Garrett v. JPMORGAN CHASE BANK et al

Filing 11

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/27/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LUNDES GARRETT,

:

Appellant,

: CIVIL ACTION NO. 3:17-0352

v.

:

(JUDGE MANNION)

JPMORGAN CHASE BANK, et al., :
Appellees.

:
MEMORANDUM

Currently before the court are several motions to quash filed in
response to appellant Lundes Garrett’s pro se bankruptcy appeal, (Doc. 1).
These motions were filed by the following appellees: Duane Morris LLP and
Brett L. Messinger (collectively, the “Duane appellees”), (Doc. 3); Kristine M.
Anthou, Elizabeth M. Cagnon, and Grenen & Birsic PC (collectively, the
“Grenen appellees”), (Doc. 4); JPMorgan Chase Bank (“JPMorgan”), (Doc.
5); and PennyMac Loan Services, LLC (“Pennymac”), (Doc. 6). In addition,
before the court are duplicate motions filed by the Grenen appellees, (Doc.
7), and Pennymac, (Doc. 9). Based on the foregoing, the appellees’ original
motions, (Docs. 3–6), will be GRANTED and appellant Lundes Garrett’s pro
se bankruptcy appeal, (Doc. 1), will be dismissed as the court lacks subjectmatter jurisdiction over his appeal. The Grenen appellees’ and Pennymac’s
duplicate motions, (Docs. 7, 9), will be dismissed as moot.
On February 24, 2017, Mr. Garrett, proceeding pro se, filed a notice of
appeal with the Clerk of Court for the United States Bankruptcy Court in the
Middle District of Pennsylvania. (See Doc. 1 at 1). Mr. Garrett’s notice of

appeal was docketed in this court on February 27, 2017. (Id.). Mr. Garrett
sought to appeal the February 6, 2017 order of the bankruptcy court
dismissing his adversary complaint arising out of his underlying Chapter 7
bankruptcy proceeding.1 On March 6, 2017, the Duane appellees filed one
of the current motions seeking to quash Mr. Garrett’s appeal. (Doc. 3). The
Duane appellees’ motion was followed by identical motions from the Grenen
appellees on March 7, 2017, (Doc. 4), from JPMorgan on March 9, 2017,
(Doc. 5), and from Pennymac on March 13, 2017, (Doc. 6). On March 31,
2017, the Grenen appellees filed an identical motion to quash, with a brief in
support. (Docs. 7–8). On April 10, 2017, JPMorgan also filed an identical
motion to quash with a brief in support. (Docs. 9–10).
The appellees seek dismissal of Mr. Garrett’s appeal based on the
untimeliness of his notice of appeal and his failure to follow the timelines set
forth in Federal Rule of Bankruptcy Procedure 8002. The appellees allege
that this failure deprives the court of subject-matter jurisdiction over Mr.
Garrett’s appeal. Mr. Garrett has not responded to any of the filings
submitted by the appellees2 and the motions are now ripe for review. See
FED. R. BANKR. P. 8013(a)(3).
1

Mr. Garrett’s Chapter 7 bankruptcy action is docketed under case
number 5:16-bk-01783-JJT and his adversary complaint is docketed under
adversary number 5:16-ap-00120-JJT.
2

In addition, Mr. Garrett has not yet filed his designation of the items
to be included in the record on appeal and his statement of the issues to be
present pursuant to Federal Rule of Bankruptcy Procedure 8009.
2

The court agrees with the appellees that Mr. Garrett’s notice of appeal
is untimely, leaving this court without subject-matter jurisdiction over his
appeal. District Courts have jurisdiction over final judgments, orders, and
decrees of a bankruptcy court. 28 U.S.C. §158(a)(1). In order to obtain
jurisdiction, however, Rule 8002 provides that “a notice of appeal must be
filed with the bankruptcy clerk within 14 days after entry of the judgment,
order, or decree being appealed.” FED. R. BANKR. P. 8002(a)(1). This rule is
strictly construed. Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d
Cir. 1997). The fourteen day requirement is mandatory and jurisdictional; it
cannot be waived. In re Caterbone, 640 F.3d 108, 110, 112 (3d Cir. 2011).
“The failure to file a timely notice of appeal creates a jurisdictional defect
barring appellate review.” Shareholders, 109 F.3d at 879.
The court can extend the Rule 8002 deadline in two circumstances: (1)
where the appellant requests an extension before the deadline or (2) where
the appellant requests an extension within twenty-one days after the deadline
upon a showing of “excusable neglect.” FED. R. BANKR. P. 8002(d). The court
cannot make a finding of excusable neglect after the twenty-one day timeline
set forth in the rule has passed. In re Caterbone, 640 F.3d at 113–114;
Shareholders, 109 F.3d 879. Thus, failure to meet deadlines will be fatal to
an appellant’s bankruptcy appeal.
Here, Mr. Garrett’s failure to follow the timelines set forth in Rule 8002
is fatal to his appeal. The bankruptcy court entered its order dismissing Mr.
Garrett’s adversary complaint on February 6, 2017. In accordance with Rule
3

8002, the deadline for Mr. Garrett’s notice of appeal was February 20, 2017.
Mr. Garrett filed his notice of appeal with the bankruptcy clerk on February
24, 2017, eighteen days after the entry of the bankruptcy court’s order. Mr.
Garrett did not request an extension of the appeal deadline before February
20, 2017. See FED. R. BANKR. P. 8002(d)(1)(A). Nor did he request an
extension within twenty-one days after the February 20, 2017 deadline,
alleging excusable neglect. See FED. R. BANKR. P. 8002(d)(1)(B). Mr. Garrett
had until March 13, 2017 to make such a request. Thus, it is clear at this
stage that Mr. Garrett’s appeal is untimely and that this court is without
subject-matter jurisdiction over his appeal. Accordingly, the appellees’
original motions, (Docs. 3–6), will be granted and Mr. Garrett’s bankruptcy
appeal, (Doc. 1), will be dismissed. The Grenen appellees’ and JPMorgan’s
duplicate motions, (Docs. 7, 9), will be dismissed as moot. An appropriate
order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: April 27, 2017
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