Coleman v. Countrywide Home Loans

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ELLIOTTE PATRICK COLEMAN,
Debtor.
____________________________
ELLIOTTE PATRICK COLEMAN,
Plaintiff,
v.
COUNTRYWIDE HOME LOANS,
INC.,
Defendant.
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Case No. 06-00254
(Chapter 13)
Adversary Proceeding No.
07-10022
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION REGARDING PLAINTIFF’S
MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
On June 2, 2009, the plaintiff Coleman filed a motion for
extension of the time to file a notice of appeal of the court’s
final judgment which was entered on May 11, 2009. 	(Docket Entry
(“DE”) No. 59.) 	The defendant Countrywide has filed an
opposition. 	(DE No. 60.) 	The motion will be denied for the
following reasons.
The document below is hereby signed.
Signed: July 14, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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I
The judgment in this adversary proceeding was entered on
Monday, May 11, 2009. 	On Friday, May 15, 2009, Coleman attended
a hearing in his chapter 13 case regarding an unrelated motion
filed by the Chapter 13 trustee. 	Coleman acknowledges that at
that hearing, the court advised him that this adversary
proceeding had been dismissed, but he asserts that he did not
understand that this meant that a final judgment had been
entered. 	The hearing was held shortly before Coleman’s scheduled
time to report to work, and I infer in Coleman’s favor that he
was unable to visit the clerk’s office on that day to obtain a
copy of the judgment. 	On the morning of Monday, May 18, 2009,
Coleman obtained a copy of the final judgment. 	Later that day,
he received a copy of the judgment in the mail.
Under Rule 8001(a) of the Federal Rules of Bankruptcy
Procedure, an appeal from a judgment “shall be taken by filing a
notice of appeal with the clerk within the time allowed by Rule
8002.” 	In turn, Rule 8002(a) provides that “[t]he notice of
appeal shall be filed with the clerk within 10 days of the date
of the entry of the judgment, order, or decree appealed from.”
Ten days from May 11, 2009 was May 21, 2009. 	Accordingly,
Coleman had three full days after obtaining a copy of the
judgment on May 18, 2009 within which to file a timely notice of
appeal. 	Under Rule 8002(c)(2):
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A request to extend the time for filing a notice of
appeal must be made by written motion filed before the
time for filing a notice of appeal has expired, except
that such a motion filed not later than 20 days after
the expiration of the time for filing a notice of
appeal may be granted upon a showing of excusable
neglect. . . .
Coleman did not file his motion until June 2, 2009. 	Accordingly,
his motion cannot be granted except upon a showing of excusable
neglect.
II
Coleman asserts that the time for filing a notice of appeal
under Rule 8002(a) should take into consideration the date of
receipt of the judgment (or knowledge of the judgment), and that
otherwise the application of the rule “is unreasonable,
prejudicial, does not serve the interest of justice and is
inconsistent with applicable case law.” 	(DE No. 59, p. 3.) 	Rule
8002(a) is plain that the time for filing the notice of appeal is
measured from the date of entry of the judgment, not from the
date of receipt of the judgment. 	Accordingly, the deadline was
May 21, 2009.
Even if the date of receipt controlled, ten days from May
18, 2009 would have been Wednesday, May 28, 2009. 	Coleman
contends that ten days from the date of receipt of the judgment
on May 18, 2009 was June 2, 2009, because intervening weekends
and the Memorial Day holiday ought not be included. 	Coleman is
in error in asserting that intervening weekends and holidays are
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not included in computing a ten-day deadline. 	Under Fed. R.
Bankr. P. 9006(a), intervening weekends and holidays are included
in the computation of a deadline unless the time prescribed or
allowed is less than eight days. 	Accordingly, even if the date
of receipt controlled, the motion filed on June 2, 2009 was not
filed by the deadline for filing a notice of appeal, and thus
requires a showing of excusable neglect before it may be granted.
III
Coleman concedes that he was neglectful in not filing a
timely notice of appeal, but contends that the neglect is
excusable, stating that:
Specifically, he did not become aware of the May 11,
judgement and memorandum until May 18. 	Five business
days had already passed and he was faced with a dilemma
that was unexpected and beyond his control. 	In
response, he spent days considering a request for an
amendment to the order entry date and other pleadings
which were likely inappropriate.
(DE No. 59, p. 4.) 	That does not establish excusable neglect.
In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380 (1992), the Court addressed “excusable neglect” in
the context of a late proof of claim and Fed. R. Bankr. P.
9006(b)(1), stating:
Although inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute
“excusable” neglect, it is clear that “excusable
neglect” . . . is a somewhat “elastic concept” and is
not limited strictly to omissions caused by
circumstances beyond the control of the movant.
Id. at 392 (footnotes omitted). 	As to whether neglect is
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“excusable,” the Court stated:
the determination is at bottom an equitable one, taking
account of all relevant circumstances surrounding the
party's omission. 	These include . . . the danger of
prejudice to the [non-moving party], the length of the
delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was
within the reasonable control of the movant, and
whether the movant acted in good faith.
