Pollak v. Homeside Lending, Inc. (In Re Pollak) ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the February 27, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 06-20673
Summary Calendar
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IN THE MATTER OF
RICHARD J. POLLAK,
Debtor.
RICHARD J. POLLAK,
Appellant,
VERSUS
HOMESIDE LENDING, INC.,
Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
m 4:06-CV-1269
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Before SMITH, WIENER, and OWEN, A bankruptcycourt denied Richard Pollak’s
Circuit Judges. motion to extend the time for filing a notice of
PER CURIAM:*
*
(...continued)
termined that this opinion should not be published
*
Pursuant to 5TH CIR. R. 47.5, the court has de- and is not precedent except under the limited cir-
(continued...) cumstances set forth in 5TH CIR. R. 47.5.4.
appeal. We affirm. 380, 395 (1993)). We review the bankruptcy
court’s findings of fact for clear error and its
I. legal conclusions de novo. Universal Seismic
Pollak brought an adversary bankruptcy Assocs., Inc. v. Harris County (In re Universal
action against Homeside Lending, Inc. Seismic Assocs., Inc.), 288 F.3d 205, 207 (5th
(“Homeside”), in regard to Homeside’s ser- Cir. 2002). We review for abuse of discretion
vicing of his home mortgage loan. He was the court’s finding that Pollak’s failure to file
awarded some damages, but the bankruptcy a timely notice of appeal was not due to ex-
court denied some of his claims. He did not cusable neglect. See Pioneer, 507 U.S. at 398.
file a notice of appeal within the time allotted
under Federal Rule of Bankruptcy Procedure Pollak argues that his late filing was caused
8002(c)(2). Four days after that deadline, he by excusable neglect: It was occasioned by
filed a motion to extend the time for filing a misinformation, he urges, and Homeside
notice of appeal, but the bankruptcy court de- would not be prejudiced by the short delay.
nied the motion. Also, he asserts that nothing in the record sup-
ports a finding of bad faith.
Pollak testified that after he was awarded
his judgment, his attorney gave him the im- The bankruptcy court, applying the correct
pression that he could appeal within 20 to 30 legal standards, found Pollak’s failure to file
days of the judgment. His attorney informed timely did not result from excusable neglect.
him that she would not represent him on ap- During the ten-day window in which Pollak
peal. Pollak sought other representation. In could have timely filed his appeal, he had been
the course of obtaining other counsel, he told that time was of the essence, so the reason
spoke to one lawyer who told him time was of for the delay was within his control. He knew
the essence for his appeal. Finally, when he he needed to file an appeal within a specific
met with his current attorney, Pollak learned time, but he did not seek to determine what
that the time to appeal had expired. that time frame was. This is merely a usual
case of failing to file on account of “inadver-
II. tance, ignorance of the rules, or mistakes con-
A bankruptcy court may permit a late filing struing the rules.” Pioneer, 507 U.S. at 392.
“where the failure to act was the result of ex- There is no abuse of discretion.
cusable neglect.” FED. R. BANKR. P. 9006-
(b)(1). A court determining whether a party’s The judgment of the district court is AF-
conduct resulted from excusable neglect must FIRMED.
take into account all relevant circumstances
surrounding the failure, including the danger of
prejudice to the debtor, the length of delay and
its potential impact on judicial proceedings, the
reason for the delay, and whether the debtor
acted in good faith. Christopher v. Diamond
Benefits Life Ins. Co. (In re Christopher), 35
F.3d 232, 236 (5th Cir. 1993) (citing Pioneer
Inv. Servs. Co. v. Brunswick Assocs., 507 U.S.
2