                                                                              FILED
                               NOT FOR PUBLICATION                            JAN 27 2014

                                                                         MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                    U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


In re: MICHAEL PETER SPITZAUER,                    No. 12-60045

                  Debtor,                          BAP No. 11-1180


MICHAEL PETER SPITZAUER,                           MEMORANDUM*

                  Appellant,

  v.

EXOTERM HOLDING D.D.; et al.,

                  Appellees.


                               Appeal from the Ninth Circuit
                                Bankruptcy Appellate Panel
                Jury, Hollowell, and Kirscher, Bankruptcy Judges, Presiding

                               Submitted January 21, 2014**

Before:          CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Michael Peter Spitzauer appeals from the Bankruptcy Appellate Panel’s


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“BAP”) decision affirming the bankruptcy court’s order denying his second

motion to extend time to file a notice of appeal. We have jurisdiction under 28

U.S.C. § 158(d). We review de novo BAP decisions, and apply the same standard

of review that the BAP applied to the bankruptcy court’s ruling. Boyajian v. New

Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We affirm.

      The bankruptcy court correctly denied Spitzauer’s extension request

because, even assuming a showing of excusable neglect, Spitzauer failed to file his

request within the 21 day period. See Fed. R. Bankr. P. 8002(c)(2) (time to appeal

may be extended upon a showing of excusable neglect only by motion filed not

later than 21 days after the expiration of the time for filing a notice of appeal); see

also Slimick v. Silva (In re Slimick), 928 F.2d 304, 306 (9th Cir. 1990) (“Although

Rule 8002 thus incorporates some flexibility, we strictly enforce its time

provisions.”).

      We do not consider any of Spitzauer’s arguments that address the merits of

his claim. See Saunders v. Band Plus Mortg. Corp. (In re Saunders), 31 F.3d 767,

767 (9th Cir. 1994) (per curiam) (this court lacks jurisdiction to consider the merits

of a claim where an appeal to the BAP was untimely).

      AFFIRMED.




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