United States District Court, S.D. Indiana, Indianapolis Division
MICHAEL FRANCIS, CARMEN J. FRANCIS, Appellants,
EMC MORTGAGE LLC., HOMESALES, INC., FANNIE MAE, JP MORGAN CHASE BANK, LAWRENCE T. NEWMAN, Appellees.
REPORT AND RECOMMENDATION
J. DINSMORE UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Appellees' Motion to
Dismiss Appeal [Dkt. 12]. Appellees EMC Mortgage, LLC
f/k/a EMC Mortgage Corporation and JP Morgan Chase Bank, N.A.
(collectively “Appellees”) seek an order
dismissing Appellants' Michael and Carmen Francis
(“the Francises”) appeal [Dkt. 1] for lack of
jurisdiction pursuant to Rule 8002 of the Federal Rules of
Bankruptcy Procedure. On October 10, 2018, Judge James R.
Sweeney II designated the undersigned Magistrate Judge to
issue a report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). [Dkt. 23.] For the reasons set forth
below, the Magistrate Judge recommends that Appellees'
Motion be GRANTED.
April 22, 2014, the Francises filed a voluntary petition for
relief under Chapter 7 of the Bankruptcy Code. See
Bankr. No. 14-03586-JMC-7 [Bankr. Dkt. 1]. On July 13, 2016,
the bankruptcy court entered its final decree and closed the
case. [Bankr. Dkt. 175.] Thereafter, the Francises filed a
motion to reopen the case [Bankr. Dkt. 179], to which the
court denied [Bankr. Dkt. 184]. The Francises then filed
another motion, seeking the court to reconsider its order,
which the court denied as well on December 6, 2017. [Bankr.
Dkt. 189.] Subsequently, the Francises filed their notice of
appeal with the bankruptcy court on January 5, 2018. [Bankr.
Dkt. 191.] On March 15, 2018, Appellees filed a motion to
dismiss [Dkt. 12], which is now before the Court.
courts have jurisdiction to hear appeals from final
judgments, orders, and decrees of a bankruptcy court pursuant
to 28 U.S.C. § 158(a). In re
Sobczak-Slomczewski, 826 F.3d 429, 431 (7th Cir. 2016).
Federal Rule of Bankruptcy Procedure 8002(a)(1) provides that
“a notice of appeal must be filed with the bankruptcy
clerk within 14 days after entry of the judgment, order, or
decree being appealed.” This deadline to file a notice
of appeal is jurisdictional. In re
Sobczak-Slomczewski, 826 F.3d at 432. “[T]he
failure to file a timely notice of appeal strips the district
court of jurisdiction to hear the appeal.” Id.
Francises appeal the bankruptcy court's December 6, 2017
order. Their notice of appeal was filed on January 5, 2018 -
sixteen days after the deadline imposed by Rule 8002(a)(1).
The bankruptcy court may extend the time to file a notice of
appeal upon a party's motion if it is filed within 14
days of the court's order, or, upon a showing of
excusable neglect, within 35 days of the court's order.
Fed.R.Bankr.P. 8002(d)(1). The Francises, however, failed to
seek leave from the court under Rule 8002(d)(1) to extend the
time to appeal.
fact that the Francises are pro se does not excuse
them from this deadline - “there are no equitable
exceptions to a jurisdictional requirement.” In re
Sobczak-Slomczewski, 826 F.3d at 432 (citing Bowles
v. Russell, 551 U.S. 205, 208-13 (2007)); see also
Netzer v. Office of Lawyer Regulation, 851 F.3d 647 (7th
Cir. 2017) (enforcing the jurisdictional deadline for a
pro se litigant). Thus the Court “lack[s] an
‘equitable' power to contradict the bankruptcy
statutes and rules.” Netzer, 851 F.3d at 649
(citing Law v. Siegel, 571 U.S. 415, 421 (2014);
In re Kmart Corp., 359 F.3d 866, 871 (7th Cir.
2004)). Because the Francises failed to timely file a notice
of appeal or seek additional time from the bankruptcy court,
this Court is without jurisdiction to hear their appeal.
on the foregoing, the Court finds that it lacks jurisdiction
to hear the Francises' bankruptcy appeal. As such, the
Magistrate Judge recommends Appellees' Motion to
Dismiss Appeal [Dkt. 12] be GRANTED.
Appellee's Motion to Stay Deadline for Appellees'
Brief [Dkt. 16] is hereby GRANTED and the deadline for
Appellees to file their brief is stayed pending resolution of
this Report and Recommendation.
objections to the Magistrate Judge's Report and
Recommendation shall be filed with the Clerk in accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), and
failure to timely file objections within fourteen days after
service shall constitute ...