Victoria Ingeniero

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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Memorandum
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 06-42512 J11
Chapter 11
VICTORIA INGENIERO,
Debtor./
MEMORANDUM
Creditor TEC, Inc. (“TEC”) has moved for an order that a
certain judgment in its favor entered by the California Superior
Court on November 14, 2006, as amended nunc pro tunc on January 11,
2007 (the “Judgment”) is a final judgment. 	The debtor opposes the
motion. 	The court holds that the Judgment was not final as of
December 22, 2006, the date of debtor’s chapter 11 petition, and is
not yet final by operation of Bankruptcy Code §§ 362(a)(1) and
108(c).
The parties agree that as of the date of the debtor’s petition
herein, the 60-day period for the debtor to file a notice of appeal
of the Judgment, as provided in Cal. Rules of Court 2, had not run.
TEC contends that the appeal deadline is governed by Bankruptcy Code
§ 108(b), and that § 108(b) operated to extend the deadline for the
Signed: May 17, 2007

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
May 17, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-42512 Doc# 64 Filed: 05/17/07 Entered: 05/17/07 15:10:45 Page 1 of 4

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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2	Memorandum
debtor to appeal to February 20, 2007 (60 days after the order for
relief) but no longer. 	Because the debtor filed no appeal by that
date, TEC argues that the judgment is final. 	TEC cites a decision
of the North Dakota Supreme Court, Prod. Credit Ass’n. of Minot v.
Burk, 427 N.W.2d 108 (1988), in support of its contention.
This court disagrees. 	In Parker v. Bain, 68 F.3d 1131 (9th
Cir. 1995), the Ninth Circuit held that § 362(a)(1) operated to stay
a debtor from filing an appeal of a decision in an action against
the debtor. 	Thus, since the filing, the debtor has been stayed from
filing any appeal of the Judgment.
Bankruptcy Code § 108(c) extends the time for continuing a
civil action involving a claim against the debtor to the later of
the prescribed period fixed by nonbankruptcy law or 30 days after
notice of the expiration of the stay. 	In In re Hoffinger
Industries, 329 F.3d 948 (8th Cir. 2003), the Eighth Circuit, citing
Parker, held that the filing of a notice of appeal is a
“continuing” of an action within the meaning of § 108(c), and thus,
that the deadline for the debtor therein to file a notice of appeal
of a decision by the nonbankruptcy court - a California court - did
not expire until 30 days after notice that the automatic stay had
been lifted.
This court is bound by Parker, and in any event finds Parker
and Hoffinger far more persuasive than Burk. 	Indeed, the Burk court
did not even mention Bankruptcy Code § 108(c).
Because the debtor is stayed from filing an appeal, § 362(a)(1)
and Parker, the time for the debtor to file an appeal has not run
Case: 06-42512 Doc# 64 Filed: 05/17/07 Entered: 05/17/07 15:10:45 Page 2 of 4

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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3	Memorandum
and the judgment in favor of TEC is not final. 	Bankruptcy Code §
108(c) and Hoffinger.
The court will issue its order so providing.
** END OF ORDER **
Case: 06-42512 Doc# 64 Filed: 05/17/07 Entered: 05/17/07 15:10:45 Page 3 of 4

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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4	Memorandum
COURT SERVICE LIST
Marc Voisenat
1330 Broadway, Suite 1035
Oakland, CA 94612
A. Nick Shamiyeh
Law Offices
2221 Olympic Boulevard, Suite 100
Walnut Creek, CA 94595
Case: 06-42512 Doc# 64 Filed: 05/17/07 Entered: 05/17/07 15:10:45 Page 4 of 4