6 ABR 126

COUNSEL

Evalyn L. Preblich, Pro per, Anchorage, Alaska, for the appellant.

Michelle L. Boutin, Bundy & Christianson, Anchorage, Alaska, for the appellee.

William Bates III and Kevin M. Epstein, McCutchen, Doyle, Brown & Enersen, LLP, San Francisco, California, pro bono amicus curiae.

______________________________________________________________________________

ORDER

The Memorandum disposition filed July 7, 1997, is withdrawn.

The appellee's petition for rehearing is DENIED.

Evalyn Preblich, a debtor in bankruptcy, appeals the district court's affirmance of the bankruptcy court's denial of Preblich's motions to reopen the hearing on the trustee's objections to creditors' claims and for return of proceeds from certain escrow accounts. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

. Preblich claimed that these proceeds were exempt under the state exemption statute, Alaska Stat. § 09.38.030(b). On February 10, 1993, the trustee filed an objection to Preblich's claim of exemption in the escrow proceeds. On February 24, 1993, the bankruptcy court denied Preblich's motion, 6 ABR 128      finding that "to the extent Ms. Preblich was entitled to any exemption under this state exemption statute, she has already received the proceeds."

On June 22, 1994, the trustee filed a notice of motion objecting to claims that certain creditors had made against the bankrupt estate. The bankruptcy court held a hearing on the trustee's objections on August 1, 1994, and on August 2, 1994, sustained the trustee's objections.

On July 29, 1994, Preblich again moved the bankruptcy court for return of the escrow proceeds. On August 30, 1994, Preblich also moved the bankruptcy court to vacate its order sustaining the trustee's objections to the creditors' claims. Preblich alleged that she had not been notified of the trustee's objections or the hearing on the objections and that her due process rights had therefore been violated.

The bankruptcy court denied both of Preblich's pending motions on September 6, 1994. The district court affirmed the bankruptcy court's denial of Preblich's motions on April 18, 1995. Preblich timely appeals.

§ 502(b); Fed. R. Bankr. P. 3007; U.S. Bankr. Ct. for Dist. of Alaska Local Rule 70. See also In re New Concept Housing, Inc., 951 F.2d 932, 937 (8th Cir. 1991) (finding that Fed. R. Bankr. P. 3007 requires a trustee to notify a debtor of disputed claims and of the hearing on the claims). It is also clear that the trustee failed to give Preblich the required notice and that he therefore violated the bankruptcy rules' notice requirements.

[ 2] "We do not condone violations of the Bankruptcy Rules' notice requirements." In re New Concept Housing, 951 F.2d at 937. Every effort should be made to comply with these notice requirements, and the failure to give the proper notice may, in some situations, require a second hearing or other appropriate remedy. We hold, however, that in the present 6 ABR 129      case, the failure to give Preblich the required notice was harmless and does not require us to vacate the bankruptcy court's order sustaining the trustee's objections. See id. at 937-38.

First, the trustee's failure to give Preblich notice of the objections and the hearing on those objections did not violate Preblich's due process rights. The Due Process Clause guarantees only that an individual will not "be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Thus, to show a violation of the Due Process Clause, an individual must first show that he or she was "deprived of life, liberty, or property." Preblich cannot meet this requirement.

[ 3] Preblich claims that she was deprived of a property interest because the stay on a piece of property was lifted at the hearing. She fails, however, to provide any evidence to support this claim. Although the bankruptcy court docket sheet states that the Municipality of Anchorage and the trustee stipulated that certain property was subject to relief from the stay, Preblich does not dispute the trustee's assertion that the stay has not been lifted on this property. Until, and unless, an attempt is made to actually lift the stay that was apparently discussed at the hearing, Preblich has not been deprived of a property interest and the lack of notice was therefore harmless ⁽³⁾. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) ("We must [ first] determine whether [ plaintiff] was deprived of a protected interest."); In re New Concept, 951 F.2d at 937 n.7 (holding that no due process violation occurred because the debtor had not been deprived of a protected property interest).

[ 4] Second, Local Bankruptcy Rule 70 does not provide the relief Preblich seeks. Rule 70 provides that parties who do not receive notice "shall not be bound by the results of any proceeding noticed, unless the Court in a separate contested matter determines otherwise." U.S. Bankr. Ct. for Dist. of Alaska Local Rule 70(d)(3). The bankruptcy court determined, in a separate contested matter, that Preblich was not entitled to challenge the order disallowing certain claims. Moreover, Preblich is not being "bound" to anything. The only "result" of the proceeding was that all of the trustee's objections to the creditors' claims were sustained.

[ 5] The bankruptcy court's refusal to vacate its order sustaining the trustee's objections and hold another hearing was not erroneous.

A. Sufficiency of Schedule of Exemptions

[ 8] Preblich's Schedule B-4, filed on October 27, 1987, listed her exemptions as including:

 

Type of	Statute, Location,	Value Claimed
Property	Description, Use	Exempt
Wages	Alaska Statutes
	§ 9.38.030	$1,100
	head of household
	$1100. per month

6 ABR 131      This schedule lists the type of property being claimed as exempt as "wages." There is absolutely no reference in this schedule to escrow proceeds, deeds of trust or anything else that would have put the trustee on notice that Preblich was claiming an exemption in the escrow proceeds. The bankruptcy court's finding that Preblich's schedule of exemptions was insufficient to put the trustee on notice that Preblich was claiming an exemption in the escrow proceeds is not clearly erroneous.

