In Re: Ezekoye , 185 Fed. Appx. 179 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-20-2006
In Re: Ezekoye
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4017
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Recommended Citation
"In Re: Ezekoye " (2006). 2006 Decisions. Paper 875.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/875
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4017
________________
IN RE: ANDREW EZEKOYE,
Debtor
ANDREW EZEYOKE,
Appellant
vs.
*OCWEN LOAN SERVICING, LLC, successor
to Ocwen Federal Bank FSB
*(Amended pursuant to Clerk’s Order dated 8/18/05)
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 04-cv-01047)
District Judge: Honorable Arthur J. Schwab
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 1, 2006
BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES
(Filed: June 20, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
Andrew Ezekoye, proceeding pro se, appeals an order of the United States
District Court for the Western District of Pennsylvania affirming an order of the United
States Bankruptcy Court. We will dismiss this appeal because Ezekoye’s appeal from the
Bankruptcy Court’s order was untimely.
Ezekoye executed a mortgage which was assigned to Ocwen Federal Bank
FSB. After Ezekoye defaulted on the mortgage, Ocwen brought a mortgage foreclosure
action in Pennsylvania state court and obtained a judgment in its favor. Ezekoye then
filed a complaint against Ocwen in state court alleging fraud related to the mortgage
transaction. Ocwen did not respond to the complaint, and Ezekoye obtained a default
judgment in his favor. When Ocwen learned of the default judgment, it filed a motion to
strike and/or open the default judgment in state court. Ezekoye and Ocwen consented to
the removal of the action to Bankruptcy Court, where Ezekoye had filed a bankruptcy
petition. The Bankruptcy Court construed Ocwen’s filing as a motion for relief from the
judgment under Federal Rule of Civil Procedure 60(b), and granted it on April 30, 2004.
On May 10, 2004, Ezekoye moved for an extension of time to file a motion
for reconsideration of the Bankruptcy Court’s order granting Ocwen relief from the
judgment. The Bankruptcy Court granted the motion, and denied the motion for
reconsideration in an order entered June 18, 2004. On July 8, 2004, Ezekoye filed a
notice of appeal. The District Court affirmed the Bankruptcy Court’s order granting
Ocwen relief from the default judgment. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 158(d). We previously issued
2
an order directing the parties to address whether the Bankruptcy Court had the authority
to extend the time to file a motion for reconsideration, and if not, to discuss the scope of
the appeal filed in the District Court. After we issued our order, the Supreme Court
decided Eberhart v. United States, 126 S. Ct. 403, 407 (2005), and held that the rules
setting forth time limits for a motion for a new trial are not jurisdictional, but claim-
processing rules, and a party may forfeit an untimeliness defense by not timely raising it.
Eberhart involved Federal Rule of Criminal Procedure 33, which sets forth
the time to file a motion for a new trial, and Rule 45, which limits a court’s ability to
extend the time to take action under Rule 33. The court of appeals had allowed the
government to raise noncompliance with the time limitations for the first time on appeal.
Because the government did not raise this defense in the district court, the Supreme Court
held that the court of appeals should have proceeded to the merits. Id. In so ruling, the
Supreme Court looked to its decision in Kontrick v. Ryan, 540 U.S. 443, 456 (2004),
which held that a party may forfeit the defenses made available by the time limitations of
Federal Rules of Bankruptcy Procedure 4004 and 9006, which govern the time that a
creditor may object to a debtor’s discharge in a Chapter 7 liquidation proceeding.
Ocwen did not argue in Bankruptcy Court (or in the District Court) that the
Bankruptcy Court lacked the authority to enlarge the time to file the motion for
reconsideration. Under Eberhart, Ocwen has forfeited any argument that the motion for
reconsideration was untimely, and did not toll the time to appeal the order granting relief
3
from the default judgment.
Ocwen, however, did argue in the District Court, and argues in this Court,
that Ezekoye’s appeal to District Court was untimely because he filed it more than ten
days after the Bankruptcy Court denied his motion for reconsideration. We agree. The
Federal Rules of Bankruptcy Procedure require that a notice of appeal be filed within ten
days of the date of the entry of the order appealed from. Fed. R. Bank. P. 8002(a).
Ezekoye filed his notice of appeal on July 8, 2004, more than ten days after the
Bankruptcy Court entered its June 17, 2004 order denying reconsideration.
Ezekoye claims that he did not promptly receive the Bankruptcy Court’s
order. Ezekoye, however, failed to request an extension of time to file an appeal. Rule
8002 allows the bankruptcy judge to extend the time for filing a notice of appeal in
certain cases. Fed. R. Bank. P. 8002(c)(1). Such a request must be made by written
motion filed before the time for filing a notice of appeal has expired, except that such a
motion filed not later than twenty days after the expiration of the time for filing a notice
of appeal may be granted upon a showing of excusable neglect. Fed. R. Bank. P.
8002(c)(2).
Ezekoye filed a motion in District Court to file his appeal out of time on
August 9, 2004, a month after he filed his notice of appeal.1 Even if Ezekoye had filed
1
This motion was docketed in W.D. Pa. Civ. No. 04-cv-01151, which was later
consolidated in District Court with the present appeal because the appeals were
duplicative. It does not appear that the District Court ruled on the motion to file an appeal
4
his motion in Bankruptcy Court as Rule 8002 requires, the motion was filed more than
twenty days after the time to file a notice of appeal expired, and was untimely.
Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997) (stating that
excusable neglect could not be found where the issue was raised for the first time after
Rule 8002's time limit expired).2
We note that this is not the case of mere inadvertence by a pro se litigant.
Ezekoye has brought at least five appeals in this Court, and seven appeals in the District
Court. Ezekoye is not exempt from the rules of procedure. Accordingly, because
Ezekoye did not timely appeal the Bankruptcy Court’s order, we will dismiss this appeal.3
out of time.
2
Prior to Eberhart, we held that the failure to file a timely notice of appeal from the
Bankruptcy Court creates a jurisdictional defect barring appellate review. Shareholders,
109 F.3d at 789. Under Eberhart, the time limits of Rule 8002 are not jurisdictional, but
“assure relief to a party properly raising them.” See Eberhart, 126 S. Ct. at 407.
3
Ezekoye’s motion to strike a document and impose sanctions, and second motion to
strike a document and impose sanctions, are denied.