Banner Bank v. Robertson (In re Robertson)
| Decision Date | 29 May 2019 |
| Docket Number | BAP No. 17-034-UT,No. 18-4060,18-4060 |
| Parties | In re: MICHAEL LYNN ROBERTSON, Debtor. BANNER BANK, formerly doing business in Utah as AmericanWest Bank or Far West Bank, Plaintiff - Appellee, v. MICHAEL LYNN ROBERTSON, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Bankruptcy Appellate Panel)
ORDER AND JUDGMENT*Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
The United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP) dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of jurisdiction. The BAP reasoned that a post-judgment motion Mr. Robertson filedunder Federal Rule of Bankruptcy Procedure 9023 was untimely and therefore did not toll the time limit for filing his notice of appeal from the bankruptcy court's underlying judgment. Accordingly, the BAP concluded that his notice of appeal was untimely and that the BAP lacked jurisdiction. Exercising jurisdiction under 28 U.S.C. § 158(d)(1), we affirm. We conclude that the Rule 9023 motion was untimely and reaffirm Tenth Circuit precedent that the time to file a notice of appeal from a bankruptcy court is jurisdictional. We also hold that an untimely Rule 9023 motion is ineffective to toll the time for filing a notice of appeal and that the BAP may raise the timeliness of a Rule 9023 motion sua sponte. We deny without prejudice appellee's request for attorney fees.
The issues in this appeal turn primarily on one statute and several rules of bankruptcy procedure governing the time to file a notice of appeal from a bankruptcy court. We therefore set out the relevant legal framework before turning to the facts and procedural background of this case.
In 28 U.S.C. § 158(c)(2), Congress included a timeliness condition for taking appeals from bankruptcy court decisions: "An appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules." § 158(c)(2) (emphasis added). In turn, Bankruptcy Rule 8002(a)(1) states: "Except as provided in subdivisions (b) and (c), a notice of appeal must be filed with the bankruptcy clerk within 14 days afterentry of the judgment, order, or decree being appealed." Fed. R. Bankr. P. 8002(a)(1). An exception in subdivision (b) is relevant here and provides that Rule 8002(a)(1)'s 14-day time period for filing a notice of appeal can be extended when certain motions, including a Rule 9023 motion, are timely filed:
If a party files in the bankruptcy court any of the following motions and does so within the time allowed by these rules, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: . . . (B) to alter or amend the judgment under Rule 9023[.]
Fed. R. Bankr. P. 8002(b)(1)(B) (emphasis added). And Bankruptcy Rule 9023 requires that "[a] motion for a new trial or to alter or amend a judgment shall be filed . . . no later than 14 days after entry of judgment." Fed. R. Bankr. P. 9023.
With this framework in mind, we turn to the factual and procedural background of this case.
Through counsel, Mr. Robertson filed a Chapter 7 bankruptcy petition. Banner Bank (Bank) initiated an adversary proceeding seeking to except from discharge a deficiency judgment it had obtained against Mr. Robertson in Utah state court. After Mr. Robertson's counsel withdrew, Mr. Robertson proceeded pro se, and the parties filed cross-motions for summary judgment. On March 30, 2017, the bankruptcy court entered an order and judgment granting the Bank's motion and denying Mr. Robertson's motion. Fourteen days later, on April 13, 2017, Mr. Robertson mailed a Rule 9023 motion to the bankruptcy court, asking the court to reconsider, alter, or amend the judgment. The motion was entered on the bankruptcy court'sdocket on April 14, 2017, which was 15 days after the judgment. The parties fully briefed the motion, and the Bank never complained that the motion was untimely. The bankruptcy court denied the motion on the merits, never mentioning whether the motion was timely.
On July 14, 2017, 14 days after the bankruptcy court disposed of the Rule 9023 motion, Mr. Robertson filed a notice of appeal to the BAP. The notice of appeal designated only the bankruptcy court's March 30, 2017 order and judgment as the subject of the appeal. After the parties completed merits briefing—where the Bank did not dispute that the BAP had jurisdiction over the appeal—the BAP issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction because the notice of appeal appeared untimely.
