Smith v. Jemcap Funding LLC

• Court: District Court, E.D. New York
• Decided: September 28, 2020
• Docket: 1:19-cv-06020
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------X FLORENCE F. SMITH, Appellant, MEMORANDUM AND ORDER 19-CV-6020 (RPK) -against- JEMCAP FUNDING LLC, and MONTROSE EQUITY PARTNERS LLC, Appellees. ---------------------------------------------------------------X RACHEL P. KOVNER, United States District Judge: AppellantFlorence F. Smith brings this pro seappeal under 28 U.S.C.§ 158tocontest the appointment of a Chapter 11 trustee in abankruptcy proceeding. See Notice of Appeal (Dkt. #1). Appellee Montrose Equity Partners LLC (“Montrose”) and the appointed trustee, Alan Nisselson, have each moved to dismiss the appeal, principally on the grounds that it is untimely. See Mot. to Dismiss (“Montrose Mot.”) (Dkt. #12);Mem. of L. in Supp. of Mot. to Dismiss(“Trustee Br.”) (Dkt. #13-3).* This Court lacks jurisdiction over the appeal because it is untimely. I therefore dismiss the appeal. BACKGROUND Appellant Smith is the debtor in an individual Chapter 11 case in the United States Bankruptcy Court for the Eastern District of New York. SeeTrustee Decl. at Ex. A (“Bankruptcy Docket Sheet”) (Dkt. #13-1). Montrose represents that it is “the largest creditor” in that case and the “holder of a final state court judgment of foreclosure and sale” against Ms. Smith and two properties at issue in the proceeding. Montrose Mot. ¶4. In July 2019,Montrose moved to appoint a Chapter 11 trustee to protect itself and Ms. Smith’s other creditors. Id. ¶ 6; Bankruptcy Docket * The docket sheet for this appeal inaccurately reflects that Mr. Nisselson is the attorney for appellee Jemcap Funding LLC, which has not appeared. SeeMontrose Mot. at 2 n.1. Sheet at Doc. 50. The Bankruptcy Court entered a conditional order authorizing the appointment of a trusteeon August 26,2019. SeeNotice of Appeal at 7-9; Bankruptcy Docket Sheet at Doc. 75. It then entered an order authorizing the appointment of a Chapter 11 trustee on September 11, 2019. Montrose Mot.¶ 9; Bankruptcy Docket Sheet at Doc. 87. It approved the appointment of Mr. Nisselsonas trusteeone week later,on September 18,2019. Trustee Decl. at 4n.3(Dkt. #13);

Bankruptcy Docket Sheet at Doc. 92. On October 24, 2019, appellant filed a notice of appeal in the Bankruptcy Court from the August 26 conditional order. See Bankruptcy Docket Sheet at Doc. 116. The proceedings commenced inthis Court on October25, 2019. See Notice of Appeal. The record does not reflect that appellant ever sought an extension of time to file her appeal. See Montrose Mot. ¶ 19; Trustee Br. at 2; see generally Bankruptcy Docket Sheet. DISCUSSION Federal district courts have jurisdiction to hear appeals from “final judgments, orders, and decrees” entered by bankruptcy courts. 28 U.S.C. § 158(a)(1). They also have “discretionary

appellate jurisdiction over an interlocutory order of a bankruptcy court.” In re Kassover, 343 F.3d91, 94 (2d Cir. 2003); see 28 U.S.C. § 158(a)(3). But district courts may exercise those forms of jurisdiction only if a litigant has filed a timely notice of appeal. Such a notice must be filed with the bankruptcy clerk“within 14 days after entryof the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002(a); see28 U.S.C.§ 158(c)(2); see alsoFed. R. Bankr. P. 8003(a) and 8004(a). If an appellant neither files an appeal nor seeks an extension within that 14-day window, the litigant may seek a retroactive extension within 21 days after the passage of the deadline, if the litigant makes a showing of “excusable neglect.” Fed. R. Bankr. P. 8002(d);see In re Soundview Elite Ltd., 512 B.R. 155, 156-57 (S.D.N.Y. 2014), aff'd, 597 F. App’x 663 (2d Cir. 2015). A district court lacks jurisdiction to consider appeals that do not comply with thesetiming requirements. See In re Siemon, 421 F.3d 167, 169 (2d Cir. 2005)(per curiam); In re Indu Craft, Inc., 749 F.3d 107, 114-15 (2d Cir. 2014); cf. In re Soundview Elite Ltd., 512 B.R. at 156-57, 158 n.6 (finding that the court lacked jurisdiction to consider a bankruptcy appeal that was filed two hours late).

Under these principles, appellant’s failure to file a timely notice of appeal deprives this Court of jurisdiction. Ms. Smith appears to appeal the August 26, 2019 conditional order authorizing the appointment of a Chapter 11 trustee, even though the Bankruptcy Court issued a further appointment order on September11, 2019, and anorder appointing Mr. Nisselson as trustee on September 18, 2019. SeeNotice of Appeal at 3; Bankruptcy Docket Sheet at Docs. 75, 87, 92. But Ms. Smith’s appeal would be untimely as to any of these orders, because Ms. Smith did not file a notice of appeal in the Bankruptcy Court until October 24, 2019. That date is 59 days after the August 26 conditional order, 43 days after the September 11 appointment order, and 36 days after the order appointing Mr. Nisselson as trustee. See Fed. R. Bankr. P. 9006(a). The record

does not suggest that Ms. Smith filed any request for an extension of time to file an appeal, let alone a request within the time allowed under Federal Rule of Bankruptcy Procedure 8002(d). Because this appeal is untimely, the Court lacks jurisdiction to consider it. CONCLUSION The motions to dismiss the appeal are granted. SO ORDERED.

/s/ Rachel Kovner RACHEL P. KOVNER United States District Judge Dated: September 28, 2020 Brooklyn, New York