                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2006

In Re: Ezekoye
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4017




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Recommended Citation
"In Re: Ezekoye " (2006). 2006 Decisions. Paper 875.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/875


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                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 04-4017
                             ________________

                        IN RE: ANDREW EZEKOYE,
                                         Debtor

                           ANDREW EZEYOKE,
                                       Appellant

                                     vs.

                *OCWEN LOAN SERVICING, LLC, successor
                      to Ocwen Federal Bank FSB

              *(Amended pursuant to Clerk’s Order dated 8/18/05)
                 ____________________________________

               On Appeal From the United States District Court
                  For the Western District of Pennsylvania
                       (W.D. Pa. Civ. No. 04-cv-01047)
                 District Judge: Honorable Arthur J. Schwab
               _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                             June 1, 2006
        BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES

                            (Filed: June 20, 2006)

                         _______________________

                                 OPINION
                         _______________________
PER CURIAM.

         Andrew Ezekoye, proceeding pro se, appeals an order of the United States
District Court for the Western District of Pennsylvania affirming an order of the United

States Bankruptcy Court. We will dismiss this appeal because Ezekoye’s appeal from the

Bankruptcy Court’s order was untimely.

              Ezekoye executed a mortgage which was assigned to Ocwen Federal Bank

FSB. After Ezekoye defaulted on the mortgage, Ocwen brought a mortgage foreclosure

action in Pennsylvania state court and obtained a judgment in its favor. Ezekoye then

filed a complaint against Ocwen in state court alleging fraud related to the mortgage

transaction. Ocwen did not respond to the complaint, and Ezekoye obtained a default

judgment in his favor. When Ocwen learned of the default judgment, it filed a motion to

strike and/or open the default judgment in state court. Ezekoye and Ocwen consented to

the removal of the action to Bankruptcy Court, where Ezekoye had filed a bankruptcy

petition. The Bankruptcy Court construed Ocwen’s filing as a motion for relief from the

judgment under Federal Rule of Civil Procedure 60(b), and granted it on April 30, 2004.

              On May 10, 2004, Ezekoye moved for an extension of time to file a motion

for reconsideration of the Bankruptcy Court’s order granting Ocwen relief from the

judgment. The Bankruptcy Court granted the motion, and denied the motion for

reconsideration in an order entered June 18, 2004. On July 8, 2004, Ezekoye filed a

notice of appeal. The District Court affirmed the Bankruptcy Court’s order granting

Ocwen relief from the default judgment. This appeal followed.

              We have jurisdiction pursuant to 28 U.S.C. § 158(d). We previously issued


                                            2
an order directing the parties to address whether the Bankruptcy Court had the authority

to extend the time to file a motion for reconsideration, and if not, to discuss the scope of

the appeal filed in the District Court. After we issued our order, the Supreme Court

decided Eberhart v. United States, 126 S. Ct. 403, 407 (2005), and held that the rules

setting forth time limits for a motion for a new trial are not jurisdictional, but claim-

processing rules, and a party may forfeit an untimeliness defense by not timely raising it.

              Eberhart involved Federal Rule of Criminal Procedure 33, which sets forth

the time to file a motion for a new trial, and Rule 45, which limits a court’s ability to

extend the time to take action under Rule 33. The court of appeals had allowed the

government to raise noncompliance with the time limitations for the first time on appeal.

Because the government did not raise this defense in the district court, the Supreme Court

held that the court of appeals should have proceeded to the merits. Id. In so ruling, the

Supreme Court looked to its decision in Kontrick v. Ryan, 540 U.S. 443, 456 (2004),

which held that a party may forfeit the defenses made available by the time limitations of

Federal Rules of Bankruptcy Procedure 4004 and 9006, which govern the time that a

creditor may object to a debtor’s discharge in a Chapter 7 liquidation proceeding.

              Ocwen did not argue in Bankruptcy Court (or in the District Court) that the

Bankruptcy Court lacked the authority to enlarge the time to file the motion for

reconsideration. Under Eberhart, Ocwen has forfeited any argument that the motion for

reconsideration was untimely, and did not toll the time to appeal the order granting relief


                                               3
from the default judgment.

              Ocwen, however, did argue in the District Court, and argues in this Court,

that Ezekoye’s appeal to District Court was untimely because he filed it more than ten

days after the Bankruptcy Court denied his motion for reconsideration. We agree. The

Federal Rules of Bankruptcy Procedure require that a notice of appeal be filed within ten

days of the date of the entry of the order appealed from. Fed. R. Bank. P. 8002(a).

Ezekoye filed his notice of appeal on July 8, 2004, more than ten days after the

Bankruptcy Court entered its June 17, 2004 order denying reconsideration.

              Ezekoye claims that he did not promptly receive the Bankruptcy Court’s

order. Ezekoye, however, failed to request an extension of time to file an appeal. Rule

8002 allows the bankruptcy judge to extend the time for filing a notice of appeal in

certain cases. Fed. R. Bank. P. 8002(c)(1). Such a request must be made by written

motion filed before the time for filing a notice of appeal has expired, except that such a

motion filed not later than twenty days after the expiration of the time for filing a notice

of appeal may be granted upon a showing of excusable neglect. Fed. R. Bank. P.

8002(c)(2).

              Ezekoye filed a motion in District Court to file his appeal out of time on

August 9, 2004, a month after he filed his notice of appeal.1 Even if Ezekoye had filed


   1
     This motion was docketed in W.D. Pa. Civ. No. 04-cv-01151, which was later
consolidated in District Court with the present appeal because the appeals were
duplicative. It does not appear that the District Court ruled on the motion to file an appeal

                                              4
his motion in Bankruptcy Court as Rule 8002 requires, the motion was filed more than

twenty days after the time to file a notice of appeal expired, and was untimely.

Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir. 1997) (stating that

excusable neglect could not be found where the issue was raised for the first time after

Rule 8002's time limit expired).2

               We note that this is not the case of mere inadvertence by a pro se litigant.

Ezekoye has brought at least five appeals in this Court, and seven appeals in the District

Court. Ezekoye is not exempt from the rules of procedure. Accordingly, because

Ezekoye did not timely appeal the Bankruptcy Court’s order, we will dismiss this appeal.3




out of time.
   2
     Prior to Eberhart, we held that the failure to file a timely notice of appeal from the
Bankruptcy Court creates a jurisdictional defect barring appellate review. Shareholders,
109 F.3d at 789. Under Eberhart, the time limits of Rule 8002 are not jurisdictional, but
“assure relief to a party properly raising them.” See Eberhart, 126 S. Ct. at 407.
   3
      Ezekoye’s motion to strike a document and impose sanctions, and second motion to
strike a document and impose sanctions, are denied.
