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David Walden v. Gregory A. Akers

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 22, 2011

DAVID WALDEN,
PLAINTIFF,
v.
GREGORY A. AKERS, DEFENDANT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION

David Walden appeals from the Bankruptcy Court's Order granting judgment in favor of Gregory A. Akers, Chapter 7 trustee. (Bankr. Ct. Judgment 3--4, ECF No. 1.) After consideration, the Court finds that it lacks jurisdiction to consider Walden's appeal.

In September 2007 Joel Esguerra Forral filed for Chapter 7 bankruptcy. Akers was appointed Forral's bankruptcy trustee. In April 2008 Akers sued Walden in bankruptcy court to avoid and recover transfers Forral made to, or on behalf of, Walden. Akers prevailed on summary judgment, and the bankruptcy court entered judgment against Walden on November 2, 2009. Walden appealed to this Court. (District Court Case No. 09-cv-2564 JLS (POR).) This Court vacated in part the bankruptcy court's grant of summary judgment. (Case No. 09-cv-2564 ECF No. 21.) And the matter was remanded for further proceedings to determine the amount of Forral's transfers to Union Bank for the benefit of Walden. (Id. at 9.)

This brings the Court to the present appeal. On January 12, 2011, the bankruptcy court entered an amended judgment against Walden. Pursuant to Federal Rule of Bankruptcy Procedure 8002(a), any appeal from the judgment would have had to be filed within fourteen days. Fed. R. Bankr. P. 8002(a). Walden, however, did not file a notice of appeal until February 8, 2011, long after the fourteen day period had passed. And because the notice was of appeal was not timely, this Court is divested of its jurisdiction to consider the matter. See Preblich v. Battley, 181 F.3d 1048, 1056 (9th Cir. 1999).

Walden argues that the purpose of this current appeal is not to appeal the bankruptcy court's judgment entered on January 12, 2011. (Reply 2, ECF No. 14.) Rather, the appeal is to "move the court to continue the appeal to the Ninth Circuit Court which began July 2, 2010. (Id.) Walden's reasons notwithstanding, this matter is before the Court as an appeal from the bankruptcy court's January 12, 2011 amended judgment. And as noted before, this Court is divested of its jurisdiction to consider the matter because of Walden's untimely notice of appeal. Walden's appeal is DISMISSED for lack of jurisdiction.

IT IS SO ORDERED.

20110622

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