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In re Wilkins

United States Bankruptcy Appellate Panel of the Ninth Circuit

June 28, 2018

In re: YAVAUGHNIE RENEE WILKINS, Debtor.
v.
JOHN J. MENCHACA, Chapter 7 Trustee; SCHREIBER FAMILY TRUST dated March 22, 1989, Appellees. YAVAUGHNIE RENEE WILKINS, Appellant,

          Argued and Submitted on May 24, 2018 at Pasadena, California

          Appeal from the United States Bankruptcy Court for the Central District of California Honorable Sandra R. Klein, Bankruptcy Judge, Presiding

          Andrew M. Wyatt of Wyatt Law argued for appellant Yavaughnie Renee Wilkins.

          William J. Wall argued for appellee Schreiber Family Trust.

          Before: KURTZ, LAFFERTY, and SPRAKER, Bankruptcy Judges.

          OPINION

          KURTZ, Bankruptcy Judge.

         I. PROCEDURAL HISTORY

         In these related appeals, chapter 7[1] debtor Ms. Yavaughnie Wilkins appeals from the bankruptcy court's (1) Order Granting Trustee's Motion For Conversion To Chapter 7 (Conversion Order) and from the portion of the Order Denying Ms. Wilkins' Motion for Reconsideration related to the Conversion Order (BAP No. CC-17-1335); (2) Order Granting Trustee's Motion to Sell Real Estate (Sale Order) and from the portion of the Order Denying Ms. Wilkins' Motion For Reconsideration related to Sale Order (BAP No. CC-17-1337); and (3) Order Granting Turnover Order and Writ of Possession (BAP No. CC-17-1346).

         Ms. Wilkins filed a single notice of appeal which was untimely filed as to all of the above-referenced orders. The BAP Clerk's office issued a notice of deficiency requesting the parties to explain why these appeals should not be dismissed. Ms. Wilkins' counsel responded by requesting an extension of time to appeal under Rule 8002(d)(1)(B), claiming excusable neglect. Appellee, John J. Menchaca, the chapter 7 trustee, maintained that the standards for excusable neglect were not met and therefore the appeals should be dismissed. Appellee, Schreiber Family Trust (SFT), [2] responded similarly and also contended that counsel's request for an extension of time to appeal was untimely under Rule 8002(d)(1)(B). Therefore, the Panel was required to dismiss the appeals for lack of jurisdiction. SFT subsequently filed a motion to dismiss these appeals on these same grounds.

         In light of the Supreme Court's decision in Hamer v. Neighborhood Housing Services of Chicago, 138 S.Ct. 13 (2017), the Panel sua sponte requested further briefing on whether the 14-day time deadline for filing an appeal from a bankruptcy court's decision was jurisdictional, thereby requiring dismissal of these appeals, or whether the time deadline was a mandatory claim-processing rule subject to waiver or forfeiture.

         Having reviewed the briefs from Ms. Wilkins and SFT and considered the oral arguments of counsel, we conclude that the 14-day time deadline in Rule 8002(a) remains a mandatory and jurisdictional requirement in this court as the Ninth Circuit has held for decades. Accordingly, we dismiss these three appeals for lack of jurisdiction.

         II. JURISDICTION

         We have jurisdiction to determine our own jurisdiction and consider the issue de novo. Gugliuzza v. Fed. Trade Comm'n (In re Gugliuzza, 852 F.3d 884, 889 (9th Cir. 2017). The Panel's first consideration on appeal is our jurisdiction. Id.

         III. DISCUSSION

         A. Time Deadline For Appeal: The Jurisdictional/Claim-Processing Rule Dichotomy

         In Hamer, the Supreme Court considered whether the maximum time a court may extend an appeal deadline in FRAP(4)(a)(5)(C), in a case in which the appellant received timely notice of the judgment or order appealed from, was a jurisdictional requirement or a mandatory claim-processing rule that was subject to waiver or forfeiture.

         Section 2107 of title 28 and FRAP (4)(a)(1) state that in a civil case, the notice of appeal must be filed within 30 days after entry of the judgment or order appealed from. FRAP(4)(a)(5) addresses ...


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