Copenhaver v. Source One Mortgage

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50377
Summary Calendar
_____________________
IN THE MATTER OF: Walter Alexander Copenhaver,
Debtor.
________________________________________________________________
WALTER ALEXANDER COPENHAVER,
Appellant,
versus
SOURCE ONE MORTGAGE SERVICES CORPORATION,
Its Successors and/or Assigns,
Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. EP: 98-CA-502-F
_________________________________________________________________
April 12, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Walter Copenhaver has appealed the district court’s dismissal
of his petition for Chapter 13 bankruptcy protection. Both parties
have also filed a series of motions. We dispose of all outstanding
motions herein and affirm the district court.
I
Copenhaver filed for Chapter 13 bankruptcy in July 1998.
Source One Mortgage Services Corporation then filed a motion for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
relief from automatic stay in order to foreclose on Copenhaver’s
residence. After a hearing, the bankruptcy court granted relief to
Source One on September 30, allowing the foreclosure to proceed.
On October 30, Copenhaver filed a notice of appeal with the
bankruptcy court, which dismissed his bankruptcy case on the same
day. Copenhaver immediately sought to enjoin the foreclosure sale,
but the bankruptcy court did not rule on that motion until after
the sale on November 3, 1998. On November 13, Copenhaver filed a
motion seeking a fifteen-day continuance to file his designation of
issues on appeal. But on December 1, the bankruptcy court denied
this motion, ruling that the original notice of appeal had been
untimely. In the same order, the bankruptcy court denied
Copenhaver’s request for an injunction because the case had been
dismissed, eliminating the bankruptcy court’s jurisdiction. Source
One later asked the district court to dismiss Copenhaver’s appeal
as untimely and moot, which the district court did on March 15,
1999.
II
We first address the various motions before us.
First, appellant’s motion to relieve Attorney June Ann Mann is
DENIED.
Second, appellant’s motion to strike the appearance form of
June Ann Mann is DENIED.
Third, appellant’s motion to strike appellee’s brief is
DENIED.
2
Fourth, appellant’s motion to strike appellee’s
response/opposition filed December 30, 1999, is DENIED.
Fifth, appellant’s motion to supplement the record on appeal
with a copy of the bankruptcy court docket sheet is DENIED.
Sixth, appellant’s motion to file supplemental record excerpts
is DENIED.
Seventh, appellant’s motion for summary judgment is DENIED.
Eighth, appellant’s motion to relieve Attorneys June Mann and
Peter Curran for failure to enter a timely appearance is DENIED.
Ninth, appellant’s motion that Source One Mortgage Corporation
not be allowed any prosecution or action entered by June Mann or
Peter Curran is DENIED.
Tenth, appellee’s motion to strike appellant’s improper
captions is GRANTED.
Eleventh, appellee’s motion to strike all of appellant’s
pleadings containing improper captions is DENIED.
III
Copenhaver challenges the district court’s dismissal of his
appeal for untimeliness under Fed. R. Bankr. P. 8002(a). That rule
requires filing of the notice of appeal within ten days of the date
of entry of the judgment, order, or decree appealed from.
Copenhaver waited thirty days. Copenhaver now asserts that his
notice of appeal was timely because the United States is a party,
and that for that reason, Fed. R. App. P. 4(a)’s extension of the
deadline to sixty days governs. But the United States is not a
3
party here. Although Copenhaver has included the Federal Home Loan
Mortgage Corporation (“Freddie Mac”) in the caption in recent
filings, this entity was not involved in the suit from the
beginning, and Copenhaver has not served Freddie Mac with his brief
in this appeal. Rule 8002(a), therefore, applies, making
Copenhaver’s notice of appeal untimely. The failure to file a
timely notice of appeal deprives the district court of
jurisdiction1 to consider the appeal, and this court therefore
lacks jurisdiction over the merits. In re Don Vicente Macias,
Inc., 168 F.3d 209, 210 (5th Cir. 1999), cert. denied, 68 USLW 3178(U.S. Nov. 8, 1999)(No. 99-458).2
IV
For the reasons stated herein, the district court’s decision
is
A F F I R M E D.
1
Copenhaver has challenged the district court’s jurisdiction
over his appeal because of improper venue. This is irrelevant,
because we have already held that the district court lacked
jurisdiction based on Copenhaver’s failure to file a timely notice
of appeal.
2
Moreover, any appeal at this point is moot because Copenhaver
failed to obtain a stay before the sale of his property. See
Gilchrist v. Wescott, 891 F.2d 559, 560 (5th Cir. 1990)(an appeal
after sale of property in absence of a stay is moot).
4