                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2005

Abdul-Malik v. Washington Mutl
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3991




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CPS-291                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 04-3991
                                ________________

                         IN RE: SALIM ABDUL-MALIK,

                                              Debtor


                             SALIM ABDUL-MALIK,

                                              Appellant
                                         v.

                     WASHINGTON MUTUAL SERVICING
                            ________________

                  On Appeal From the United States District Court
                           For the District of New Jersey
                           (D.C. Civ. No. 04-cv-02623)
                     District Judge: Honorable Joel A. Pisano
                                ________________

                  Submitted For Possible Summary Action Under
                     Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 30, 2005

               Before: ALITO, MCKEE and AMBRO, Circuit Judges

                              (Filed: August 4, 2005)
                                ________________

                                    OPINION
                                ________________

PER CURIAM

     Salim Abdul-Malik appeals from the District Court’s order affirming the
Bankruptcy Court’s order that denied his motion for reconsideration.1 For the following

reasons, we will vacate and remand with instructions to dismiss the case for lack of

jurisdiction.

       In June 2002, Abdul-Malik filed a voluntary petition under Chapter 7 of the

Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey.

Washington Mutual Servicing for Long Beach Mortgage Company filed a motion for

relief from the automatic stay in order to commence foreclosure proceedings against

Abdul-Malik’s real property; the Bankruptcy Court granted the motion. Shortly

thereafter, the Bankruptcy Court granted Abdul-Malik’s motion to convert the case to a

Chapter 13 case. In June 2003, Abdul-Malik filed a motion to voluntarily dismiss his

case; the motion was granted.

       In November 2003, Abdul-Malik filed a motion to reinstate his Chapter 13 petition

and to vacate the order dismissing his case. The Bankruptcy Court denied the motion in

an order entered February 5, 2004, and Abdul-Malik filed a motion for reconsideration on

February 24, 2004. The motion for reconsideration was denied on March 25, 2004, and

he filed a notice of appeal on April 19, 2004. On September 22, 2004, the District Court

affirmed the Bankruptcy Court’s order denying the motion for reconsideration.

       Appeals from the Bankruptcy Court must be brought in the District Court “in the

time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2). Pursuant



  1
   Abdul-Malik is currently incarcerated at the Auburn Correctional Facility, New
York. He has been incarcerated since this case commenced.

                                            2
to Rule 8002, an appeal must be filed within 10 days of the entry of the order. The 10-

day limit is both mandatory and jurisdictional. See Shareholders v. Sound Radio, Inc.,

109 F.3d 873, 879 (3d Cir. 1997). Certain motions will toll the time to file an appeal, but

the motion must be filed within the time period prescribed by Fed. R. Bankr. P. 8002(b).

       The Bankruptcy Court entered its order denying Abdul-Malik’s motion to reinstate

on February 5, 2004. His motion for reconsideration appears to have been timely because

it was dated February 13, 2004. See Houston v. Lack, 487 U.S. 266, 272 (1988).

Regardless of whether Abdul-Malik intended his motion to be filed under Fed. R. Bankr.

P. 9023 or 9024, his motion tolled the time to appeal the February 5, 2004 order, see Fed.

R. Bankr. P. 8002(b); that is, his notice of appeal was due within 10 days after entry of

the order disposing of his motion.

       On March 25, 2004, the Bankruptcy Court entered its order denying Abdul-

Malik’s motion for reconsideration. He filed his notice of appeal on April 19, 2004.

Abdul-Malik argues that he is entitled to the benefits of Houston, which held that a pro se

prisoner’s notice of appeal is considered filed at the moment it is delivered to prison

authorities for mailing. Although Abdul-Malik may invoke Houston, as he has been

incarcerated since this matter commenced, his notice of appeal was untimely. As he

concedes, the motion was delivered to prison authorities on April 10, 2004, more than 10

days after entry of the March 25, 2004 order. See Rashid v. United States (In re Rashid),

210 F.3d 201, 204 (3d Cir. 2000). Because Abdul-Malik filed his notice of appeal to the

District Court more than 10 days after the Bankruptcy Court entered judgment, the

                                              3
District Court lacked jurisdiction over his untimely appeal. Accordingly, neither the

District Court nor this Court can consider the merits of his appeal. Calcasieu Marine

Nat’l Bank v. Morrell (In re Morrell), 880 F.2d 855, 857 (5th Cir. 1989); see also United

States v. Corrick, 298 U.S. 435, 440 (1936) (appellate court has jurisdiction to determine

if district court had jurisdiction).

       We will vacate the District Court’s order and will remand to the District Court for

entry of an order dismissing the appeal. See Greene v. United States (In re Souza), 795

F.2d 855, 858 (9th Cir. 1986).




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