United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. SHAH, JUDGE
appellant Gloria Jean Thomas-Wise filed for bankruptcy in
April of 2018,  at 65;  at 4,  all actions seeking to
obtain possession of her estate's property were
automatically stayed. 11 U.S.C. §§ 301, 362(a);
Matter of Vitreous Steel Prod. Co., 911 F.2d 1223,
1231 (7th Cir. 1990). That stay presented a problem for
appellee RICM Properties; it had obtained a judgment in state
court foreclosure proceedings on the property where
Thomas-Wise lived and was planning to hold a foreclosure sale
in the coming weeks. See  at 27-28.
it postponed the sale and filed a motion seeking relief from
the automatic stay. Id. at 28, 67. A few days later,
the trustee of Thomas-Wise's estate (David Leibowitz)
filed a “Report of No Distribution.” Id.
at 68. In it, Leibowitz explained that he had looked into
Thomas-Wise's finances and the location of the property
belonging to the estate and had determined there was
“no property available for distribution from the estate
over and above that exempted by law.” Id. He
concluded that the estate had been fully administered.
Id. See also Fed. R. Bankr. P. 5009; 11 U.S.C.
bankruptcy court held a hearing on RICM's motion a few
weeks later.  at 17-33. Thomas-Wise appeared without an
attorney and, after explaining that she did not receive
notice of the motion, requested twenty-one days to file a
written response.  at 18-20. When the judge asked her how
she had heard about the hearing, she said she looked it up on
the court's website. Id. at 20. The judge then
reviewed a copy of the certificate of service for the motion,
id. at 21-23, and concluded that the motion had been
properly served on June 8. Id. at 23-24. Thomas-Wise
pointed out that the motion had not been filed until June 12,
id. at 24, and presented a substantive defense to
the foreclosure: RICM did not hold the note to the loan on
which they were attempting to collect. Id. at 26.
The judge explained that he did not find the timing of the
filing unusual and, after confirming that Thomas-Wise had
made her defense known during the foreclosure proceedings,
id. at 28-30, determined that the issue was not his
to resolve and signed an order lifting the stay. Id.
at 30- 33; [1-3]. That order, entered on June 28, permitted
RICM to exercise non-bankruptcy remedies with regard to the
property at 7244 S. St. Lawrence Ave., in Chicago, Illinois.
passed.  at 68-69. Near the end of July, Thomas-Wise filed
a motion to vacate the order lifting the stay, id.,
arguing that she should have been allowed to file her written
response.  at 4. The judge held another hearing, during
which he told Thomas-Wise that briefs were not always
necessary and reiterated that he believed the issue needed to
be resolved as part of the foreclosure proceedings.  at
39-42. Thomas-Wise clarified that she was only asking that
she be allowed to file a written response before the judge
made a decision on the motion to lift the stay. Id.
at 40. The judge denied her motion and closed the case.
Id. at 41-42, 69. Thomas-Wise filed an appeal one
week later. .
appeal raises a narrow issue: whether the bankruptcy judge
deprived her of due process (in violation of the Fifth and
Fourteenth Amendments) when he denied her the opportunity to
submit a written brief (and the time necessary to draft it).
;  at 1-2. She reasons that if RICM was allowed to
file a written motion, then she too should have been allowed
to file a written response,  at 5, and says the
bankruptcy judge also violated her due process rights when he
denied her motion to vacate.  at 3.
sent a representative to a status hearing in this case in
November 2018, ; , but never filed a responsive
brief. Leibowitz appeared and filed a brief
(which he described as an “amicus curiae” brief)
in which he argued that the bankruptcy code permitted the
judge to lift the stay because Leibowitz, as trustee, had
determined that Thomas-Wise did not have any equity in the
property and because the property was not necessary to an
effective reorganization (and it never is, he says, because
reorganization never occurs in Chapter 7 cases). ; 11
U.S.C. § 362(d)(2)(A)-(B); Matter of Vitreous Steel
Prod. Co., 911 F.2d 1223, 1232 (7th Cir. 1990).
jurisdiction is limited to review of “final judgments,
orders, and decrees” entered in cases and proceedings.
28 U.S.C. § 158(a)(1). See also id. §
158(a)(2) (providing for review of certain interlocutory
orders, none of which are at issue here). A “bankruptcy
court's lifting of the automatic stay … is a final
order.” Matter of Boomgarden, 780 F.2d 657,
659-60 (7th Cir. 1985). See also In re Jackson Masonry,
LLC, 906 F.3d 494, 498 (6th Cir. 2018), cert.
granted sub nom. Ritzen Grp., Inc. v. Jackson Masonry,
LLC, 139 S.Ct. 2614 (2019). The deadline for Thomas-Wise
to file an appeal fell fourteen days after the judge entered
his June 28 order lifting the stay. Fed.R.Bankr.P.
motion to vacate came almost a month after June 28.  at
68. Whether her motion is best understood as one for a new
trial, see Fed. R. Civ. P. 59(a), or one to alter or
amend a judgment, see Fed. R. Civ. P. 59(e), or one
for relief from an order due to mistake or because a judgment
was void, Fed.R.Civ.P. 60(b), the rules say that Thomas-Wise
had to file it within fourteen days of the “entry of
judgment” in order to toll the deadline to appeal.
