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Looper v. Educational Credit Management Corp.

July 30, 2008

BYRON A. LOOPER, APPELLANT,
v.
EDUCATIONAL CREDIT MANAGEMENT CORPORATION AND U.S. DEPARTMENT OF EDUCATION, APPELLEES.



The opinion of the court was delivered by: Phillips

MEMORANDUM OPINION

This bankruptcy appeal is before the court on appellees' joint Motion to Dismiss [Doc. 6]. Appellees seek to dismiss the appeal due to appellant's failure to timely file his brief. For the reasons that follow, the motion is GRANTED.

I.

This is a bankruptcy appeal from an Order entered April 25, 2007 by the Honorable Richard Stair, Jr., United States Bankruptcy Judge, in which Judge Stair denied debtor/appellant's motion for summary judgment and granted the motions for summary judgment filed by the creditors/appellees, the United States Department of Education ("Department of Education") and Educational Credit Management Corporation ("ECMC"). On February 2, 2006, appellant filed an adversarial complaint, seeking a declaration that his student loan obligations were dischargeable for undue hardship under 11 U.S.C. § 523(a)(8) (2006). In a Memorandum Opinion accompanying the aforementioned Order, Judge Stair found that appellant did not establish the requisite "undue hardship" to discharge his student loans and, having granted appellees' motions for summary judgment and denied appellant's motion for summary judgment, dismissed the complaint. Having unsuccessfully requested further relief from the bankruptcy court, appellant filed this appeal. This court has jurisdiction to hear the appeal under 28 U.S.C. § 158(a)(1).

II.

Appellees move this court to dismiss the appeal as untimely. The court will first address the timeliness of appellant's brief before addressing whether dismissal is appropriate.

Part VIII of the Federal Rules of Bankruptcy Procedure governs appeals to the district court or the bankruptcy appellate panel. In the instant case, appellees contend that appellant failed to comply with the requirements of Rule 8009 governing the briefing schedule. Appellant in turn argues that the applicable deadlines under Rule 8009 never began to run, and his filing was therefore timely.

Rule 8009 of the Federal Rules of Bankruptcy Procedure provides, "Unless the district court or the bankruptcy appellate panel by local rule or by order excuses the filing of briefs or specifies different time limits[, t]he appellant shall serve and file a brief within 15 days after entry of the appeal on the docket pursuant to Rule 8007." Fed. R. Bankr. Pro. 8009(a). Rule 8007 in turn provides,

When the record is complete for purposes of appeal, the clerk shall transmit a copy thereof forthwith to the clerk of the district court .... On receipt of the transmission the clerk of the district court ... shall enter the appeal in the docket and give notice promptly to all parties to the judgment, order, or degree appealed from of the date on which the appeal was docketed.

Fed. R. Bankr. Pro. 8007(b).

In the instant case, the record of appeal was received and docketed on August 8, 2007.

Because this court did not "by local rule or by order excuse[] the filing of briefs or specif[y] different time limits" (indeed, the court notified the parties of the applicability of Rule 8009), per Rule 8009 of the Federal Rules of Bankruptcy Procedure, the appellant was required to serve and file his brief within fifteen days of this entry on the docket. Allowing for an additional three-day period for mailing, Fed. R. Bankr. Pro. 9006(f), appellant's brief was therefore due on or before August 26, 2007. Appellant, however, did not file his brief until April 18, 2008, and his brief was therefore untimely and in violation of Rule 8009.

Appellant disputes the untimeliness of this filing, arguing that he did not receive any of the communications from this court and therefore the briefing schedule was not triggered.*fn1 [Doc. 4 at 3-4]. Appellant, who is incarcerated and proceeding pro se, argues that his status as a prisoner has hampered his ability to communicate with the court.

Appellant's arguments are wholly without merit. It is the entry on the docket that triggers the briefing schedule, not the giving or receipt of notice. Fed. R. Bankr. Pro. 8009(a) ("The appellant shall serve and file a brief within fifteen days after entry of the appeal on the docket pursuant to Rule 8007." (emphasis added)). While Rule 8007(b) requires the clerk to "give notice promptly to all parties to the judgment, order, or decree appealed from of the date on which the appeal was docketed," id. 8007(b), this notice is not the event from which the applicable briefing deadlines begin to run. Per Rule 8009, appellant's fifteen-day time period in which to file his brief began ...


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