In re Jackson

• Decision Date: 11 May 2018
• Docket Number: No. 17–8006,17–8006
• Citation: 585 B.R. 410
• Parties: IN RE: Melindia Gail JACKSON, Debtor.
• Court: U.S. Bankruptcy Appellate Panel, Sixth Circuit

585 B.R. 410

IN RE: Melindia Gail JACKSON, Debtor.

No. 17–8006

United States Bankruptcy Appellate Panel of the Sixth Circuit.

Decided and Filed: May 11, 2018

Elizabeth M. Abood–Carroll, ORLANS PC, Troy, Michigan, for Appellee.

Melindia Jackson, Wixom, Michigan, pro se.

Before: DELK, HUMPHREY, and PRESTON Bankruptcy Appellate Panel Judges.

OPINION

PAULETTE J. DELK

Bankruptcy Appellate Panel Judge. The Panel sua sponte raises the question of whether this appeal was filed late for the purposes of 28 U.S.C. § 158(c)(2) and finds that it was. Following the Supreme Court's precedent in this area, including its recent decision in Hamer v. Neighborhood Housing Services of Chicago ,¹ the Panel finds that the time requirements of 28 U.S.C. § 158(c)(2) are jurisdictional in nature and, therefore, the Panel is without jurisdiction to hear late appeals, including this one.

FACTS

On September 25, 2013, Melindia Gail Jackson ("Jackson") filed a voluntary petition for relief under chapter 7. After a hearing in March 2014 the bankruptcy court granted U.S. Bank National Association's motion to lift the automatic stay on Jackson's residence. With the stay lifted, the bank proceeded with a foreclosure action in state court. Despite much opposition, the bank foreclosed on Jackson's residence on May 15, 2014 and Jackson's right to redeem the property expired six months later. On October 29, 2014, the Chapter 7 Trustee filed a no-asset report and on February 23, 2015, Jackson obtained a discharge of her debts.

The order on appeal before this panel is a result of a series of letters and requests submitted by Jackson to the bankruptcy court in December 2016. In these letters, Jackson: (1) notified the bankruptcy court that the account number for creditor Wells Fargo had changed [ECF No. 113]; (2) requested "reconsideration of House being exempt in the bankruptcy case" where she sought to unwind a foreclosure and reclaim her former residence [ECF No. 114]; (3) requested a "sign[ed] court Order stating that the amended Scheduled have been listed, dismissed and entered" [ECF No. 115]; and (4) requested "Reconsideration of transferring Bankruptcy Case" seeking reconsideration of a prior order which denied her request to transfer the bankruptcy case to the Eastern District of Michigan [ECF No. 116]. After a hearing, the bankruptcy court issued a Memorandum Decision and Order on January 26, 2017 [ECF No. 133]. Except for acknowledging Jackson's notice of a new account number for creditor Wells Fargo, that order denied all of Jackson's requests for relief included in the four letters. That order also directed the Clerk to "prepare and enter a final decree discharging the trustee and closing the case promptly but not earlier than twenty eight days after the entry" of that January 26, 2017 order. Jackson filed her Notice of Appeal of that order 28 days later on February 23, 2017. On February 24, 2017, the Clerk docketed a "Text Order of Final Decree"² which referenced the discharge of the Chapter 7 Trustee and closed the case pursuant to the bankruptcy court's January 26, 2017 order.

JURISDICTION

Before the Panel may proceed to the merits of the appeal, we must assure ourselves of our jurisdiction to hear this case. Section 158 of title 28 grants the Bankruptcy Appellate Panel jurisdiction to hear appeals of final orders of bankruptcy courts. For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."³ "A disposition is final if it contains ‘a complete act of adjudication,’ that is, a full adjudication of the issues at bar, and clearly evidences the judge's intention that it be the court's final act in the matter."⁴

The bankruptcy court's order before the panel disposed of all of the matters raised by Jackson and left nothing for the court to do but administratively close the case. Specifically, with regard to Jackson's four requests, the order explains that the bankruptcy court (1) found no grounds warranting reconsideration of its refusal to transfer the bankruptcy case to the Eastern District of Michigan, where Jackson now resides; (2) found no basis for unwinding the foreclosure of Jackson's former residence and that it lacked jurisdiction over the matter due to an appeal pending in district court; (3) found that Jackson's ECF No. 113 accomplished Jackson's objective of giving interested parties notice of a new account number from Wells Fargo; and (4) acknowledged Jackson's right to amend her schedules to list omitted creditors as a matter of course at any time before the case is closed, provided Jackson also gives notice of the amendment to the affected entities.

