Petition for Writ of Certiorari — Michael Lynn Robertson, Petitioner v. Banner Bank

App. 2

The United States Bankruptcy Appellate Panel of

the Tenth Circuit (BAP) dismissed the appeal of pro se

litigant Michael Lynn Robertson for lack of jurisdic­

tion. The BAP reasoned that a post-judgment motion

Mr. Robertson filed 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 un­

timely and that the BAP lacked jurisdiction. Exercis­

ing 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 juris­

dictional. We also hold that an untimely Rule 9023 mo­

tion 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 preju­

dice 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 gov­

erning the time to file a notice of appeal from a bank­

ruptcy 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 time­

liness condition for taking appeals from bankruptcy

court decisions: “An appeal under subsections (a) and

App. 3

(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 subdivi­

sions (b) and (c), a notice of appeal must be filed with

the bankruptcy clerk within 14 days after entry of the

judgment, order, or decree being appealed.” Fed. R.

Bankr. R 8002(a)(1). An exception in subdivision (b) is

relevant here and provides that Rule 8002(a)(l)’s 14day time period for filing a notice of appeal can be

extended when certain motions, including a Rule 9023

motion, are timely filed:

If a party files in the bankruptcy court any of

the following motions and does so within the

time allowed by these rules, the time to file an

appeal runs for all parties from the entry of

the order disposing of the last such remaining

motion:.. . (B) to alter or amend the judgment

under Rule 9023 [.]

Fed. R. Bankr. P. 8002(b)(1)(B) (emphasis added). And

Bankruptcy Rule 9023 requires that “[a] motion for a

new trial or to alter or amend a judgment shall be filed

... no later than 14 days after entry ofjudgment.” Fed.

R. Bankr. P. 9023.

With this framework in mind, we turn to the fac­

tual and procedural background of this case.

App. 4

II.

Factual and procedural background

Through counsel, Mr. Robertson filed a Chapter 7

bankruptcy petition. Banner Bank (Bank) initiated an

adversary proceeding seeking to except from discharge

a deficiency judgment it had obtained against Mr.

Robertson in Utah state court. After Mr. Robertson’s

counsel withdrew, Mr. Robertson proceeded pro se, and

the parties filed cross-motions for summary judgment.

On March 30, 2017, the bankruptcy court entered an

order and judgment granting the Bank’s motion and

denying Mr. Robertson’s motion. Fourteen days later,

on April 13, 2017, Mr. Robertson mailed a Rule 9023

motion to the bankruptcy court, asking the court to re­

consider, alter, or amend the judgment. The motion was

entered on the bankruptcy court’s docket on April 14,

2017, which was 15 days after the judgment. The par­

ties fully briefed the motion, and the Bank never com­

plained that the motion was untimely. The bankruptcy

court denied the motion on the merits, never mention­

ing whether the motion was timely.

On July 14, 2017, 14 days after the bankruptcy

court disposed of the Rule 9023 motion, Mr. Robertson

filed a notice of appeal to the BAP. The notice of appeal

designated only the bankruptcy court’s March 30,2017

order and judgment as the subject of the appeal. After

the parties completed merits briefing—where the

Bank did not dispute that the BAP had jurisdiction

over the appeal—the BAP issued an order to show

cause why the appeal should not be dismissed for lack

of jurisdiction because the notice of appeal appeared

untimely.

App. 5

After considering the parties’ responses to the

show-cause order, the BAP determined that the notice

of appeal was untimely. The BAP concluded that be­

cause Mr. Robertson’s Rule 9023 motion was filed 15

days after entry of judgment, it was untimely and

therefore did not toll the running of Rule 8002(a)(l)’s

14-day appeal period, which the BAP treated as juris­

dictional. In reaching its conclusions, the BAP rejected

Mr. Robertson’s argument that mailing the Rule 9023

motion on the fourteenth day after entry of the judg­

ment was sufficient to render the motion timely filed,

which the BAP said occurs when “a document [is] re­

ceived by the clerk,” R., Vol. I at 35. The BAP also re­

jected his argument that by mailing the motion to the

clerk, he had served the clerk, and that service is com­

plete upon mailing. The BAP reasoned that Rule 9023

requires filing within 14 days, and service is not equiv­

alent to filing. Accordingly, the BAP concluded that his

notice of appeal was untimely and dismissed the ap­

peal for lack of jurisdiction.

Mr. Robertson filed a motion for rehearing or to al­

ter or amend the BAP’s judgment, arguing that the

time to file an appeal with the BAP was not jurisdic­

tional, that Rule 9023 is a claim-processing rule and

the Bank had forfeited any objection to the timeliness

of his Rule 9023 motion, and that the BAP should not

have considered the timeliness of that motion sua

sponte. The BAP denied the motion for rehearing. This

appeal followed.

App. 6

III. Discussion

Mr. Robertson raises three issues on appeal, which

we address in the following order: (1) whether a Rule

9023 motion is deemed filed when mailed, so that his

Rule 9023 motion was timely filed; (2) whether this cir­

cuit’s law that Rule 8002(a)(l)’s time limit for filing a

notice of appeal from a bankruptcy court’s judgment is

jurisdictional remains good after intervening Supreme

Court decisions; and (3) whether Rule 9023’s 14-day

timeliness requirement is a claim-processing rule that

the Bank waived, so the untimely Rule 9023 motion

was effective in tolling the appeal period. The third is­

sue has a related concern: whether it was proper for

the BAP to raise the timeliness of the Rule 9023 mo­

tion sua sponte as a predicate to determining its juris­

diction.

The issues on appeal concern matters of law or

“mixed questions consisting primarily of legal conclu­

sions drawn from the facts,” so our review is de novo.

Gullickson v. Brown (In re Brown), 108 F.3d 1290,1292

(10th Cir. 1997). We afford a liberal construction to

Mr. Robertson’s pro se filings, but we do not act as his

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.l

(10th Cir. 2008).

A. A Rule 9023 motion is filed when the

court receives it

We first address whether Mr. Robertson’s Rule

9023 motion was timely filed. If it was, then it tolled

the appeal period, his notice of appeal to the BAP was

App.7

timely, and we would not have to address any other is­

sues in this appeal. We conclude, however, that the mo­

tion was not timely filed.

Mr. Robertson argues that his motion should be

treated as filed on April 13, 2017, the fourteenth day

after entry of judgment, because he placed it in the

United States mail that day, postage prepaid. He con­

tends that the Federal Rules of Bankruptcy Procedure

do not define when “filing” occurs, but he advocates for

defining that moment by reference to Supreme Court

Rule 29.2, which allows the date of filing to be the date

of mailing provided certain requirements are satis­

fied.1

We disagree with Mr. Robertson’s premise that no

federal bankruptcy rule defines when filing occurs.

Therefore, we need not consider whether Supreme

Court Rule 29.2 should apply. As noted, a Rule 9023

motion must be “filed ... no later than 14 days after

entry of judgment.” Fed. R. Bankr. P. 9023 (emphasis

added). In adversary proceedings, such as we have

here, the filing of papers is governed by Federal Rule

of Civil Procedure 5. See Fed. R. Bankr. P. 7005 (“Rule

5 F.R.Civ.P. applies in adversary proceedings.”). And

1 In relevant part, Supreme Court Rule 29.2 provides: “A doc­

ument is timely filed if it is received by the Clerk within the time

specified for filing; or if it is sent to the Clerk through the United

States Postal Service by first-class mail (including express or pri­

ority mail), postage prepaid, and bears a postmark, other than a

commercial postage meter label, showing that the document was

mailed on or before the last day for filing. . . .”