Fed.R.Bankr.P. 8002(b)(1)(B), (D); Fed.R.Bankr.P. 9023;
Fed.R.Bankr.P. 9024. See also In re Res. Tech.,
Corp., No. 08 C 2425, 2008 WL 4876846, at *2 (N.D. Ill.
Nov. 7, 2008), aff'd sub nom. In re Res. Tech.
Corp., 624 F.3d 376 (7th Cir. 2010). See also Hope
v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994)
(“a motion to alter or amend a judgment under Rule
59(e) that is filed more than 10 days after entry of judgment
automatically becomes a Rule 60(b) motion, ” and
“a Rule 60(b) motion will not toll the time for filing
notice of appeal unless it is filed within 10 days of
judgment”) (applying the ten-day deadline of a
predecessor version of Fed. R. App. P. 4(a)).
bankruptcy court never made an “entry of
judgment.” It eventually closed the case after denying
Thomas-Wise's motion to vacate, but it did so more than a
month after it granted the motion to lift the stay.
See  at 68-69. That does not mean that there was
no deadline to file a motion under Federal Rule of Bankruptcy
Procedure 8002(b)(1). Instead, the better reading of the
rules is that the order to lift the stay functioned as a
final judgment as to the dispute between Thomas-Wise and
RICM, and the deadline to file a motion for reconsideration
of that order fell fourteen days after it was entered.
See In re Jackson Masonry, LLC, 906 F.3d at 498
(“[a] bankruptcy case is an aggregation of individual
disputes, many of which could be entire cases on their
own”). Otherwise, appellants could wait until the very
end of a bankruptcy proceeding (potentially years later)
before appealing an order lifting a stay that had been
entered at the beginning of the proceedings.
Thomas-Wise's appeal was untimely insofar as it addressed
the order to lift the stay and, as a result, I lack
jurisdiction to address it. In re
Sobczak-Slomczewski, 826 F.3d 429, 432 (7th Cir. 2016)
(“the failure to file a timely notice of appeal strips
the district court of jurisdiction to hear the appeal,
” and “[t]here are no equitable exceptions to a
appeal was not entirely untimely; she met the deadline to
appeal the denial of her motion to vacate.  at 68-69.
Bankruptcy Rule 8002 is modeled on Federal Rule of Appellate
Procedure 4. Fed.R.Bankr.P. 8002 advisory committee's
notes. Under Federal Rule of Appellate Procedure 4, when an
appellant misses the deadline to appeal an underlying
decision but files a timely appeal of the denial of a motion
to reconsider, the appellate court has jurisdiction over the
denial of the motion to reconsider even if it does not have
jurisdiction over the denial of the underlying motion.
Tunca v. Lutheran Gen. Hosp., 844 F.2d 411, 412 (7th
Cir. 1988). See also Marane, Inc. v. McDonald's
Corp., 755 F.2d 106, 112 (7th Cir. 1985) (on appeal, the
reviewing judge may “only consider whether the denial
of the motion was an abuse of discretion, ” and
“cannot reach the merits of the underlying
judgment”). See also Fed. R. Bankr. P.
bankruptcy judge did not abuse his discretion in denying
Thomas-Wise's motion to vacate. The Bankruptcy Code
grants the bankruptcy judge the discretion to determine what
notice and opportunity for a hearing is appropriate in the
particular circumstances, 11 U.S.C. §§ 102(1)(A),
362(d), and the bankruptcy judge did not abuse his discretion
when he denied the motion to vacate because he found that due
process had been provided; notice had been mailed to the
proper address and Thomas-Wise had appeared at the hearing
and presented her defense. Wiese v. Cmty. Bank of Cent.
Wis., 552 F.3d 584, 588 (7th Cir. 2009); Schluga v.
City of Milwaukee, 101 F.3d 60, 62 (7th Cir. 1996)
(“[t]he due process clause does not require notice
in fact to persons having property interests, but
only reasonable efforts at notice”) (emphasis in
original). See also Matter of Boomgarden, 780 F.2d
at 662 (a court that hears “arguments from both
parties” and that “cover(s) all of the important
substantive provisions of § 362(d)” does not
violate a debtor's due process rights); Matter of
Vitreous Steel Prod. Co., 911 F.2d at 1232; Matter
of McGaughey, 24 F.3d 904, 906 (7th Cir. 1994)
(“[s]uch hearings may be summary in character-strictly
limited to an examination of the adequacy of protections for
creditors' interests and other equitable
considerations”). The bankruptcy judge adequately
considered Thomas-Wise's argument and had sufficient
information to resolve the matter-he did not abuse his
discretion in denying the motion to vacate. See also In
re Bartle, 560 F.3d 724, 730 (7th Cir. 2009) (due
process violations can be remedied if notice and an
opportunity to be heard are provided as part of a motion to
order of the bankruptcy court is affirmed. Enter judgment in