Unpublished Dispositionin Re Douglas Evan Billings, Debtor.douglas E. Billings, Plaintiff-appellant, v. Tva Credit Union, Defendant-appellee, 894 F.2d 407 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 894 F.2d 407 (6th Cir. 1990) Jan. 25, 1990

Before DAVID A. NELSON and BOGGS, Circuit Judges, and WILLIAM O. BERTELSMAN, District Judge.* 

ORDER

Douglas E. Billings appeals pro se from the district court's order dismissing his appeal from a bankruptcy court decision for lack of jurisdiction. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The bankruptcy court granted a creditor's motion to dismiss Billings's Chapter 11 bankruptcy petition, and denied his motion for reconsideration in an order filed on July 21, 1988. A notice of appeal was filed by Billings on August 22, 1988. The district court concluded that it lacked jurisdiction over the appeal as the notice of appeal had not been filed within ten days of the decision, nor had an extension been requested, pursuant to Bankruptcy Rule 8002. See In re: LBL Sports Center, Inc., 684 F.2d 410 (6th Cir. 1982) (per curiam). On appeal, Billings has submitted a copy of a motion for an extension of time in which to appeal dated July 31, 1988, which, although addressed to the bankruptcy court clerk, was acknowledged as received by the bankruptcy court judge's office. This motion was never filed as part of the record or ruled on by the bankruptcy court.

Upon consideration, we conclude that the district court's order of dismissal should be vacated and this case remanded to the district court. Rule 9(b) (6), Rules of the Sixth Circuit. The district court should further remand the case to the bankruptcy court for a determination of the timeliness of the request for an extension and a ruling on the request if (a) the request was timely or (b) Billings is able to show excusable neglect. See Bankruptcy Rule 8002(c).

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The Honorable William O. Bertelsman, U.S. District Judge for the Eastern District of Kentucky, sitting by designation