Unpublished Disposition, 863 F.2d 886 (9th Cir. 1986)

MEMORANDUM^** 

Debtor-in-bankruptcy Richard Jansen appeals from the Bankruptcy Appellate Panel's (BAP) dismissal of his appeal and and denial of his motion to reinstate the appeal. Jansen claims the BAP abused its discretion in dismissing his appeal after he failed to file a timely opening brief. We affirm.

FACTS AND PROCEEDINGS BELOW

Richard Jansen filed a voluntary petition for relief under Chapter 13. Magna Corp. (Magna), James Land's predecessor in interest, began this action by seeking relief from the automatic stay in order to foreclose on its secured interest in Jansen's residence.

In response, Jansen sought to rescind the loan from Magna for violations of the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-14. The bankruptcy court found Jansen's TILA claim meritorious, but conditioned rescission on Jansen repaying the funds originally advanced to him under the loan. That debt was to be repaid through an appropriate Chapter 13 plan.

When Jansen failed to submit an acceptable reorganization plan, the bankruptcy court converted the Chapter 13 petition to a Chapter 7 liquidation plan. Jansen filed a timely notice of appeal to the BAP.

Jansen failed to file his opening brief with the BAP by the September 23, 1985, filing deadline. Instead, on September 26, he filed a motion to enlarge the time to file his brief by 10 days. The BAP granted this motion, setting October 25 as the filing deadline. Shortly before the BAP granted his first motion, Jansen filed a second motion to extend the filing deadline by 30 days. The BAP granted the second motion for an extension of only 15 days until November 15. The BAP order warned that "further extensions of time to file an opening brief will not be granted."

On December 6, Jansen filed his brief with proof of service showing it was served on November 25. Jansen also filed another motion to enlarge the time to file his brief.

On December 12, the BAP dismissed Jansen's appeal for failure to file a timely brief. On January 6, 1986, Jansen filed a motion for rehearing under Bankruptcy Rule 8015 to reinstate the appeal. He asserted that he had never received the BAP's second order specifying November 15, 1985, as the final filing date. On January 10, 1986, Jansen filed a motion to enlarge the time to file his notice of appeal. On February 11, the BAP denied Jansen's motions to rehear and to enlarge the time to file the notice of appeal. On February 28, Jansen filed his notice of appeal to the Ninth Circuit. The notice of appeal referred only to the BAP's denial of the motion to reinstate the appeal.

Concurrently with the BAP proceedings, the bankruptcy court was taking action in Jansen's case. On December 24, 1985, the court granted Land's motion for relief from the automatic stay. After completing the trustee sale of the property, Land filed a motion to dismiss this action as moot. This court denied the motion.

JURISDICTION

We must first determine whether we have jurisdiction to hear this appeal. Allustiarte v. Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir. 1988). A timely notice of appeal is mandatory and jurisdictional. Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1987).

To appeal a judgment of the BAP, the appellant must file his notice of appeal within 30 days of the BAP's entry of judgment. Fed. R. App. P. 4(a) (1); Hoag Ranches v. Stockton Prod. Credit Ass'n (In re Hoag Ranches), 846 F.2d 1225, 116-17 (9th Cir. 1988). The BAP denied Jansen's motion for rehearing on February 11, 1986. Jansen's notice of appeal, filed February 28, was timely.

Although the notice of appeal only refers to the BAP's denial of Jansen's motion for rehearing, Jansen's brief addresses the merits of the BAP's original order to dismiss.¹  A mistake in designating the judgment appealed from, however, will not bar the appeal so long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake. United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir. 1983), cert. denied, 464 U.S. 1071 (1984). Jansen's intent to raise the issue of the original dismissal can be easily inferred from his brief. Land is not prejudiced by this mistake because the merits of the initial dismissal and the denial of the motion for rehearing raise the same basic issue: whether the BAP abused its discretion by dismissing the appeal. Accordingly, we may consider the merits even though Jansen's notice of appeal failed to designate the dismissal.

Jansen's notice of appeal was also timely as to the merits of the dismissal. Although the notice of appeal was filed more than 30 days after the BAP dismissed the action, the BAP had never entered a separate judgment of dismissal. The failure to enter separate judgment is significant for measuring the 30 day appeal period. Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987). Because the BAP never entered a separate judgment, the appeals period never commenced and Jansen's notice of appeal is timely as to the merits. Allustiarte, 848 F.2d at 117 (10 day appeals period from bankruptcy court order not commenced because no entry of judgment).

