Spitzauer v. Exoterm Holding D.D.

Ninth Circuit

Spitzauer v. Exoterm Holding D.D.

553 Fed. Appx. 732, 553 F. App'x 732, 2014 WL 278914

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 27, 2014

Docket12-60045

StatusUnpublished

This text of 553 Fed. Appx. 732 (Spitzauer v. Exoterm Holding D.D.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Spitzauer v. Exoterm Holding D.D., 553 Fed. Appx. 732, 553 F. App'x 732, 2014 WL 278914 (9th Cir. 2014).

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Opinion

MEMORANDUM **

Michael Peter Spitzauer appeals from the Bankruptcy Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s order denying his second motion to extend time to file a notice of appeal. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions, and apply the same standard of review that the BAP applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir.2009). We affirm.

The bankruptcy court correctly denied Spitzauer’s extension request because, even assuming a showing of excusable neglect, Spitzauer failed to file his request within the 21 day period. See Fed. R. Bankr.P. 8002(c)(2) (time to appeal may be extended upon a showing of excusable neglect only by motion filed not later than 21 days after the expiration of the time for filing a notice of appeal); see also Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir.1990) (“Although Rule 8002 thus incorporates some flexibility, we strictly enforce its time provisions.”).

We do not consider any of Spitzauer’s arguments that address the merits of his claim. See Saunders v. Band Plus Mortg. Corp. (In re Saunders), 31 F.3d 767, 767 (9th Cir.1994) (per curiam) (this court lacks jurisdiction to consider the merits of a claim where an appeal to the BAP was untimely).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Michael Peter Spitzauer appeals from the Bankruptcy Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s order denying his second motion to extend time to file a notice of appeal. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions, and apply the same standard of review that the BAP applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir.2009). We affirm.

The bankruptcy court correctly denied Spitzauer’s extension request because, even assuming a showing of excusable neglect, Spitzauer failed to file his request within the 21 day period. See Fed. R. Bankr.P. 8002(c)(2) (time to appeal may be extended upon a showing of excusable neglect only by motion filed not later than 21 days after the expiration of the time for filing a notice of appeal); see also Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir.1990) (“Although Rule 8002 thus incorporates some flexibility, we strictly enforce its time provisions.”).

We do not consider any of Spitzauer’s arguments that address the merits of his claim. See Saunders v. Band Plus Mortg. Corp. (In re Saunders), 31 F.3d 767, 767 (9th Cir.1994) (per curiam) (this court lacks jurisdiction to consider the merits of a claim where an appeal to the BAP was untimely).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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553 Fed. Appx. 732, 553 F. App'x 732, 2014 WL 278914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spitzauer-v-exoterm-holding-dd-ca9-2014.

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