                                                           FILED
                                                            OCT 07 2011
 1                                                      SUSAN M SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
                                                          OF THE NINTH CIRCUIT
 2
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )
                                   )        BAP No. CC-10-1524-PaMkAl
 6   AXIUM INTERNATIONAL, INC.,    )
                                   )        Bk. No. 2:08-10277-BB
 7                  Debtor.        )
                                   )
 8                                 )
     MAHA VISCONTI,                )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )        M E M O R A N D U M1
11                                 )
     HOWARD M. EHRENBERG,          )
12   Chapter 7 Trustee; FEDERAL    )
     INSURANCE COMPANY,            )
13                                 )
                    Appellees.     )
14   ______________________________)
15                   Argued and Submitted on July 22, 2011,
                             at Pasadena, California
16
                             Filed - October 7, 2011
17
                 Appeal from the United States Bankruptcy Court
18                   for the Central District of California
19            Honorable Sheri Bluebond, Bankruptcy Judge, Presiding
                           ____________________________
20
     Appearances:     Appellant did not appear. Marsha A. Houston of
21                    Reed Smith LLP argued for Appellee Howard
                      Ehrenberg. Michelle Kisloff, Esq. of Hogan
22                    Lovells US LLP argued for Appellee Federal
                      Insurance Company.
23                        ____________________________
24
25
26        1
             This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.

                                        1
 1   Before: PAPPAS, MARKELL and ALLEY,2 Bankruptcy Judges.
 2
 3        Appellant Maha Visconti (“Visconti”) appeals the bankruptcy
 4   court’s order denying her motion for extension of time to file an
 5   appeal.    We AFFIRM.
 6                                   FACTS
 7        Debtors Axium International, Inc., and Diversity MSP, Inc.,
 8   filed chapter 73 petitions on January 8 and January 9, 2008,
 9   respectively.4   Howard M. Ehrenberg (“Trustee”) was appointed
10   chapter 7 trustee.
11        On September 24, 2010, Trustee filed a motion to approve a
12   settlement agreement which, in part, authorized the sale of
13   certain insurance policies.   Visconti vigorously opposed
14   Trustee’s motion.    In addition to filing a brief in opposition,
15   both she and her counsel filed declarations and amended
16   declarations opposing the motion, and Visconti also filed a
17   request for judicial notice of certain documents in opposition to
18   the motion.   The motion came before the bankruptcy court for a
19   hearing on October 20, 2010, at which Visconti appeared through
20   counsel.
21
          2
22           The Honorable Frank R. Alley, Chief United States
     Bankruptcy Judge for the District of Oregon, sitting by
23   designation.
24        3
             Unless otherwise indicated, all chapter, section and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
25
     to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
26   The Federal Rules of Civil Procedure are referred to as “Civil
     Rules.”
27
          4
             The two bankruptcy cases were ordered jointly
28   administered on January 18, 2008.

                                       2
 1        On October 25, 2010, the bankruptcy court granted Trustee’s
 2   motion (“Sale Order”).   That same day, Visconti filed a pleading
 3   which the bankruptcy court treated as a motion to reconsider the
 4   order approving the settlement agreement and sale.   Visconti’s
 5   motion to reconsider was denied without a hearing on November 15,
 6   2010 in an order (the “Reconsideration Denial Order”) which
 7   observed:
 8        (1) the Motion [for Reconsideration] is not supported
          by a declaration signed under penalty of perjury;
 9        (2) the Motion is not based on any new facts or new law
          not considered by the Court in ruling upon the
10        Trustee’s motion for approval of his compromise with
          Federal Insurance Company (the “Compromise Motion”);
11        (3) the Motion fails to provide any showing of cause
          for the court to reconsider, vacate, modify or evaluate
12        any ruling made in connection with the Compromise
          Motion[.]
13
14   The clerk’s notice of service attached to the order indicates
15   that it was served on Visconti’s counsel by mail.5
16        On December 7, 2010, Visconti filed a motion seeking an
17   extension of time to appeal the Reconsideration Denial Order
18   (“Extension Motion”).    The Extension Motion states, in its
19   entirety:   “Maha Visconti requests an Extension of Time to appeal
20   the Order Entered November 15, 2010 denying Motion of Maha
21   Visconti filed on October 25, 2010.   Maha Visconti was not
22   informed of the Ruling and did not become aware of such ruling
23   until November 30, 2010.”   Trustee filed an opposition to the
24   motion, arguing that it lacked any basis in law or fact.
25
26        5
             Visconti appealed the Reconsideration Denial Order.
27   Another panel ordered that the appeal be suspended pending the
     outcome of this appeal. BAP Appeal No. CC-10-1492, Order dated
28   February 18, 2011.

