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In re Okray

August 7, 2009

IN RE GEORGETTE OKRAY AND FREDDIE OKRAY, DEBTORS.
GEORGETTE OKRAY AND FREDDIE OKRAY, PLAINTIFFS -- APPELLEES,
v.
ALLEN L. DENNIS AND DONNA L. DENNIS, DEFENDANTS -- APPELLANTS.



The opinion of the court was delivered by: Ralph R. Beistline United States District Judge

MEMORANDUM DECISION

On Appeal From the U.S. Bankruptcy Court District of Alaska Hon. Donald MacDonald IV, Bankruptcy Judge. Adv. No. 4:08-90010-DMD.

Allen L. and Donna L. Dennis ("Dennises") have timely appealed from the decision of the bankruptcy court entered November 24, 2008, denying their motion for leave to file a late appeal.

The court having reviewed the briefs and record on appeal has determined that oral argument would not be helpful in the determination of this case and the parties have not requested oral argument.*fn1 The matter is submitted for decision on the briefs.

I. BACKGROUND/JURISDICTION

Georgette and Freddy Okray ("Okrays") filed a petition under Chapter 13 of the Bankruptcy Code. Prior to the time the Okrays filed their bankruptcy petition, the Dennises, exercised their rights under the deed of trust securing the residence owned by the Okrays and took possession of the residence. The Okrays then filed an adversary action in the bankruptcy court against the Dennises, alleging that the Dennises, as mortgagees in possession, had damaged the residence. After a trial the bankruptcy court entered judgment in favor of the Okrays on September 30, 2008, but in amount less than that sought by the Okrays. The Dennises filed a Notice of Appeal from that judgment on October 22, 2008, and, concurrently therewith, a motion to extend the time to appeal. The bankruptcy court denied the motion to extend time on November 24, 2008.

The Dennises filed a timely notice of appeal on December 4, 2008, and concurrently therewith objected to reference of the appeal to the Bankruptcy Appellate Panel. This Court has jurisdiction under 28 U.S.C. § 158(a)(1), (c)(1)(A).

II. ISSUE PRESENTED and STANDARD OF REVIEW

This appeal presents a single issue: Did the bankruptcy court err in denying the Dennises leave to file a late appeal? This Court reviews the decision of the bankruptcy court denying leave to file a late appeal for an abuse of discretion.*fn2 Abuse of discretion occurs when a decision is based "on an erroneous view of the law or a clearly erroneous assessment of the facts."*fn3

III. FACTS

In their motion the Dennises attributed the delay in filing the notice of appeal to errors of counsel:*fn4

Applied here, Dennis' counsel's failure to learn of the 10 day time to file a notice of appeal was a mistake made by Dennis' counsel, who is inexperienced in bankruptcy. As counsel stated at the November 10, 2008 hearing, because of his inexperience, he had retained experienced counsel, Jason Gazewood, early in this case hoping to avoid procedural violations due to counsel's unfamiliarity with bankruptcy procedure, but when the decision to be appealed came in, Mr. Gazewood was out of town and did not respond to call for help until the 10 day appeal time had run.

When Dennis' counsel discovered the appeal time had run, he promptly filed a Notice of Appeal, accompanied by a Motion and Memorandum in Support to Extend Time to Appeal and the filing fee, filed October 22, 2008, 12 days after the 10 day appeal time had run.

Dennis' counsel took affirmative steps to learn what the appeal time was, but they were ineffective. Counsel was surprised to learn the appeal time was so short, shorter than the 30 days allowed for other appeals counsel has done. Although these steps were too little, ...


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