In Re: Jean E. Fryer , 235 F. App'x 951 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-11-2007
In Re: Jean E. Fryer
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4866
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"In Re: Jean E. Fryer " (2007). 2007 Decisions. Paper 962.
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CLD-243 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4866
________________
IN RE: JEAN E. FRYER,
Debtor
ENTERPRISE BANK, a/k/a ENTERPRISE BANK, INC.
v.
JEAN YOUNG, an individual; HARRY YOUNG, an individual; ROBERT FRYER, an
individual, in his individual capacity and as Co-Executor of the Testamentary Estate of
Jean E. Fryer; DAVID FRYER, an individual, in his individual capacity as Co-Executor
of the Testamentary Estate of Jean E. Fryer; STANLEY G. MAKOROFF, Chapter 7
Trustee of the Bankruptcy Estate of Jean E. Fryer; And All Other Persons Or Entities
Having Or Claiming An Interest in Certain Premises Generally Known As The Fryer
Funeral Home And An Adjacent Dwelling House (723 and 729-31 Washington Avenue,
Bridgeville, PA)
ROBERT B. FRYER,
Appellant
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 06-cv-00550)
District Judge: Honorable Thomas M. Hardiman
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
May 24, 2007
Before: Rendell, Smith and Jordan, Circuit Judges
(Filed: June 11, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Robert Fryer, proceeding pro se and in forma pauperis, appeals an order of the
United States District Court for the Western District of Pennsylvania dismissing his
appeal of three orders issued by the United States Bankruptcy Court for the Western
District of Pennsylvania. For the following reasons, we will dismiss the instant appeal
pursuant to 28 U.S.C. § 1915(e)(2)(B).
Appellee, Enterprise Bank, instituted an adversary proceeding in the Bankruptcy
Court for the purpose of determining the validity, priority, and extent of its lien on real
property in the bankruptcy estate of Fryer’s late mother, who filed for bankruptcy
protection shortly before her death in 2002. On August 26, 2005, the Bankruptcy Court
ruled that Enterprise Bank had a valid and enforceable first priority mortgage lien on the
property. Fryer, who was a co-defendant in the adversary proceeding and actively
challenged the validity of Enterprise Bank’s lien, did not appeal the Bankruptcy Court’s
August 26 ruling within the prescribed ten-day period. On September 16, 2005, he filed a
petition under FED. R. BANKR. P. 8002(c)(2) for leave to file an untimely appeal of the
August 26 ruling. In that petition, Fryer explained that he did not file a timely appeal
because, for reasons outside his control, he did not learn of the Bankruptcy Court’s ruling
until more than ten days after it was issued. On October 31, 2005, the Bankruptcy Court
denied Fryer’s petition for leave to file an untimely appeal on the grounds that he had
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failed to make the requisite showing of excusable neglect. Fryer nonetheless continued to
file documents in the Bankruptcy Court in support of the unsuccessful petition. On
March 30, 2006, the Bankruptcy Court ordered distribution of the funds from the
bankruptcy estate to the creditors. The following day, Fryer filed a lengthy document in
the Bankruptcy Court, captioned “A Petition To The United States Bankruptcy Court To
Allow Robert B. Fryer To Appeal Its Recent Opinion In Favor Of Enterprise Bank To
The United States District Court,” which was docketed as a notice of appeal of the
Bankruptcy Court’s October 31, 2005 order and forwarded to the District Court. Shortly
thereafter, Fryer filed a document requesting that the District Court also review the
Bankruptcy Court’s orders of August 26, 2005, and March 30, 2006.
The District Court granted Enterprise Bank’s motion to dismiss the appeal,
concluding that it lacked jurisdiction over Fryer’s untimely challenge to the Bankruptcy
Court’s decisions of August 26 and October 31, 2005, and, alternatively, that the
Bankruptcy Court did not abuse its discretion in denying Fryer’s request for authorization
to file an untimely appeal. The District Court also concluded that Fryer lacked standing
to appeal the Bankruptcy Court’s March 30, 2006 order of distribution, and that the
challenge was moot because the assets in the bankruptcy estate had already been
distributed. Fryer now appeals the entire judgment of the District Court. We have
jurisdiction pursuant to 28 U.S.C. § 158(d)(1). Because Fryer is proceeding in forma
pauperis, we will dismiss the appeal if it lacks an arguable factual or legal basis. See 28
U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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We agree with the District Court that Fryer’s appeal of the August 26 and October
31, 2005 orders was not filed in accordance with the procedural rules governing appeals
from Bankruptcy Court decisions. Bankruptcy appeals are subject to the deadlines
prescribed by FED. R. BANKR. P. 8002. See 28 U.S.C. § 158(c)(2). A party appealing a
ruling of the Bankruptcy Court generally must file a notice of appeal within ten days after
entry of the order being appealed. See FED. R. BANKR. P. 8002(a). The Bankruptcy
Court may extend the time for filing a notice of appeal up to twenty days after expiration
of the ten-day deadline upon a showing of excusable neglect. FED. R. BANKR. P.
