Seant v. Shellpoint

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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In re MARIE DENISE SEANT,

Debtor.

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MARIE DENISE SEANT,

Appellant, MEMORANDUM & ORDER

-against- 25-cv-1080 (NRM)

SHELLPOINT,

Appellee.

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NINA R. MORRISON, United States District Judge:

Pro se Appellant Marie Denise Seant brings this bankruptcy appeal under 28

U.S.C. § 158 from the February 7, 2025 order of the Honorable Nancy H. Lord, United

States Bankruptcy Judge, granting Appellee Newrez LLC, d/b/a Shellpoint Mortgage

Servicing (“Shellpoint”) relief from an automatic stay pursuant to 11 U.S.C. § 362.

Appellant moves to vacate the February 7 order. Because this Court lacks subject

matter jurisdiction over this appeal, Appellant’s motion is denied, and the appeal is

dismissed.

BACKGROUND

Appellant is one of two borrowers on a mortgage secured against the real

property located at 2737 Mill Avenue in Brooklyn. Bankruptcy Record (“BR”),1 ECF

1 The record from the Bankruptcy proceedings was provided to this Court in a

single filing, and thus will be delineated as “Bankruptcy Record” or “BR.”

Additionally, the pincites refer to the pagination created for the record, in the lower

right corner of each page.

No. 5, at 29–30. Appellant filed a Chapter 7 voluntary petition for bankruptcy on

October 30, 2024 in the Bankruptcy Court for the Eastern District of New York. BR

at 3–17; see also In re Seant, No. 24-bk-44504 (NHL) (Bankr. E.D.N.Y. 2024), ECF

No. 1.

On December 30, 2024, Appellee moved for an order terminating the automatic

stay, imposed pursuant to 11 U.S.C. § 362, as to 2737 Mill Avenue. BR at 18–20. The

motion filed in Bankruptcy Court included an affidavit of service showing that, also

on December 30, the motion was served upon Appellant by First Class Mail delivery.

BR at 67–68.

A hearing on Appellee’s motion was held on January 30, 2025. BR 75.

Appellant neither filed opposition to Appellee’s motion nor appeared at the hearing.

Id. Following the hearing, the Bankruptcy Court found good cause to lift the

automatic stay and, by order dated February 7, 2025, lifted the automatic stay. Id.

Appellant filed a notice of appeal (“notice”) from the February 7 order in

Bankruptcy Court on February 24, 2025. BR at 76–77. Though dated February 21,

2025, the notice was file-stamped by the Clerk of the Bankruptcy Court on February

24, 2025. Compare BR at 77 (dated February 21), with Notice of Appeal, ECF No. 1,

at 1 (file-stamped February 24).2

Appellee filed a brief opposing the appeal. Appellee Br., ECF No. 4 (May 28,

2025). With leave from the Court, Appellant belatedly filed a brief in support of the

appeal. Appellant Mot. for Leave to File (“Mot. for Leave”), ECF No. 6 (May 29, 2025);

2 All page references to docket materials except the BR use ECF pagination.

Appellant Br. (“Appellant Br.”), ECF No. 8 (May 29, 2025). Appellant also filed a

reply brief. Appellant Reply Br. (“Appellant Reply”), ECF No. 10 (June 30, 2025).

Finally, Appellant filed a motion to vacate the February 7 order. Appellant Mot. to

Vacate (“Mot. to Vacate”), ECF No. 12 (July 29, 2025).

DISCUSSION

“The district courts of the United State shall have jurisdiction to hear

appeals . . . from final judgments, order, and decrees [of bankruptcy judges].” 28

U.S.C. § 158(a)(1). “An order granting or denying relief from an automatic stay is a

final, appealable order.” Siemon v. Preuss, No. 20-CV-7508 (GBD), 2021 WL 2167052,

at *1 (S.D.N.Y. May 27, 2021) (citing Ritzen Grp., Inc. v. Jackson Masonry, LLC, 589

U.S. 35, 37–38 (2020)); see also In re Reynoso, No. 23-CV-2618 (CBA), 2024 WL

1118264, at *4 (E.D.N.Y. Mar. 14, 2024) (“Congress made orders in bankruptcy cases

immediately appealable if they finally dispose of discrete disputes within the larger

bankruptcy case.” (citation modified)). Such appeals must be taken “in the time

provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2). “[A] notice of

appeal must be filed with the bankruptcy clerk within 14 days after the judgment,

order, or decree to be appealed is entered.” Fed. R. Bankr. P. 8002(a)(1).

The Second Circuit considers “that the time limit contained in Rule 8002(a) is

jurisdictional, and that, in the absence of a timely notice of appeal in the district

court, the district court is without jurisdiction to consider the appeal . . . .” Siemon v.