                                       3
 1   Interested party Federal Insurance Company joined in Trustee’s
 2   opposition.   On December 16, 2010, the bankruptcy court entered
 3   an order denying the Extension Motion, finding that it was not
 4   supported by any evidence that would constitute a showing of
 5   excusable neglect as required by the applicable Bankruptcy Rules
 6   (the “Extension Denial Order”):
 7        The Extension Motion is not supported by a declaration
          under penalty of perjury and therefore offers no
 8        evidence whatsoever that could qualify as a showing of
          excusable neglect. The motion asserts merely, without
 9        any supporting evidence, that “Maha Visconti was not
          informed of the Ruling and did not become aware of such
10        ruling [i.e., the reconsideration order] until
          November 30, 2010.”
11
12   The Extension Denial Order also contains an insightful footnote:
13        It is interesting to note that the Extension Motion
          states merely that Maha Visconti was not informed of
14        the Ruling and did not become aware of it until
          November 30, 2010. The Extension Motion does not
15        reveal whether Ms. Visconti’s attorney of record, Hieu
          Do, whose name appears on the notice of entry and whose
16        knowledge is imputed to Ms. Visconti, was aware of the
          ruling before November 30, 2010.
17
18        On December 28, 2010, Visconti filed a timely appeal of the
19   bankruptcy court’s Extension Denial Order.
20                              JURISDICTION
21        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
22   §§ 1334 and § 157(A) and (O).    We have jurisdiction pursuant to
23   28 U.S.C. § 158.
24                                   ISSUE
25        Whether the bankruptcy court abused its discretion in
26   denying Visconti’s motion to extend time to appeal.
27                           STANDARD OF REVIEW
28        A bankruptcy court’s denial of a motion for an extension of

                                       4
 1   time in which to file a notice of appeal is reviewed for an abuse
 2   of discretion.    Nugent v. Betacom of Phoenix, Inc. (In re Betacom
 3   of Phoenix, Inc.), 250 B.R. 376, 379 (9th Cir. BAP 2000) (citing
 4   Nat’l Indus., Inc. v. Republic Nat’l Life Ins. Co., 677 F.2d
 5   1258, 1264 (9th Cir. 1982)).
 6        In applying the abuse of discretion standard, we first
 7   “determine de novo whether the [bankruptcy] court identified the
 8   correct legal rule to apply to the relief requested.”   United
 9   States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
10   If the correct legal rule was applied, we then consider whether
11   its “application of the correct legal standard was (1) illogical,
12   (2) implausible, or (3) without support in inferences that may be
13   drawn from the facts in the record.” Id.    Only in the event that
14   one of these three apply are we then able to find that the
15   bankruptcy court abused its discretion.    Id.
16                                DISCUSSION
17        The filing of a timely notice of appeal is mandatory and
18   jurisdictional.   Delaney v. Alexander (In re Delaney), 29 F.3d
19   516, 518 (9th Cir. 1994); Key Bar Invs., Inc. v. Cahn
20   (In re Cahn), 188 B.R. 627, 630 (9th Cir. BAP 1995) (citing
21   Browder v. Director, Dep’t of Corrections of Ill., 434 U.S. 257,
22   264 (1978)).   Rule 8002(a) provides that, in a bankruptcy case, a
23   notice of appeal “shall be filed with the clerk within 14 days of
24   the date of the entry of the judgment, order, or decree appealed
25   from.”   However, under some circumstances, an extension of that
26   14-day period may be obtained from the bankruptcy court via
27   subsection (c) of Rule 8002, which provides:
28        A request to extend the time for filing a notice of

