Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1990)

In re Samir B. TLEEL, Lupana Tleel, Debtors.Samir B. TLEEL, Appellant,v.Robert A. FISHER, Trustee, Appellee.

No. 89-55253.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 3, 1990.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Chapter 7 debtor Samir Tleel appeals from the Bankruptcy Appellate Panel's (BAP) order dismissing his appeal as untimely under Bankruptcy Rule 8002(a). Tleel contends that his notice of appeal was timely under Bankruptcy Rule 8002(c). We review conclusions of law in bankruptcy proceedings de novo, and apply the clearly erroneous standard to findings of fact. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir. 1986). We affirm.

* Facts

On January 4, 1988, the bankruptcy court ordered Tleel in default, striking his answer to the Trustee's complaint objecting to Tleel's discharge in bankruptcy. On April 8, 1988, Tleel filed a motion to vacate the default judgment. On June 16, 1988, Tleel appealed to the BAP. On June 30, 1988, the bankruptcy court denied Tleel's April 8, 1988 motion to vacate the order of default entered against him. On May 8, 1989, the BAP dismissed Tleel's appeal as untimely.

II

Analysis

A notice of appeal to the BAP must be filed within ten (10) days of the date of entry of the judgment, order, or decree appealed from. Bankr.R. 8002(a). Timely filing of the notice of appeal is jurisdictional, and thus the BAP may dismiss an untimely appeal. See In re Souza, 795 F.2d 855, 857 (9th Cir. 1986).

On April 12, 1988, the bankruptcy court entered a default judgment against Tleel denying him a discharge in bankruptcy. On June 16, 1988, Tleel filed a notice of appeal to the BAP. The BAP dismissed the appeal as untimely because the notice of appeal was filed in excess of the ten (10) days from judgment allowed by Bankruptcy Rule 8002(a). Id.

Tleel contends that under the provisions of 8002(c) his appeal is timely.1  He claims that he was actually appealing from a subsequent May 12, 1988 order of the bankruptcy court denying his April 8, 1988 motion to vacate the default judgment entered against him, and that the April 12, 1988 date on his notice of appeal was due to secretarial error.

There is no record or evidence of a May 12, 1988 order disposing Tleel's motion to vacate judgment other than Tleel's assertion that it exists.2  Instead, the record shows that the bankruptcy court entered an order denying Tleel's motion to vacate on jurisdictional grounds on July 1, 1988. In the absence of any evidence that a May 12, 1988 order was ever entered by the bankruptcy court, the BAP did not err in dismissing Tleel's appeal as untimely. See In re Sweet Transfer & Storage, No. 88-4156, slip op. at 1910 (9th Cir. Feb. 21, 1990).

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Bankruptcy Rule 8002(c) provides in part that a bankruptcy judge may grant an extension of the time for filing the notice of appeal if a request for an extension is made within twenty days after the expiration of the ten day appeal period, upon a showing of excusable neglect. Tleel argues that if May 12, 1988 is the date of the order from which he appealed, his notice of appeal was timely under Bankr.Rule 8002(c). Since there is no evidence of a May 12, 1988 order, this argument is meritless

 2

Under the provisions of Bankruptcy Rule 8002(b) a motion to vacate judgment will toll the time for appeal to the BAP, if timely made. See Bankr.R. 8002(b), 9023; Hansen v. Finn (In re Curry and Sorensen, Inc.), 14 B.C.D. 103 (9th Cir.B.A.P. 1986). A notice of appeal filed before the entry of judgment on the motion is ineffective, and a new notice of appeal must be filed after the date of entry. See In re Sweet Transfer and Storage, Inc., No. 88-4156, slip op. at 1909-10 (9th Cir. Feb. 21, 1990)

If Tleel was appealing from the order disposing of his motion to vacate, he was required to file a new notice of appeal after the July 1, 1988 entry. He failed to do so. Thus, his notice of appeal was ineffective, even if taken from the order disposing of his motion to vacate. See id.