Emigrant Sav. Bank (In re Siemon), 421 F.3d 167, 169 (2d Cir. 2005); see also In re

Indu Craft, Inc., 749 F.3d 107, 114–16 (2d Cir. 2014) (discussing the holding of In re

Siemon); New Era Pro. Prep Servs., LLC v. Unity Bank, No. 23-CV-7595 (RPK), 2024

WL 5049819, at *3 (E.D.N.Y. Dec. 9, 2024) (“The Second Circuit has previously held

that the filing deadline in Rule 8002(a) is jurisdictional — in which case the court

plainly lacks authority to consider [an] untimely appeal.”).3 “Because the time limit

contained in Rule 8002(a) is jurisdictional, it is strictly enforced, even when applied

to cases involving pro se litigants.” In re Hurley, No. 24-CV-5630 (DG), 2024 WL

4827812, at *2 (E.D.N.Y. Nov. 18, 2024) (collecting cases).

A bankruptcy court may, in certain circumstances, extend the time to file a

notice of appeal if a party files a motion requesting such extension within 21 days of

the deadline outlined in Rule 8002(a) and shows “excusable neglect.” Fed. R. Bankr.

P. 8002(d)(1)(B).4 However, a bankruptcy court is prohibited from granting such an

3 The New Era Professional Prep Court observed that “two courts of appeals

have recently held that the deadline is not jurisdictional,” see 2024 WL 5049819, at

*2 (citing In re VeroBlue Farms USA, Inc., 6 F.4th 880, 887 (8th Cir. 2021) and In re

Tennial, 978 F.3d 1022, 1028 (6th Cir. 2020)), but ultimately noted that it “must

follow binding Second Circuit precedent” until it is overruled by the Second Circuit

or undermined by the Supreme Court. Id. (citation omitted).

4 Rule 8002(d)(1)(B) speaks only of “the bankruptcy court.” However, Judge

Oetken, in analyzing Rule 8002(c)(2) — which was redesignated Rule 8002(d)(1)(B)

in the 2014 amendment to the Bankruptcy Rules while retaining its substantive

effects, see Fed. R. Bankr. P. 8002 advisory committee notes to 2014 amendment —

concluded that “[the Rule] empowers district courts to extend the filing period beyond

the 14-day baseline.” In re Soundview Elite Ltd., 512 B.R. 155, 157 (S.D.N.Y. 2014);

see also id. at 157 & n.4 (“Because district courts may grant extensions, they have

capacity under [the Rule] to alter the time restrictions that constrain their

jurisdiction.”). Judge Oetken’s position is well-reasoned, but the Court notes that

many courts in this circuit appear to take the contrary view and read Rule

8002(d)(1)(B) literally. See, e.g., Pierre v. Aurora Com. Corp., 620 B.R. 210, 216

(S.D.N.Y. 2020) (“Following a limited remand from this Court for the purposes of

deciding Pierre's motion for an extension of time to appeal, the bankruptcy court

granted Pierre's motion for an extension of time.” (emphasis added)); In re Hurley,

extension “if the judgment, order, or decree being appealed . . . grants relief from an

automatic stay under § 362.” Fed. R. Bankr. P. 8002(d)(2)(A); see also New Era Pro.

Prep Servs., 2024 WL 5049819, at *2 (“The bankruptcy rules would appear to prohibit

such an extension in any event, because they do not allow extensions of the time to

appeal an order granting relief from an automatic stay.”).

Here, there is no dispute that the notice was untimely. Though the notice is

dated February 21, 2025, it was file-stamped by the Clerk of the Bankruptcy Court

on February 24, 2025. See In re Soundview Elite Ltd., 512 B.R. 155, 157 n.2 (S.D.N.Y.

2014) (“[A] filing is presumed to be made on the date file-stamped by the Clerk.”

(quoting Etheredge–Brown v. Am. Media, Inc., No. 13-CV-1982 (JPO), 2014 WL

1316352, at *2 (S.D.N.Y. Mar. 31, 2014). Appellant also concedes that the notice was

untimely filed. See Appellant Br. at 2 (“Appellant acted promptly upon receiving

notice of the order, filing her opposition and notice of appeal on February 24, 2025,

the day she found out about the order . . . .”).

