Swiatkowski v. Citimortgage Inc.

11-4407-bk
Swiatkowski v. Citimortgage Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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MICHAL SWIATKOWSKI,
Debtor-Appellant,
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CITIMORTGAGE INC.,
Creditor-Appellee.
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FOR DEBTOR-APPELLANT: Michal Swiatkowski, pro se,
Massapequa, New York.
FOR CREDITOR-APPELLEE: Bennett R. Katz (Stephen V.
Pipenger, on the brief), Katz &
Rychik PC, New York, New York.
Appeal from the United States District Court for the
Eastern District of New York (Bianco, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED.
Debtor-appellant Michal Swiatkowski, proceeding pro se,
appeals from the district court's September 23, 2011, judgment,
entered pursuant to its memorandum and order dated September 19,
2011, granting the motion of creditor-appellee Citimortgage, Inc.
to dismiss Swiatkowski's appeal of an order of the United States
Bankruptcy Court for the Eastern District of New York (Grossman,
J.). The district court held that the appeal was untimely, and
that it therefore lacked jurisdiction to consider it.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
On an appeal of a district court's determination of
whether it has subject matter jurisdiction, we review legal
conclusions de novo and factual findings for clear error. Vogel
Van & Storage, Inc. v. Navistar Fin. Corp. (In re Vogel Van &
Storage, Inc.), 59 F.3d 9, 11 (2d Cir. 1995).
We have conducted an independent review of the record
in light of these principles. For substantially the reasons
stated by the district court in its memorandum and order, we
conclude that the district court properly dismissed Swiatkowski's
appeal of the bankruptcy court's order for lack of jurisdiction
because it was untimely.
The 14-day time limit prescribed by Rule 8002(a) of the
Federal Rules of Bankruptcy Procedure for filing an appeal from a
judgment or order of the bankruptcy court "is jurisdictional, and
. . . in the absence of a timely notice of appeal in the district
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court, the district court is without jurisdiction to consider the
appeal, regardless of whether the appellant can demonstrate
'excusable neglect.'" Siemon v. Emigrant Savings Bank (In re
Siemon), 421 F.3d 167, 169 (2d Cir. 2005) (per curiam).
Here, the bankruptcy court order from which Swiatkowski
appealed was entered on October 20, 2010. Therefore,
Swiatkowski's notice of appeal, filed on November 16, 2010, was
untimely by 13 days. Moreover, because the order from which
Swiatkowski appealed granted relief from the automatic stay under
11 U.S.C. § 362, he could not, and, in any event, did not,
request from the bankruptcy court an extension of time in which
to file the notice of appeal. See Fed. R. Bankr. P.
8002(c)(1)(A) (allowing for extension of time to file notice of
appeal except where, inter alia, the bankruptcy court's judgment
grants relief from the automatic stay under 11 U.S.C. § 362).
Therefore, Swiatkowski's notice of appeal was untimely, and the
district court lacked jurisdiction to consider his appeal.
We have considered Swiatkowski's remaining arguments on
appeal and find them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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