Lane v. Witt et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Case Action No. 25-cv-02479-SKC
(Bankr. No. 17-17630-MER)
(Adv. No. 21-01100-MER)
In re: MATTHEW CURTIS WITT,
Debtor.
________________________________________
NOEL WEST LANE III,
Appellant,
v.
MATTHEW CURTIS WITT et al.
Appellees.
OPINION
This appeal by Appellant Noel West Lane, III, originates from an adversary
proceeding in the United States Bankruptcy Court for the District of Colorado. The
Court has examined the opening brief1 (Dkt. 18), the appendix, the docket, and
applicable legal authority. The Court finds oral argument unnecessary because the
facts and legal arguments are adequately presented and argument will not materially
assist in a decision.
1 No response brief was filed.
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BACKGROUND
This appeal follows a long line of legal proceedings filed by Lane in his quest
for relief from Debtor Matthew Witt arising from alleged mortgage fraud. Dkt. 18,
p.10 ¶3 (“Appellant pursued related matters in the Bankruptcy Appellate Panel (BAP
No. CO-22-007), the United States Court of Appeals for the Tenth Circuit (Case No.
23-1035) and later filed a petition for writ of certiorari in the Supreme Court of the
United States (No. 23-1336). The Bankruptcy Court also imposed sanctions in
Adversary Proceeding No. 21-001100-MER[.]”); see also In re Witt, 2023 WL 8524923,
at *1 (10th Cir. Dec. 8, 2023) (“A dispute between Lane and defendant Matthew
Curtis Witt has a nearly fifteen-year history that we need not recount. For our
purposes, it is enough to know that Lane has long sought relief (unsuccessfully) from
Witt, including through numerous judicial proceedings, for alleged mortgage fraud
that allegedly caused Lane’s bankruptcy.”).
On May 4, 2021, Lane filed an adversary proceeding, Case No. 21-01100-MER
(“AP”), which the Bankruptcy Court dismissed. In the adversary proceeding, Lane
registered to receive email notices from the Bankruptcy Noticing Center (BNC) as of
March 19, 2020, at the email address lane3co@outlook.com. Appendix 497 ¶¶4(b)-(c).
Since then, the Bankruptcy Court docket indicates the BNC sent court orders to Lane
at the above email address on the following dates: June 7, July 11, August 19,
November 26, 2021; January 12, 23, March 11, 26, April 17, May 5, 2022; January
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27, 2023; May 14, June 26, and August 3, 2025. See Bankruptcy Court Docket at Dkt.
Nos. 28, 42, 66, 69, 77, 81, 90, 93, 96, 104, 107, 116, 119, 122.
On June 6, 2025, Lane filed a motion to reopen the AP. The Bankruptcy Court
denied that motion on June 24, 2025 (“June 24 Order”). Like the court orders
mentioned above, the BNC prepared a Certificate of Notice indicating it e-mailed the
June 24 Order to Lane at lane3co@outlook.com on June 24, 2025. Appendix 508-09.
The Certificate of Notice includes the following Notice Certification dated June 26,
2025: “I, Gustava Winters, declare under the penalty of perjury that I have sent the
attached document to the above listed entitles in the manner shown, and prepared
the Certificate of Notice and that it is true and correct to the best of my information
and belief.” Id. 509.
The deadline for Lane to appeal the June 24 Order was July 8, 2025.2 He
missed the deadline. He claims he did not receive notice of the June 24 Order until
July 15, 2025. On July 17, 2025, Lane filed a motion requesting an extension of time
to 	appeal 	the 	June 	24 	Order 	based 	on 	excusable 	neglect. 	He 	also 	requested
authorization to make a direct appeal to the Tenth Circuit. The Bankruptcy Court
denied both requests on August 1, 2025 (“Order Denying Extension”). Lane then
timely appealed the Order Denying Extension to this Court.
2 	The 	June 	24 	Order 	mistakenly 	references 	the deadline as 	July 	7. 	But 	the
discrepancy is not dispositive because Lane still missed the applicable July 8
deadline.