App. 8

under Civil Rule 5, “[a] paper not filed electronically”—

like Mr. Robertson’s Rule 9023 motion—“is filed by de­

livering it... to the clerk” or “to a judge who agrees to

accept it for filing.” Fed. R. Civ. R 5(d)(2) (emphasis

added). Delivery, and hence filing, requires receipt by

the clerk or a judge. See United States v. Lombardo,

241 U.S. 73, 76 (1916) (“Filing, it must be observed, is

not complete until the document is delivered and re­

ceived.”); In re Nimz Transp., Inc., 505 F.2d 177, 179

(7th Cir. 1974) (“[M] ailing alone does not constitute fil­

ing [.] . . . [F]iling requires delivery and receipt by the

proper party.” (citations omitted)); Kahler-Ellis Co. v.

Ohio Tpk. Comm’n, 225 F.2d 922, 922 (6th Cir. 1955)

(depositing a document in the mail “is not a filing; only

when the clerk acquires custody has [a document] been

filed” (citations omitted)).

Mr. Robertson does not argue that the clerk or a

judge received his Rule 9023 motion on April 13, 2017,

but only that he mailed it on that date. Consequently,

the motion was untimely.2

2 The Bank has not cited Rule 7005 or its incorporation of

Civil Rule 5, and the BAP approached this issue by analyzing the

meaning of the word “filed” in Federal Rule of Bankruptcy Proce­

dure 5005(a)(1), which provides that “motions . . . required to be

filed by these rules, except as provided in 28 U.S.C. § 1409 [con­

cerning venue in Chapter 11 proceedings], shall be filed with the

clerk in the district where the case under the Code is pending.”

Even if Bankruptcy Rule 5005 controls, we would reach the same

conclusion—that mailing is not equivalent to filing.

App. 9

B. Rule 8002(a)(l)’s time limit is jurisdic­

tional

We next consider Mr. Robertson’s argument that

Rule 8002(a)(l)’s 14-day time limit for filing a notice of

appeal from a bankruptcy court’s ruling is not jurisdic­

tional but a claim-processing rule. The distinction mat­

ters because if a time limit for filing a notice of appeal

is “jurisdictional,” then “late filing of the appeal notice

necessitates dismissal of the appeal”; but if it is “a

mandatory claim-processing rule,” it is “subject to for­

feiture if not properly raised by the [opposing party].”

Hamer u. Neighborhood Hous. Serus. of Chicago, 138

S. Ct. 13,16 (2017). For the following reasons, we reject

Mr. Robertson’s argument.

We considered Rule 8002(a) in Deyhimy v. Rupp

(In re Herwit), 970 F.2d 709, 710 (10th Cir. 1992), hold­

ing that the “failure to file a timely notice of appeal

[is] a jurisdictional defect barring appellate review.”

In Emann u. Latture (In re Latture), 605 F.3d 830 (10th

Cir. 2010), we reaffirmed our holding in In re Herwit

after considering the Supreme Court’s intervening

jurisprudence concerning the distinction between

time limits that are non-waivable jurisdictional require­

ments and those that are waivable claim-processing

rules. See id. at 832-37.3 Consistent with that interven­

ing jurisprudence, we considered whether Congress

3 Just prior to our decision in In re Latture, the BAP con­

ducted a similar analysis and reached the same conclusion that

Rule 8002(a)(1) is jurisdictional. See Hatch Jacobs, LLC v. Kingsley

Capital, Inc. (In re Kingsley Capital, Inc.), 423 B.R. 344, 347-51

(B.A.P. 10th Cir. 2010).

App. 10

had “ ‘rank[ed] [the] statutory limitation ... as juris­

dictional/ ” id. at 834 (quoting Arbaugh v.Y & H Corp.,

546 U.S. 500, 516 (2006)), and the “‘context, including

[the Supreme] Court’s interpretation of similar provi­

sions in many years past,’ ” to determine whether Rule

8002(a)(l)’s 14-day time limit is “‘jurisdictional,’” id.

at 835 (quoting Reed Elsevier, Inc. v. Muchnick, 559

U.S. 154, 168 (2010)). We discussed several factors in­

dicating that Rule 8002(a)(l)’s 14-day time limit is a

jurisdictional time prescription, not a waivable or for­

feitable claim-processing rule:

First, we noted that in 28 U.S.C. § 158(c)(2), Con­

gress had “explicitly included a timeliness condition”

for taking appeals—“that a notice of appeal be filed

within the time provided by Rule 8002(a).” In re Latture,

605 F.3d at 837.

Second, we noted that this “timeliness require­

ment ... is located in the same section granting the

district courts and bankruptcy appellate panels juris­

diction to hear appeals from bankruptcy courts—Sec­

tion 158(a)-(b).” Id.

And third, we observed that in Bowles v. Russell,

551 U.S. 205 (2007), the Supreme Court had noted that

“time limits for filing a notice of appeal have been

treated as jurisdictional in American law for well over

a century.” Id. at 210 n.2. Although Bowles concerned

a civil appeal rather than a bankruptcy appeal, we did

not “believe [that] distinction makes a difference” be­

cause “the Advisory Committee Notes accompanying

Rule 8002(a) state that the rule is an adaptation” of

App. 11

the same rule the Court addressed in Bowles, Federal

Rule of Appellate Procedure 4(a), In re Latture, 605

F.3d at 837 (internal quotation marks omitted), and

Bowles and Reed Elsevier instruct that we must “look

at the [Supreme] Court’s ‘interpretation of similar pro­

visions,”’ id. (quoting Reed Elsevier, Inc., 559 U.S. at

168). We also noted that historically, all circuits had

treated Rule 8002(a)(l)’s time limit as jurisdictional

prior to Kontrick v. Ryan, 540 U.S. 443 (2004), which

launched the Supreme Court’s recent series of deci­

sions analyzing whether time limits and other condi­

tions in statutes and rules are jurisdictional. In re

Latture, 605 F.3d at 837.

Mr. Robertson claims that In re Latture was

wrongly decided and should be overturned (1) because

we misapplied the Supreme Court decisions we dis­

cussed in In re Latture and (2) in light of decisions the

Supreme Court has issued since In re Latture that in­

volved or discussed appeals from or to courts that, like

bankruptcy courts and the BAP, are Article I courts,

not Article III courts. But this panel is “bound by the

precedent of prior panels absent en banc reconsidera­

tion or a superseding contrary decision by the Supreme

Court.” United States v. Meyers, 200 F.3d 715,720 (10th

Cir. 2000) (emphasis added) (internal quotation marks

omitted). Therefore, in determining what is binding

precedent from this court, we will consider only Su­

preme Court decisions issued after In re Latture that

Mr. Robertson cites in his opening brief and that are

App. 12

substantively relevant to his “Article I” argument.4

We discern two such cases: Hamer v. Neighborhood

Housing Services of Chicago, 138 S. Ct. 13 (2017), and

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428

(2011) {Henderson).5 Neither one requires us to over­

turn In re Latture.

4 In addition to his “Article I” argument, Mr. Robertson sug­

gests that In re Latture is in tension with Federal Rule of Bank­

ruptcy Procedure 9030. Aplt. Opening Br. at 10-11. Rule 9030

reads: “These rules shall not be construed to extend or limit the

jurisdiction of the courts or the venue of any matters therein.” We

rejected this argument in In re Latture, 605 F.3d at 837, holding

that § 158(c)(2) determined the timeliness component of jurisdic­

tion over appeals from bankruptcy courts “by incorporating the

time limits prescribed in Rule 8002(a).” None of the later Supreme

Court decisions Mr. Robertson cites in his opening brief bear on

that conclusion. Accordingly, this panel will not reconsider the

point. Meyers, 200 F.3d at 720.