B. When Trustee Received Actual Notice

[ 9] Because Preblich's schedule of exemptions was not sufficient to put the trustee on notice that she was claiming an exemption in the escrow proceeds, the thirty-day objection period was triggered only upon the trustee receiving actual notice of the claim of exemption ⁽⁴⁾

. The bankruptcy court found that the trustee did not receive actual notice of the claimed exemption until January 11, 1993. This finding is not clearly erroneous.

At the time that Preblich filed her schedule of exemptions, her case was in Chapter 11. Although Preblich made clear, at a November 30, 1987, hearing before the bankruptcy court, that she was claiming the escrow proceeds as exempt, at this point in time, no trustee had been appointed to the case. Only Preblich, Mr. Zorea (Preblich's attorney at the time) and the bankruptcy judge were at this Chapter 11 hearing.

Preblich's case was converted to Chapter 7 on November 8, 1988, and the trustee was appointed on November 9, 1988. There is no evidence that the trustee was informed of the November 30, 1987, discussion of an exemption in the escrow proceeds, or that the trustee was in any other way informed of the claimed exemption.

On November 29, 1988, a creditors' meeting was held. At this meeting, there was an extensive discussion of the escrow accounts. In fact, the trustee's entire focus was on Preblich's list of assets and the deeds of trust. No mention was made by either the trustee or Preblich of any claimed exemption in the escrow proceeds.

On January 4, 1989, the trustee contacted the bank handling the escrow accounts and arranged for all future proceeds from these escrows to be forwarded to the trustee. The trustee collected the escrow proceeds from January 1989 until January 1993, a period of four years, before Preblich made any attempt to intervene. This evidence indicates not only that the trustee did not have notice that Preblich was claiming an exemption in the escrow proceeds, but also that Preblich was not initially claiming such an exemption.

Further evidence that Preblich was not initially claiming an exemption in the escrow proceeds is found in a January 31, 1990, letter from one of Preblich's former attorneys. This letter asks the trustee if he would be receptive to "the possibility of [ Ms. Preblich] claiming 6 ABR 132      an exemption in the monthly payments from the escrows."

[ 10] The bankruptcy court's finding that the trustee did not receive actual notice that Preblich was claiming an exemption in the escrow proceeds until January 11, 1993, is supported by the evidence in the record and is not, therefore, clearly erroneous .

C. Timeliness of Trustee's Objection

[ 11] Because Preblich's schedule of exemptions was inadequate, the time for filing an objection to the claim of exemption did not begin to run until the trustee received actual notice of the claim on January 11, 1993. The trustee filed an objection to Preblich's claim of exemption on February 10, 1993, within thirty days of receiving actual notice. The trustee's objection to the claim of exemption was therefore timely. See Fed. R. Bankr. P. 4003(b).

To determine whether the district court had jurisdiction over Preblich's appeal from the bankruptcy court's order denying her claim of exemption, we must answer two questions: (1) whether immediate appeal from the denial of a claim of exemption is mandatory or permissive; and (2) whether Preblich's appeal from the bankruptcy court's denial of her claim of exemption was timely. ⁽⁵⁾

A. Appeal from Bankruptcy Court's Denial of Claim of Exemption

District court jurisdiction over appeals from bankruptcy court orders is derived from 28 U.S.C. § 158(a), which provides:

The district courts of the United States shall have jurisdiction to hear appeals (1) from final judgments, orders, and decrees [ of the bankruptcy court] (2) from interlocutory 6 ABR 133      orders and decrees issued under section 1121(d) of title 11 . . . and (3) with leave of the [ bankruptcy] court, from other interlocutory orders and decrees.

28 U.S.C § 158(a).

It is undisputed that the bankruptcy court's order denying Preblich's claim of exemption is not an interlocutory order or decree issued under 11 U.S.C. § 1121(d) and that the appeal to the district court did not therefore fail under subsection (2) of § 158(a). It is also undisputed that Preblich did not obtain leave of the bankruptcy court to file the appeal and that the appeal did not therefore fall under subsection (3) of § 158(a). Thus, the only possible source of district court jurisdiction in this case is subsection (1) of § 158(a)--an appeal from a "final" judgment, order or decree. See id. We must therefore determine whether the bankruptcy court's February 24, 1993, order denying Preblich's claim of exemption was a "final" judgment, order or decree.

Because of the unique nature of bankruptcy, this circuit has taken a "pragmatic" approach in determining whether a judgment, order or decree is "final" in bankruptcy cases.See In re Mason, 709 F.2d 1313, 1318 (9th Cir. 1983). This approach "emphasizes the need for immediate review, rather than whether the order is technically interlocutory, in determining what is appealable as a final judgment in bankruptcy proceedings." In re White, 727 F.2d 884, 885 (9th Cir. 1984).