Therefore, we have jurisdiction over the issues raised by the initial dismissal.

STANDARD OF REVIEW

We review for an abuse of discretion the BAP's imposition of sanctions for noncompliance with a nonjurisdictional procedural requirement. Sierra Switchboard Co. v. Westinghouse Electric Corp., 789 F.2d 705, 706-07 (9th Cir. 1986).

DISCUSSION

(a) Bankruptcy Court's Subject Matter Jurisdiction

Jansen contends that the bankruptcy court exceeded its jurisdiction by addressing his TILA claim and by sua sponte converting his Chapter 13 reorganization into a Chapter 7 liquidation proceeding. He argues that both actions divested the bankruptcy court of jurisdiction which divested the BAP and this court of jurisdiction. This contention lacks merit.

Jansen's argument goes to the merits of his appeal before the BAP, not to the bankruptcy court's jurisdiction to hear the action. For purposes of jurisdiction, the only relevant issue is whether the bankruptcy court had jurisdiction over Magna's motion for relief from the automatic stay. Any party in interest may seek relief from a stay under 11 U.S.C. § 362(d). Magna, and then Land, was a party in interest as a lien holder. See Western Equities, Inc. v. Harlan (In re Harlan), 783 F.2d 839, 841 (9th Cir. 1986) (per curiam) (lien holder entitled to seek relief from stay to assert rights under promissory note secured by deed of trust). Accordingly, the bankruptcy court had jurisdiction to hear the action. Whatever legal errors the court might have made have no bearing on the jurisdictional determination.

(b) Dismissal of Appeal

Jansen contends that the BAP abused its discretion by dismissing his appeal because the untimely filing was harmless and the BAP failed to consider lesser sanctions.

When a court imposes a sanction for a nonjurisdictional procedural default, the selection of the sanction must "take into consideration the impact of the sanction and the alternatives available to achieve assessment of the penalties in conformity with fault. Absent such consideration, there is an abuse of discretion." Sierra Switchboard Co., 789 F.2d at 707 (quoting Myers v. Shekler (In re Hill), 775 F.2d 1385, 1387 (9th Cir. 1985) (per curiam)).

An appellant's failure to file a timely brief is grounds for dismissal. 11 U.S.C.Bankr.R. 8001(a) (BAP may dismiss for failure to perfect appeal). " [W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions." Malone v. United States Postal Services, 833 F.2d 128, 130 (9th Cir. 1987) (discussing dismissal sanction for noncompliance with court order under Fed. R. Civ. P. 16(f) and 41(b)).

The record in this case does not support Jansen's contention that the BAP abused its discretion in dismissing his appeal. Jansen failed to comply with the BAP's filing deadlines on three occasions. When the BAP granted Jansen's second motion for an extension to file his opening brief, it clearly cautioned Jansen that it would grant no further extensions. Jansen failed to file his brief by the deadline and again sought an additional extension.

Jansen claims he never received the BAP's order setting November 15, 1985 as the final filing deadline. A litigant, however, has the burden of knowing filing dates. Cf. In re Snow, 23 Bankr. 655, 657 (E.D. Cal. 1982) (failure of clerk to send entry of judgment notice to appellant does not excuse untimely filing of notice of appeal). The fact that a litigant is pro se does not alter this obligation. King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987) (pro se litigants bound by same procedural rules as other litigants). Jansen made no attempt to determine whether the BAP had ruled on his second motion for an extension until after his appeal had been dismissed and long after the last filing date he admittedly knew of had passed.

Jansen claims that the BAP abused its discretion by failing to consider lesser sanctions. Jansen fails, however, to suggest any less onerous sanctions which were available to the BAP. Jansen had already ignored the BAP's clear warning that no further extensions would be granted.

In sum, the facts leading up to the dismissal do not create "a definite and firm conviction that it was clearly outside the acceptable range of sanctions." See Malone, 833 F.2d at 130. The BAP did not abuse its discretion in dismissing Jansen's appeal.

AFFIRMED.