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In re Edwin Earl Elliott

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In re Donald and Jane Nichols

Summarizing by Lars Fuller

Banner Bank v. Robertson (In re Robertson)

Case Type:
Case Status:
No. 18-4060 (10th Circuit, May 29,2019) Published
While the 14-day deadline in Fed. R. Bankr. P. 9023 is not jurisdictional, the failure to file a Rule 9023 motion within the 14-day deadline in Rule 9023 results in the the expiration of the jurisdictional 14-day deadline in Fed. R. Bankr. P. 8002(a)(1). Thus, the debtor's filing of his Rule 90213 motion on the 15th day after the bankruptcy court entered judgment against him deprived the Bankruptcy Appellate Panel of jurisdiction to hear his appeal.
Procedural context:
The United States Bankruptcy Appellate Panel of the Tenth Circuit dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of jurisdiction. The BAP reasoned that a post-judgment motion Mr. Robertson filed under Federal Rule of Bankruptcy Procedure 9023 was untimely and therefore did not toll the time limit for filing his notice of appeal from the bankruptcy court’s underlying judgment. Accordingly, the BAP concluded that his notice of appeal was untimely and that the BAP lacked jurisdiction.
Debtor Michael Lynn Robertson filed a Chapter 7 bankruptcy petition. Banner Bank filed an adversary proceeding against him to except from discharge a deficiency judgment it had obtained against Mr. Robertson in Utah state court. After Mr. Robertson’s counsel withdrew, Mr. Robertson proceeded pro se, and the parties filed cross-motions for summary judgment. the bankruptcy court entered an order and judgment granting the Bank’s motion and denying Mr. Robertson’s motion. Fourteen days later, Mr. Robertson mailed a Rule 9023 motion to the bankruptcy court, asking the court to reconsider, alter, or amend the judgment. The motion was entered on the bankruptcy court’s docket 15 days after the judgment. The parties fully briefed the motion. Banner Bank never complained that Mr. Robertson's Rule 9023 motion was untimely. The bankruptcy court denied the motion on the merits, never mentioning whether the motion was timely. Fourteen days after the bankruptcy court denied Mr. Robertson's Rule 9023 motion, Mr. Robertson filed a notice of appeal to the BAP. The notice of appeal designated only the bankruptcy court’s summary judgment order and judgment--and not the denial of the Rule 9023 motion--as the subject of the appeal. After the parties completed merits briefing, the BAP issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction because the notice of appeal appeared untimely. The BAP then determined that the notice of appeal was untimely.

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