The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER AFFIRMING BANKRUPTCY COURT
Appellant-debtor, acting pro se, appeals the bankruptcy court's decision dismissing his "civil contempt" complaint against Appellees, arising out of Appellee Educational Credit Management Corporation's ("ECMC") collection efforts on Appellant's student loans. Appellees herein are Edfund, California Student Aid Commission ("CSAC"), and ECMC. This court has jurisdiction pursuant to 28 U.S.C. § 158(c)(1). The issues to be decided on appeal are (1) whether the appeal is timely and (2) whether the bankruptcy court erred in dismissing Appellant's complaint on the ground that his student loans were never discharged and therefore it was not unlawful for Appellees to collect on them. After reviewing the record in this case, the court finds that the bankruptcy judge properly dismissed Appellant's complaint. Accordingly, the bankruptcy court is AFFIRMED.
In 1992, Appellant filed for Chapter 7 bankruptcy, which resulted in a Discharge of Debtor order ("DDO") issued April 15, 1993. Thereafter, ECMC acquired the student loans at issue and began collection efforts on them. In response, Appellant filed a complaint in the bankruptcy court alleging that such collection efforts were in violation of the DDO because the student loans had been discharged in bankruptcy. Appellant's complaint sought damages for "civil contempt."
ECMC moved to dismiss the complaint for failure to state a claim. The bankruptcy court granted the motion and dismissed the complaint on the ground that under the bankruptcy code, student loans are excepted from discharge:
It is well-settled law that student loan debts are presumptively non-dischargeable in bankruptcy pursuant to [11 U.S.C.] § 523(a)(8). Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004). It is also well settled that § 523(a)(8) is "self-executing," and a debtor must affirmatively initiate an adversary proceeding to determine the student loan debt is discharged. Tenn Student Assistance at 450.
Appx., Ex. E at 3.*fn1 Since Appellant never initiated such a proceeding, the bankruptcy court provided, the student loans were never discharged and therefore it was not unlawful for Appellees to collect on them. Id. at 5. This brings us to the present appeal.
Edfund and CSAC have filed a joint brief in this appeal; ECMC filed a separate brief. Both briefs contain the same arguments. Since Edfund and CSAC's brief is the more substantial one, the court will refer only to that brief in this order.
Under Bankruptcy Rule 8013, this court may affirm, modify or reverse a bankruptcy court's judgment, order or decree or remand with instructions for further proceedings. Rule 8013*fn2 also provides that findings of fact shall not be set aside upon appeal unless such findings are clearly erroneous. Questions of law or mixed questions of law and fact are generally reviewed de novo. See In re Eastman, 188 B.R. 621, 624 (9th Cir. BAP (Cal.) 1995). This appeal presents a mixed question of law and fact and therefore de novo review applies.
III. TIMELINESS OF THIS APPEAL
In order for a district court to have jurisdiction over a bankruptcy appeal, the appellant must have filed a timely notice of appeal under Rule 8002. In re Souza, 795 F.2d 855, 857 (9th Cir. 1986). Rule 8002(a)provides that "[t]he notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from."
Here, the bankruptcy court issued its Memorandum Decision dismissing the complaint on January 19, 2006 and judgment was entered March 21, 2006. Appx., Exs. E, F. Thus, in order to be timely, Appellant's notice of appeal must have been filed no later than 10 days after March 21, 2006. Appellant did not file his notice of appeal until May 11, 2006, rendering this appeal untimely under Rule 8002(a).
However, the parties dispute whether the time for filing notice of appeal is tolled under Rule 8002(b) due to Appellant's having filed in the bankruptcy court, on February 15, 2006, a motion for reconsideration ("MFR") of the Memorandum Decision. The MFR was ...