Id. at 395 (citation and footnotes omitted).
Coleman has not shown that this is an extraordinary case
that falls outside of the Court’s observation in Pioneer, 507
U.S. at 392, that “inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute
‘excusable’ neglect . . . .”
As to the issue of prejudice to the non-moving party,
Countrywide asserts that it would be prejudiced if Coleman is
allowed to appeal out of time because Countrywide will be further
delayed in exercising its rights under its deed of trust. 	But
during the pendency of Coleman’s bankruptcy case, Countrywide’s
right to proceed with foreclosure is controlled by a consent
order in the main case addressing when the automatic stay of 11
U.S.C. § 362(a) will be lifted to permit foreclosure. 	Although
Countrywide may feel that it ought not foreclose so long as there
is a possibility that the validity of its claim is still subject
to challenge, that is the same “prejudice” that Countrywide would
suffer if the appeal had been timely. 	Countrywide has not
contended that the delay would impair its ability to defend an
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appeal (or a trial if the court’s judgment were reversed). 	Being
exposed to an appellate review of the bankruptcy court’s judgment
is not the type of prejudice that Pioneer was addressing.
Accordingly, this factor weighs in Coleman’s favor.
Pioneer also directs that the court examine the length of
the delay, and its impact on judicial proceedings. 	Coleman filed
his motion for an enlargement of time on June 2, 2009, twelve
days after the deadline for a timely notice of appeal or a timely
motion to enlarge the time for filing a notice of appeal.
Although his filing was twenty-two days after the judgment, more
than double the ten-day period allotted, delays of that length
are routinely granted on a timely Rule 8002(c)(2) motion (which
requires no showing of excusable neglect) - for example, when
requested by a litigant who desires additional time to assess
whether to pursue an appeal. 	The delay will have no adverse
impact on judicial proceedings. 	Based on the ruling in this
adversary proceeding, the court has already overruled Coleman’s
objection to Countrywide’s claim in the main case. 	Accordingly,
the chapter 13 trustee is free to make payments on Countrywide’s
prepetition arrearage claim that Coleman’s confirmed plan
provided would be paid under the plan. 	The delay in pursuing the
appeal will not unduly interfere with her ability to distribute
plan funds. 	Indeed, unless and until the court’s overruling of
Coleman’s objection to Countrywide’s claim is stayed, the appeal
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will not interfere at all. 	The only prejudice to judicial
proceedings is the general one that arises from any motion for an
extension of time based on excusable neglect - namely, the burden
of addressing the motion. 	However, that burden (and the judicial
system’s interest in discouraging parties from imposing that
burden) is more appropriately addressed in considering the fourth
factor of the reason for the delay.
As to the issue of good faith, I will assume that Coleman
proceeded in good faith as there is no apparent reason why he
would benefit from the delay.
That brings us to the final factor, the reason for the
delay, and whether it was within the reasonable control of
Coleman to avoid. 	“The four Pioneer factors do not carry equal
weight; the excuse given for the late filing must have the
greatest import.” 	Lowry v. McDonnell Douglas Corp., 211 F.3d
457, 463 (8th Cir. 2000). 	“While prejudice, length of delay, and
good faith might have more relevance in a closer case, the
reason-for-delay factor will always be critical to the inquiry.”
Id.
Coleman learned that the adversary proceeding had been
dismissed five days after entry of the judgment. 	He obtained a
copy of the judgment on the morning of May 18, 2009, seven days
after the judgment’s entry, leaving him three full days (plus
part of May 18) within which to file a notice of appeal. 	His
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delay in obtaining a copy of the judgment does not establish
excusable neglect. 	See Land O'Lakes Farmland Feed LLC v. Gehl
(In re Gehl), 324 B.R. 756, 759 (Bankr. N.D. Iowa 2005)
(excusable neglect was not established based on five days having
elapsed between the mailing of the order and the law firm's
receipt of it, and counsel’s being out of the office for three
days). 	Three full days after he obtained the judgment was plenty
of time for Coleman to file a notice of appeal.
Coleman does not contend that he misunderstood Rule 8002(a)
or that he even examined Rule 8002(a) before missing the appeal
deadline. 	He apparently contends that the ten-day deadline runs
from the date of receipt, not the date of entry, and that
intervening weekends and holidays are excluded in computing the
ten days. 	But that interpretation is at odds with the plain
language of Rules 8002(a) and 9006(a). 	Coleman has shown himself
to be quite intelligent in the course of this adversary
proceeding, and although the interpretation he advances is
creative advocacy, he could not have thought that the deadline
was June 2, 2009 if he had read the applicable rules carefully
(and he does not actually contend that he held that belief). 	A
modicum of diligence in reading Rules 8002(a) and 9006(a) would
have revealed to him that his notice of appeal was due on May 21,
2009, not June 2, 2009.
