United States District Court, N.D. Illinois, Eastern Division
December 1, 2004.
LILLIE WARD, Appellant,
CHASE MANHATTAN MORTGAGE CORPORATION, Appellee.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Appellee Chase Manhattan Mortgage
Corporation's Motion to Dismiss Appellant Lillie Ward's appeal
from the Bankruptcy Court's order denying Appellant's motion to
reopen the Chapter 13 proceeding of Climmie Ward ("Ward"). For
the reasons provided below, the Court grants the Appellee's
motion and dismisses the appeal for lack of jurisdiction.
On April 13, 2004, Appellant filed a Motion to Reopen the
Chapter 13 proceeding of Ward and to vacate an October 9, 2003
Order of the Bankruptcy Court dismissing the proceeding. On April
15, 2004, the Bankruptcy Court denied Appellant's motion. The
order of the Bankruptcy Court denying Appellant's motion was
docketed the next day, on April 16, 2004. The record on appeal
includes a notice of appeal that bears a United States District
Court drop box time stamp of April 26, 2004 at 5:53 p.m. However,
the Bankruptcy Court docket reflects that the notice of appeal
was not actually filed by Appellant until April 27, 2004.
Moreover, the notice of appeal contained in the Bankruptcy Court's file also
shows that it was filed on April 27, 2004 and the filing fees
were paid on April 27, 2004. The Appellee contends that
Appellant's notice of appeal was not filed until April 27, 2004.
As such, the Appellee argues that the notice of appeal was not
timely filed and that this Court is thereby divested of
This Court must determine whether it has the requisite
jurisdiction to hear Appellant's appeal from the Bankruptcy
Court's denial of her Motion to Reopen the Chapter 13 proceeding
of Ward and to vacate the October 9, 2003 order of the Bankruptcy
Court dismissing the proceeding. "District courts sit as
appellate courts when hearing appeals from bankruptcy courts and,
`[l]ike any federal appellate court, this court has a special
obligation to satisfy itself that there is federal jurisdiction
to hear the appeal.'" In re Circle Fine Art Corp., No. 97 C
1155, 1997 WL 534323, at *1 (N.D. Ill. Aug. 26, 1997) (quoting
In re Bowers-Siemon Chems. Co., 123 B.R. 821, 822 (N.D. Ill.
1991)). 28 U.S.C. § 158 provides in pertinent part that district
courts "shall have jurisdiction to hear appeals . . . from final
judgments, orders, and decrees" of the Bankruptcy Court.
28 U.S.C. § 158(a)(1).
Federal Rule of Bankruptcy Procedure 8002 requires that a
notice of appeal be filed within ten days from the date of the
judgment, order or decree from which the appeal is taken. FED. R.
BANKR. P. 8002(a); see In re Schwinn Bicycle Co., 209 B.R. 887,
890 (N.D. Ill. 1997); Martin v. Bay State Milling Co.,
151 B.R. 154, 155 (N.D. Ill. 1993). "The 10-day time period in which to
file a bankruptcy appeal is jurisdictional under Bankruptcy Rule
8002(a)." In re Peacock, 125 B.R. 526, 528 n. 7 (N.D. Ill.
1991). Accordingly, failure to file a timely notice of appeal divests the district court of jurisdiction, thereby
requiring dismissal of the appeal. In re Schwinn,
209 B.R. at 890.
As a general rule, in computing the ten-day time period for
filing the notice of appeal, the date of entry of the order is
not included. FED. R. BANKR. P. 9006(a). The intermediate
Saturdays, Sundays, and legal holidays are included in the
computation unless the time period for filing is less than eight
In this case, the order appealed from was entered on April 16,
2004. (Bank. Doc. No. 25.) As such, the tenth and last day for
filing a notice of appeal was Monday, April 26, 2004.*fn1
Thus, if the Appellant failed to file her notice of appeal by
April 26, 2004, the Appellee's Motion to Dismiss must be granted.
The Appellant contends that she "filed her Notice of Appeal by
depositing the Notice into the Drop Box designated for the
Eastern Division of the United States Bankruptcy Court on April
26, 2004" at 5:53 p.m. (Resp. Mot. Dismiss at 1.) Local
Bankruptcy Rule 5005-2 of the United States Bankruptcy Court for
the Northern District of Illinois*fn2 governs the procedure
for use of the drop box. Local Bankruptcy Rule 5005-2(4) states
that "documents placed in the drop box in compliance with this
Rule and time-stamped before 6:00 p.m. on a business day shall be
deemed filed on the date stamped received." As the record on
appeal contains a notice of appeal that bears a drop box time
stamp of April 26, 2004 at 5:53 p.m., Appellant argues that her
Notice of Appeal was timely filed and this Court has jurisdiction to
hear the appeal. (See Resp. Mot. Dismiss at 1.)
Local Bankruptcy Rule 5005-2(3), however, states that "notices
of appeal . . . shall not be placed in the drop boxes." The
Appellee therefore argues that "because [the Appellant's] entire
argument rests on her use of the drop box on April 26, 2004, and
because use of the drop box to file a notice of appeal is
prohibited . . ., Appellant cannot establish that she timely
filed the notice of appeal using the drop box."*fn3 (Reply
Resp. Mot. Dismiss at 2-3.) This Court agrees with Appellee.
"When the language of a statute is clear and unambiguous, we
must give effect to its plain meaning unless doing so would
thwart the purpose of the overall statutory scheme." United
States v. Chemetco, Inc., 274 F.3d 1154, 1159 (7th Cir. 2001)
(quotations omitted). Local Bankruptcy Rule 5005-2(3) of the
United States Bankruptcy Court for the Northern District of
Illinois clearly and unambiguously prohibits the filing of
notices of appeal in the drop box. Obviously the Court would not
be giving effect to this rule if it were to hold that Appellant
could file her notice of appeal by placing it in the drop box.
Moreover, the plain meaning of Local Bankruptcy Rule 5005-2(3) is
consistent with Local Bankruptcy Rule 5005-2(4) as that
subsection makes clear that only "documents placed in the drop
box in compliance with this Rule . . . before 6:00 p.m. shall
be deemed filed on the date stamped received." As the Appellant's
placement of a notice of appeal in the drop box was not in
compliance with Local Bankruptcy Rule 5005-2(3), it cannot be deemed filed on the date stamped
received, namely April 26, 2004. Thus, the notice of appeal was
not timely filed and as such, this Court lacks jurisdiction to
hear the appeal.
For the reasons discussed above, the Court grants the
Appellee's Motion to Dismiss [doc. no. 4-1]. This case is hereby