5 In his opening brief, Mr. Robertson also relies on Sebelius

v. Auburn Regional Medical Center, 568 U.S. 145 (2013), in support

of his “Article I” argument. The time limits at issue in Sebelius,

however, did not involve any federal courts but the time to appeal

from a Medicare reimbursement determination by “[g]overnment

contractors, called fiscal intermediaries, ... to an administrative

body named the Provider Reimbursement Review Board.” Id. at

821. Sebelius is therefore not germane to Mr. Robertson’s “Article

I” argument. Consequently, we will discuss it no further. In his

reply brief, Mr. Robertson relies on another recent case, Patchak

v. Zinke, 138 S. Ct. 897 (2018), in support of his “Article I” argu­

ment. But that reliance comes too late. Patchak was decided be­

fore Mr. Robertson filed his opening brief, but he waited until his

reply brief to cite it. We ordinarily do not consider matters raised

for the first time in a reply brief, including arguments that might

support a court’s jurisdiction. McKenzie v. U.S. Citizenship and

Immigration Servs., 761 F.3d 1149, 1154-55 (10th Cir. 2014). We

decline to do so here.

App. 13

In Hamer, the Supreme Court held that Federal

Rule of Appellate Procedure 4(a)(5)(C)’s 30-day time

limit on the length of an extension of time to file a no­

tice of appeal in a civil case is a nonjurisdictional

claim-processing rule. 138 S. Ct. at 21. Facially, that

holding has no application here. But Mr. Robertson

directs our attention to the following statement in

Hamer: “The rule of decision our precedent shapes is

both clear and easy to apply: If a time prescription gov­

erning the transfer of adjudicatory authority from one

Article III court to another appears in a statute, the

limitation is jurisdictional; otherwise, the time specifi­

cation fits within the claim-processing category!.]” Id.

at 20 (emphasis added) (citation omitted). Mr. Robert­

son claims the reference to an “Article III court” means

that only timeliness prescriptions concerning “appeals

from one Article III court to another are jurisdictional,”

Aplt. Opening Br. at 14, and therefore “appeals from

Article I Bankruptcy courts fit into the claim pro­

cessing category” id. at 11. He posits that Rule

8002(a)(1) sets the time limit to appeal from one Arti­

cle I court (a federal bankruptcy court) to another (the

BAP) and is therefore nonjurisdictional under Hamer.

We disagree. Nothing in Hamer indicates that the

Court’s analysis turned on the constitutional basis for

a federal court’s jurisdiction. Instead, the Court’s ra­

tionale was that the 30-day time limit, which pur­

ported to apply “in all circumstances,” was set forth

only in Appellate Rule 4(a)(5)(C), whereas the relevant

statute, 28 U.S.C. § 2107(c), set a shorter time limit (14

days) on the length of an extension only in cases where

App. 14

“the prospective appellant lacked notice of the entry of

judgment.”Hamer, 138 S. Ct. at 19 (emphasis omitted).

Nor does Hamer stand for the proposition that a time­

liness prescription for taking an appeal from or to an

Article I court is per se a claim-processing rule. To the

contrary, Hamer cited examples of “cases not involving

the timebound transfer of adjudicatory authority from

one Article III court to another” where the Court had

“additionally applied a clear-statement rule.” Id. at 20

n.9. The Court then explained that the rule requires

consideration of “context” and the “Court’s interpreta­

tions of similar provisions in many years past” when

determining if Congress provided a clear statement

that a particular provision was intended to be jurisdic­

tional. Id. (internal quotation marks omitted). That ex­

planation confirms In re Latture’s analytical course,

which included consideration of context and precedent

in determining whether Congress has “rankled]” a

time limit as jurisdictional. In re Latture, 605 F.3d at

834.

For these reasons, nothing in Hamer causes us

to question the analysis or result in In re Latture on

the basis that time limits for filing notices of appeal

from or to Article I courts are nonjurisdictional

claim-processing rules. Other courts have agreed. See

Wilkins v. Menchaca (In re Wilkins), 587 B.R. 97, 105

(B.A.P. 9th Cir. 2018) (“[T]here is nothing in Hamer

that gives us a reason to reexamine the Ninth Circuit’s

longstanding construction of the time deadline in Rule

8002(a)” as jurisdictional.); In re Jackson, 585 B.R. 410,

412,415-16,420-21 (B.A.R 6th Cir. 2018) (considering

App. 15

Hamer and concluding that § 158(c)(2)’s time require­

ment, as implemented by Rule 8002(a)(1), is jurisdic­

tional).

Henderson is even further afield than Hamer. In

Henderson, the Supreme Court held that a statutory

120-day deadline for filing a notice of appeal from a de­

cision by the Board of Veterans’ Appeals to the United

States Court of Appeals for Veterans Claims was not

jurisdictional. 562 U.S. at 431. After noting that none

of its precedents, including Bowles, controlled the out­

come because the case involved “review by an Article I

tribunal as part of a unique administrative scheme,”

the Court considered several factors bearing on con­

gressional intent. Id. at 437-38. And it was those fac­

tors—not the Article I nature of the reviewing court—

that informed the result. For our purposes, the most

significant of those other factors are (1) the absence of

jurisdictional terms in the statute at issue and (2) the

numerous differences between “ordinary civil litiga­

tion” that “provided the context of [the Court’s] deci­

sion in Bowles,” and the “informal and nonadversarial”

nature of “the system Congress that created for the ad­

judication of veterans’ benefits claims,” id. at 440.

In contrast, § 158(c)(2) does speak in jurisdictional

terms, as discussed in In re Latture, 605 F.3d at 837.

Furthermore, § 158(c)(2) directs that appeals from

bankruptcy courts “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.” The Henderson Court

found that similar statutory language clearly signals

App. 16

an intent that a time limit should be treated as juris­

dictional. 562 U.S. at 438-39.6 And bankruptcy pro­

ceedings have much more in common with adversarial

civil litigation than with the nonadversarial scheme

discussed in Henderson. See Bullard v. Blue Hills

Bank, 135 S. Ct. 1686,1692 (2015) (“A bankruptcy case

involves an aggregation of individual controversies,

many of which would exist as stand-alone lawsuits but

for the bankrupt status of the debtor.” (internal quota­

tion marks omitted)); In re Grasso, 519 B.R. 137, 140

(Bankr. E.D. Pa. 2014) (“The adversarial nature of

bankruptcy proceedings presumes the participation of

creditors will be driven by their self-interest and not

the expectation of payment.”); see also Tenn. Student

Assistance Corp. v. Hood, 541 U.S. 440, 457 (2004)

(Scalia, J., dissenting) (“The similarities between

6 Mr. Robertson claims the word “generally” in § 158(c)(2),

read in conjunction with 28 U.S.C. § 2107(d)’s statement that

§ 2107, which sets the time for taking appeals in civil proceedings,

“shall not apply to bankruptcy matters or other proceedings un­

der Title 11,” indicates that Congress was delegating to the Su­

preme Court the authority to set how and when appeals are taken

from bankruptcy courts. In further support, he notes that in 2009,

the Supreme Court, which promulgates the Federal Rules of

Bankruptcy Procedure, extended Rule 8002(a)’s original 10-day

limit to 14 days. But this argument does not depend on or derive

solely from any Supreme Court decision issued after In re Latture;

Mr. Robertson cites only Henderson and only for its definition of

claim-processing rules. See Aplt. Opening Br. at 9. So even if this

were a meritorious argument (and we expressly disavow any sug­

gestion that it is), it could not serve as a basis for overturning

In re Latture absent en banc reconsideration or a superseding

Supreme Court decision. Meyers, 200 F.3d at 720. We therefore

decline to discuss it further.

App. 17

adversary proceedings in bankruptcy and federal civil

litigation are striking.”).

In sum, neither Hamer nor Henderson causes us

to question the analysis or result in In re Latture. We

therefore reject Mr. Robertson’s invitation to overturn

In re Latture and instead reaffirm that Rule _

8002(a)(l)’s time limit is jurisdictional.

