Victor Rivera v. Nancy Curry , 675 F. App'x 781 ( 2017 )

FILED
NOT FOR PUBLICATION JAN 26 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: VICTOR ORLANDO RIVERA, No. 14-60070
Debtor, BAP No. 14-1035
______________________________
VICTOR ORLANDO RIVERA, MEMORANDUM*
Appellant,
v.
NANCY K. CURRY,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Kurtz, and Davis, Bankruptcy Judges, Presiding
Submitted January 18, 2017 **
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Victor Orlando Rivera appeals pro se from the Bankruptcy Appellate Panel’s
(“BAP”) judgment dismissing his appeal from a bankruptcy court order dismissing
his bankruptcy case. We have jurisdiction under 28 U.S.C. § 158(d). We
independently review the bankruptcy court’s decision without deference to the
BAP. Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman), 234
F.3d 1081, 1085 (9th Cir. 2000). We affirm in part and dismiss in part.
Rivera contends the bankruptcy court erred in dismissing his Chapter 13
bankruptcy petition because Rivera had converted his petition to Chapter 7 prior to
the bankruptcy court entering its dismissal order. Like the BAP, we do not
consider this argument in the first instance. See Kaass Law v. Wells Fargo Bank,
N.A., 799 F.3d 1290, 1293 (9th Cir. 2015) (“Ordinarily, an appellate court will not
hear an issue raised for the first time on appeal.”); Consorzio Del Prosciutto Di
Parma v. Domain Name Clearing Co., LLC, 346 F.3d 1193, 1195 (9th Cir. 2003)
(“An appeal to this court cannot be used as a substitute [for seeking relief under
Rule 60(b)]” (citation and internal quotation marks omitted)).
Because the record reflects that Rivera failed to appeal timely from the
bankruptcy court’s orders denying his motions to review his notice to convert his
petition to one under chapter 7, we lack jurisdiction as to those orders. See Bank of
the West v. Wiersma (In re Wiersma), 483 F.3d 933, 938 (9th Cir. 2007) (“[T]he
2
failure to timely file a notice of appeal is a jurisdictional defect barring appellate
review.” (citation and internal quotation marks omitted)).
AFFIRMED in part, DISMISSED in part.
3