In re: North Cascade Trustee Services Inc
Filing
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ORDER granting Appellee's 9 Motion to Dismiss. Ms. Leung's appeal is DISMISSED with prejudice. Signed by Judge James L. Robart. (LH)
Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 1 of 6
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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In re:
CASE NO. C21-1362JLR
NORTH CASCADE TRUSTEE SERVICES,
INC.,
Debtor.
Bankruptcy No. 18-11375-TWD
JENNIFER LEUNG,
Appellant,
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v.
NANCY L. JAMES,
Appellee.
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ORDER DISMISSING APPEAL
FOR LACK OF JURISDICTION
I.
INTRODUCTION
Before the court is Trustee / Appellee Nancy L. James’s (“the Trustee”) motion to
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dismiss Appellant Jennifer Leung’s appeal for lack of jurisdiction. (Mot. (Dkt. # 9).)
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The Trustee asserts that the court lacks jurisdiction over this appeal because Ms. Leung
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failed to timely file a notice of appeal. (See id. at 1.) After the Trustee filed her motion,
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Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 2 of 6
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Ms. Leung made three filings on the court’s docket: a document titled “Designation of
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Record & Statement of Issues” (Designation (Dkt. # 11)); a document titled
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“OBJECTION to Consolidation of Matters” (Cons. Obj. (Dkt. # 12); and a set of
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documents that address various federal and Ninth Circuit rules of appellate procedure
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(Appeal Obj. (Dkt. # 13)). The court liberally construes these three documents together
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as constituting Ms. Leung’s response to the Trustee’s motion. The court has considered
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the motion, the parties’ submissions in support of and in opposition to the motion, the
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relevant portions of the record in this court and in the bankruptcy court, and the
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applicable law. Being fully advised, the court GRANTS the Trustee’s motion to dismiss.
II.
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BACKGROUND
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On April 2, 2018, Debtor North Cascade Trustee Services (“Debtor”) filed a
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voluntary petition for relief under chapter 7 of the Bankruptcy Code. (Pet. (Bankr. Dkt. 1
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# 1).) On August 14, 2018, Ms. Leung filed Claim No. 4 in that bankruptcy case,
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asserting a secured claim against the Debtor in the sum of $1,620,975.26 based on a
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variety of theories. (See Obj. to Claim 4 (Bankr. Dkt. # 157) at 3.) On June 23, 2021, the
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Trustee filed an objection to Ms. Leung’s claim. (See id.) On July 23, 2021, after the
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Trustee and Ms. Leung briefed the Trustee’s objection, the bankruptcy court heard oral
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argument. (See Order Sustaining Objection (Bankr. Dkt. # 175).) The bankruptcy court
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sustained the Trustee’s objection and disallowed Ms. Leung’s claim. (See id.)
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The court uses the shorthand “Bankr. Dkt” to refer to entries on the docket of the
underlying bankruptcy case, In re Northwest Cascade Trustee Services, Inc., No. 18-11375TWD (Bankr. W.D. Wash.).
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On August 3, 2021, Ms. Leung filed a motion for “Reconsideration of the
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Erroneous Presumptive Ruling by an [sic] Legislative Non-judicial Empowered Judicial
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Official.” (Mot. to Reconsider (Bankr. Dkt. # 176).) The bankruptcy court construed
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Ms. Leung’s filing as a motion for reconsideration of the order sustaining the trustee’s
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objection to her claim and, on August 12, 2021, issued an order denying the motion.
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(Reconsideration Order (Bankr. Dkt. # 177).)
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On August 30, 2021, Ms. Leung filed a document in the bankruptcy court titled
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“Notice of Formal Appeal in the form of a Petition for Redress” (“Formal Appeal”). (1st
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Not. (Bankr. Dkt. # 180).) Ms. Leung’s “Formal Appeal” filing, however, did not use the
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bankruptcy court’s official notice of appeal form; state whether Ms. Leung elected to
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appeal to the bankruptcy appellate panel or to district court; or identify or attach the
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orders that she sought to appeal. (See generally id.) On October 5, 2021, Ms. Leung
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filed a notice of appeal and statement of election to have her appeal heard in district court
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using the bankruptcy court’s Form 417A. (Not. of Appeal (Bankr. Dkt. # 181).) In that
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notice, she states that she “waited over a month [after filing her “Formal Appeal”] to find
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out that [she] needed to file with Form 417A to be heard.” (Id. at 1.) Ms. Leung’s appeal
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was then transmitted to this court. (See Transmittal (Dkt. # 1).)