                                       5
 1        appeal must be made by written motion filed before the
          time for filing a notice of appeal has expired, except
 2        that such a motion filed not later than 21 days after
          the expiration of the time for filing a notice of
 3        appeal may be granted upon a showing of excusable
          neglect. An extension of time for filing a notice of
 4        appeal may not exceed 21 days from the expiration of
          the time for filing a notice of appeal otherwise
 5        prescribed by this rule or 14 days from the date of
          entry of the order granting the motion, whichever is
 6        later.
 7   Rule 8002(c)(2) (emphasis added).
 8        Visconti has not complied with Rule 8002(c).    Under its
 9   terms, she either needed to file a notice of appeal within
10   fourteen days of the entry of the Denial Order, or she needed to
11   file a motion to extend time in which to file the appeal within
12   that period.   She did neither.
13        Rule 8002(c) does allow a motion to extend time to be filed
14   within the twenty-one days after the initial fourteen-day appeal
15   period has expired.   However, the Rule requires that a showing of
16   excusable neglect be made to support the tardy filing.    Visconti
17   has made no such showing.   Indeed, Visconti’s cryptic Extension
18   Motion did not even allege the existence of excusable neglect.
19   That motion instead merely represented that Visconti did not
20   timely appeal because she was not informed of the entry of the
21   bankruptcy court’s order until November 30, 2010.    The Extension
22   Motion was not accompanied by a sworn declaration.    It makes no
23   mention of whether, or when, her attorney became aware of the
24   Reconsideration Denial Order,6 nor does it allege that she or her
25
          6
26           Like the bankruptcy court, the Panel   deems it significant
     that the Extension Motion makes no reference   to when Visconti’s
27   attorney became aware of the Reconsideration   Denial Order. Under
     Rule 9022(a), notice of entry of an order is   served on the
28                                                        (continued...)

                                       6
 1   attorney were somehow excusably neglectful in their actions or
 2   omissions.   Therefore, the bankruptcy court did not abuse its
 3   discretion in declining to grant Visconti an extension of time to
 4   appeal.
 5        To determine whether excusable neglect has been shown,
 6   courts must examine the factors articulated by the Supreme Court
 7   in Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship,
 8   507 U.S. 380 (1993).   Those factors target: 1) the danger of
 9   prejudice to the debtor; 2) the length of delay and its potential
10
          6
           (...continued)
11
     parties in the manner provided in Civil Rule 5(b). Civil
12   Rule 5(b)(1), in turn, provides that "If a party is represented
     by an attorney, service under this rule must be made on the
13   attorney unless the court orders service on the party." Visconti
     was represented by counsel and counsel was given notice by
14   U.S. mail of the entry of the Reconsideration Denial Order on
15   November 15, 2010. Proof of that mail service on Visconti’s
     attorney is included in both the docket entry and the excerpts of
16   record.   Where there is “proof that mail is properly addressed,
     stamped and deposited in an appropriate receptacle, it is
17   presumed to have been received by the addressee in the ordinary
     course of the mails.” Herndon v. De la Cruz (In re De la Cruz),
18   176 B.R. 19, 22 (9th Cir. BAP 1994) (quoting Hagner v. United
19   States, 285 U.S. 427, 430 (1932)). Vahan v. Shalala, 30 F.3d
     102, 103 (9th Cir. 1994) (citing Irwin v. Dept. of Veterans
20   Affairs, 498 U.S. 89, 92 (1990)). Without this legal
     presumption, our legal system could “unravel” because any
21   litigant could defeat a claim of service by mail with an
     unsubstantiated denial of receipt. Berry v. U.S. Tr.
22
     (In re Sustaita), 438 B.R. 198, 209 (9th Cir. BAP 2010). For
23   this reason, a litigant challenging notice served by mail must
     show “by clear and convincing evidence that the mailing was not,
24   in fact, accomplished.” In re Sustaita, 438 B.R. at 209 (quoting
     Moody v. Bucknam (In re Bucknam), 951 F.2d 204, 207 (9th Cir.
25   1991). Thus, we agree with the bankruptcy court that the
26   Extension Motion failed because there was no evidence submitted
     to show that Visconti was not aware of the Reconsideration Denial
27   Order until November 30, 2010, nor to rebut the legal presumption
     that her attorney was aware of the entry of that order within the
28   14-day period, which knowledge is imputed to Visconti.

