United States District Court, E.D. Michigan, Southern Division
IN RE ROBERT LEE SAMULAK, Debtor.
CARRINGTON MORTGAGE SERVICES, LLC, Appellee. ROBERT LEE SAMULAK, Appellant,
OPINION AND ORDER DISMISSING NOTICE OF
H. CLELAND UNITED STATES DISTRICT JUDGE
Carrington Mortgage Services, LLC (“Carrington”)
moves this court to dismiss Appellant Robert Lee
Samulak's “Notice of Appeal from Bankruptcy
Court.” (Dkt. #8.) Carrington argues that this court
lacks jurisdiction to hear Samulak's appeal because it
was untimely. Samulak filed a response (Dkt. #14) and
Carrington a reply (Dkt. #17). The court has determined that
a hearing is unnecessary because the facts and legal
arguments are adequately presented in the briefs and record,
and the court's process would not be aided by oral
argument. See Fed. R. Bankr. P. 8019(b); E.D. Mich.
L.R. 7.1(f)(2). For the following reasons, Carrington's
motion is granted.
October 2016, Samulak filed an Adversary Complaint in the
U.S. Bankruptcy Court seeking to void his mortgage debt.
(See Bankr. E.D. Mich. No. 16-04944-mar.) Carrington
moved to dismiss, and the Bankruptcy Court granted
Carrington's motion in January 2017. Ten months later,
Samulak moved for relief from judgment. The Bankruptcy court
denied the motion on October 24, 2017. Samulak filed his
Notice of Appeal on November 20, 2017-27 days after the
Bankruptcy Court denied his motion for relief.
appealing the decision of bankruptcy court must file his
notice of appeal within 14 days after the decision is
entered. Fed.R.Bankr.P. 8002(a). An appellant may extend the
time to file a notice of appeal, however, by filing a motion
in the bankruptcy court either (1) within the 14-day window
prescribed for appeals, or (2) “within 21 days after
that time, if the party shows excusable neglect.”
court lacks jurisdiction to hear an appeal that is not timely
filed. In re LBL Sports Ctr., Inc., 684 F.2d 410,
412 (6th Cir. 1982). The court similarly lacks jurisdiction
to evaluate whether a party has demonstrated excusable
neglect-such a determination is left to the discretion of the
Bankruptcy Court. Id.; see also In re
Crider, No. 98-2376, 2000 WL 191823, at *3 (6th Cir.
2000) (unpublished table decision) (“This court has
clearly stated that neither the district court nor the
circuit court is authorized to entertain the merits of an
excusable neglect claim.”).
argues that Samulak's Notice of Appeal must be dismissed
because it was indisputably filed outside the 14-day window
within which Samulak was required to file. And even if
Samulak had some excusable neglect for filing outside that
window, according to Carrington, the proper procedure was to
ask the Bankruptcy Court for more time.
for his part, does not dispute that his Notice of Appeal was
filed late. Rather, Samulak argues that he was never properly
served with a copy of the Bankruptcy Court's order on his
motion for relief from judgment. Samulak avers that his
“email program, Microsoft Outlook, and [his] Internet
Service Provider (ISP), encountered technical difficulties,
which prohibited [him] from receiving any email
notifications, ” including entry of the Bankruptcy
Court's October 24 order denying relief from judgment.
(Dkt. #14 Pg. ID 54.) Moreover, as an unrepresented party,
Samulak is required to be served by mail. Fed.R.Bankr.P.
8011(c)(1). Samulak says that service of proper was never
completed because the bankruptcy court's order “was
served by CM/ECF electronic mail only.” (Id.)
According to Samulak, he learned of the Bankruptcy
Court's order only because he happened to do a check of
the CM/ECF docket on November 9, 2017. He then filed his
Notice of Appeal 12 days later, on November 21. Samulak
argues that the doctrine of equitable tolling should apply to
court agrees with Carrington. First, Samulak is incorrect
that the Bankruptcy Court's order on his motion for
relief was improperly served. The Bankruptcy Court docket
contains a certification that the order was “Mailed on
October 24, 2017 by the United States Postal Service to
Robert Lee Samulak” at his address. (Bankr. E.D. Mich.
No. 16-04944-mar.) The order having been properly mailed to
Samulak, his issues with internet and email are inapposite.
this court was not the proper place to assert either improper
service or excusable neglect. If Samulak wished to receive an
extension of time within which to file his appeal, the
appropriate course was to move the Bankruptcy Court for such
an extension. Fed.R.Bankr.P. 8002(d)(1). He did not do so.
court lacks jurisdiction over an appeal that was not timely
filed. In re LBL Sports, 684 F.2d at 412. Moreover,
this court lacks the power to entertain questions of
excusable neglect. Id. This is so even where an
appellant claims that he never received a copy of the order
from which he appeals. See In re Johnson, No.
03-3471, 2003 WL 22746082, at *1 (6th Cir. 2003) (unpublished
table decision) (holding that the Bankruptcy Appellate Panel
properly dismissed appellant's untimely appeal even where
appellant claimed that the delay was “due to his having
not received a copy of the judgment order”). Having no