Anderson, Thomas v. Bayview Loan Servicing LLC

Filing 9

ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction; denying as moot 5 Motion for Extension of Time. The clerk of court is directed to close this case. Signed by District Judge James D. Peterson on 3/20/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THOMAS LEE ANDERSON,
Counter Plaintiff,
v.
BAYVIEW LOAN SERVICING LLC,

OPINION & ORDER
17-cv-119-jdp

Counter Defendant.
Thomas Lee Anderson (pro se) filed a “notice of removal” seeking to remove his
bankruptcy case to this court—or rather, to appeal an order from that proceeding in this
court. Defendant Bayview Loan Servicing, LLC moves to strike the notice of removal and
dismiss the appeal. Dkt. 8. Because the court lacks jurisdiction over this matter, I will grant
Bayview’s motion and dismiss the case.

BACKGROUND
Anderson has been fighting the foreclosure and sale of his Eau Claire home in
Wisconsin state and federal courts for more than four years. He has brought several cases
before both this court and the United States Bankruptcy Court for the Western District of
Wisconsin, as summarized in a recent decision affirming the bankruptcy court’s dismissal of
his case and denying his request for injunctive relief. Anderson v. Bayview Loan Servicing, LLC
and U.S. Trustee, 16-cv-249-jdp (W.D. Wis. Jan. 23, 2017).
On December 6, 2016, Anderson filed a new voluntary Chapter 13 petition for relief
in the bankruptcy court. In re Thomas Lee Anderson, No. 16-14048-cjf (Bankr. W.D. Wis.).
Soon after, Bayview moved for relief from the automatic stay in that proceeding, which the

bankruptcy court granted in an order dated January 18, 2017. Anderson filed a motion for
reconsideration of that decision, which the bankruptcy court denied on January 30, 2017.
Then, on February 15, 2017, Anderson filed a “notice of removal” in this court. Dkt. 1. The
following day, he filed both a notice of removal and a notice of appeal in the bankruptcy
court. A week later, Anderson refiled in this court the same “notice of removal” document—
this time calling it a “notice of appeal/notice of removal”—and attached the bankruptcy court
docket sheet and the January 18 order from which he is seeking relief. Dkt. 4.
The following day, Anderson’s wife, Barbara Ellen Anderson—who has not made an
appearance in this case—filed a notice and motion for extension of time to file necessary
documents on behalf of her husband’s claim. Bayview then moved to strike the notice of
removal and dismiss the appeal for lack of jurisdiction.

ANALYSIS
Anderson ostensibly seeks to “remove” his case from the bankruptcy court to this
court, citing as authority 28 U.S.C. §§ 1334 and 1452 and Federal Rule of Bankruptcy
Procedure 9027. He misunderstands the removal mechanism under federal law. Section 1334
provides for original jurisdiction of bankruptcy proceedings in federal district courts. Section
1452 provides for the removal of claims related to bankruptcy cases from state courts to
federal courts. See 28 U.S.C. §§ 1441-1455 (Title 28, Chapter 89 captioned “District Courts;
Removal of Cases from State Courts”). Rule 9027 expressly recognizes that cases removed to
a federal district court may be referred to a bankruptcy judge of that district; it includes no
provision for removal from the bankruptcy court. Fed. R. Bankr. P. 9027(a), (c), and (e).

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The Bankruptcy Court for the Western District of Wisconsin is a part of this federal
district court, and this court may refer bankruptcy cases to the bankruptcy judges of this
district. Id.; 28 U.S.C. § 157(a). Here, specifically, the bankruptcy court was the appropriate
venue for Bayview’s motion for relief from the automatic stay. See 28 U.S.C. § 157(b)(2)(G).
Moreover, Anderson is the one who filed his petition in the bankruptcy court. Neither
Bankruptcy Rule 9027 nor any other provision cited by Anderson allows him to remove a
case from the bankruptcy court—where his case could have properly been referred even had
he not filed suit there—to the district court of which it is a part.
What Anderson likely really meant to do was to appeal the bankruptcy court’s order
granting Bayview’s motion for relief. But even if I interpret his filing as an appeal, it still fails.
Bankruptcy Rule 8002 requires 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). Anderson filed a notice of appeal with the bankruptcy court on
February 16, 2017. The bankruptcy court order that Anderson is seeking to appeal was issued
almost a month earlier, on January 18, 2017. Even if I assume generously that Anderson
really meant to appeal the denial of his motion for reconsideration of that order, that denial
was issued on January 30, still more than 14 days before he filed his notice of appeal. The
Seventh Circuit has recently made clear that “the 14-day time limit to file notice of appeal of
the bankruptcy court’s judgment or order is jurisdictional.” In re Sobczak–Slomczewski, 826
F.3d 429, 432 (7th Cir. 2016), cert. denied, No. 16-7507, 2017 WL 670636 (U.S. Feb. 21,
2017). Thus, because Anderson missed his deadline, this court is without jurisdiction to hear
his appeal and this case must be dismissed.

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Barbara Anderson’s motion for extension of time, filed February 24, does not change
my analysis. In it, she indicated that Thomas Anderson had been sick for two weeks and
remained in the hospital awaiting heart surgery, so he had been unable to attend to his case.
That does not explain why he was unable to timely file a notice of appeal within 14 days of
the bankruptcy court’s January 18 order (or its subsequent January 30 order denying
reconsideration). In any event, such unfortunate circumstances do not affect the court’s lack
of jurisdiction to hear Anderson’s appeal. The Bankruptcy Rules give the bankruptcy court the
authority to extend the appeal deadline in certain circumstances, but not when the order
appealed from grants relief from an automatic stay under §§ 362 or 1301 of the Bankruptcy
Code, as was the case here. Fed. R. Bankr. P. 8002(d); Dkt. 4-1, at 2. And regardless, I have
no authority to extend the deadline. Sobczak–Slomczewski, 826 F.3d at 432 (explaining that a
district court cannot extend the appeal deadline because “there are no equitable exceptions to
a jurisdictional requirement”) (citing Bowles v. Russell, 551 U.S. 205, 213 (2007)). As I have
no choice but to dismiss this case, the motion for extension of time is moot.

ORDER
IT IS ORDERED that:
1. Bayview Loan Servicing, LLC’s motion to dismiss for lack of jurisdiction, Dkt. 8, is
GRANTED.
2. Barbara Ellen Anderson’s motion for extension of time, Dkt. 5, is DENIED as
moot.

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3. The clerk of court is directed to close this case.
Entered March 20, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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