8002(c)(2). But if more than thirty days have passed after entry of the challenged order,
excusable neglect ceases to serve as a valid justification for a late appeal. See
Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997). Fryer’s challenge
to the August 26 and October 31, 2005 orders is clearly untimely under Rule 8002
because he did not file his notice of appeal of these decisions until March 2006.
We have held that a District Court lacks jurisdiction over an appeal of a
Bankruptcy Court ruling that is untimely under Rule 8002. See In re Universal Minerals,
Inc., 755 F.2d 309, 310 (3d Cir. 1985). However, that holding has been called into
question by the United States Supreme Court’s recent decisions in Eberhart v. United
States, 546 U.S. 12 (2005), and Kontrick v. Ryan, 540 U.S. 443 (2004). Rule 8002 might
now qualify as a non-jurisdictional “claim-processing rule” that is mandatory when
invoked by a party, but subject to waiver if no timeliness objection is raised. See
Eberhart, 546 U.S. at 19. At this time, however, we need not resolve the issue of the
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jurisdictional significance of Rule 8002 because even if the deadlines prescribed under
that rule are merely non-jurisdictional claim-processing rules, we note that Enterprise
Bank moved to dismiss Fryer’s appeal to the District Court on timeliness grounds and
therefore properly invoked the rule. Accordingly, we conclude that the District Court
correctly dismissed Fryer’s untimely appeal of the Bankruptcy Court’s orders of August
26 and October 31, 2005.
We also conclude that the District Court properly found that Fryer lacked standing
to appeal the Bankruptcy Court’s March 30, 2006 order distributing the assets in the
bankruptcy estate. Standing to appeal an order of the Bankruptcy Court is limited to
“persons aggrieved” by the challenged decision. In re Dykes, 10 F.3d 184, 187 (3d Cir.
1993). “Litigants are ‘persons aggrieved’ if the order diminishes their property, increases
their burdens, or impairs their rights.” Id. Under this standard, an appealing party must
do more than simply show that the contested order gives rise to a “case or controversy”
under Article III. See In re Combustion Eng’g, Inc., 391 F.3d 190, 215 (3d Cir. 2004).
“[O]nly those whose rights or interests are directly and adversely affected pecuniarily by
an order of the bankruptcy court may bring an appeal.” In re PWS Holding Corp., 228
F.3d 224, 249 (3d Cir. 2000) (internal quotation marks and citation omitted). Whether a
litigant has standing to appeal a Bankruptcy Court ruling is ordinarily a question of fact to
be resolved by the District Court, and we defer to the District Court’s finding unless it is
clearly erroneous. See In re Dykes, 10 F.3d at 185, 188.
As explained by the District Court, the order of distribution could not have
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affected Fryer’s interests as a creditor of the bankruptcy estate because he never filed a
formal or informal proof of claim identifying himself as a creditor. See generally FED. R.
BANKR. P. 3002 (stating requirements for asserting a claim to debtor’s estate). Fryer does
not dispute that he never filed a formal proof of claim, but he suggests that his numerous
filings with the Bankruptcy Court somehow qualify as an informal proof of claim as to
the property that was the subject of the adversary proceeding instituted by Enterprise
Bank. The District Court soundly determined that these filings do not suffice as an
informal proof of claim because they do not assert a demand against the debtor’s estate,
but instead merely dispute the contents of the estate. See In re Am. Classic Voyages Co.,
405 F.3d 127, 131-32 (3d Cir. 2005) (setting forth requirements for filing informal proof
of claim). The District Court also noted that even if the Bankruptcy Court construed any
of these filings as an informal proof of claim, the absence of Fryer’s name from the list of
creditors in the trustee’s summary of proposed distribution is evidence that the
Bankruptcy Court disallowed the claim and that Fryer is therefore not a “person
aggrieved” by the order of distribution. We note that Fryer has not proffered any
evidence that persuasively shows that the Bankruptcy Court’s order of distribution had
more than an indirect effect on his pecuniary interests. Thus, it is clear that the District
Court acted within its discretion in finding that Fryer lacked standing to appeal this order.
For the foregoing reasons, we conclude that Fryer’s appeal from the District
Court’s judgment is without arguable merit. We will therefore dismiss the appeal
pursuant to 28 U.S.C. § 1915(e)(2)(B).
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