United States District Court, N.D. California
ORDER GRANTING APPELLANT’S REQUEST THAT
DOCUMENT BE ACCEPTED DESPITE LATE FILING, AND GRANTING
APPELLANT’S MOTION FOR EXTENSION OF TIME DOCKET NOS. 7,
M. CHEN, UNITED STATES DISTRICT JUDGE
Sutton filed suit against Eagle Vista Equities LLC
(“Eagle Vista”) and Wedgewood, Inc.
(“Wedgewood”) alleging wrongful foreclosure and
seeking a judgment quieting title to the property in her
name. Bankruptcy Court Judge Hannah L. Blumenstiel granted
summary judgment for Eagle Vista and Wedgewood, and Ms.
Sutton appealed. Currently before the Court are (1) Ms.
Sutton’s request that her untimely filed Designation of
Record and Statement of Issues on Appeal be accepted, and (2)
Ms. Sutton’s Motion for an Extension of Time.
September 27, 2018, Eve Sutton filed suit against Eagle
Vista, Wedgewood, and Bank of the West in Bankruptcy Court in
the Northern District of California. Notice of Appeal from
Bankruptcy Court (“Notice”) at 2, Docket No. 1.
As part of that suit, Ms. Sutton alleged wrongful foreclosure
by Eagle Vista Equities LLC (“Eagle Vista”) and
Wedgewood, Inc (“Wedgewood”). See Order
Granting Summary Judgment in Favor of Eagle Vista Equities
LLC And Wedgewood, Inc. (“SJ Order”) at
26–27, Docket No. 1-2. She also sought cancellation of
“the Trustee’s Deed that conveyed the Property to
Eagle Vista or . . . a judgment quieting title to the
Property in her name.” Id. at 27. On June 28,
2019, Judge Blumenstiel granted summary judgment in favor of
Eagle Vista and Wedgewood on the issues of wrongful
foreclosure and quieting of the title to the property.
Id. at 1, 29.
5, 1019, Ms. Sutton “appeal[ed] under 28 U.S.C.
§158(a) from the Order Granting Summary Judgment in
Favor of Eagle Vista Equities LLC.” Notice at 1. On
August 6, 2019 the Bankruptcy Court issued a Notice of
Incomplete Record on Appeal, indicating that no Designation
of the Record or Statement of Issues had been filed.
See Docket No. 6. Rule 8009 of the Federal Rules of
Bankruptcy Procedure requires that an appellant “file
and serve the designation and statement within 14 days after
. . . the appellant’s notice of appeal as of right
becomes effective under Rule 8002.” Fed. R. Bankr. P.
8009(a)(1). On August 7, 2019, counsel for Ms. Sutton filed a
Designation of Record and Statement of Issues on Appeal.
See Docket No. 7 (“DRSI”). As part of
that filing, counsel included a “Request That Document
Be Accepted Despite Late Filling.” Id. A copy
of the filing was served on the parties by U.S. Mail.
Id. at 8.
September 19, 2019, Ms. Sutton also filed an ex parte motion
for “an extension of time to file her Opening Brief and
Excerpts of Record.” See Ex Parte First Motion
for Extension of Time to File Excerpts of Record and Opening
Brief (“Mot.”) at 1, Docket No. 11. In this
Court’s Scheduling Order from July 8, 2019, the Court
ordered that Appellant’s brief would be due “no
more than 30 days after docketing of notice that the record
has been transmitted or is available electronically on the
District Court’s docket.” Notice of Filing of
Appeal and Scheduling Order, Docket No. 2. Ms. Sutton
requests “an extension of time until Friday, November
1, 2019 to file Appellant’s Opening Brief and Request
for Stay on Appeal.” Mot. ¶ 8. However, the record
has not yet been transmitted to the Court (and the Court has
been informed that the record will not be transmitted unless
it issues a ruling granting Ms. Sutton’s request that
her Designation of Record and Statement of Issues be accepted
despite their late filling).
is also an Unlawful Detainer action currently pending before
Judge Gerald Buchwald in the San Mateo Superior Court (Action
CLJ 211439). See Mot. ¶ 3. That case is
separate from-but related to-the Wrongful Foreclosure case on
appeal in this Court. On July 28, 2019, Eagle Vista asked the
San Mateo Superior Court to grant it immediate possession of
the property, while Ms. Sutton’s request for a stay
pending appeal was set for hearing before Judge Blumenstiel
on August 15, 2019. Id. ¶ 4–5. Eagle
Vista’s request for immediate possession was denied,
and Judge Blumenstiel subsequently denied Ms. Sutton’s
request for a stay pending appeal. Id. Eagle Vista
then renewed its request for possession in light of Judge
Blumenstiel’s decision, and Judge Buchwald
“concluded that Ms. Sutton was entitled to a stay
pending the appeal to [the district court] of the decision of
Judge Blumenstiel.” Id. ¶ 6. As a
condition of that stay, Ms. Sutton must pay $2, 000 per month
in rent to Eagle Vista; a further hearing has been set in the
San Mateo court for December 16, 2019 so that the parties can
update Judge Buchwald of the status of this appeal.
appellant’s failure to take any step other than the
timely filing of a notice of appeal does not affect the
validity of the appeal, but is ground only for the district
court or [Bankruptcy Appellate Panel] to act as it considers
appropriate, including dismissing the appeal.” Fed. R.
Bankr. P. 8003. Typically, “[a] procedural violation of
a bankruptcy rule alone is an insufficient basis for granting
a motion to dismiss an appeal.” Abrahams v.
Hentz, No. 12CV1560-GPC-BGS, 2013 WL 3147732, at *7
(S.D. Cal. June 18, 2013), aff'd sub nom. In re
Abrahams, 601 Fed.Appx. 570 (9th Cir. 2015) (citing
Fitzsimmons v. Nolden, 920 F.2d 1468, 1472 (9th
court may enlarge the time “on motion made after the
expiration of the specified period . . . where the failure to
act was the result of excusable neglect.” Fed. R.
Bankr. P. 9006(b). The Supreme Court has “adopted a
four-factor equitable test for determining what constitutes
excusable neglect:  the danger of prejudice to the
non-moving party,  the length of the delay and its
potential impact on judicial proceedings,  the reason for
the delay, including whether it was within the reasonable
control of the movant, and  whether the movant acted in
good faith.” Baldwin v. United States, 823
F.Supp.2d 1087, 1113–14 (D. N. Mar. I. 2011) (internal
quotations and brackets omitted) (citing Pioneer
Investment Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 395 (1993)).
Request That Document Be Accepted ...