III.
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ANALYSIS
The Trustee moves to dismiss Ms. Leung’s appeal for lack of jurisdiction because
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she did not file it before the deadline set forth in the Federal Rules of Bankruptcy
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Procedure. (See generally Mot.) Ms. Leung does not directly address the Trustee’s
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arguments regarding the timeliness of her appeal in any of the documents she filed after
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the Trustee filed her motion. (See Designation; Cons. Obj.; Appeal Obj.) Ms. Leung
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does, however, appear to request that the court liberally construe her “Formal Appeal”
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filing as a proper notice of appeal and forgive her initial failure to use Form 417A in light
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of her pro se status. (See, e.g., Appeal Obj. at 30-31 (quoting Fed. R. App. P. 3(c)(4)
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(“An appeal must not be dismissed for informality of form or title of the notice of
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appeal . . . .”)).)
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“The district courts of the United States shall have jurisdiction to hear appeals
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from final orders, judgments, and decrees” of the bankruptcy courts. 28 U.S.C.
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§ 158(a)(1). These appeals must be taken within the time provided by Federal Rule of
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Bankruptcy Procedure 8002. 28 U.S.C. § 158(c)(2). “[A] notice of appeal must be filed
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with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree
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being appealed.” Fed. R. Bankr. P. 8002(a)(1). “The notice of appeal must: (A)
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conform substantially to the appropriate Official Form; (B) be accompanied by the
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judgment, order, or decree, or the part of it, being appealed; and (C) be accompanied by
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the prescribed fee.” Fed. R. Bankr. P. 8003(a)(3). The applicable official form is Form
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Number B 417A. See United States Courts, Services and Forms,
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http://www.uscourts.gov/forms/appellate-forms/notice-appeal-and-statement-election
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(last visited November 17, 2021). The bankruptcy court may extend the time to file a
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notice of appeal if a party files a motion to extend within 21 days after the expiration of
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the initial 14-day period and shows excusable neglect. Fed. R. Bankr. P. 8002(d)(1)(B).
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However, “the failure to file a timely notice of appeal is a jurisdictional defect barring
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appellate review.” In re Wiersma, 483 F.3d 933, 938 (9th Cir. 2007) (citation and
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quotation marks omitted). Thus, if a party seeking to appeal a bankruptcy court order to a
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district court fails to file a notice of appeal within the time prescribed by the Federal
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Rules of Bankruptcy Procedure, the district court does not have jurisdiction over the
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appeal and must dismiss it.
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Ms. Leung seeks to appeal the bankruptcy court’s August 12, 2021 order denying
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her motion for reconsideration. (See Not. of Appeal; Reconsideration Order.) To perfect
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her appeal, Ms. Leung was required to file a notice of appeal that conforms to the
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requirements of Federal Rule of Bankruptcy Procedure 8002(a)(3) within 14 days of the
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entry of that order, or by August 26, 2021. See Fed. R. Bankr. P. 8002(a)(3). Ms. Leung,
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however, did not file a conforming notice of appeal until October 5, 2021—54 days after
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the bankruptcy court issued its order, and 40 days after the time to appeal expired. (See
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Not. of Appeal.) Even if the court were to liberally construe Ms. Leung’s “Formal
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Appeal” filing as a notice of appeal, 2 Ms. Leung did not file that notice until August 30,
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2021, four days after the time to appeal expired. (See 1st Not.) Thus, it, too, was
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untimely. Finally, there is no evidence in the record that Ms. Leung filed a motion for an
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extension of time to appeal or any other motion that would extend the deadline for filing
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a notice of appeal. See Fed. R. Bankr. P. 8002(d); (see generally Bankr. Dkt.). The court
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concludes that it lacks jurisdiction to hear this matter because Ms. Leung did not file a
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timely notice of appeal. Therefore, the court GRANTS the Trustee’s motion to dismiss.
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The court declines to do so because the “Formal Appeal” filing does not conform
substantially to Form 417A, does not attach the orders to be appealed, and did not include a
filing fee or motion to proceed in forma pauperis. See Fed. R. Bankr. P. 8003(a)(3); (see 1st
Not.).
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IV.
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CONCLUSION
For the foregoing reasons, the court GRANTS the Trustee’s motion to dismiss Ms.
Leung’s appeal (Dkt. # 9). Ms. Leung’s appeal is DISMISSED with prejudice.
Dated this 22nd day of November, 2021.
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A
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JAMES L. ROBART
United States District Judge
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