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ISSUES AND STANDARD OF REVIEW
Lane’s opening brief identifies five issues for appeal: (1) “Excusable Neglect
and Certification Error”; (2) “Fraud on the Court (Rule 60(d)(3))”; (3) “Rule 11(b)
Violations and Officer Misconduct”; (4) “Pro Se Rights and Due Process”; and (5)
“Relief from Sanctions in 21-00100-MER.” Dkt. 18, pp.7-9. Only the first and fourth
issues are properly before the Court.
As this Court already found when ruling on four of Lane’s earlier motions, the
scope of this appeal is limited to whether the Bankruptcy Court erred in denying
Lane’s request for an extension of time to appeal the June 24 Order. Dkt. 51. Only
issues one and four relate to the Order Denying Extension. The other issues Lane
identifies are all outside this appeal. In re Lang, 414 F.3d 1191, 1196 (10th Cir. 2005)
(“An unsuccessful motion to cure an untimely appeal cannot itself be the vehicle for
review of the matter not timely appealed. . . . [I]f a party appealing the denial of an
extension motion were allowed to challenge the underlying substantive order, the
whole 	proceeding 	on 	the 	motion 	actually 	under 	review 	would 	be 	rendered
meaningless.”). The issues, therefore, are these: (1) whether the Bankruptcy Court
abused its discretion with its Order Denying Extension, and (2) whether the
Bankruptcy Court’s Order Denying Extension violated Lane’s due process rights and
right to access the courts as a pro se litigant.
Lane timely filed his Notice of Appeal on August 11, 2025, appealing the
August 1, 2025 Order Denying Extension. The Order Denying Extension is a final
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appealable order. See In re Higgins, 220 B.R. 1022, 1025 (B.A.P. 10th Cir. 1998) (“An
order denying a motion for extension of time to file a notice of appeal is a ‘final order,’
from which an appeal will lie.”); see also Fed. R. Bankr. P. 8002(a)(5)(A)(ii). Lane
elected this Court to hear his appeal. The Court has jurisdiction over this matter
under 28 U.S.C. § 158(a)(1) and Fed. R. Bankr. P. 8005(a).
When a party appeals to the district court, a district court “reviews the
bankruptcy court’s legal conclusions de novo, its factual findings for clear error, and
its discretionary decisions for abuse of discretion.” In re St. Charles, No. 20-cv-03050-
PAB, 2022 WL 168715, at *2 (D. Colo. Jan. 19, 2022) (collecting cases). When
considering an abuse of discretion, a bankruptcy court’s decision won’t be disturbed
unless the reviewing court “has a definite and firm conviction that the lower court
made a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (quoting
McEwen v. City of Norman, 926 F.2d 1539, 1553–54 (10th Cir. 1991)). “An abuse of
discretion will be found only where the trial court makes an arbitrary, capricious,
whimsical, or manifestly unreasonable judgement.” F.D.I.C. v. Oldenburg, 34 F.3d
1529, 1555 (10th Cir. 1994) (cleaned up). When applying the “abuse of discretion”
standard, the reviewing court “defer[s] to the trial court’s judgment because of its
first-hand ability to view the witness or evidence and assess credibility and probative
value.” Moothart, 21 F.3d at 1504 (quoting McEwen, 926 F.2d at 1554-54).
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For the reasons shared below, the Court finds no abuse of discretion by the
Bankruptcy Court. Its Order Denying Extension is AFFIRMED.
ANALYSIS3
1. 	Denial of the Requested Extension of Time
Federal Rule of Bankruptcy Procedure 8002(a) provides that a notice of appeal
must be filed within 14 days after the order to be appealed is entered. This
requirement is mandatory and jurisdictional. In re Weston, 18 F.3d 860, 862 (10th
Cir. 1994). Rule 8002(d) allows the Bankruptcy Court to extend the deadline for filing
a notice of appeal. The Bankruptcy Court may extend the deadline when a motion
requesting an extension is filed either (1) within the 14-day appeal period or (2)
“within 21 days after that time expires if the party shows excusable neglect.” Fed. R.
