In re: Sobczak-Slomczewski, No. 15-1162 (7th Cir. 2016)
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Dells Hospitality borrowed $12,600,000 to purchase the Lake Delton Hilton Garden Inn. Dells’ owner and president, Sobsczak-Slomczewski, agreed to indemnify the lender against all losses.. Dells defaulted. The lender filed a foreclosure action. Sobsczak‐Slomczewski directed the hotel’s independent management company to transfer $677,000 to a corporate entity he owned. After a foreclosure sale, the lender amended the complaint to add claims for theft and conversion. The district court found that Sobsczak-Slomczewski had converted and embezzled the $677,000. Sobsczak‐Slomczewski then petitioned for bankruptcy. The lender filed an adversary proceeding seeking to have the $677,000 debt found non‐dischargeable. The bankruptcy court granted the lender summary judgment, citing 11 U.S.C. 523(a)(4) and (a)(6). The district court dismissed Sobsczak‐Slomczewski’s appeal, filed 15 days after the bankruptcy court order, holding that Rule 8002(a)’s 14‐day deadline was jurisdictional. Rejecting Sobsczak‐Slomczewski’s assertion that he did not receive notice until the day of the deadline, the court explained that there are no equitable exceptions to a mandatory jurisdictional rule. The Seventh Circuit affirmed after considering recent Supreme Court pronouncements The court joined other circuits in holding that the 14‐day deadline to file a notice of appeal is rooted in the jurisdiction statute, 28 U.S.C. 158, which expressly includes a timeliness condition. Sobsczak‐Slomczewski did not timely seek additional time from the bankruptcy court.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 1162 IN RE: ROBERT SOBCZAK SLOMCZEWSKI, Debtor Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 7297 — Edmond E. Chang, Judge. ____________________ SUBMITTED DECEMBER 4, 2015 — DECIDED JUNE 13, 2016 ____________________ Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges. PER CURIAM. Debtor Robert Sobsczak Slomczewski ap peals the district court’s dismissal of his untimely appeal from a bankruptcy court’s order. The district court determined that he failed to file his notice of appeal within the 14 day period required by FED. R. BANKR. P. 8002(a)(1) and dismissed the ap peal for lack of jurisdiction. Because the district court did not err, we affirm. Sobsczak Slomczewski was the president and owner of Dells Hospitality, Inc., which borrowed approximately $12,600,000 from Bear Stearns Commercial Mortgage, Inc., to purchase the Hilton Garden Inn in Lake Delton, Wisconsin. 2 No. 15 1162 Sobsczak Slomczewski agreed to indemnify Bear Sterns against any and all losses arising out of certain actions includ ing fraud, misrepresentation, misapplication, and conversion. Bear Stearns sold the loan to Maiden Lane Commercial Mort gage Backed Securities Trust 2008 1, a grantor trust of which U.S. Bank National Association is Trustee, who subsequently reassigned the loan to a Delaware limited liability company called WDH, LLC. Dells Hospitality defaulted on the loan and Maiden Lane filed an action in Wisconsin state court seeking foreclosure. Around this time Sobsczak Slomczewski directed the hotel’s independent management company to transfer $677,000 to a corporate entity he owned and controlled. After a foreclosure sale was held, WDH amended the complaint to add claims against Sobsczak Slomczewski for theft and conversion. Sob sczak Slomczewski removed the claims to the Western Dis trict of Wisconsin, and the district court found that Sobsczak Slomczewski had converted and embezzled the $677,000. Sobsczak Slomczewski then petitioned for bankruptcy in the Northern District of Illinois, and WDH filed an adversary proceeding seeking to have the $677,000 debt found non dis chargeable. On August 5, 2014, the bankruptcy court granted summary judgment to WDH. The court concluded that the $677,000 debt owed by Sobsczak Slomczewski was not dis chargeable in his Chapter 7 bankruptcy petition because the elements necessary to find the debt non dischargeable under 11 U.S.C. § 523(a)(4) and (a)(6) already had been litigated and proven in the Wisconsin federal court proceedings. No. 15 1162 3 Sobsczak Slomczewski filed a notice of appeal on Au gust 20, 15 days after the bankruptcy court entered its order. WDH then moved to dismiss the appeal as untimely. The district court agreed with WDH that the appeal was untimely, granted the motion to dismiss, and concluded that Rule 8002(a)’s 14 day deadline was jurisdictional. The court acknowledged that not all notice of appeal deadlines should be “unquestioningly accept[ed]” as jurisdictional, especially in light of recent Supreme Court cases that sought to distin guish genuinely jurisdictional deadlines from those that do not actually strip a court of jurisdiction, and rather are merely claim processing rules. See Bowles v. Russell, 551 U.S. 205, 208– 13 (2007); Kontrick v. Ryan, 540 U.S. 443, 452–53, 456 (2004). Observing that deadlines set by statute generally are jurisdic tional and those set by court authored rules are not, the court accepted the analysis of three other circuits that recently char acterized Rule 8002(a)’s 14 day deadline as jurisdictional be cause it is rooted in a statute, 28 U.S.C. § 158(c)(2), see In re Berman Smith, 737 F.3d 997, 1002–03 (5th Cir. 2013); In re Ca terbone, 640 F.3d 108, 111–12, 113 n.5 (3d Cir. 2011); In re Lat ture, 605 F.3d 830, 836–37 (10th Cir. 2010). In response to Sob sczak Slomczewski’s