In re: North Cascade Trustee Services Inc, No. 2:2021cv01362 - Document 14 (W.D. Wash. 2021)
Court Description: ORDER granting Appellee's 9 Motion to Dismiss. Ms. Leung's appeal is DISMISSED with prejudice. Signed by Judge James L. Robart. (LH)
Download PDF
<![CDATA[
In re: North Cascade Trustee Services Inc Doc. 14 Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 1 of 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 In re: CASE NO. C21-1362JLR NORTH CASCADE TRUSTEE SERVICES, INC., Debtor. Bankruptcy No. 18-11375-TWD 10 11 12 13 JENNIFER LEUNG, Appellant, 14 15 16 ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION v. NANCY L. JAMES, Appellee. 17 18 19 I. INTRODUCTION Before the court is Trustee / Appellee Nancy L. James’s (“the Trustee”) motion to 20 dismiss Appellant Jennifer Leung’s appeal for lack of jurisdiction. (Mot. (Dkt. # 9).) 21 The Trustee asserts that the court lacks jurisdiction over this appeal because Ms. Leung 22 failed to timely file a notice of appeal. (See id. at 1.) After the Trustee filed her motion, ORDER - 1 Dockets.Justia.com Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 2 of 6 1 Ms. Leung made three filings on the court’s docket: a document titled “Designation of 2 Record & Statement of Issues” (Designation (Dkt. # 11)); a document titled 3 “OBJECTION to Consolidation of Matters” (Cons. Obj. (Dkt. # 12); and a set of 4 documents that address various federal and Ninth Circuit rules of appellate procedure 5 (Appeal Obj. (Dkt. # 13)). The court liberally construes these three documents together 6 as constituting Ms. Leung’s response to the Trustee’s motion. The court has considered 7 the motion, the parties’ submissions in support of and in opposition to the motion, the 8 relevant portions of the record in this court and in the bankruptcy court, and the 9 applicable law. Being fully advised, the court GRANTS the Trustee’s motion to dismiss. 10 II. BACKGROUND 11 On April 2, 2018, Debtor North Cascade Trustee Services (“Debtor”) filed a 12 voluntary petition for relief under chapter 7 of the Bankruptcy Code. (Pet. (Bankr. Dkt. 1 13 # 1).) On August 14, 2018, Ms. Leung filed Claim No. 4 in that bankruptcy case, 14 asserting a secured claim against the Debtor in the sum of $1,620,975.26 based on a 15 variety of theories. (See Obj. to Claim 4 (Bankr. Dkt. # 157) at 3.) On June 23, 2021, the 16 Trustee filed an objection to Ms. Leung’s claim. (See id.) On July 23, 2021, after the 17 Trustee and Ms. Leung briefed the Trustee’s objection, the bankruptcy court heard oral 18 argument. (See Order Sustaining Objection (Bankr. Dkt. # 175).) The bankruptcy court 19 sustained the Trustee’s objection and disallowed Ms. Leung’s claim. (See id.) 20 21 22 1 The court uses the shorthand “Bankr. Dkt” to refer to entries on the docket of the underlying bankruptcy case, In re Northwest Cascade Trustee Services, Inc., No. 18-11375TWD (Bankr. W.D. Wash.). ORDER - 2 Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 3 of 6 1 On August 3, 2021, Ms. Leung filed a motion for “Reconsideration of the 2 Erroneous Presumptive Ruling by an [sic] Legislative Non-judicial Empowered Judicial 3 Official.” (Mot. to Reconsider (Bankr. Dkt. # 176).) The bankruptcy court construed 4 Ms. Leung’s filing as a motion for reconsideration of the order sustaining the trustee’s 5 objection to her claim and, on August 12, 2021, issued an order denying the motion. 6 (Reconsideration Order (Bankr. Dkt. # 177).) 7 On August 30, 2021, Ms. Leung filed a document in the bankruptcy court titled 8 “Notice of Formal Appeal in the form of a Petition for Redress” (“Formal Appeal”). (1st 9 Not. (Bankr. Dkt. # 180).) Ms. Leung’s “Formal Appeal” filing, however, did not use the 10 bankruptcy court’s official notice of appeal form; state whether Ms. Leung elected to 11 appeal to the bankruptcy appellate panel or to district court; or identify or attach the 12 orders that she sought to appeal. (See generally id.) On October 5, 2021, Ms. Leung 13 filed a notice of appeal and statement of election to have her appeal heard in district court 14 using the bankruptcy court’s Form 417A. (Not. of Appeal (Bankr. Dkt. # 181).) In that 15 notice, she states that she “waited over a month [after filing her “Formal Appeal”] to find 16 out that [she] needed to file with Form 417A to be heard.” (Id. at 1.) Ms. Leung’s appeal 17 was then transmitted to this court. (See Transmittal (Dkt. # 1).) 