C. Late-filed Rule 9023 motion did not toll

the appeal period

As noted, Bankruptcy Rule 8002(b)(1) extends or

tolls Rule 8002(a)(l)’s 14-day time period for filing a

notice of appeal when certain motions, including a

Rule 9023 motion, are timely filed, and a Rule 9023 mo­

tion must be filed “no later than 14 days after entry of

judgment.” Fed. R. Bankr. P. 9023. Mr. Robertson ar­

gues that Rule 9023’s time limit is a claim-processing

rule and therefore subject to waiver and forfeiture. He

notes that the Bank did not contest whether his Rule

9023 motion was timely, either in the bankruptcy court

or in merits briefing before the BAP, and that the bank­

ruptcy court denied it on the merits. He further argues

that while the bankruptcy court was entertaining the

motion, there was no final judgment to appeal. There­

fore, he posits, it was error for the BAP to consider

timeliness of the Rule 9023 motion sua sponte and dis­

miss his appeal for lack of jurisdiction.

The Bank does not argue that Rule 9023’s time

limit is jurisdictional but urges that an untimely Rule

9023 motion cannot toll the time to file a notice of

App. 18

appeal even if the opposing party does not raise a time­

liness objection to the bankruptcy court’s consideration

of the motion, and even if the bankruptcy court dis­

poses of the motion on the merits. For reasons that

follow, we conclude that Rule 9023’s time limit is a

claim-processing rule, but an untimely Rule 9023 mo­

tion is ineffective to toll the time to appeal under Rule

8002(b)(1)(B) even if an opposing party does not object

and the bankruptcy court disposes of it on the merits,

and the BAP can, sua sponte, raise the timeliness of a

Rule 9023 motion for purposes of determining its juris­

diction.

1. Rule 9023’s time limit is a claim­

processing rule

Rule 9023’s time limit appears to be a claim­

processing rule; the Bank has not suggested it has any

statutory basis, and we are aware of none. See United

States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008)

(explaining that “Bowles .. . clarified that court-issued

federal procedural rules not derived from statutes

are not jurisdictional, but rather inflexible claim­

processing rules”). But the parties have not cited any

judicial decision directly on point, and the only case we

have uncovered is Dixon-Ross v. Hartwell (In re DixonRoss), No. 14-18608, 2016 WL 1056776, at *2-3 (E.D.

Pa. Mar. 17,2016) (unpublished), where the court com­

pared Rule 9023 to Federal Rule of Civil Procedure

59(e) and held that the debtor forfeited a defense of un­

timeliness to the bankruptcy court’s consideration of

App. 19

an untimely Rule 9023 motion by not raising that de­

fense in a timely manner. We agree.

Analogizing from Rule 59(e) is proper because (1)

Rule 9023 expressly states that, subject to exceptions

not relevant here, “Rule 59 . . . applies in cases under

the [Bankruptcy] Code,” Fed. R. Bankr. R 9023; and (2)

like Rule 9023, Rule 59(e) concerns the time limit (28

days) for filing a motion to alter or amend a judgment.7

And all circuits that have considered the nature of

Rule 59(e) in the wake of Kontrick, Eberhart, and

Bowles have held that it is a claim-processing rule

because it is untethered to any jurisdictional statute.

See Suber v. Lowes Home Ctrs., Inc., 609 F. App’x 615,

616 (11th Cir. 2015) (per curiam) (“Th[e] time limit for

filing a Rule 59(e) motion is a claims-processing rule,

not a jurisdictional rule, because it is not grounded in

a statutory requirement.” (internal quotation marks

omitted)); Blue v. Int’l Bhd. of Elec. Workers Local Un­

ion 159, 676 F.3d 579, 584 (7th Cir. 2012) (concluding

that Rule 59(e) is a “non-jurisdictional procedural rule[ ] ”

because it was “promulgated by the Supreme Court

under the Rules Enabling Act, 28 U.S.C. §§ 2071-2077,

and therefore ‘defies] not create or withdraw federal

7 The exceptions in Rule 9023 are found in (1) the rule itself,

which provides that, in contrast to Rule 59(e)’s 28-day time limit,

a Rule 9023 motion must be filed “no later than 14 days after

entry of judgment,” Fed. R. Bankr. P. 9023; and (2) Bankruptcy

Rule 3008, which concerns motions for “reconsideration of an or­

der allowing or disallowing a claim against the estate,” Fed. R.

Bankr. P. 3008. Neither exception is relevant to whether we may

analogize from case law regarding Civil Rule 59(e) to determine

if Rule 9023’s time limit is jurisdictional.

App. 20

jurisdiction’” (quoting Kontrick, 540 U.S. at 453));

Lizardo u. United States, 619 F.3d 273, 277 (3d Cir.

2010) (same); Nat’l Ecological Found, v. Alexander, 496

F.3d 466,475 (6th Cir. 2007) (same); First Ave. W. Bldg.,

LLC v. James (In re Onecast Media, Inc.), 439 F.3d 558,

562 (9th Cir. 2006) (concluding that “Rule 59 is . . . a

claim-processing rule”); cf. Wilburn u. Robinson, 480

F.3d 1140, 1146 n.ll (D.C. Cir. 2007) (rejecting dis­

sent’s argument that Rule 60(b) is jurisdictional be­

cause parallel Rule 59(e) is jurisdictional). 8

8 In Watson v. Ward, 404 F.3d 1230, 1231 (10th Cir. 2005),

this court granted a certificate of appealability on “[w]hether the

district court had jurisdiction to grant Respondent’s Rule 59 mo­

tion to alter or amend judgment,” which had been filed well after

what was then a 10-day time limit. We observed that “[w]ith ad­

mirable candor, Respondents concede that the district court

lacked jurisdiction.” Id. We then rejected an invitation to uphold

the district court’s ruling on the motion by treating it as if it was

entered pursuant to Rule 60(b). Id. at 1232. But we provided little

analysis of the jurisdictional issue, instead relying on (1) the ap­

pellees’ concession that the district court lacked jurisdiction over

an untimely Rule 59(e) motion, and (2) Brock v. Citizens Bank of

Clovis, 841 F.2d 344 (10th Cir. 1988), which predated Kontrick

and stated in summary fashion that a district court had “correctly

denied relief on jurisdictional grounds” when it denied a Rule

59(e) motion as untimely, id. at 347-48. See Watson, 404 F.3d at

1231. And although Watson post-dates Kontrick, which acknowl­

edged the distinction between jurisdictional and claim-processing

provisions, it did not discuss Kontrick. Further, two panels of this

court and one panel of the Tenth Circuit BAP have cited Watson

in noting we have not yet decided if Rule 59(e) is jurisdictional

or a claim-processing rule in light of Kontrick and its progeny.

See Martinez v. Carson, 697 F.3d 1252,1258 n.l (10th Cir. 2012);

Sky Harbor Air Serv., Inc. v. Reams, 491 F. App’x 875, 891 n.17

(10th Cir. 2012); Onyeabor v. Centennial Pointe Prop. Owners’

Assoc. (In re Onyeabor), BAP No. UT-14-047, 2015 WL 1726692,

App. 21

f

The reasoning of In re Dixon-Ross and our sister

circuits with respect to Civil Rule 59(e) persuades us

that Rule 9023 is a claim-processing rule, and a party

can waive or forfeit a timeliness objection to the bank­

ruptcy court’s consideration of a Rule 9023 motion

tiled more than 14 days after entry of judgment. In

this case, the Bank forfeited such an objection. But this

does not resolve the more difficult question: Whether

either an opposing party’s waiver or forfeiture of an

untimeliness argument in the bankruptcy court, or the

bankruptcy court’s denial of a Rule 9023 motion on the

merits, rather than for untimeliness, means the un­

timely Rule 9023 motion can, under Rule 8002(b)(1)(B),

toll the appeal period and hence render timely an

otherwise untimely notice of appeal. We now turn to

that question.