Bank. P. 8002(d)(1).
The Supreme Court has interpreted “excusable neglect” to mean “inadvertence,
mistake, or carelessness, as well as by intervening circumstances beyond the party’s
control.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388
(1993). A finding of excusable neglect depends on four factors: (1) the danger of
prejudice to the non-moving party, (2) the length of the delay and its potential impact
on the proceedings, (3) the reason for the delay, including whether it was within the
movant’s control, and (4) whether the movant acted in good faith. Perez v. El Tequila,
3 Because Lane is not represented by counsel in this appeal, the Court has liberally
construed his filings but without acting as his advocate. James v. Wadas, 724 F.3d
1312, 1315 (10th Cir. 2013).
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LLC, 847 F.3d 1247, 1253 (10th Cir. 2017) (citing Pioneer Inv. Servs. Co., 507 U.S. at
395). “The most important factor is the third; an inadequate explanation for delay
may, by itself, be sufficient to reject a finding of excusable neglect.” Id. (citing United
States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004)).
Lane argued excusable neglect in his motion with the Bankruptcy Court. He
claimed he did not receive notice of the June 24 Order until July 15, 2025. In support
of his motion, he attached “email logs” for his “Inbox, Junk, and All Folders from prior
to March 19, 2020, through and including June 26, 2025,” to show the only email he
received from BNC was the March 19, 2020 email when he registered for the service.
Appendix 	497-98; 	512-23. 	Considering 	Lane’s 	argument 	and 	evidence, 	the
Bankruptcy Court found:
[F]ailure to receive notice of the entry of an order or judgment does not,
in and of itself, excuse an untimely appeal. Furthermore, the Court does
not find Lane’s assertions about lack of notice plausible. The Certificate
of Mailing for the June 24 Order reflects the [BNC] sent notice of the
June 24 Order by electronic transmission to Lane at the email address
of lane3co@outlook.com on June 24, 2025. Lane claims he did not receive
this email and that he has always received copies of court orders by
regular 	mail. 	However, 	a 	review 	of 	the 	docket 	in 	this 	adversary
proceeding reveals that every order entered by the Court was sent to
Lane by the BNC via email to the above-listed email address, rather
than by first-class mail. This is because Lane registered for email notices
with the BNC on March 19, 2020. If Lane wishes to change his email
notification status with the BNC, he must contact the BNC. Thus, Lane
has failed to show excusable neglect.
Appendix 524-25 (footnotes omitted).
There is no abuse of discretion. The Bankruptcy Court considered Lane’s
argument that he did not receive timely notice of the June 24 Order and correctly
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noted that failure to receive notice does not itself excuse an untimely appeal. In re
Loomas, 2013 WL 5615943, at *4 n.35 (10th Cir. BAP Oct. 15, 2013) (citing cases).
The Bankruptcy Court then gave greater weight to the evidence in its docket which
revealed “that every order entered by the Court was sent to Lane by the BNC via
email” to lane3co@outlook.com “because Lane registered for email notices with the
BNC on March 19, 2020.” Appendix 524-25. It was well within the Bankruptcy Court’s
discretion to weigh the evidence in consideration of the credibility of Lane’s assertions
and to determine that Lane’s assertions about lack of notice were not plausible.4
Naimie v. Cytozyme Lab’ys, Inc., 174 F.3d 1104, 1114 (10th Cir. 1999) (“[I]t is within
the [lower] court’s discretion to weigh the evidence and draw reasonable inferences
from the facts.”).
Lane argues the Bankruptcy Court failed to apply the Pioneer factors. The
appellant in Babakr v. Fowles, No. 23-3026, 2024 WL 1479693, at *5 (10th Cir. Apr.
