Copenhaver v. Source One Mortgage

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2000
• Docket: 99-50377
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-50377 Summary Calendar _____________________

IN THE MATTER OF: Walter Alexander Copenhaver,

Debtor. ________________________________________________________________

WALTER ALEXANDER COPENHAVER,

Appellant,

versus

SOURCE ONE MORTGAGE SERVICES CORPORATION, Its Successors and/or Assigns, Appellee. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. EP: 98-CA-502-F _________________________________________________________________ April 12, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Walter Copenhaver has appealed the district court’s dismissal

of his petition for Chapter 13 bankruptcy protection. Both parties

have also filed a series of motions. We dispose of all outstanding

motions herein and affirm the district court.

I

Copenhaver filed for Chapter 13 bankruptcy in July 1998.

Source One Mortgage Services Corporation then filed a motion for

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. relief from automatic stay in order to foreclose on Copenhaver’s

residence. After a hearing, the bankruptcy court granted relief to

Source One on September 30, allowing the foreclosure to proceed.

On October 30, Copenhaver filed a notice of appeal with the

bankruptcy court, which dismissed his bankruptcy case on the same

day. Copenhaver immediately sought to enjoin the foreclosure sale,

but the bankruptcy court did not rule on that motion until after

the sale on November 3, 1998. On November 13, Copenhaver filed a

motion seeking a fifteen-day continuance to file his designation of

issues on appeal. But on December 1, the bankruptcy court denied

this motion, ruling that the original notice of appeal had been

untimely. In the same order, the bankruptcy court denied

Copenhaver’s request for an injunction because the case had been

dismissed, eliminating the bankruptcy court’s jurisdiction. Source

One later asked the district court to dismiss Copenhaver’s appeal

as untimely and moot, which the district court did on March 15,

1999.

II

We first address the various motions before us.

First, appellant’s motion to relieve Attorney June Ann Mann is

DENIED.

Second, appellant’s motion to strike the appearance form of

June Ann Mann is DENIED.

Third, appellant’s motion to strike appellee’s brief is

2 Fourth, appellant’s motion to strike appellee’s

response/opposition filed December 30, 1999, is DENIED.

Fifth, appellant’s motion to supplement the record on appeal

with a copy of the bankruptcy court docket sheet is DENIED.

Sixth, appellant’s motion to file supplemental record excerpts

is DENIED.

Seventh, appellant’s motion for summary judgment is DENIED.

Eighth, appellant’s motion to relieve Attorneys June Mann and

Peter Curran for failure to enter a timely appearance is DENIED.

Ninth, appellant’s motion that Source One Mortgage Corporation

not be allowed any prosecution or action entered by June Mann or

Peter Curran is DENIED.

Tenth, appellee’s motion to strike appellant’s improper

captions is GRANTED.

Eleventh, appellee’s motion to strike all of appellant’s

pleadings containing improper captions is DENIED.

III

Copenhaver challenges the district court’s dismissal of his

appeal for untimeliness under Fed. R. Bankr. P. 8002(a). That rule

requires filing of the notice of appeal within ten days of the date

of entry of the judgment, order, or decree appealed from.

Copenhaver waited thirty days. Copenhaver now asserts that his

notice of appeal was timely because the United States is a party,

and that for that reason, Fed. R. App. P. 4(a)’s extension of the

deadline to sixty days governs. But the United States is not a

3 party here. Although Copenhaver has included the Federal Home Loan

Mortgage Corporation (“Freddie Mac”) in the caption in recent

filings, this entity was not involved in the suit from the

beginning, and Copenhaver has not served Freddie Mac with his brief

in this appeal. Rule 8002(a), therefore, applies, making

Copenhaver’s notice of appeal untimely. The failure to file a

timely notice of appeal deprives the district court of

jurisdiction1 to consider the appeal, and this court therefore

lacks jurisdiction over the merits. In re Don Vicente Macias,

Inc., 168 F.3d 209, 210 (5th Cir. 1999), cert. denied, 68 USLW 3178

(U.S. Nov. 8, 1999)(No. 99-458).2

IV

For the reasons stated herein, the district court’s decision

is

A F F I R M E D.

1 Copenhaver has challenged the district court’s jurisdiction over his appeal because of improper venue. This is irrelevant, because we have already held that the district court lacked jurisdiction based on Copenhaver’s failure to file a timely notice of appeal. 2 Moreover, any appeal at this point is moot because Copenhaver failed to obtain a stay before the sale of his property. See Gilchrist v. Wescott, 891 F.2d 559, 560 (5th Cir. 1990)(an appeal after sale of property in absence of a stay is moot).