice of the entry of the Order until three days
prior to the end of the appeal period is irrelevant. The period begins to run from the date of the
Order's entry, not from the date of its service. Id. ").

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Knarf Investments v. Reid (In re James E. Reid), No. L-02-1891,

2002 WL 34248549 at *1

(Bankr. D. Md. July 26, 2002).2
Courts in the Fourth Circuit repeatedly have held that "if a prospective appellant fails to
timely file his notice of appeal, the District Court is stripped of its jurisdiction
appeal."

to hear the

Chien, 484 B.R. at 663 (citing Smith v. Dairymen, Inc., 790 F.2d 1107, 1111 (4th Cir.

1986)); Olslund, 2012 WL 246440 at *1 ("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." (citing Ballard v. Tamojira, Inc., 106 F.3d 389 (4th Cir. 1997));
AgSouth, 333 B.R. at 748; see also Parker, 341 B.R. at 554 (citing, e.g., Stelpjlug v. Fed. Land
Bank of St. Paul, 790 F.2d 47, 49 (7th Cir. 1986)). Because the Appellant's Notice of Appeal
was not timely filed, this Court does not have jurisdiction.

2 With respect to a notice of appeal in a bankruptcy case, the Fourth Circuit follows the "mailbox
rule": the Fourth Circuit considers a notice of appeal to be "filed" when it is placed in the mail.
See Chien v. Commonw. Biotechnologies, Inc., 484 B.R. 659,663 (E.D. Va. 2012) (citing, e.g.,
Hovermale v. Pigge (In the Matter of George Beverly Pigge), 539 F.2d 369, 371 (4th Cir. 1976)).
Even under the Fourth Circuit's interpretation of the date that an appeal from a bankruptcy court .
order is considered to be "filed," the Appellant in this case would not have filed a timely appeal.
The Appellant did not provide a Certificate of Service with her notice, and there is no evidence
that would allow the Court to determine when the Notice of Appeal was "placed in the mail" or
conveyed to the Bankruptcy Clerk's Office. However, the Appellant in this case signed her
Notice of Appeal on November 6,2012, one day after November 5, 2012, the last day on which
the filing of a Notice of Appeal would be considered timely.
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For the foregoing reasons, Appellee's Motion to Dismiss must therefore be GRANTED.
A separate order will be entered.
Sincerely,
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lSI
Paul W. Grimm
United States District Judge

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