5, 2024), made a similar argument. But the Tenth Circuit found “the [trial] court
considered the most important [factor]—whether the delay was in Mr. Babakr’s
4 Lane argues the Bankruptcy Court erred with its “Rejection of FRE 1001-Compliant
Evidence.” Dkt. 18 p.29. He refers to the materials he submitted with his motion for
an extension, to include “original BNC notices, bearing date and time stamps,
produced directly from his email account.” Id. He then argues “The Bankruptcy
Court’s refusal to credit this evidence and its characterization of Appellant’s account
as ‘implausible’ was clearly erroneous and contrary to Koon [v. United States, 518
U.S. 81 (1996)].” Id. But the Court finds no clear error or abuse of discretion in the
Bankruptcy Court having weighed this evidence against the docket in the adversary
proceeding showing the BNC’s emailing of every order entered by that court to Lane
to determine Lane’s explanation was not plausible.
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control and the reason for the delay—and it concluded that his explanations did not
meet the excusable-neglect test[.]” Id. That’s what the Bankruptcy Court did here.
While the court did not reference Pioneer or its factors specifically, it is evident from
the Order Denying Extension that the court considered the reason for the delay,
including whether it was within Lane’s control. Appendix 525 (“[A] review of the
docket . . . reveals that every order entered by the Court was sent to Lane by the BNC
via email to the above-listed email address . . . because Lane registered for email
notices with the BNC[.] If Lane wishes to change his email notification status with
the BNC, he must contact the BNC.”). Once the Bankruptcy Court found the reason
for the delay implausible, it was not required to analyze the remaining Pioneer
factors. See Perez, 847 F.3d at 1253 (affirming denial of motion to file out-of-time
answer based solely on the inadequate explanation for the delay). Thus, the Court
finds no abuse of discretion by the Bankruptcy Court in not addressing each Pioneer
factor.
Lane also argues he was entitled to liberal construction of his filings and “fair
treatment” and that the Bankruptcy Court “applied Rule 8002(d) with undue
rigidity.” First, in reviewing the Order Denying Extension the Court sees nothing to
suggest the Bankruptcy Court failed to construe Lane’s filing liberally or that it
construed his filing under some other inapplicable, improper, or “rigid” standard.
McCarty v. Gallant, 1997 WL 428693, *1 (10th Cir. July 31, 1997) (“[T]here is nothing
in the district court’s order or in the record to support Mr. McCarty’s allegation the
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district court failed to liberally construe his pro se pleadings.”). Second, it is well-
settled in this Circuit that a party’s pro se status does not afford them a special pass
when it comes to compliance with procedural rules. Green v. Dorrell, 969 F.2d 915,
917 (10th Cir. 1992) (“Although we construe Green’s pleadings liberally because he is
a pro se litigant, he nevertheless must follow the same rules of procedure that govern
other litigants.”); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (the
Circuit has “repeatedly insisted” that pro se parties follow the rules of procedure
governing other litigants). The Bankruptcy Court did not abuse its discretion in its
analysis or application of Rule 8002(d) to deny Lane’s request for an extension
because Lane is nonetheless accountable to the same procedural rules as everyone
else.
Lane also argues the denial of his requested extension by the Bankruptcy
Court denied him “the constitutional right to be heard” and his due process rights
because “[d]ue process also requires that litigants be given a fair opportunity to
present their claims and that courts adjudicate those claims on the merits rather than
dismissing them for procedural imperfections.” Dkt. 18 p.53 ¶¶4-5. But the record
indicates Lane received all the process he was due.
“[C]ourt proceedings that provide notice and an opportunity to be heard
generally provide due process.” Borders v. Wine, No. 21-4036-DDC-ADM, 2021 WL
4453571, at *3 (D. Kan. Sept. 29, 2021). Lane had that before the Bankruptcy Court.
After he obtained notice of the June 24 Order, he filed his motion seeking to extend
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the deadline for appeal based on his claimed excusable neglect, and he included
exhibit attachments of his evidence in support of his request. Appendix 487-523.
