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In re Reilly

filed*fn*: December 24, 1992.

IN RE: DON BYRON REILLY; MARY LOU REILLY, DEBTORS. DON BYRON REILLY; MARY LOU REILLY, APPELLANTS,
v.
BRUCE HUSSEY, APPELLEE.



Appeal from the Ninth Circuit Bankruptcy Appellate Panel. BAP No. MT-91-2116-OJP. Elizabeth L. Perris, Robert C. Jones and Lawrence Ollason, Judges, Presiding

Before: Tang, Noonan, and T. G. Nelson, Circuit Judges.

MEMORANDUM

Don Byron Reilly and Mary Lou Reilly appeal pro se the Bankruptcy Appellate Panel's (BAP) order dismissing their appeal from a bankruptcy court order as untimely. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We affirm.

The bankruptcy court's order discharging the Reillys as debtors, dated October 4, 1991, was entered on the docket on October 10, 1991. On October 21, 1991, the Reillys filed a motion for reconsideration. This motion was timely under Bankr. R. 9023 because the motion was served on October 15, 1991, or within ten days after entry of the bankruptcy court's order.*fn1

On October 16, 1991, the Reillys filed a notice of appeal from the bankruptcy court's October 10 order. This notice of appeal had no effect because the bankruptcy court had not yet disposed of the Reillys' motion for reconsideration. See Bankr. R. 8002(b); Miyao v. Kuntz (In re Sweet Transfer & Storage, Inc.), 896 F.2d 1189, 1191 (9th Cir. 1990).

The bankruptcy court denied the Reillys' motion for reconsideration on January 21, 1992. The Reillys were required to file a new notice of appeal within ten days after entry of that order. See Bankr. R. 8002(b); Miyao, 896 F.2d at 1191. Because the Reillys failed to do so, the BAP lacked jurisdiction over their appeal. See Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir. 1990) ("the untimely filing of a notice of appeal is jurisdictional"). Therefore, the BAP did not err by dismissing the Reillys' appeal.

AFFIRMED.*fn2

Disposition

AFFIRME ...


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