2. An untimely Rule 9023 motion does

not toll the appeal period

The parties cite no judicial decision resolving

whether an untimely Rule 9023 motion can, under

Rule 8002(b)(1)(B), toll the time period in which to file

a notice of appeal to the BAP or a district court, and we

have found none.9 We therefore must resort to analo­

gous tolling rules.

at *6 n.60 (B.A.P. 10th Cir. Apr. 15, 2015). None of those three

cases decided the issue either. We therefore decline to base our

analysis of Rule 9023 on Watson’s suggestion that a district court

lacks jurisdiction to grant an untimely Rule 59 motion.

9 Although In re Dixon-Ross held that a court has appellate

“jurisdiction to review a timely appealed order disposing of an

App. 22

a. Analogous tolling rules

Two procedural rules serve as proper analogues:

Federal Rules of Appellate Procedure 4(a)(4)(A) and

6(b)(2)(A)(i).

Rule 4(a)(4)(A) provides for tolling the jurisdic­

tional time limit for filing a notice of appeal from a dis­

trict court to a circuit court found in 28 U.S.C. § 2107:

“If a party files in the district court any of the following

motions under the Federal Rules of Civil Procedure—

and does so within the time allowed by those rules—

the time to file an appeal runs for all parties from the

entry of the order disposing of the last such remaining

motion.” Rule 59(e) motions are among the tolling

motions listed in Rule 4(a)(4)(A), see Fed. R. App. P.

4(a)(4)(A)(iv), and those “must be filed no later than 28

days after the entry of the judgment,” Fed. R. Civ. P.

59(e). As an Advisory Committee’s note states, Rule

8002 “is an adaptation of [Appellate] Rule 4(a),” and

Rule 8002(b) “is essentially the same as [Appellate]

Rule 4(a)(4).” Fed. R. Bankr. P. 8002 advisory commit­

tee’s note.

Similarly, Appellate Rule 6(b)(2)(A)(i) provides for

tolling the jurisdictional time limit to file a notice of

appeal to a circuit court from a decision by a BAP or a

district court exercising appellate jurisdiction in a

untimely motion for reconsideration,” 2016 WL 1056776, at *3 (in­

ternal quotation marks omitted), there is no indication that the

notice of appeal in that case was untimely and no mention of Rule

8002(b)(1)(B).

App. 23

bankruptcy case:10 “If a timely motion for rehearing

under Bankruptcy Rule 8022 is filed, the time to ap­

peal for all parties runs from the entry of the order

disposing of the motion.” Fed. R. App. R 6(b)(2)(A)(i).

Similar to time limits found in Civil Rule 59(e) and

Bankruptcy Rule 9023, Bankruptcy Rule 8022(a)(1)

has a time limit (14 days) for filing a motion for rehear­

ing before a BAP or district court sitting in its appel­

late capacity, and Rule 8022(a)(1) is a nonjurisdictional

claim-processing rule, see Tal v. Harth (In re Harth),

619 F. App’x 719, 721 (10th Cir. 2015) (recognizing

the BAP’s “authority to overlook the untimeliness of

a [Rule 8022] motion for rehearing on equitable

grounds”).11

b. Case law

Having established the relevant analogue rules,

we turn to case law interpreting them. We start with

Browder v. Director, Department of Corrections, where

the Supreme Court held that an untimely post-judgment

motion filed under either Civil Rule 52(b) or Rule 59

“could not toll the running of time to appeal under

Rule 4(a)” and therefore the circuit court “lacked

10 This time limit is jurisdictional. See Taumoepeau v. Mfrs.

& Traders Tr. Co. (In re Taumoepeau), 523 F.3d 1213, 1216 & n.l

(10th Cir. 2008) (jurisdictional timeliness requirement under

§ 2107 and Appellate Rule 4(a)(1) is applicable to bankruptcy

appeals to circuit courts by virtue of Appellate Rule 6(b)(1) and

Advisory Committee notes to Bankruptcy Rule 8001).

11 We cite unpublished decisions only for their persuasive

value consistent with 10th Cir. R. 32.1(A).

App. 24

jurisdiction to review the [underlying order granting

habeas relief].” 434 U.S. 257, 265 (1978). Before the

district court, the opposing party had objected on time­

liness grounds to the court’s consideration of the mo­

tion, but that fact appears to have played no role in the

Supreme Court’s decision. Instead, the Court relied on

what Bowles later confirmed—that § 2107(a)’s 30-day

time limit for filing a notice of appeal in a civil case is

“jurisdictional,” id. at 264 (internal quotation marks

omitted)—and on Rule 4(a)(4)(A)’s purpose, which is

“to set a definite point of time when litigation shall be

at an end, unless within that time the prescribed ap­

plication has been made; and if it has not, to advise

prospective appellees that they are freed of the appel­

lant’s demands,” id. (internal quotation marks omit­

ted).

We next consider Chief Judge Sentelle’s dissenting

opinion in Obaydullah v. Obama, 688 F.3d 784 (D.C.

Cir. 2012) (per curiam), and opinions from the First,

Third, Fourth, Fifth, Seventh, and Eleventh Circuits,

almost all of which post-date Bowles and follow

Browder. These decisions further develop the rationale

for the rule that untimely post-judgment motions can­

not toll the period in which to file a notice of appeal

even where an opposing party does not object on time­

liness grounds or the district court disposes of the

motion on the merits.

In Obaydullah, the government did not oppose the

district court’s consideration of an untimely Rule 59(e)

motion, which the court granted. Were it not for the

tolling effect of that motion, Obaydullah’s notice of

li

App. 25

appeal would have been untimely to appeal the under­

lying judgment. In determining that the untimely mo­

tion tolled the appeal period, the. majority relied on

circuit precedent to conclude that Rule 4(a)(4)(A)’s

tolling provision for Rule 59(e) motions is a claim­

processing rule, id. at 789, and therefore “the . . .

waiver of any timeliness objection” to an untimely Rule

59(e) motion permits a court to consider an appeal

from the underlying judgment, id. at 79i. But in what

we consider a persuasive dissent, Chief Judge Sentelle

argued that “Bowles and Browder . .. should govern

[the] case,”id. at 800, pointing out that Bowles (1) “clar­

ified that Browder ... is good law,” (2) “cited Browder’s

treatment of time limits with approval,” and (3) “ex­

plained that [the Court’s] recent negative treatment

of Robinson1121 and other cases, such as Browder, that

relied on Robinson for the proposition that the time

limit set for a notice of appeal is jurisdictional, was

‘dicta,’ ” id. at 799 (quoting Bowles, 551 U.S. at 210 n.2).

Judge Sentelle also likened allowing an untimely (and

unobjected-to) Rule 59(e) motion to toll a jurisdictional

appeal period to the “unique circumstances” doctrine

the Supreme Court jettisoned in Bowles. See id. at 800

(internal quotation marks omitted).

We also find the Third Circuit’s decision in Lizardo

v. United States, 619 F.3d 273 (3d Cir. 2010), persuasive

and instructive. In Lizardo, the government failed to

object to a Rule 59(e) motion as untimely, and the dis­

trict court denied it. The Third Circuit held that

12 United States v. Robinson, 361 U.S. 220 (1960).

App. 26

because Rule 59(e) is a claim-processing rule, the gov­

ernment had forfeited any timeliness objection it could

have made in the district court, but it did not forfeit its

objection for purposes of Rule 4(a)(4)(A). Relying pri­

marily on Browder, the court held that “[a]n untimely

Rule 59(e) motion does not toll the time for filing an

appeal under Rule 4(a)(4)(A). This is true even if the

party opposing the motion did not object to the mo­

tion’s untimeliness and the district court considered

the motion on the merits.” Id. at 278. The court rea­

soned that “Rule 4’s main purpose is ‘to set a definite

point of time when litigation shall be at an end,’ ” id. at

279 (quoting Browder, 434 U.S. at 264), and “[h]olding

that an untimely Rule 59(e) motion is timely for pur­

poses of Rule 4(a)(4)(A) by virtue of the opposing

party’s failure to object to that-untimeliness in the dis­

trict court would accomplish the opposite result,” id. at

280.

