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WARD v. CHASE MANHATTAN MORTGAGE CORPORATION

United States District Court, N.D. Illinois, Eastern Division


December 1, 2004.

LILLIE WARD, Appellant,
v.
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.

FACTS

  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 jurisdiction.

  DISCUSSION

  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 days. Id.

  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.

  CONCLUSION

  For the reasons discussed above, the Court grants the Appellee's Motion to Dismiss [doc. no. 4-1]. This case is hereby terminated.

  SO ORDERED.


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