Abdul-Malik v. Washington Mutual Servicing (In Re Abdul-Malik)

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-4-2005
Abdul-Malik v. Washington Mutl
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3991
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"Abdul-Malik v. Washington Mutl" (2005). 2005 Decisions. Paper 737.
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CPS-291 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 04-3991
________________
IN RE: SALIM ABDUL-MALIK,
Debtor
SALIM ABDUL-MALIK,
Appellant
v.
WASHINGTON MUTUAL SERVICING
________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-02623)
District Judge: Honorable Joel A. Pisano
________________
Submitted For Possible Summary Action Under
Third Circuit LAR 27.4 and I.O.P. 10.6
June 30, 2005
Before: ALITO, MCKEE and AMBRO, Circuit Judges
(Filed: August 4, 2005)
________________
OPINION
________________
PER CURIAM
Salim Abdul-Malik appeals from the District Court’s order affirming the
Bankruptcy Court’s order that denied his motion for reconsideration.1 For the following
reasons, we will vacate and remand with instructions to dismiss the case for lack of
jurisdiction.
In June 2002, Abdul-Malik filed a voluntary petition under Chapter 7 of the
Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey.
Washington Mutual Servicing for Long Beach Mortgage Company filed a motion for
relief from the automatic stay in order to commence foreclosure proceedings against
Abdul-Malik’s real property; the Bankruptcy Court granted the motion. Shortly
thereafter, the Bankruptcy Court granted Abdul-Malik’s motion to convert the case to a
Chapter 13 case. In June 2003, Abdul-Malik filed a motion to voluntarily dismiss his
case; the motion was granted.
In November 2003, Abdul-Malik filed a motion to reinstate his Chapter 13 petition
and to vacate the order dismissing his case. The Bankruptcy Court denied the motion in
an order entered February 5, 2004, and Abdul-Malik filed a motion for reconsideration on
February 24, 2004. The motion for reconsideration was denied on March 25, 2004, and
he filed a notice of appeal on April 19, 2004. On September 22, 2004, the District Court
affirmed the Bankruptcy Court’s order denying the motion for reconsideration.
Appeals from the Bankruptcy Court must be brought in the District Court “in the
time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2). Pursuant
1
Abdul-Malik is currently incarcerated at the Auburn Correctional Facility, New
York. He has been incarcerated since this case commenced.
2
to Rule 8002, an appeal must be filed within 10 days of the entry of the order. The 10-
day limit is both mandatory and jurisdictional. See Shareholders v. Sound Radio, Inc.,
109 F.3d 873, 879 (3d Cir. 1997). Certain motions will toll the time to file an appeal, but
the motion must be filed within the time period prescribed by Fed. R. Bankr. P. 8002(b).
The Bankruptcy Court entered its order denying Abdul-Malik’s motion to reinstate
on February 5, 2004. His motion for reconsideration appears to have been timely because
it was dated February 13, 2004. See Houston v. Lack, 487 U.S. 266, 272 (1988).
Regardless of whether Abdul-Malik intended his motion to be filed under Fed. R. Bankr.
P. 9023 or 9024, his motion tolled the time to appeal the February 5, 2004 order, see Fed.
R. Bankr. P. 8002(b); that is, his notice of appeal was due within 10 days after entry of
the order disposing of his motion.
On March 25, 2004, the Bankruptcy Court entered its order denying Abdul-
Malik’s motion for reconsideration. He filed his notice of appeal on April 19, 2004.
Abdul-Malik argues that he is entitled to the benefits of Houston, which held that a pro se
prisoner’s notice of appeal is considered filed at the moment it is delivered to prison
authorities for mailing. Although Abdul-Malik may invoke Houston, as he has been
incarcerated since this matter commenced, his notice of appeal was untimely. As he
concedes, the motion was delivered to prison authorities on April 10, 2004, more than 10
days after entry of the March 25, 2004 order. See Rashid v. United States (In re Rashid),
210 F.3d 201, 204 (3d Cir. 2000). Because Abdul-Malik filed his notice of appeal to the
District Court more than 10 days after the Bankruptcy Court entered judgment, the
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District Court lacked jurisdiction over his untimely appeal. Accordingly, neither the
District Court nor this Court can consider the merits of his appeal. Calcasieu Marine
Nat’l Bank v. Morrell (In re Morrell), 880 F.2d 855, 857 (5th Cir. 1989); see also United
States v. Corrick, 298 U.S. 435, 440 (1936) (appellate court has jurisdiction to determine
if district court had jurisdiction).
We will vacate the District Court’s order and will remand to the District Court for
entry of an order dismissing the appeal. See Greene v. United States (In re Souza), 795
F.2d 855, 858 (9th Cir. 1986).
4