In reaching the conclusion that untimely post­

judgment motions cannot toll the period for filing a

notice of appeal, the Fifth and Seventh Circuits have

followed, inter alia, Browder and Lizardo. See Overstreet v. Joint Facilities Mgmt., L.L.C. (In re Crescent

Res., L.L.C.), 496 F. App’x 421, 424 (5th Cir. 2012) (per

curiam) (holding that an untimely Rule 59(e) motion

“will not toll the notice of appeal period, even if the dis­

trict court addressed the late-filed motion on the mer­

its”); Blue v. Infl Bhd. of Elec. Workers Local Union

159, 676 F.3d 579, 582-85 (7th Cir. 2012) (concluding

that, where opposing party had not objected to an im­

permissible extension of the deadline to file a post-trial

App. 27

motion, the district court had jurisdiction to hear those

motions but they “did not toll the time [appellant]

had to file its Notice of Appeal”). And in decisions pre­

dating Lizardo, the First and Fourth Circuits have

followed Browder. See Garcia-Velazquez v. Frito Lay

Snacks Caribbean, 358 F.3d 6,8-11 (1st Cir. 2004) (con­

cluding that under Browder, an untimely Rule 59(e)

motion did not toll the appeal period even though the

district court had denied it on the merits); Panhorst v.

United States, 241 F.3d 367, 369-70 (4th Cir. 2001) (re­

lying on Browder to hold that “[a]n untimely Rule 59(e)

motion does not defer the time for filing an appeal,

which continues to run from the entry of the initial

judgment order,” where district court had granted mo­

tion to consider untimely Rule 59(e) motion then de­

nied that motion). In another pre-Lizardo case, the

Eleventh Circuit also reached the same conclusion, al­

beit without reliance on Browder. See Green v. Drug

Enf’t Admin., 606 F.3d 1296, 1302 (11th Cir. 2010)

(holding that “Appellate Rule 4(a)(4)(A) requires [post­

judgment] motions be timely to toll the period for filing

a notice of appeal,” and explaining that “[a]lthough

Kontrick and Eberhart suggest that a district court has

jurisdiction to hear an out-of-time Rule 59(e) motion if

the non-moving party does not object promptly enough

(and thus forfeits his ability to object to timeliness

later), neither case would turn an untimely Rule 59(e)

motion into a timely one” (footnote omitted)).

Finally, we have applied Browder in a bankruptcy

case with a procedural posture analogous to this case.

In In re Harth, we concluded that an untimely motion

App. 28

\

for rehearing by the BAP filed under Bankruptcy Rule

8022, which the BAP denied on the merits after noting

its untimeliness, did not toll the time limit to appeal to

this court under Appellate Rule 6(b)(2)(A)(i). In sup­

port, we relied on Browder, explaining that although

the BAP had “authority to overlook the untimeliness of

a motion for rehearing on equitable grounds, that is a

separate matter from whether the BAP affects our ap­

pellate jurisdiction by denying the untimely motion on

the merits.” 619 F. App’x at 721 (emphasis added). We

said that whether the appellant was “entitled to tolling

of the appeal period is itself a jurisdictional issue,” and

under Bowles, “courts have no authority to create eq­

uitable exceptions to jurisdictional requirements.” Id.

(brackets and internal quotation marks omitted). “We

therefore agree [d] with those circuits holding that a

lower court’s discretionary election to deny an un­

timely post-judgment motion on the merits (an equita­

ble action without jurisdictional import in that court)

does not re-invest that motion with a tolling effect

for purposes of appellate jurisdiction.” Id. We consider

In re Harth’s application of Browder in the bankruptcy

context to be persuasive.

The Second, Sixth, Ninth, and D.C. Circuits have

concluded that an untimely post-judgment motion can

toll the appeal period under Appellate Rule 4(a)(4)(A).

See Demaree u. Pederson, 887 F.3d 870, 876 (9th Cir.

2018) (per curiam); Weitzner v. Cynosure, Inc., 802 F.3d

307, 312 (2d Cir. 2015); Obaydullah, 688 F.3d at 789;

Nat’l Ecological Found., 496 F.3d at 476. The Eighth

Circuit has implied as much. See Dill u. Gen. Am. Life

App. 29

Ins. Co., 525 F.3d 612,619 (8th Cir. 2008). However, we

are more persuaded by the contrary view expressed in

Browder, Chief Judge Sentelle’s dissent in Obaydullah,

and the other circuit decisions cited above.

Accordingly, we hold that an untimely Rule 9023

motion is ineffective to toll the time to file a notice of

appeal under 28 U.S.C. § 158(c)(2) and Bankruptcy

Rule 8002(a) regardless of whether the bankruptcy

court disposes of the motion on the merits or whether

an opposing party raises in the bankruptcy court a

timeliness objection to that court’s consideration of

the motion. In the latter situation, holding otherwise

would allow an opposing party’s failure to raise a time­

liness objection to expand the jurisdictional appeal pe­

riod, and that would violate the tenet that “a court’s

subject-matter jurisdiction cannot be expanded to ac­

count for the parties’ litigation conduct.” Kontrick, 540

U.S. at 456; see Bowles, 551 U.S. at 213 (explaining that

where an "error is one of jurisdictional magnitude, [a

litigant] cannot rely on forfeiture or waiver to excuse

his lack of compliance with [a] statute’s time limita­

tions [for filing a notice of appeal]”).

3. BAP had authority to consider, sua

sponte, Rule 9023 motion’s timeliness

Mr. Robertson complains that the BAP should not

have considered the timeliness of his Rule 9023 motion

sua sponte. But given our reaffirmance that Rule

8002(a)(l)’s time limit is jurisdictional, we conclude

that the BAP had authority to consider sua sponte

App. 30

whether Mr. Robertson’s Rule 9023 motion was timely

filed for purposes of determining whether the BAP had

jurisdiction over his appeal. See Henderson, 562 U.S. at

434 (“[F]ederal courts have an independent obligation

to ensure that they do not exceed the scope of their ju­

risdiction, and therefore they must raise and decide ju­

risdictional questions that the parties either overlook

or elect not to press.”)

IV. Attorney fees

Included with its appellate brief, the Bank sum­

marily requests “attorneys’ fees on appeal pursuant to

the final orders and judgments made by the Bank­

ruptcy Court, the Utah State District Court and the

Utah Court of Appeals based upon the loan documents

entered into between the Bank and [Mr.] Robertson.”

Aplee. Resp. Br. at 53-54. The statute the Bank cites in

support of its request authorizes a court to award at­

torney fees to the prevailing party “in a civil action

based upon any promissory note, written contract, or

other writing executed after April 28, 1986, when the

provisions of the promissory note, written contract, or

other writing allow at least one party to recover attor­

ney fees.” Utah Code Ann. § 78B-5-826.

We deny the request without prejudice to the Bank

filing a proper motion that complies with applicable

procedural rules, including 10th Cir. R. 27 and 39.2,

and that sets out more fully the legal basis for an

award for attorney fees. At a minimum, any such mo­

tion should (1) identify the “promissory note[s], written

App. 31

contracts], or other writing[s] allow[ing] at least one

party to recover attorney fees,” Utah Code Ann.

§ 78B-5-826; (2) discuss whether an appeal from a BAP

decision regarding an adversary proceeding is “a civil

action” within the meaning of § 78B-5-826 and, if so,

whether excepting from discharge a deficiency judg­

ment in an adversary proceeding means that the ad­

versary proceeding is “based upon” the relevant

“promissory note, written contract, or other writing,”

id.; and (3) identify any other Utah statutory or case

law bearing on the Bank’s entitlement to attorney fees

in this appeal, see, e.g., Mgmt. Servs. Corp.' v. Dev. Assocs., 617 P.2d 406, 409 (Utah 1980) (holding “that a

provision for payment of attorney’s fees in a contract

includes attorney’s fees incurred by the prevailing

party on appeal as well as at trial, if the action is

brought to enforce the contract” (emphasis added)).

