In re Asher Development III, Inc.

• Decision Date: 13 August 1992
• Docket Number: Bankruptcy No. 87 B 5473 M.,Civ. A. No. 91-K-1453
• Parties: In re ASHER DEVELOPMENT III, INC., Debtor. Kay CLEMENTS, Appellant, v. FIRST MARYLAND SAVINGS AND LOAN, Appellee.
• Court: U.S. District Court — District of Colorado

143 B.R. 788 (1992)

In re ASHER DEVELOPMENT III, INC., Debtor.

Kay CLEMENTS, Appellant, v. FIRST MARYLAND SAVINGS AND LOAN, Appellee.

Civ. A. No. 91-K-1453, Bankruptcy No. 87 B 5473 M.

United States District Court, D. Colorado.

August 13, 1992.

Curt Todd, Haligman & Lottner, Englewood, Colo., for appellant.

Leo M. Weiss, Denver, Colo., trustee.

MEMORANDUM ORDER

KANE, Senior District Judge.

This matter comes before me on the trustee's motions to reconsider my order of July 27, 1992, and to file a memorandum brief in support of the motion. The order of July 27 dismissed the trustee's appeal because she had failed to file timely her notice of appeal. I deny both the motion for reconsideration and the motion to file a brief.

The trustee's motion for reconsideration is pithy and to the point. She claims that she filed her notice of appeal "by delivering it to the home of the Clerk of the Court, Bradford Bolton." She provides no other supporting allegations, affidavits or facts. My own review of the file suggests that the trustee left an envelope containing the notice of appeal at Mr. Bolton's home in his mailbox. Mr. Bolton, however, was on vacation until August 19, 1991. Someone apparently discovered the envelope on August 16, 1991 and eventually carried it to the bankruptcy court.

There, an appellate docketing clerk asked Judge Cordova to review the circumstances surrounding the filing of the notice of appeal to determine an appropriate filing date. He ordered the clerk to stamp and file it as of August 19, 1992. Although none of these facts were ever formally developed through an adversary hearing, I accept them as true for purposes of the motion to reconsider. I also accept as true the trustee's allegation that the delivered the notice of appeal to Mr. Bolton's residence sometime on August 12, 1991. Nonetheless, I deny the motion to reconsider because I continue to find that the trustee did not timely file her notice of appeal.

Fed.R.Bank.R. 5001 provides that "the courts shall be deemed always open for the purposes of filing any pleading or other proper paper, issuing and returning process, and filing, making, or entering motions, orders and rules." Under rule 5005, filing is accomplished by filing with the clerk in the district where the case is pending. Freeman v. Giacomo Costa Fu Andrea, 282 F.Supp. 525 (E.D.Pa.1968) (complaint for damages deemed filed at 12:15 P.M. when counsel arrived at court-house, even though time-stamped at 1:00 P.M.). Although there is no explicit local bankruptcy rule on point, custom allows an attorney...