In re: MICHAEL PETER SPITZAUER v. Exoterm Holding D.d.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MICHAEL PETER SPITZAUER,
Debtor,
MICHAEL PETER SPITZAUER,
Appellant,
v.
EXOTERM HOLDING D.D.; et al.,
Appellees.
No. 12-60045
BAP No. 11-1180
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Jury, Hollowell, and Kirscher, Bankruptcy Judges, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Michael Peter Spitzauer appeals from the Bankruptcy Appellate Panel’s
FILED
JAN 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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(“BAP”) decision affirming the bankruptcy court’s order denying his second
motion to extend time to file a notice of appeal. We have jurisdiction under 28
U.S.C. § 158(d). We review de novo BAP decisions, and apply the same standard
of review that the BAP applied to the bankruptcy court’s ruling. Boyajian v. New
Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We affirm.
The bankruptcy court correctly denied Spitzauer’s extension request
because, even assuming a showing of excusable neglect, Spitzauer failed to file his
request within the 21 day period. See Fed. R. Bankr. P. 8002(c)(2) (time to appeal
may be extended upon a showing of excusable neglect only by motion filed not
later than 21 days after the expiration of the time for filing a notice of appeal); see
also Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir. 1990) (“Although
Rule 8002 thus incorporates some flexibility, we strictly enforce its time
provisions.”).
We do not consider any of Spitzauer’s arguments that address the merits of
his claim. See Saunders v. Band Plus Mortg. Corp. (In re Saunders), 31 F.3d 767,
767 (9th Cir. 1994) (per curiam) (this court lacks jurisdiction to consider the merits
of a claim where an appeal to the BAP was untimely).
AFFIRMED.
12-60045 2

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