V.

Conclusion

We affirm the BAP’s judgment dismissing Mr.

Robertson’s appeal for lack ofjurisdiction. We deny the

Bank’s request for attorney fees on appeal without

prejudice to the Bank filing a proper motion for attor­

ney fees.

Entered for the Court

Jerome A. Holmes

Circuit Judge

App. 32

UNITED STATES

BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE

MICHAEL LYNN ROBERTSON,

Debtor.

BANNER BANK, formerly

doing business in Utah

as AmericanWest Bank

or Far West Bank,

BAP No. UT-17-034

Bankr. No. 14-20984

Adv. No. 14-2189

Chapter 7

ORDER DISMISSING

APPEAL FOR LACK

OF JURISDICTION

(Filed Mar. 29, 2018)

Plaintiff - Appellee,

v.

MICHAEL LYNN ROBERTSON,

Defendant - Appellant.

Before CORNISH, JACOBVITZ, and HALL, Bank­

ruptcy Judges.

Appellant filed a Notice ofAppeal on July 14,20171

appealing the Order and Judgment Granting Plain­

tiff’s Motion for Summary Judgment and Excepting Debt,

from Discharge Pursuant to 11 U.S.C. § 523(a)(2)(B)

and Denying Defendant’s Motion for Summary Judgment

1 BAP ECF No. 1.

App. 33

(the “Order”).2"The Court issued the Order to Show

Cause Why Appeal Should Not Dismissed as Untimely

on March 8, 2018, requiring Appellant Michael Lynn

Robertson to provide a memorandum of law explaining

why the appeal is not untimely.3 All parties have re­

sponded to the Court’s show cause order.

The bankruptcy court entered the Order on March

30, 2017. The bankruptcy court docket indicates re­

ceipt of the Motion to Reconsider, Alter, or Amend the

Judgment pursuant to Rule 9023 on April 14,2017 (the

“Motion to Reconsider”)—fifteen days after entry of the

Order.4 The Court issued the show cause order because

although Appellant filed a notice of appeal within fourteen-days of the entry of an order denying the Motion

to Reconsider, Appellant did not timely file the under­

lying Motion to Reconsider to effectively preserve the

time to file the notice of appeal.

In his Memorandum of Law as to Jurisdiction,5

Appellant identifies the fourteen-day requirement to

file a notice of appeal provided by Federal Rule of

Bankruptcy Procedure 8002(a)(1)6 and the effect of

filing a post judgment motion on the time to appeal.

Specifically, Rule 8002(b)(1)(B) provides that upon the

filing of a timely motion pursuant to Rule 9023, the

time to file an appeal runs from the entry of the order

2 Bankr. ECF No. 115.

3 BAP ECF No. 36.

4 Bankr. ECF No. 118.

5 BAP ECF No. 37.

6 Hereinafter referenced as “Rule” or “Rules.”

App. 34

disposing of such a motion. Rule 9023 provides a timely

motion to alter or amend a judgment must be filed

within fourteen days of entry of the judgment.

Appellant argues he timely filed the Motion to

Reconsider because he deposited it in the United

States mail, postage pre-paid on April 13, 2017—within

fourteen-days of entry of the Order. Appellant equates

“delivering custody of the document and depositing it

in the United States post office” with filing the Motion

to Reconsider.7 Therefore, Appellant argues he filed the

Motion to Reconsider within fourteen days of entry of

the Order to preserve the time to appeal pursuant to

Rule 8002(b).

A document to be filed under the Rules “shall be

filed with the clerk in the district where the case under

the Code is pending.”8 The general rule is that to be

filed a document must be received by the clerk. The

Rules provide limited exceptions to the general rule.

For instance, Rule 5005(c) indicates where a document

is erroneously delivered to various government enti­

ties affiliated with the bankruptcy court, the court may

order that the document be deemed filed with the

clerk. However, under Rule 5005(c)’s exception the doc­

ument is deemed filed with the clerk as of the date

it was received by the affiliated entity—not the date of

7 Memorandum of Law as to Jurisdiction at 6.

8 Fed. R. Bankr. P. 5005(a)(1).

I

App. 35

mailing.9 A second exception found in Rule 8002(c)(1)

provides an inmate confined to an institution timely

files a notice of appeal “if it is deposited in the institu­

tion’s internal mail system on or before the last day for

filing.”

Rule 9006(e) provides service of any paper is com­

plete upon mailing. However, service of a paper “cannot

be equated with ‘filing’ a document” as the Rules “use

the word ‘file’ to denote turning a document over to the

court, while ‘serving’ a document relates to the act of

providing that document to a party involved in the ac­

tion.”10

There is no exception to the general rule described

above that applies to Appellant’s filing the Motion to

9 In re Wheatfield Bus. Park, LLC, 308 B.R. 463, 469 (9th Cir.

BAP 2004) (holding document timely filed under Rule 5005(c)

when received by United States Trustee).

10 In re Wallace, 277 B.R. 351, 352 (Bankr. N.D. Ohio 2001)

(citing Chrysler Motors Corp. u. Schneiderman, 940 F.2d 911, 914

(3d Cir. 1991)); Houston u. Lack, 487 U.S. 266, 274 (1988) (citing

body of cases rejecting “the general argument that a notice of ap­

peal is ‘filed’ at the moment it is placed in the mail ... on the

ground that receipt by the district court is required); Snyder v.

Snyder, No. 97-1081, 1998 WL 58175, at *3 (10th Cir. Feb. 11,

1998) (“Mailing, however, does not constitute ‘filing’ under the

Federal Rules of Civil Procedure.”); Dumitrascu v. Dumitrascu,

No. 15-CV-561, 2017 WL 5241234, (N.D. Okla. Jan. 13,2017) (“de­

positing a paper in the mail does not constitute filing under the

Federal Rules of Civil Procedure.”); In re Nimz Transp., Inc., 505

F.2d 177, 179 (7th Cir. 1974) (“mailing alone does not constitute

filing, . . . filing requires delivery and receipt by the property

party.”); Kahler-Ellis Co. v. Ohio Turnpike Comm., 225 F.2d 922

(6th Cir. 1955) (depositing notice in the mail “is not a filing; only

when the clerk acquires custody has [a document] been filed.”).

App. 36

Reconsider. Appellant’s act of placing his Motion to Re­

consider in the mail does not constitute timely filing

the motion. Accordingly, Appellant did not preserve the

time to file a notice of appeal of the Order pursuant to

Rule 9023 and this appeal is untimely. This Court

treats “the timely filing of a notice of appeal pursuant

to [11 U.S.C.] § 158(c)(2) and Rule 8002 [as] a jurisdic­

tional requirement that cannot be waived.”11 There­

fore, the Court lacks jurisdiction to consider this

appeal.

Accordingly, it is HEREBY ORDERED that:

1. This appeal is DISMISSED for lack of appel­

late jurisdiction; and

2. All deadlines pending in this appeal are termi­

nated.

For the Panel

/s/ Blaine F. Bates

Blaine F. Bates

Clerk of Court

11 Kingsley Capital, Inc. v. Jones (In re Kingsley Capital,

Inc.), 423 B.R. 344, 350 (10th Cir. BAP 2010); In re Latture, 605

F.3d 830, 836-37 (10th Cir. 2010) (adopting the BAP’s holding the

time restrictions for filing an appeal are jurisdictional).

App. 37

UNITED STATES

BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE

MICHAEL LYNN ROBERTSON,

Debtor.

BANNER BANK, formerly

doing business in Utah

as AmericanWest Bank

or Far West Bank,

BAP No. UT-17-034

Bankr. No. 14-20984

Adv. No. 14-2189

Chapter 7

ORDER DENYING

MOTION FOR

REHEARING

(Filed Apr. 17, 2018)

Plaintiff - Appellee,

v.