assertion that he did not receive notice of the bankruptcy court’s order until the day of the deadline, August 19, the court explained that there are no equitable ex ceptions to a mandatory jurisdictional rule, and the bank ruptcy court had not granted any extension of the time to ap peal. On appeal Sobsczak Slomczewski argues that in light of Kontrick and Bowles, the district court wrongly concluded that Rule 8002(a)’s 14 day period for filing a notice of appeal is mandatory and jurisdictional. He reads Kontrick, 540 U.S. at 4 No. 15 1162 452–53, 456, as standing for the proposition that federal juris diction can be created or withdrawn only by an act of Con gress and not the Federal Bankruptcy Rules. He also cites Bowles for the proposition that in order for a time limit found in a rule to be jurisdictional, it must be specified in an under lying statute. See 551 U.S. at 208–13 (citing 28 U.S.C. § 2107(c); FED. R. APP. P. 4(a)(6)). Sobsczak Slomczewski maintains that Rule 8002(a)’s deadline is a claim processing rule promul gated by the courts rather than one rooted in a statute that bars jurisdiction. Congress confers jurisdiction on district courts to hear ap peals from final orders of a bankruptcy court “taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy rules.” 28 U.S.C. § 158(a)(1), (c)(2). Federal Rule of Bankruptcy Pro cedure 8002(a) provides that the notice of appeal must be filed within 14 days of the date of entry of the judgment or order 1 being appealed. We have previously stated without elabora tion that the 14 day limit in Rule 8002(a) is jurisdictional. See, e.g., In re Salem, 465 F.3d 767, 774 (7th Cir. 2006); In re Bond, 254 F.3d 669, 673 (7th Cir. 2001); Stelpflug v. Fed. Land Bank of St. Paul, 790 F.2d 47, 48–49 (7th Cir. 1986). The Supreme Court’s more recent pronouncements in Kontrick and Bowles, however, require us to re evaluate whether the 14 day time limit to file a notice of appeal in Rule 8002(a) is jurisdictional. Jurisdiction may be withdrawn only 1 “Except as provided in subdivisions (b) and (c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed.” FED. R. BANKR. P. 8002(a)(1). No. 15 1162 5 if Congress has stated clearly its intent to deprive a court of jurisdiction either by explicit statutory command or by man dating that jurisdiction be deprived by rule of court. See Kon trick, 540 U.S. at 452–54; Bowles, 551 U.S. at 209–13. In Kontrick the Court concluded that the time limits found in Bankruptcy Rules 4004 and 9006(b)(3) are not jurisdictional because these limits were prescribed by the Bankruptcy Rules, while the statutory provision conferring jurisdiction over objections to discharge contained no timeliness conditions. Kontrick, 540 U.S. at 452–53 (citing 28 U.S.C. § 157(b)). In Bowles the Court reaffirmed the jurisdictional nature of statutory time con straints when it concluded that a reopened time period for fil ing a notice of appeal under FED. R. APP. P. 4(a)(6) was juris dictional because the time limit was set forth in 28 U.S.C. § 2107(c). Bowles, 551 U.S. at 210–12. We have not had occasion to determine whether Rule 8002(a)’s time limit is jurisdictional in light of Kontrick and Bowles. But three other circuits have done so and con cluded that it is, while no circuit has found to the contrary. See In re Berman Smith, 737 F.3d at 1002–03; In re Caterbone, 640 F.3d at 111–12, 113 n.5; In re Latture, 605 F.3d at 836–37. Ac cording to those decisions, the 14 day deadline to file a notice of appeal is rooted in the jurisdiction granting statute, 28 U.S.C. § 158, that expressly includes a timeliness condition— a notice of appeal must be filed in the time provided by Rule 8002. See In re Berman Smith, 737 F.3d at 1001–02; In re Caterbone, 640 F.3d at 111–12; In re Latture, 605 F.3d at 836–37. We find these courts’ analysis persuasive and agree that the 14 day time limit to file notice of appeal of the bankruptcy court’s judgment or order is jurisdictional. While the specific time period is found in a bankruptcy rule, the statutory grant 6 No. 15 1162 of jurisdiction in 28 U.S.C. § 158 limits appeals to those made in the time limits prescribed in Rule 8002(a). Rule 8002(a)’s time limit therefore is more analogous to the one found in FED. R. APP. P. 4(a)(6) and 28 U.S.C. § 2107 than the time lim its found solely in Bankruptcy Rules 4004 and 9006(b)(3). Ac cordingly, the failure to file a timely notice of appeal strips the district court of jurisdiction to hear the appeal. Sobsczak Slomczewski also reiterates that his late filing should be excused because he did not receive the order in the mail until the day of the deadline. He points to Bankruptcy Rule 8002(d)(1), but that rule allows the bankruptcy court to ex tend the time to appeal due to excusable neglect upon a mo tion filed within 21 days after the 14 day period has expired. See FED. R. BANKR. P. 8002(d)(1). As the district court correctly noted, there are no equitable exceptions to a jurisdictional re quirement, see Bowles, 551 U.S. at 213, and Sobsczak Slomczewski did not timely seek additional time from the bankruptcy court, so we have no jurisdiction to consider such a request. See In re Williams, 216 F.3d 1295, 1297 (11th Cir. 2000); Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997). Because Sobsczak Slomczewski did not file a notice of ap peal within the 14 day limit, the district court never obtained jurisdiction over the bankruptcy court’s order. AFFIRMED
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