Unpublished Dispositionin Re John K. and Mary N. Kershaw, Debtors.john K. and Mary N. Kershaw, Plaintiffs-appellants, v. Margaret L. Behm, Trustee, Defendant, Appellee, 819 F.2d 1142 (6th Cir. 1987)

This is an appeal from an order of the district court dismissing two appeals from the bankruptcy court on the ground that they were untimely. The appeal is before this court on the briefs of the parties and the record, oral argument having been waived.

The order of the bankruptcy court which the debtors sought to appeal was one converting the proceedings from Chapter 11 to Chapter 7 bankruptcy. This order was entered on September 17, 1985 and the debtors filed two motions on September 27, 1985, one for leave to appeal and one for a stay. They did not file a notice of appeal at that time. Approximately one week later the debtors filed a notice of appeal from "the final judgment of the bankruptcy court entered in this case on September 17, 1985." Bankruptcy Rule 8002 requires that a notice of appeal be filed within ten days of the date of entry of the judgment or order appealed from. Although the debtors are proceeding pro se in this court, they were represented by counsel in the bankruptcy court and in the district court.

In response to the motion for leave to appeal, the bankruptcy court entered an order on November 7, 1985 holding that its September 17 order converting the case from Chapter 11 to Chapter 7 was a final order requiring no motion for leave to appeal. The bankruptcy court denied the motion for leave to appeal and the motion for stay. The debtors then filed another notice of appeal within ten days, appealing from the "final order of November 7, 1985 converting this case ... from Chapter 11 to Chapter 7." At a hearing in the district court, counsel for the debtors conceded that he had filed no notice of appeal within ten days from the entry of the order of September 17, 1985. He sought to argue that the appeal was timely on either of two grounds: (1) that the motion for leave to file an appeal was effective as a notice of appeal from the September 17 order and (2) that the notice of appeal from the order of November 7, 1985 was timely.

Upon consideration of the briefs and an examination of the record this court concludes that the district court did not err in dismissing these appeals as untimely. Clearly there was no notice of appeal within ten days of the final order of September 17, 1985 and despite the backing and filling that occurred thereafter that is the order from which an appeal was attempted.

The judgment of the district court is affirmed.