MICHAEL LYNN ROBERTSON,

Defendant - Appellant.

Before CORNISH, JACOBVITZ, and HALL, Bank­

ruptcy Judges.

Appellant filed a Notice ofAppeal on July 14,20171

appealing the Order and Judgment Granting Plain­

tiff’s Motion for Summary Judgment and Excepting Debt

from Discharge Pursuant to 11 U.S.C. § 523(a)(2)(B)

and Denying Defendant’s Motion for Summary Judgment

BAP ECF No. 1.

App. 38

(the “Order”)-2 The bankruptcy court entered the Order

on March 30, 2017. The bankruptcy court docket in­

dicates receipt of the Motion to Reconsider, Alter, or

Amend the Judgment pursuant to Rule 9023 on April

14, 2017 (the “Motion to Reconsider”)—fifteen days af­

ter entry of the Order.3 Accordingly, the Court issued

an Order to Show Cause Why Appeal Should Not Dis­

missed as Untimely (the “Order to Show Cause)4 be­

cause, although Appellant filed a notice of appeal

within fourteen-days of the entry of an order denying

the Motion to Reconsider, Appellant did not timely file

the underlying Motion to Reconsider to effectively pre­

serve the time to file the notice of appeal.5

Appellant filed a response to the Order to Show

Cause, arguing that he timely filed the Motion to Re­

consider because he deposited it in the United States

mail, postage pre-paid on April 13, 2017—within four­

teen-days of entry of the Order. Because mailing did

not constitute timely filing in this instance and Appel­

lant did not preserve the time to file a notice of appeal

of the Order pursuant to Rule 9023, this Court dis­

missed the appeal as untimely on March 29, 2019.6

On April 11,2018, Appellant filed a Motion for Re­

hearing or to Alter and Amend the Judgment (the “Mo­

tion for Rehearing”). Appellant argues that only time

2 Bankr. ECF No. 115.

3 Bankr. ECF No. 118.

4 BAP ECF No. 36.

5 Fed. R. Bankr. P. 8002(b).

6 BAP ECF No. 41.

App. 39

limitations set forth in statutes, as opposed to rules,

are jurisdictional, relying on Hamer v. Neighborhood

Housing Services of Chicago.1 He acknowledges that 28

U.S.C. § 158 refers to the rule that contains the time

limit but contends that because the time limit is not

explicitly specified in the statute itself, the rule setting

forth the time limit is not jurisdictional.

We disagree. We have previously held that, al­

though 28 U.S.C. § 158(c)(2) does not specify the num­

ber of days set forth in Rule 8002 for filing a notice of

appeal, the timely filing of a notice of appeal in a bank­

ruptcy case is nonetheless a jurisdictional requirement

as § 158(c)(2) prescribes the filing deadline by adopting

the time limits of Rule 8002.8 Appellant fails to provide

authority in support of his position that § 158(c)(2)

must specifically state the time limit set forth in a Rule

it adopts in order to effect a jurisdictional requirement.

Hamer does not alter the rule that the timely filing of

a notice of appeal pursuant to § 158(c)(2) and Rule

8002 is a jurisdictional requirement that cannot be ig­

nored.9

7 138 S. Ct. 13 (2017) (“An appeal filing deadline prescribed

by statute will be regarded as jurisdictional, so that late filing of

the appeal notice necessitates dismissal of the appeal, but a time

limit prescribed only in a court-made rule is not jurisdictional; it

is, instead, a mandatory claim-processing rule subject to forfei- ,

ture if not properly raised by the appellee.”).

8 Kingsley Capital, Inc. v. Jones (In re Kingsley Capital, Inc.),

423 B.R. 344, 350 (10th Cir. BAP 2010).

9 Appellant also argues that an exception should exist for pro

se parties and that Thompson v. INS, 375 U.S. 384, (1964) pro­

vides for an exception to excuse an untimely filing of a notice of

(

*

App. 40

Federal Rule of Bankruptcy Procedure 8022 and

Tenth Circuit BAP Local Rule 8022-1 govern the pro­

cedures applicable to motions for rehearing. Tenth Cir­

cuit BAP Local Rule 8022-1(a) provides that: “A motion

for rehearing should not be filed routinely. Rehearing

will be granted only if a significant issue has been over­

looked or misconstrued by this Court.” Pursuant to

Federal Rule of Bankruptcy Procedure 8022, a motion

for rehearing must state with particularity each point

of law or fact that the moving party believes the Court

has overlooked or misapprehended and must argue in

support of the motion. The Court has reviewed the Mo­

tion for Rehearing. Appellant has not shown that the

Court has overlooked or misapprehended any point of

law or fact.

For the reasons stated above, it is HEREBY OR­

DERED that the Motion for Rehearing is DENIED.

For the Panel

/s/ Blaine F. Bates

Blaine F. Bates

Clerk of Court

appeal in unique circumstances. No such exception exists for pro

se parties and the Supreme Court no longer recognizes the unique

circumstance exception. See Bowles v. Russell, 551 U.S. 205 (2007)

(holding that the unique circumstances exception to excuse an un­

timely filing of a notice of appeal is no longer recognized and over­

ruling Thompson v. INS, 375 U.S. 384 (1964)).

App. 41

This order is SIGNED.

Dated:

/s/ R. Kimball Mosier

[SEAL]

June 29, 2017

R. KIMBAL MOSIER

U.S. Bankruptcy Judge

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF UTAH

In re:

MICHAEL LYNN ROBERTSON,

Bankruptcy. No.

14-20984

Chapter 7

Debtor.

BANNER BANK, formerly

doing business in Utah

as AmericanWest Bank

or Far West Bank,

Plaintiff,

Hon.

R. Kimball Mosier

Adversary Proceeding

No. 14-2189

v.

MICHAEL LYNN ROBERTSON,

Defendant.

ORDER DENYING DEFENDANT’S

MOTION TO RECONSIDER, ALTER,

OR AMEND THE JUDGMENT

(Entered On Docket: 06/30/2017)

(Filed Jul. 2, 2017)

On March 30, 2017, the Court entered an Order

and Judgment which, among other things, denied

<

App. 42

Defendant Michael Robertson’s motion for summary

judgment and granted Plaintiff Banner Bank’s motion

for summary judgment. The Defendant subsequently

filed a motion pursuant to Fed. R. Bankr. P. 9023 and

Fed. R. Civ. P. 59(e) requesting that the Court recon­

sider, alter, or amend the portion of its Order and Judg­

ment that granted the Plaintiff’s motion for summary

judgment.

The Court conducted a hearing on the Defendant’s

motion on June 20, 2017. The Defendant appeared pro

se, and Steven W. Call and Elaine Monson appeared

on behalf of the Plaintiff. After considering the Defend­

ant’s motion, the Plaintiff’s memorandum in opposi­

tion, the Defendant’s reply memorandum, and the

parties’ arguments at the hearing, the Court hereby

ORDERS:

1. The Defendant’s Motion to Reconsider, Alter,

or Amend the Judgment is DENIED.

END OF DOCUMENT

________oooOooo________

(Designation Of Parties To Receive Notice Omitted)

(Certificate Of Notice Omitted)

(CM/ECF Notice Of Electronic Filing Omitted)

App. 43

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

MICHAEL LYNN ROBERTSON,

Debtor.

BANNER BANK, formerly

doing business in Utah

as AmericanWest Bank

or Far West Bank,

No. 18-4060

Plaintiff - Appellee,

v.

MICHAEL LYNN ROBERTSON,

Defendant - Appellant.

ORDER

(Filed JuL 26, 2019)

Before HOLMES, BACHARACH, and PHILLIPS,

Circuit Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmit­

ted to all of the judges of the court who are in regular

App. 44

active service. As no member of the panel and no judge

in regular active service on the court requested that

the court be polled, that petition is also denied.

Entered for the Court

/s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER,

Clerk