FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 29, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court In re: MICHAEL LYNN ROBERTSON, Debtor. BANNER BANK, formerly doing business in Utah as AmericanWest Bank or Far West Bank, Plaintiff - Appellee, No. 18-4060 v. (BAP No. 17-034-UT) (Bankruptcy Appellate Panel) MICHAEL LYNN ROBERTSON, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________ The United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP) dismissed the appeal of pro se litigant Michael Lynn Robertson for lack of jurisdiction. The BAP reasoned that a post-judgment motion Mr. Robertson filed * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. under Federal Rule of Bankruptcy Procedure 9023 was untimely and therefore did not toll the time limit for filing his notice of appeal from the bankruptcy court’s underlying judgment. Accordingly, the BAP concluded that his notice of appeal was untimely and that the BAP lacked jurisdiction. Exercising jurisdiction under 28 U.S.C. § 158(d)(1), we affirm. We conclude that the Rule 9023 motion was untimely and reaffirm Tenth Circuit precedent that the time to file a notice of appeal from a bankruptcy court is jurisdictional. We also hold that an untimely Rule 9023 motion is ineffective to toll the time for filing a notice of appeal and that the BAP may raise the timeliness of a Rule 9023 motion sua sponte. We deny without prejudice appellee’s request for attorney fees. I. Overview of legal framework The issues in this appeal turn primarily on one statute and several rules of bankruptcy procedure governing the time to file a notice of appeal from a bankruptcy court. We therefore set out the relevant legal framework before turning to the facts and procedural background of this case. In 28 U.S.C. § 158(c)(2), Congress included a timeliness condition for taking appeals from bankruptcy court decisions: “An appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules.” § 158(c)(2) (emphasis added). In turn, Bankruptcy Rule 8002(a)(1) states: “Except as provided in subdivisions (b) and (c), a notice of appeal must be filed with the bankruptcy clerk within 14 days after 2 entry of the judgment, order, or decree being appealed.” Fed. R. Bankr. P. 8002(a)(1). An exception in subdivision (b) is ...
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