FILED
MAR 29 2021
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
NOT FOR PUBLICATION
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. AZ-20-1232-LBT
ANNA CHABROWSKI,
Debtor. Bk. No. 2:19-bk-00690-MCW
ANNA CHABROWSKI, Adv. No. 2:19-ap-00285-MCW
Appellant,
v. MEMORANDUM∗
BANK OF NEW YORK MELLON, f/k/a
Bank of New York,
Appellee.
Appeal from the United States Bankruptcy Court
for the District of Arizona
Madeline Carmel Wanslee, Bankruptcy Judge, Presiding
Before: LAFFERTY, BRAND, and TAYLOR, Bankruptcy Judges.
INTRODUCTION
Chapter 131 debtor Anna Chabrowski appeals the bankruptcy court’s
order dismissing without prejudice her adversary proceeding against Bank
∗This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
of New York Mellon (“BONYM”) 2 after her repeated failures to effect
service in accordance with Rule 7004 within the time prescribed by Civil
Rule 4(m), applicable in bankruptcy via Rule 7004.
Although the parties did not raise the issue of finality, we have an
independent duty to determine our own jurisdiction. Because the order on
appeal is interlocutory, we DISMISS.
FACTS3
Debtor filed a chapter 13 petition in January 2019. On August 7, 2019,
she filed an adversary complaint against BONYM objecting to BONYM’s
proof of claim and requesting a determination of the validity of BONYM’s
lien on her real property.
Debtor made several attempts to effect service on BONYM, none of
which complied with Rule 7004. She twice attempted personal service on
the law firm that had filed a notice of appearance in the adversary
value, see 9th Cir. BAP Rule 8024-1.
1 Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code,
11 U.S.C. §§ 101–1532, all “Rule” references are to the Federal Rules
of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of
Civil Procedure.
2 The real party in interest is “The Bank of New York Mellon fka The Bank of
New York, as Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust
2006-20CB Mortgage Pass-Through Certificates, Series 2006-20CB.”
3 Debtor did not provide complete excerpts of the record. Accordingly, we have
exercised our discretion to take judicial notice of the dockets and imaged papers filed in
Debtor’s bankruptcy case and the related adversary proceeding. See Atwood v. Chase
Manhattan Mortg. Co. (In re Atwood),
293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). Debtor
improperly included in her excerpts documents that were not before the bankruptcy
court; we have not relied on any of those documents in disposing of this appeal.
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proceeding, but that notice did not state that the firm was authorized to
receive service of process on BONYM’s behalf. After the bankruptcy court
informed Debtor that such service was not effective, Debtor hired a process
server, who attempted personal service on BONYM at its New York City
headquarters. The certificate of service stated that the summons and
complaint were served on an unnamed mail clerk. In the meantime, after
four months had passed without effective service, BONYM moved to
dismiss the adversary proceeding under Civil Rule 4(m). After a status
hearing at which the bankruptcy court explained to Debtor why her
previous attempts at service were ineffective, the court gave Debtor one
last chance to effect service. But Debtor did not do so.
Debtor again used the same process server to serve BONYM. This
time, the certificate of service showed that the summons and complaint
were served on “Albert Cruz, Mail Clerk Manager” at BONYM’s corporate
headquarters without including any basis for the process server’s
declaration that the person served was authorized by BONYM to accept
service on its behalf. The bankruptcy court thus dismissed the adversary
proceeding without prejudice. Debtor timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction under
28 U.S.C. §§ 1334 and
157(b)(2)(K). But as will be discussed, we lack jurisdiction over this appeal.
Although no party raised the issue of finality, we have an
independent duty to consider our own jurisdiction. Dicker v. Dye (In re
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Edelman),
237 B.R. 146, 150 (9th Cir. BAP 1999). “We have appellate
jurisdiction over ‘final judgments, orders, and decrees’ of bankruptcy
judges pursuant to
28 U.S.C. § 158(a)(1). In contrast, we [generally] lack
appellate jurisdiction over interlocutory orders and decrees of bankruptcy
judges . . . unless we first grant leave to appeal under § 158(a)(3).” Belli v.
Temkin (In re Belli),
268 B.R. 851, 854 (9th Cir. BAP 2001).
Ordinarily, an order dismissing a complaint without prejudice is
interlocutory. Barnes v. Belice (In re Belice),
461 B.R. 564, 571-72 (9th Cir. BAP
2011). There are circumstances where such an order may be treated as final.
For example, the order may be treated as final when the statute of
limitations on the underlying claim has run, thus precluding the plaintiff
from refiling. Domingo v. Portugues-Santana (In re Domingo), No. NV–17–
1135–BHTa,
2017 WL 6601773, at *6 (9th Cir. BAP Dec. 26, 2017). The order
may also be treated as final if the bankruptcy court has “clearly manifested
its intent that the dismissal order be its final act in the matter.” In re Belice,
461 B.R. at 571 n.6 (citations omitted). See also Sterling-Pac. Lending, Inc. v.
Moser (In re Moser),
613 B.R. 721, 726 (9th Cir. BAP 2020) (treating order
dismissing adversary proceeding without prejudice as final where
dismissal conclusively denied plaintiff’s requested relief and ended the
bankruptcy court litigation, and the court stated that dismissal was without
prejudice to the plaintiff pursuing his claims in state court).
Here, there is nothing in the record to indicate that the bankruptcy
court intended the dismissal to preclude Debtor from re-filing the
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adversary proceeding. At oral argument, BONYM’s counsel stated that the
statute of limitations had not run on Debtor’s claims. Accordingly, there is
no basis for treating the order as final.
We also have discretion to treat a notice of appeal as a motion for
leave to file an interlocutory appeal. In re Belice,
461 B.R. at 572. Leave to
appeal is appropriate when the order involves a controlling question of law
where there is substantial ground for difference of opinion, and an
immediate appeal may materially advance the ultimate termination of the
litigation. Id.; In re Belli,
268 B.R. at 858. These factors are not satisfied here.
The adversary proceeding was dismissed on purely procedural grounds,
and there is no legal question involving a substantial ground for difference
of opinion. And an immediate appeal would not advance the termination
of the litigation, as the merits of Debtor’s claims still need to be
adjudicated. Therefore, we will not grant leave to appeal.
CONCLUSION
Because the order on appeal is interlocutory, and we will not grant
leave to appeal, we lack jurisdiction. Accordingly, this appeal is
DISMISSED.
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