United States District Court, S.D. Ohio, Eastern Division
IN RE TOBIAS HAROLD ELSASS DEBTOR.
JPMORGAN CHASE BANK, N.A., APPELLEE. TOBIAS HAROLD ELSASS, APPELLANT,
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
matter is before the Court on Appellee JPMorgan Chase Bank,
N.A.'s (“Chase”) motion to dismiss the
above-captioned appeal filed by pro se Appellant Tobias
Harold Elsass (“Debtor”). (ECF No. 2).
Specifically, Chase requests dismissal pursuant to Federal
Rule of Bankruptcy Procedure 8003(a)(2) due to Debtor's
failure to file a designation of record, statement of issues,
and appellant brief. For the reasons set forth below, this
Court GRANTS Chase's Motion to Dismiss Appeal and
DISMISSES Debtor's appeal.
November 2, 2016, Debtor voluntarily filed for Chapter 7
bankruptcy relief. In re Elsass, No. 2:16-bk-57091 (S.D. Ohio
Nov. 2, 2016), ECF No. 1. On April 18, 2017, Chase filed a
motion for relief from stay, requesting authorization from
the bankruptcy court to proceed with foreclosure and sale of
Debtor's residence, located at 887 Plum Tree Drive,
Columbus, OH 43235 (“the Property”). Id.
at ECF No. 49. The Chapter 7 Trustee signed an abandonment of
the Property. Trustee's Abandonment, Id. at ECF
No. 51. On June 14, 2017 the bankruptcy court granted
Chase's motion for relief from stay. Id. at ECF
No. 65. On July 13, 2017, Debtor filed an untimely notice of
appeal and statement of election to district court.
Id. at ECF No. 70. Pending that appeal to the
federal district court, Chase asserts that Debtor sought to
stay ongoing state court foreclosure proceedings. (ECF No. 2
at 3). Chase moved to dismiss the appeal for lack of
jurisdiction due to the failure to file a timely notice of
appeal, and this Court granted that motion to dismiss on
October 30, 2017. In re Elsass, No. 17-cv-00611
(S.D. Ohio Oct. 30, 2017), ECF No. 5. The order dismissing
Debtor's first appeal was mailed to the Debtor's
residence the next day via certified mail. No. 17-cv-00611,
ECF No. 6. However, it was returned as unclaimed on November
30, 2017. Id. at ECF No. 8.
November 13, 2017 - seemingly in response to the dismissal of
his first appeal - Debtor filed a motion in the bankruptcy
court under Federal Rule of Civil Procedure 60(b) seeking
relief from the bankruptcy court's June 14, 2017 order.
No. 2:16-bk-57091, ECF No. 88. The bankruptcy court dismissed
Debtor's 60(b) motion on December 13, 2017. In re
Elsass, No. 2:16-bk-57091 (S.D. Ohio Nov. 13, 2017), ECF
No. 90. On December 27, 2017, Debtor filed a timely notice of
appeal and a statement of election to district court, which
the bankruptcy court transmitted to this Court on January 2,
2018. (ECF No. 1). Chase asserts that the bankruptcy
proceedings in state court remain stayed pending the
resolution of this appeal. (ECF No. 2 at 4).
filing his notice of appeal, Debtor has taken no further
steps to prosecute his appeal. His Designation of the Record
and his Statement of Issues were due to be filed with the
bankruptcy court clerk on January 10, 2018, 14 days after
Debtor filed the notice of appeal, but he has yet to file
either. As of the date of this order, Debtor's
Designation of Record and Statement of Issues are 166 days
late. When Debtor failed to meet this deadline, Chase filed
the present Motion to Dismiss Appeal. (ECF No. 2). Debtor
moved for an extension of time to file his Response to
Chase's motion. (ECF No. 4). Acknowledging the less
stringent standards for pro se litigants, the Court granted
Debtor's Motion for Extension of Time and sua
sponte extended the due date for Debtor's Appellant
Brief. (ECF No. 6). The new due date for both the Response
and the Appellant Brief became April 16, 2018.
(Id.). The Court also stated that Debtor's
“[f]ailure to file his Appellant Brief by this date
will result in the Court dismissing this appeal for want of
prosecution.” (Id.). This order was sent via
certified mail to Debtor's residence on April 5, 2018.
filed his response to Chase's present motion on April 9,
2018. (ECF No. 7). However, he has not filed his Appellant
Brief. On May 2, 2018, the postal service returned to this
Court as unclaimed the order moving the filing deadline to
April 16, 2018. (ECF No. 9). As of the date of this order,
Debtor's Appellant Brief is 71 days late.