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1 	See, e.g., Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132,
133 (7th Cir. 1996) (concluding that an “inability or refusal to
read and comprehend the plain language of the federal rules” can
never constitute excusable neglect, and stating that “The term
‘excusable neglect’ . . . refers to the missing of a deadline as
a result of such things as misrepresentations by judicial
officers, lost mail, and plausible misinterpretations of
ambiguous rules.”); Silivanch v. Celebrity Cruises, Inc., 333
F.3d 355, 370 (2d Cir. 2003) (reversing district court's
extension of deadline to appeal based upon paralegal's error),
cert. denied, 540 U.S. 1105 (2004); David N. May, Pioneer's
Paradox: Appellate Rule 4(a)(5) and the Rule Against Excusing
Ignorance of Law, 48 Drake L. Rev. 677 (2000) (noting court of
appeals decisions in which finding of excusable neglect by trial
court was reversed when the neglect arose from a misunderstanding
of a plain procedural rule). 	But see Pincay v. Andrews, 389 F.3d
853, 855, 859 (9th Cir. 2004) (en banc) (affirming district
court's extension of deadline to appeal based on paralegal's
error, but recognizing that “a lawyer’s failure to read an
applicable rule is one of the least compelling excuses that can
be offered”), cert. denied, 544 U.S. 961 (2005).
9
Most of the federal courts of appeals that have addressed
the issue have held that failure to comply with a deadline cannot
be treated as excusable neglect when the failure arose from a
misunderstanding of a rule that sets forth the deadline in
unambiguous terms. 1 	And even if the delay arose from a
misreading of the rules, Coleman’s failure to observe the plain
meaning of Rules 8002(a) and 9006(a) was egregious. 	(A failure
to even consult the rules would be even more egregious.) 	Under
Pioneer, the ability to meet the deadline was reasonably within
Coleman’s control.
The actual explanation Coleman gives for why the delay is
excusable is that he was “in a dilemma” and “he spent days
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considering a request for an amendment to the order entry date
and other pleadings which were likely inappropriate.” 	By this, I
take him to mean that he delayed pursuing an appeal because he
wanted first to evaluate whether the court’s decision was in
error, and whether to file papers with the bankruptcy court to
revise the ruling. 	But if he needed time to sort out whether to
take an appeal, he could have filed a motion to enlarge the time
for taking an appeal by the deadline of May 21, 2009. 	This
proffer for why his neglect was excusable does not establish
excusable neglect. 	By the morning of May 18, 2009, and possibly
earlier, it was within Coleman’s reasonable control to take steps
to assure that any appeal would be timely.
Balancing the factors listed in Pioneer, I conclude that
Coleman has not shown excusable neglect. 	This is not a case like
Pioneer in which the rules required notice to creditors of the
deadline for filing claims, but the notice was buried
inconspicuously in a general notice regarding the case. 	Although
Coleman is proceeding pro se, that does not make his neglect
excusable. 	See McNeil v. United States, 508 U.S. 106, 113 (1993)
(“we have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel” (footnote omitted)); United
States ex rel. Grynberg v. Enron Corp. (In re Enron Corp.), 364
B.R. 482, 488 (S.D.N.Y. 2007) (ignorance by pro se litigant of
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time limits does not constitute excusable neglect). 	The reason
for Coleman’s delay is so egregiously inexcusable that it
outweighs the other Pioneer factors combined.
In addition, under Pioneer, the court is free to consider
any other circumstances that bear on the exercise of its
discretion. 	One factor to consider is the likelihood of
injustice if the appeal is not allowed. 	Pincay v. Andrews, 389
F.3d at 859. 	Here, that factor only reinforces the foregoing
conclusion that finding excusable neglect is unwarranted. 	I am
convinced that there is little likelihood that Coleman would
obtain a ruling that, as a matter of law, Countrywide’s papers
failed to establish the validity of its claim under the summary
judgment standards of Fed. R. Civ. P. 56. 	Although the matter
was factually dense, that does not mean that summary judgment was
inappropriate. 	The material facts, although they took many pages
to recite, were not in genuine dispute, and as a matter of law,
Coleman was not entitled on those facts to the relief he sought.
Countrywide entered into several arrangements with Coleman
working with him to find ways for him to hold onto his property
without Countrywide foreclosing on the property, and there simply
is no evidence of bad faith as contended by Coleman. 	The
enforcement of Countrywide’s claim based on this court’s
judgment, without an appeal of the court’s judgment being
permitted, would not be an injustice.
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IV
An order follows denying Coleman’s motion for an enlargement
of time to file a notice of appeal.
[Signed and dated above.]
Copies to: All counsel of record (via BNC, and also as to
plaintiff, by clerk’s mailing); Cynthia A. Niklas, Esq.; Office
of United States Trustee.
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