Ohio Citizens Bank v. Smith (In Re Smith)

38 B.R. 685 (1982)

In re Frank John SMITH, Debtor.
The OHIO CITIZENS BANK f/b/a Ohio Citizens Trust Company, Plaintiff,
v.
Frank John SMITH, Defendant.

Bankruptcy No. C 81-358.

United States District Court, N.D. Ohio, W.D.

October 22, 1982.

OPINION AND ORDER

POTTER, District Judge:

This matter is before the Court on plaintiff's motion to dismiss appeal and defendant's opposition thereto. Plaintiff contends that this appeal should be dismissed because it was not timely filed as required by Bankruptcy Rule 802. Defendant alleges that his notice of appeal is timely. According to defendant, his failure to file the notice of appeal within the ten day period of Bankruptcy Rule 802(a) should not result in his appeal being dismissed. The provisions of Bankruptcy Rule 802(c) permit this ten day period to be extended by twenty days on the grounds of excusable neglect. Defendant alleges that he has made a showing of excusable neglect. Defense counsel was unable to contact his client within the ten day period of 802(a). In addition, defense counsel mistakenly filed his notice of appeal with the Sixth Circuit Court of Appeals before correctly filing the notice of appeal with this Court.

The Court finds that the facts set forth by defendant are insufficient to establish excusable neglect. See for example, Headlee v. Ferrous Financial Services (In re Butler's Tire & Battery Co., Inc.), 592 F.2d 1028 (9th Cir.1979). In addition, defendant did not apply to the bankruptcy judge to request an extension of time to file his notice of appeal as required by Bankruptcy Rule 802(c). Plaintiff's motion to dismiss will be granted.

THEREFORE, for the foregoing reasons, good cause appearing, it is

ORDERED that plaintiff's motion to dismiss be, and hereby is, GRANTED.