Nothing more was required by due process. See, e.g., Geear v. Boulder Cmty. Hosp.,
844 F.2d 764, 766 (10th Cir. 1988) (“[T]he parties’ right to be heard may be fulfilled
by the court’s review of the briefs and supporting affidavits and materials submitted
to the court.”).
On this record, and for the reasons shared above, the Bankruptcy Court did
not abuse its discretion when denying Lane’s request to extend the deadline to file a
notice of appeal.
2. 	Denial of the Request to File an Immediate Appeal
When Lane sought the extension of time to file a notice of appeal, he also
requested that the Bankruptcy Court authorize his direct appeal of the June 24 Order
to the Tenth Circuit under 28 U.S.C. § 158(d)(2) and Fed. R. Bank. P. 8006(d) and (b).
Appendix 	488. 	After 	determining 	Lane 	failed 	to 	show 	excusable 	neglect, 	the
Bankruptcy Court went further stating, “Even if Lane had filed a timely appeal, the
Court would deny his request for certification to the United States Court of Appeals
for the Tenth Circuit[,]” and the court explained why. Id. 525. Lane argues the
reasons given by the Bankruptcy Court were “legally irrelevant” and “the denial of
certification constitutes reversible error.” Dkt. 18 p.32 ¶¶e-f. But the Court does not
reach 	this 	issue. 	That’s 	because 	the 	Bankruptcy 	Court’s 	comments 	regarding
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certification were dicta. The comments were not necessary to the Bankruptcy Court’s
order once it found Lane’s motion failed for lack of excusable neglect.
“Dicta are ‘statements and comments in an opinion concerning some rule of
law or legal proposition not necessarily involved nor essential to determination of the
case in hand.’” In re Haberman, 347 B.R. 411, 416 (B.A.P. 10th Cir. 2006), aff’d, 516
F.3d 1207 (10th Cir. 2008) (quoting Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184
(10th Cir. 1995); see also In re Agrawal, No. 16-11253-JDL, 2018 WL 4616380, at *2
(Bankr. W.D. Okla. Sept. 24, 2018) (“The footnote was dicta and not necessary to the
Court’s ruling on sealing the photographs.”); United States v. Renteria-Lopez, No. 10-
10152-01-EFM, 2011 WL 3880899, at *5 n.31 (D. Kan. Sept. 2, 2011) (“However, this
statement was dicta, as it was not necessary to the panel’s holding.”). Appellate courts
are “authorized to review judgments, not dicta.” Pitts v. S. Carolina, 65 F.4th 141,
149 (4th Cir. 2023); see also Bunting v. Mellen, 541 U.S. 1019, 1023 (2004) (Scalia, J.,
dissenting) (“We sit, after all, not to correct errors in dicta; ‘[t]his Court reviews
judgments, not statements in opinions.’”) (quoting California v. Rooney, 483 U.S. 307,
311 (1987).
The Order Denying Extension demonstrates the dicta when the Bankruptcy
Court prefaced its comments with the statement: “Even if Lane had filed a timely
appeal . . . .” But by then, the Bankruptcy Court had already determined Lane had
not timely appealed because he failed to show excusable neglect. Ergo the dicta.
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To be sure, Fed. R. Bank. P. 8006(a) allows certification of a bankruptcy court’s
order to an appellate court for direct review under 28 U.S.C. § 158(d)(2) only when “a
timely appeal is taken.” The Bankruptcy Court here determined Lane had not taken
a timely appeal because he had not shown excusable neglect. So the court’s comments
about what it would have done even had Lane timely appealed was not necessary to
the judgment. This Court does not review that dicta.
CONCLUSION
For the reasons shared above, the Bankruptcy Court’s August 1, 2025 Order
Denying Motion to Extend Time to File Appeal and Denying Request for Direct
Certification to the Tenth Circuit is AFFIRMED.
DATED: August 10, 2026
BY THE COURT:
_____________________________
S. Kato Crews
United States District Judge
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