18 19 III. ANALYSIS The Trustee moves to dismiss Ms. Leung’s appeal for lack of jurisdiction because 20 she did not file it before the deadline set forth in the Federal Rules of Bankruptcy 21 Procedure. (See generally Mot.) Ms. Leung does not directly address the Trustee’s 22 arguments regarding the timeliness of her appeal in any of the documents she filed after ORDER - 3 Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 4 of 6 1 the Trustee filed her motion. (See Designation; Cons. Obj.; Appeal Obj.) Ms. Leung 2 does, however, appear to request that the court liberally construe her “Formal Appeal” 3 filing as a proper notice of appeal and forgive her initial failure to use Form 417A in light 4 of her pro se status. (See, e.g., Appeal Obj. at 30-31 (quoting Fed. R. App. P. 3(c)(4) 5 (“An appeal must not be dismissed for informality of form or title of the notice of 6 appeal . . . .”)).) 7 “The district courts of the United States shall have jurisdiction to hear appeals 8 from final orders, judgments, and decrees” of the bankruptcy courts. 28 U.S.C. 9 § 158(a)(1). These appeals must be taken within the time provided by Federal Rule of 10 Bankruptcy Procedure 8002. 28 U.S.C. § 158(c)(2). “[A] notice of appeal must be filed 11 with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree 12 being appealed.” Fed. R. Bankr. P. 8002(a)(1). “The notice of appeal must: (A) 13 conform substantially to the appropriate Official Form; (B) be accompanied by the 14 judgment, order, or decree, or the part of it, being appealed; and (C) be accompanied by 15 the prescribed fee.” Fed. R. Bankr. P. 8003(a)(3). The applicable official form is Form 16 Number B 417A. See United States Courts, Services and Forms, 17 http://www.uscourts.gov/forms/appellate-forms/notice-appeal-and-statement-election 18 (last visited November 17, 2021). The bankruptcy court may extend the time to file a 19 notice of appeal if a party files a motion to extend within 21 days after the expiration of 20 the initial 14-day period and shows excusable neglect. Fed. R. Bankr. P. 8002(d)(1)(B). 21 However, “the failure to file a timely notice of appeal is a jurisdictional defect barring 22 appellate review.” In re Wiersma, 483 F.3d 933, 938 (9th Cir. 2007) (citation and ORDER - 4 Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 5 of 6 1 quotation marks omitted). Thus, if a party seeking to appeal a bankruptcy court order to a 2 district court fails to file a notice of appeal within the time prescribed by the Federal 3 Rules of Bankruptcy Procedure, the district court does not have jurisdiction over the 4 appeal and must dismiss it. 5 Ms. Leung seeks to appeal the bankruptcy court’s August 12, 2021 order denying 6 her motion for reconsideration. (See Not. of Appeal; Reconsideration Order.) To perfect 7 her appeal, Ms. Leung was required to file a notice of appeal that conforms to the 8 requirements of Federal Rule of Bankruptcy Procedure 8002(a)(3) within 14 days of the 9 entry of that order, or by August 26, 2021. See Fed. R. Bankr. P. 8002(a)(3). Ms. Leung, 10 however, did not file a conforming notice of appeal until October 5, 2021—54 days after 11 the bankruptcy court issued its order, and 40 days after the time to appeal expired. (See 12 Not. of Appeal.) Even if the court were to liberally construe Ms. Leung’s “Formal 13 Appeal” filing as a notice of appeal, 2 Ms. Leung did not file that notice until August 30, 14 2021, four days after the time to appeal expired. (See 1st Not.) Thus, it, too, was 15 untimely. Finally, there is no evidence in the record that Ms. Leung filed a motion for an 16 extension of time to appeal or any other motion that would extend the deadline for filing 17 a notice of appeal. See Fed. R. Bankr. P. 8002(d); (see generally Bankr. Dkt.). The court 18 concludes that it lacks jurisdiction to hear this matter because Ms. Leung did not file a 19 timely notice of appeal. Therefore, the court GRANTS the Trustee’s motion to dismiss. 20 21 22 2 The court declines to do so because the “Formal Appeal” filing does not conform substantially to Form 417A, does not attach the orders to be appealed, and did not include a filing fee or motion to proceed in forma pauperis. See Fed. R. Bankr. P. 8003(a)(3); (see 1st Not.). ORDER - 5 Case 2:21-cv-01362-JLR Document 14 Filed 11/22/21 Page 6 of 6 1 2 3 4 IV. CONCLUSION For the foregoing reasons, the court GRANTS the Trustee’s motion to dismiss Ms. Leung’s appeal (Dkt. # 9). Ms. Leung’s appeal is DISMISSED with prejudice. Dated this 22nd day of November, 2021. 5 6 A 7 JAMES L. ROBART United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
