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Dismissal of Bankruptcy Appeal Affirmed

By FindLaw Staff on May 20, 2010 1:48 PM

In In re: Latture, No. 09-6016, court of appeals affirmed the bankruptcy appellate panel's (BAP) order dismissing debtor's appeal as untimely, holding that 1) debtor's failure to timely file an appeal in compliance with Rule 8002(a) deprived the BAP of jurisdiction to hear his appeal; 2) by its own terms Fed. R. App. P. 6 did not govern an appeal taken from bankruptcy court to a bankruptcy appellate panel; and 3) even assuming debtor did not receive the court's judgment, the BAP could not extend the time to file a notice of appeal.

As the court wrote:  "Plaintiff-Appellee Tracy Emann obtained a judgment against Defendant-Appellant Rodger Latture. Latture subsequently filed for bankruptcy. The bankruptcy court granted Emann's motion for summary judgment, finding Emann's claim non-dischargeable. The bankruptcy court entered summary judgment for Emann on November 14, 2008. Latture did not file his notice of appeal with the Bankruptcy Appellate Panel of the Tenth Circuit (B.A.P.) until November 25, 2008--eleven days after the bankruptcy court entered its judgment--making it one day out of time according to Fed. R. Bankr. P. 8002(a) and 9006(a).1 Relying on In re Herwit, 970 F.2d 709, 710 (10th Cir. 1992), the B.A.P. concluded Latture's failure to file a timely notice of appeal was a jurisdictional defect which bars appellate review and, accordingly, dismissed Latture's appeal."

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