Appellant elsewhere (1) alludes to her pro se status and her “misunderstanding

of procedural deadlines” to explain her untimeliness, (2) states that she “acted

diligently upon learning of the need to file,” and (3) claims that the Bankruptcy Court

informed her that February 24 “was the last [day] to file an appeal.” Mot. for Leave

at 1. She also argues “Appellee will not be prejudiced by this short delay.” Id. But

Rule 8002(a) contains a strict jurisdictional time limit, and Appellant’s pro se status

2024 WL 4827812, at *2 (noting that Rule 8002(d)(1) “permits a bankruptcy court

under certain circumstances to extend the time to file a notice of appeal” (emphasis

added)); New Era Pro. Prep Servs., 2024 WL 5049819, at *2 (“[Appellant] never asked

the bankruptcy court to extend the deadline for its appeal.” (emphasis added)).

cannot save her appeal when the notice was (as here) untimely filed, even if her notice

was filed only three days late.5 See Ivers v. Ciena Cap. LLC, No. 15-CV-7993, 2016

WL 1562943, at *1 (S.D.N.Y. Apr. 15, 2016) (“The rule established by In re Siemon

may seem draconian, especially in the context of pro se appellants who file their

notices of appeal close to, but nonetheless after, the deadline. Yet district courts

routinely dismiss bankruptcy appeals filed in just those circumstances.” (collecting

cases)).

Moreover, Appellant did not request an extension to file the notice within 21

days of the February 21, 2025 deadline in either the Bankruptcy Court or this Court.

See Mot. for Leave at 1 (Appellant’s first clear request, dated May 29, 2025, for this

Court to “accept her Notice of Appeal nunc pro tunc”); Resp. to Mot. for Relief from

Automatic Stay, In re Seant, No. 24-bk-44504 (NHL) (Bankr. E.D.N.Y. 2024), ECF

No. 32 (Appellant’s brief before the Bankruptcy Court, file-stamped February 24,

2025, that does not request an extension to file the notice).

It is also unlikely that Appellant could show “excusable neglect” for purposes

of Rule 8002(d)(1)(B). See In re Soundview Elite Ltd., 512 B.R. at 159 (discussing this

standard and noting that pro se status alone “is insufficient for a finding of excusable

neglect” (citing Myers v. New York City Hum. Rts. Comm'n, 04-CV-543 (JCF), 2006

WL 2053317, at *2 (S.D.N.Y. July 21, 2006)). At most, Appellant claims she “did not

receive effective notice of the hearing or clear instructions regarding filing deadlines.”

5 These arguments may have weighed in an analysis under Rule 8002(d) for

extensions of deadlines to file notices of appeal generally, but, as explained infra,

Rule 8002(d) cannot apply to appeals such as this, from bankruptcy court decisions

concerning automatic stays under 11 U.S.C. § 362.

Appellant Br. at 1. However, Appellee’s December 30, 2024 motion was mailed by

First Class Mail to Appellant at her address of record on that same date, as attested

by the motion’s affidavit of service. This affidavit, reflecting the affiant’s firsthand

knowledge of the actual mailing, creates a presumption of receipt three days later by

Appellant that Appellant has not meaningful rebutted. See Biggs v. Midland Credit

Mgmt., Inc., No. 17-CV-340 (JFB) (ARL), 2018 WL 1225539, at *8 (E.D.N.Y. Mar. 9,

2018) (noting that this presumption “may be established . . . by offering testimony of

the person who actually mailed the letter” and that “denial of receipt, alone, is

insufficient to rebut this presumption” (first quoting Mount Vernon Fire Ins. Co. v. E.

Side Renaissance Assocs., 893 F. Supp. 242, 245 (S.D.N.Y. 1995); then quoting Meckel

v. Cont'l Res. Co., 758 F.2d 811, 817 (2d Cir. 1985)). Courts have found no excusable

neglect where reasons comparable to Appellant’s were offered. See, e.g., In re Enron

Corp., 364 B.R. 482, 486–88 (S.D.N.Y. 2007) (finding no excusable neglect where

appellant claimed that, among other things, (1) “he never received the January 6,

2006 order from the bankruptcy court, but instead received it from an adversary”; (2)

“as soon as he received the order, he filed his appeal”; and (3) “he is proceeding pro

se”).

In the end, even if Appellant had filed a motion in either the Bankruptcy Court

or this Court and demonstrated excusable neglect, any extension would have been

prohibited. The automatic stay was in effect pursuant to 11 U.S.C. § 362(a), and it

was modified (i.e., lifted) by the Bankruptcy Court pursuant to §§ 362(d)(1) and

362(d)(2). BR at 75. Any extension requested would therefore have been expressly

barred by Rule 8002(d)(2)(A). Accordingly, this Court is constrained to dismiss this

appeal for lack of subject matter jurisdiction.

CONCLUSION

For the reasons stated above, Appellant’s motion to vacate is DENIED and this

appeal is DISMISSED for lack of subject matter jurisdiction.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: August 22, 2025

Brooklyn, New York