The order further states that the "[c]ourt has considered the Debtor's other arguments and finds in them no grounds for relief. After reviewing the Debtor's recent filings, and having conducted a hearing on these issues, the court has determined to withhold all relief."

The order goes on to provide as follows:

NOW, THEREFORE, IT IS HEREBY ORDERED that except as provided above with respect to the Debtor's new account numbers, all requests for relief included within ECF Nos. 113, 114, 115 and 116 are DENIED.

IT IS FURTHER ORDERED that the Clerk shall prepare and enter a final decree discharging the trustee and closing the case, promptly but not earlier than twenty eight days after entry of this Memorandum of Decision & Order.

IT IS FURTHER ORDERED that the Clerk shall serve a copy of this Memorandum of Decision & Order pursuant to Fed. R. Bankr. P. 9022 and LBR 5005–4 upon Debtor Melindia Gail Jackson, John M. Van Elk, Esq., Elizabeth M. Abood–Carroll, Esq., Thomas R. Tibble, chapter 7 Trustee, and the Office of the United States Trustee.

The above language supports a conclusion that the order is a complete act of adjudication, a full adjudication of the issues at bar, and clearly evidences the bankruptcy court's intention that it be the court's final act in the matter. Jackson filed her notice of appeal on February 23, 2017, 28 days after the final order.⁵

Section 158 of Title 28 confers jurisdiction to hear appeals from bankruptcy courts upon the district courts and bankruptcy appellate panels. Specifically, 28 U.S.C. § 158(c)(2) provides that: "[a]n 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." Rule 8002(a)(1) provides that, notwithstanding exceptions not relevant presently, "a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed."

Fed. R. Bankr. P. 8002(a)(1). Because the Notice of Appeal was filed 28 days after the entry of the final order, it is late. The question this Panel must answer is this: what are the jurisdictional consequences of this missed deadline?

Over the past 14 years, the Supreme Court has written extensively on the jurisdictional consequences of statutory filing requirements; however, it has not yet considered the filing requirements imposed by 28 U.S.C. § 158(c)(2). The Court places these filing requirements into one of two broad bins: Jurisdictional filing requirements, which may be brought up at any time, and are not subject to waiver, forfeiture, or equitable tolling, and mandatory claims-processing rules, which are subject to those exceptions.

The Sixth Circuit Court of Appeals and the Sixth Circuit Bankruptcy Appellate Panel have long held that the 14 day time imposed by 28 U.SC. § 158(c)(2) with reference to Bankruptcy Rule 8002 is jurisdictional in nature.⁶ Moreover, all ten circuit courts that have considered this question have found that compliance with § 158(c)(2) is a jurisdictional requirement.⁷

The circuits have been uniform in their jurisdictional treatment of § 158, but in Reed Elsevier, Inc. v. Muchnick , the Supreme Court held the statute at issue in that case was not jurisdictional, explaining that in prior cases "we relied on longstanding decisions of this Court typing the relevant prescriptions ‘jurisdictional.’ ... Amicus cites well over 200 opinions that characterize § 411(a) as jurisdictional, but not one is from this Court...."⁸ Therefore, to be sure of our jurisdiction in this appeal, the Panel must decide if recent Supreme Court decisions, and Hamer in particular, require us to depart from the clear path outlined by the Sixth Circuit and others. We find that they do not.

Hamer changes little in how the Supreme Court analyzes limitations on the courts' jurisdiction. Hamer's facts are quite similar to those of Bowles v. Russell.⁹ In both cases, a district court extended the time for a petitioner to file a notice of appeal beyond the time the rule allowed for such extensions.¹⁰ In both cases, the petitioner filed within the time given by the extension, but beyond the time allowed by the rule. The Court applied the same test in both cases and found that the time restriction in Bowles was mandated by 28 U.S.C. § 2107(c), which addresses the time for an appeal to the court of appeals, and therefore was jurisdictional. However, in Hamer , the relevant time limitation was not to be found in statutory law, and so was not jurisdictional.

Despite the similarities between these two decisions, the Court found it necessary to return to this question because "[s]everal Courts of Appeals, including the Court of Appeals in Hamer's case, have tripped over our statement in Bowles that ‘the taking of an appeal within the prescribed time is mandatory and jurisdictional.’ "¹¹ The Court explained:

The rule of decision our precedent shapes is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the

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