                                      7
 1   impact on judicial proceedings; 3) the reason for the delay; and
 2   4) whether the movant acted in good faith.      Pioneer, 507 U.S. at
 3   395.       The burden to demonstrate excusable neglect in this context
 4   falls squarely upon the party seeking to be excused from timely
 5   performance, or in this case, on Visconti.      In re Cahn, 188 B.R.
 6   at 630-31.
 7          Visconti contends in her briefing that her delay in learning
 8   of the entry of the Reconsideration Denial Order was due to
 9   events surrounding the intervening Thanksgiving holiday.       But
10   this seems implausible, since that order was entered by the
11   bankruptcy court on November 15, 2010, some ten days before
12   Thanksgiving on November 25, and over two weeks before November
13   30th, the following Tuesday.
14          Moreover, Visconti complains that the bankruptcy court had
15   prohibited her attorney from personally contacting the court’s
16   chambers or clerk’s office.      Visconti’s Opening Brief at 7.   By
17   bankruptcy court order entered on November 3, 2010, Visconti’s
18   counsel and his staff and agents were prohibited from contacting
19   the bankruptcy judge and her staff, as well as the clerk’s
20   office, either in person or on the telephone.7      But this
21   prohibition is of no help to Visconti under these facts. Even if
22   her attorney was prevented from making direct contact with the
23
            7
24           As the basis for taking the extraordinary step of
     prohibiting the attorney’s phone contacts with chambers or the
25   clerk, the bankruptcy court noted that, in his prior contacts,
26   “repeatedly, throughout the course of these conversations, Mr. Do
     and his assistant, Emily, have been rude and disrespectful and,
27   on occasion, that they have resorted to screaming rather than
     communicating in a civil tone of voice[.]” Order of November 3,
28   2010 at 1.

                                          8
 1   bankruptcy judge or clerk, nothing prevented Visconti or her
 2   counsel from checking on the status of the bankruptcy case via
 3   the court’s internet electronic docket.    In In re Delaney, the
 4   Ninth Circuit held that litigants “have an affirmative duty to
 5   ‘monitor the dockets to inform themselves of the entry of orders
 6   they may wish to appeal.’” 29 F.3d at 518 (quoting Miyao v. Kuntz
 7   (In re Sweet Transfer & Storage, Inc.), 896 F.2d 1189, 1193 (9th
 8   Cir. 1990) superseded by Rule on other grounds, In re Arrowhead
 9   Estates Dev. Co., 42 F.3d 1306, 1310 (9th Cir. 1995)).     Thus,
10   even assuming the mail was delayed, such would not provide a
11   basis for treating Visconti’s notice of appeal filed outside the
12   initial fourteen-day window as one timely filed, nor would it
13   amount to a showing of excusable neglect.    In re Sweet, 896 F.2d
14   at 1193.    Simply put, that Visconti and her counsel both failed
15   to monitor the electronic docket may have been neglectful, but
16   such neglect was not excusable.
17                                 CONCLUSION
18            Visconti made no showing of excusable neglect sufficient to
19   satisfy the requirements of Rule 8002(c)(2).8    Accordingly, the
20
21        8
             The Panel was handicapped in this appeal by the failure
     of the attorney for Visconti, Hieu Do, to abide by the Rules.
22
     Visconti’s brief violated Rule 8010(a) by failing to provide a
23   defensible basis of appellate jurisdiction, any standards of
     appellate review, or a table of authorities. The latter may
24   perhaps be explained by the complete absence of any citations in
     the brief to case law, statutes, or other authorities supporting
25   counsel’s arguments, thus violating Rule 8010(a)(1)(E). In
26   violation of Rule 8010(a)(1)(D), the brief makes no precise
     references to the record, and Visconti’s excerpts of record only
27   present her position, and do not include appellee’s responses to
     her pleadings as required by Rule 8009(b)(1) and (6). Fairly
28                                                      (continued...)

                                        9
 1   bankruptcy court did not abuse its discretion when it denied
 2   Visconti’s motion for extension of time to appeal the Denial
 3   Order.   We therefore AFFIRM the bankruptcy court’s order denying
 4   Visconti’s Extension Motion.
 5
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
          8
           (...continued)
21   read, the brief is a diatribe concerning Visconti’s perceived
     unfair treatment at the hands of her ex-husband, the bankruptcy
22
     trustee, and the bankruptcy court. While the brief raises a
23   variety of issues, and asserts numerous facts, wholly irrelevant
     here, what the brief does not address is the critical issue in
24   this appeal: whether Visconti’s failure to meet the deadline to
     appeal the Reconsideration Denial Order is due to excusable
25   neglect. Finally, we note that Do did not acknowledge receipt of
26   the hearing notice sent to him by the Panel’s clerk, nor did he
     appear at the time set for oral argument before this Panel.
27        Simply put, Do’s cavalier approach to complying with the
     Rules failed to meet minimum standards for counsel appearing
28   before this Panel.

                                     10