Federal Rules of Bankruptcy Procedure provide specific
requirements for appealing an order from a federal bankruptcy
court. Fed.R.Bankr.P. 8001(a). A party may make such an
appeal directly to a federal district court under
Fed.R.Bankr.P. 8005. The appellant must file a notice of
appeal with the bankruptcy court clerk within 14 days after
entry of the judgement underlying the appeal. Fed.R.Bankr.P.
8002(a). Within 14 days of filing the notice of appeal, the
appellant must file a designation of items to be included in
the appellate record and a statement of issues to be
addressed by the reviewing court. Fed.R.Bankr.P. 8009(a).
Once the bankruptcy court has transferred these filings to
the district court, the appellant has 30 days to serve and
file an appellant brief. Fed.R.Bankr.P. 8018(a). The district
court may modify the timing requirements for appellant and
appellee briefs as it deems appropriate. Id. Under
Fed.R.Bankr.P. 8003(a)(2), an appellant's failure to file
a timely designation of record, statement of issues, or
appellant brief may result in dismissal for failure to
prosecute at the district court's discretion, subject to
some restrictions found in precedent.
the interests of justice usually favor adjudication on the
merits, district courts in the Sixth Circuit may dismiss
bankruptcy appeals when the appellant has failed to follow
the Federal Rules of Bankruptcy Procedure and in doing so has
shown bad faith, negligence, or indifference to procedural
requirements. In re Winner, 632 F.2d 658, 661 (6th
Cir. 1980). Courts may also dismiss bankruptcy appeals when
the appellant's failure to comply with procedural
requirements results in prejudice to appellees. See,
e.g., White v. Creditors Serv. Corp. (In re
Creditors Serv. Corp.), No. C-2-96-690, 1998 U.S. Dist.
LEXIS 23551, at *15-16 (S.D. Ohio June 25, 1998); In re
Nelson, No. 05-60062, 2005 WL 2033537, at *2 (E.D. Mich.
Aug. 22, 2005).
Court finds that Debtor has shown indifference toward the
timing requirements for his appellate filings. Though the
Court is mindful that pro se litigants are subject to less
stringent standards, see Haines v. Kerner, 404 U.S.
519, 520 (1972); In re Ingram, 431 B.R. 307, *3
(B.A.P. 6th Cir. 2010), the required leniency does not amount
to a wholesale exemption from bankruptcy appellate
procedures, see Rutledge v. Rubicon Realty Group,
LLC, No. 17-CV-13743, 2018 WL 646844, at *2 (E.D. Mich.
Jan. 31, 2018) (citing In re Sharwell, 129 F.3d
1265, 1997 WL 681509, *1 (6th Cir. 1997)).
six months after filing his notice of appeal, Debtor has
failed to provide a Designation of the Record and a Statement
of the Issues as required in Fed.R.Bankr.P. 8009(a). The
absence of these documents alone would suffice as grounds to
dismiss Debtor's appeal for indifference and failure to
prosecute. See Rutledge, 2018 WL 646844 at *2
(dismissing pro se bankruptcy appeal for indifference where
appellant filed designation of the record two months late and
appellant's prior conduct showed no intention of
complying with bankruptcy appellate procedure); In re
Sharwell, 1997 WL 681509 at *1 (dismissing pro se
bankruptcy appeal where appellant filed no designation of
record or statement of issues and filed appellant brief six
months late); In re Bock Laundry Mach. Co., 63 B.R.
221 (N.D. Ohio 1986) (dismissing bankruptcy appeal where pro
se appellant made no required filings other than notice of
Court provided an extended briefing deadline even though
Debtor only requested an extension on his Response to
Chase's Motion to Dismiss Appeal. (ECF No. 6 at 1).
Moreover, this Court expressly stated that failure to file an
Appellant Brief by April 16, 2018 would result in dismissal
of Debtor's appeal. (Id.). Despite this warning
and the Court's willingness to be solicitous of
Debtor's pro se status, he has not filed an Appellant
Brief. The Court can only interpret Debtor's failure to
act as a manifestation of his indifference toward the
appellate rules. See Barclay v. U.S. Tr., Hackett,
106 Fed. App'x. 293, 294 (6th Cir. 2004) (affirming
dismissal of bankruptcy appeal where pro se appellant failed
to cure deficient record and failed to file appellant brief
despite deadline extensions). Debtor's failure to make
timely filings in his prior appeal also supports this
interpretation of his recent omissions. See In re