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Lucore v. Bank of New York Mellon

United States District Court, S.D. California

April 13, 2017

STEVEN HARRY LUCORE, SR. and JUDY LYNNE LUCORE, Appellants,
v.
THE BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-OA16, MORTGAGE PASS-THROUGH CERTIFICATES; et al., Appellees.

          ORDER GRANTING APPELLEES' MOTION TO DISMISS APPEAL AS UNTIMELY (DOC. NO. 4)

          Hon. Anthony J. Battaglia United States District Judge

         Presently before the Court is Appellees the Bank of New York Mellon (“BONY”), Recontrust Company, APG Fund I, LLC, and IGA Law, APLC's (collectively referred to as “Appellees”) motion to dismiss Appellants Steven and Judy Lucore's (“Appellants”) appeal of the bankruptcy court's Order dated December 6, 2016, as untimely. (Doc. No. 4.) Appellants oppose the motion. (Doc. No. 6.) Having reviewed the parties' moving papers and controlling legal authority, and pursuant to Civil Local Rule 7.1.d.1, the Court finds the matter suitable for decision on the papers and without oral argument. For the reasons set forth below, the Court GRANTS Appellees' motion.

         BACKGROUND

         Appellants are Chapter 13 debtors and have filed three consecutive motions for contempt with the bankruptcy court prior to this appeal.[1] (Doc. No. 1 at 9.)[2] Appellants' motions for contempt requested that the bankruptcy court sanction BONY for a technical violation of an automatic stay that occurred on September 2, 2011, when BONY foreclosed on real property located at 6744 Maury Drive, San Diego, CA 92119 (the “Property”) on August 18, 2011, a week before Appellants filed their bankruptcy case. (Id.) Since BONY recorded the foreclosure deed post-petition, and one day later than state law requires, it technically violated the automatic stay. (Id.) Subsequently, BONY rescinded the foreclosure in July of 2013. (Id.)

         On September 27, 2016, Appellants filed their third motion for contempt. (Doc. No. 4-5 at 4.) On December 6, 2016, the bankruptcy court denied Appellants' motion for contempt as moot and annulled the automatic stay (the “Order”). (Id. at 3.) In coming to this conclusion, the bankruptcy court found Appellants' delay in bringing their motion was strategic, that BONY rescinded the sale thus there were no impacts on third parties, and found that Appellants had “aggressively attempted to exploit the bankruptcy process in four separate cases in an attempt to impermissibly thwart any interest BONY may have had in the property.” (Id. at 11-12.)

         On December 5, 2016, Appellants state that they received Appellees' proposed form of order, which they believe was placed in the mail on November 28, 2016. (Doc. No. 6 at 5.) As the time to respond to this proposed form had past, Appellants filed a request for extension of time to respond to Appellees' motion on December 6, 2016. (Id.)

         Appellants then went on vacation from December 20, 2016, through December 24, 2016. (Id.) It wasn't until they returned home, that they found the Order and subsequently filed their notice of appeal on December 27, 2016, with this Court. (Id.; Doc. No. 1.) Appellants assert that the Order had still not been amended according to the pending disputes between the parties. (Doc. No. 6 at 5.) Appellees then filed the present motion, its motion to dismiss the appeal as untimely on January 24, 2017. (Doc. No. 4.) Appellants filed an opposition, (Doc. No. 6), and Appellees replied. (Doc. No. 7.) This order follows.

         LEGAL STANDARD

         Rule 8002 of the Federal Rules of Bankruptcy Procedure provides that:

(1) Except as provided in subdivisions (b) and (c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of judgment, order, or decree being appealed.
(2) A notice of appeal filed after the bankruptcy court announces a decision or order-but before entry of the judgment, order, or decree-is treated as filed on the date of and after the entry.

         Fed. R. Bankr. P. 8002(a)(1)-(2). The Ninth Circuit specifies that though Rule 8002 is “not rigid, ” see In re Nucorp Energy, Inc., 812 F.2d 582, 584 (9th Cir. 1987), its time provisions are still “strictly enforce[d].” In re Delaney, 29 F.3d 516, 518 (9th Cir. 1994) (citation omitted). Moreover, the timely appeal requirement is jurisdictional, so a failure to file a timely notice of appeal is considered a jurisdictional defect that bars appellate review. See Wiersma v. Bank of the W. (In re Wiersma), 483 F.3d 933, 938 (9th Cir. 2007).

         A court can extend the deadline by 20 days if the court is convinced that there has been a showing of excusable neglect by the party who filed late. Warrick v. Birdsell (In re Warrick), 278 B.R. 182, 185 (B.A.P. 9th Cir. 2002). Excusable neglect pardons a late filing if the movant is prevented from complying with the deadline by “an act of God or some other circumstance beyond [the movant's] control.” Pioneer Inv. Servs. v. BrunswickAssocs. Ltd. P'ship, 507 U.S. 380, 394 (1993). The Ninth Circuit Court of Appeals has emphasized that the district court is best situated to make an excusable neglect determination during an appeal because they are in a better position to evaluate factors such as “whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty mistakes . . . and the likelihood of injustice if the appeal is not allowed.” Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004). ...


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