After considering the parties' responses to the show-cause order, the BAP determined that the notice of appeal was untimely. The BAP concluded that because Mr. Robertson's Rule 9023 motion was filed 15 days after entry of judgment, it was untimely and therefore did not toll the running of Rule 8002(a)(1)'s 14-day appeal period, which the BAP treated as jurisdictional. In reaching its conclusions, the BAP rejected Mr. Robertson's argument that mailing the Rule 9023 motion on the fourteenth day after entry of the judgment was sufficient to render the motion timely filed, which the BAP said occurs when "a document [is] received by the clerk," R., Vol. I at 35. The BAP also rejected his argument that by mailing the motion to the clerk, he had served the clerk, and that service is complete upon mailing. The BAP reasoned that Rule 9023 requires filing within 14 days, and service is not equivalentto filing. Accordingly, the BAP concluded that his notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.
Mr. Robertson filed a motion for rehearing or to alter or amend the BAP's judgment, arguing that the time to file an appeal with the BAP was not jurisdictional, that Rule 9023 is a claim-processing rule and the Bank had forfeited any objection to the timeliness of his Rule 9023 motion, and that the BAP should not have considered the timeliness of that motion sua sponte. The BAP denied the motion for rehearing. This appeal followed.
Mr. Robertson raises three issues on appeal, which we address in the following order: (1) whether a Rule 9023 motion is deemed filed when mailed, so that his Rule 9023 motion was timely filed; (2) whether this circuit's law that Rule 8002(a)(1)'s time limit for filing a notice of appeal from a bankruptcy court's judgment is jurisdictional remains good after intervening Supreme Court decisions; and (3) whether Rule 9023's 14-day timeliness requirement is a claim-processing rule that the Bank waived, so the untimely Rule 9023 motion was effective in tolling the appeal period. The third issue has a related concern: whether it was proper for the BAP to raise the timeliness of the Rule 9023 motion sua sponte as a predicate to determining its jurisdiction.
The issues on appeal concern matters of law or "mixed questions consisting primarily of legal conclusions drawn from the facts," so our review is de novo. Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir. 1997). We afforda liberal construction to Mr. Robertson's pro se filings, but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
We first address whether Mr. Robertson's Rule 9023 motion was timely filed. If it was, then it tolled the appeal period, his notice of appeal to the BAP was timely, and we would not have to address any other issues in this appeal. We conclude, however, that the motion was not timely filed.
Mr. Robertson argues that his motion should be treated as filed on April 13, 2017, the fourteenth day after entry of judgment, because he placed it in the United States mail that day, postage prepaid. He contends that the Federal Rules of Bankruptcy Procedure do not define when "filing" occurs, but he advocates for defining that moment by reference to Supreme Court Rule 29.2, which allows the date of filing to be the date of mailing provided certain requirements are satisfied.1
We disagree with Mr. Robertson's premise that no federal bankruptcy rule defines when filing occurs. Therefore, we need not consider whether Supreme Court Rule 29.2 should apply. As noted, a Rule 9023 motion must be "filed . . . no later than 14 days after entry of judgment." Fed. R. Bankr. P. 9023 (emphasis added). In adversary proceedings, such as we have here, the filing of papers is governed byFederal Rule of Civil Procedure 5. See Fed. R. Bankr. P. 7005 (). And under Civil Rule 5, "[a] paper not filed electronically"—like Mr. Robertson's Rule 9023 motion—"is filed by delivering it . . . to the clerk" or "to a judge who agrees to accept it for filing." Fed. R. Civ. P. 5(d)(2) (emphasis added). Delivery, and hence filing, requires receipt by the clerk or a judge. See United States v. Lombardo, 241 U.S. 73, 76 (1916) (); In re Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir. 1974) ( ; Kahler-Ellis Co. v. Ohio Tpk. Comm'n, 225 F.2d 922, 922 (6th Cir. 1955) ().
Mr. Robertson does not argue that the clerk or a judge received his Rule 9023 motion on April 13, 2017, but only that he mailed it on that date. Consequently, the motion was untimely.2
We next consider Mr. Robertson's argument that Rule 8002(a)(1)'s 14-day time limit for filing a notice of appeal from a...
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