Souza, In re, 85-2351

• Decision Date: 29 July 1986
• Docket Number: No. 85-2351,85-2351
• Citation: 795 F.2d 855
• Parties: Bankr. L. Rep. P 71,277 In re: Joseph C. SOUZA, Debtor Belva GREENE, Plaintiff-Appellee, v. UNITED STATES of America, By and Through the UNITED STATES SMALL BUSINESS ADMINISTRATION, an Agency, thereof, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 855

795 F.2d 855

Bankr. L. Rep. P 71,277

In re: Joseph C. SOUZA, Debtor Belva GREENE, Plaintiff-Appellee, v. UNITED STATES of America, By and Through the UNITED STATES SMALL BUSINESS ADMINISTRATION, an Agency, thereof Defendant-Appellant.

No. 85-2351.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 12, 1986.

Decided July 29, 1986.

Matthew M. Spielberg, Castro Valley, Cal., for plaintiff-appellee.

Richard G. Avila, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before CHAMBERS, CHOY and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

The Small Business Administration (SBA) appeals from the district court's reversal of a bankruptcy court decision that the SBA, rather than Belva Greene, was entitled to death benefits payable on policies owned by the debtor, Joseph C. Souza. We conclude that Greene's untimely appeal to the district court deprived it of jurisdiction to consider the case. We therefore remand to the district court for dismissal of the appeal and reinstatement of the bankruptcy court judgment in favor of the SBA.

I

In September 1977, the SBA loaned $49,300 to Souza. In the following March, Souza executed a collateral assignment of a life insurance policy owned by him to the SBA as security for the loan. The assignment provided that in the event of Souza's death, the insurance company would pay the death benefits under the policy to the assignee, the SBA, in an amount equal to Souza's indebtedness to the SBA. Souza thereafter designated Greene as beneficiary of the policy. In September 1980, the SBA loaned an additional $30,000 to Souza, who subsequently executed a collateral assignment of a second insurance policy to the SBA as security for the 1980 loan. The assignment contained the same terms as those contained in the 1978 assignment. Souza again designated Greene as beneficiary of the policy.

Souza filed a bankruptcy petition in 1982. At the time of filing, the principal balance owing on the loans was $46,495.33 plus interest, and the cash surrender value of the life insurance policies was $3,812.58. In 1983, Souza died. From the time of the filing for bankruptcy until the time of Souza's death, Souza made all premium payments on the two insurance policies in order to keep them in effect. Neither the SBA, nor the trustee, made any payments on the policies. The death benefits payable under the two insurance policies totals approximately $58,773.09.

On October 3, 1984, the bankruptcy court ruled that SBA as the collateral assignee of the life insurance policies was entitled to the death benefits. The bankruptcy judge prepared findings of fact that both parties later agreed were incorrect. The parties entered into a stipulation to prepare amended findings of fact. The stipulation was fully executed on December 21, 1984. The bankruptcy court adopted the amended findings on February 14, 1985. Greene's Notice of Appeal to the district court was filed within ten days thereafter. The district court reversed the bankruptcy court judgment and limited SBA's interest in the debtor's life insurance policies to their cash surrender value.

II

SBA argues that the district court lacked jurisdiction since Greene's notice of appeal from that judgment was untimely filed. The notice of appeal from a bankruptcy court decision must be filed with the clerk of the bankruptcy court "within 10 days of the date of the entry of the judgment, order, or decree appealed from." Bankruptcy Rule 8002(a). The untimely filing of the notice of appeal is jurisdictional. In In re Ramsey, 612 F.2d 1220 (9th Cir.1980), this court dismissed an appeal for want of jurisdiction because the appeal from the bankruptcy court decision was untimely under Bankruptcy Rule 802, the virtually identical predecessor of Rule 8002. This court stated:

A party who appeals from bankruptcy court to district court must file a notice of appeal with the bankruptcy court within 10 days of the entry of the order or judgment appealed from ... An untimely notice deprives the district court of jurisdiction to review the bankruptcy court's order or judgment ... The untimely filing of Alene's appeal was never brought to the attention of the district court which proceeded to consider the merits of the case. Since this court's jurisdiction can only be based on a proper exercise of jurisdiction in the court below, we raised this issue sua sponte at oral argument. If the district court did not have jurisdiction to review the merits, then this court does not have jurisdiction to consider the merits on appeal.

612 F.2d at 1221-1222 (emphasis supplied). Because of the jurisdictional implications, this court strictly construes the ten-day requirement. Id. at 1223. ¹

Greene filed her notice of appeal from the October 3, 1984 judgment on February 25, 1985. Greene's notice of appeal was filed within ten days of the filing of the amended findings and conclusions because the...