In In re White, we held that a bankruptcy court's order denying an exemption was a final, appealable order and that a debtor whose exemption had been denied may immediately appeal to this court. See id. at 886. In so holding, we recognized that an order denying an exemption did not meet the conventional test for a "final" judgment "because it [ did] not terminate the entire bankruptcy." Id. at 885. We found, however, that in light of the fact that the order denying an exemption "finally determined all issues regarding the claimed exemption," and in light of the need "for immediate review of orders granting or denying exemptions," the denial of an exemption was a final order that could be appealed. See id. at 886.

Our decision in In re White would appear to control the present case. There is, however, an important distinction between In re White and the present case. In In re White, the question we addressed was whether a debtor may immediately appeal the denial of an exemption. We did not address the argument now before us--that although the denial of an exemption is final for purposes of allowing immediate appeal, it is "technically interlocutory" and immediate appeal is not, therefore, required.

In In re Slimick, 928 F.2d 304 (9th Cir. 1990), we held that an appeal filed more than ten days after the bankruptcy court's denial of an exemption was untimely. See id. at 307-09. The issue before us was not, however, whether an order denying an exemption was a "final" order that required immediate appeal. Rather, the issue was which of two documents filed by the bankruptcy court--each denying the claim of exemption--was the "final" order that triggered the ten-day period in which to file a notice of appeal. See id. at 306-07. We held that the first of the two documents was the "final" order and that the appeal, filed more than ten days after the first document was entered, was untimely. See id. at 307-09. In doing so, we assumed, without analysis, that the denial of an exemption was a final order that required an immediate appeal. See id.

6 ABR 134      Thus, our prior decisions have not explicitly addressed the question that we must answer today--whether a debtor must immediately appeal from the denial of an exemption or forfeit the right to appeal. Moreover, although several other circuits have addressed whether a debtor may immediately appeal from the denial of an exemption, none have explicitly addressed whether an immediate appeal is mandatory. See, e.g., In re Yonikus, 996 F.2d 866, 868 (7th Cir. 1993); In re Huebner, 986 F.2d 1222, 1224 (8th Cir. 1993); In re England, 975 F.2d 1168, 1172 (5th Cir. 1992); In re Brayshaw, 912 F.2d 1255, 1256 (10th Cir. 1990); In re Sumy, 777 F.2d 921, 923 (4th Cir. 1985); John T. Mather Memorial Hosp. v. Pearl, 723 F.2d 193, 193 n.l (2d Cir. 1983); see also In re Garcia, 168 B.R. 403, 405-06 (D. Ariz. 1994). But see In re Wisz, 778 F.2d 762, 764 (11th Cir. 1985) (holding that denial of a claim of exemption is not "final" and therefore not immediately appealable).

[ 12] We now make explicit what was implicit in our holdings in In re White and In re Slimick: a bankruptcy court's order denying a claim of exemption is a final, appealable order under 28 U.S.C. § 158(a)(1) and any appeal from such an order must be taken within the time allowed under the bankruptcy rules, or the right to appeal will be waived.

[ 13] As discussed, we have previously held that an order denying a claim of exemption is a "final" order under 28 U.S.C. § 158(a). See In re Slimick, 928 F.2d at 307-09. It follows from Bankruptcy Rule 8001 that, absent an extension (or the presence of some other basis for appealing), a notice of appeal must be filed within ten days of the entry of an order ⁽⁶⁾. Failure to file within the time limit divests the appellate court of jurisdiction. See In re Souza, 795 F.2d 855, 857 (9th Cir. 1986).

An order from a bankruptcy court denying a claim of exemption finally determines the discrete matter to which it was addressed, determines and seriously affects substantial rights and can "cause irreparable harm if the losing party must wait until bankruptcy proceedings terminate before appealing." See In re Allen, 896 F.2d 416, 418 (9th Cir. 1990). We therefore hold that the denial of a claim of exemption is a "final" order under 28 U.S.C. § 158(a)(1) and that appeal from an order denying an exemption must be taken within the time allowed under the bankruptcy rules or the right to appeal will be waived ⁽⁷⁾

6 ABR 135      B. Timeliness of Preblich's Appeal from Denial of Exemption

[ 14] To timely appeal from the bankruptcy court's order denying her claim of exemption, Preblich had to file a notice of appeal within ten days of entry of the order. See Fed. R. Bankr. P. 8002(a). ⁽⁸⁾ Preblich failed to comply with this requirement.

On February 24, 1993, the bankruptcy court entered its order denying Preblich's January 1993 motion claiming an exemption in the escrow proceeds. Preblich never filed a notice of appeal from this order. Instead, on July 29, 1994, Preblich filed another motion claiming the escrow proceeds were exempt. It was only after this second motion was denied by the bankruptcy court that Preblich filed a notice of appeal on September 2, 1994. This notice of appeal, filed more than eighteen months after entry of the bankruptcy court's February 24, 1993, order denying the exemption, was well outside of the ten-day period allowed under Rule 8002(a). It was therefore untimely.

Even if we construe Preblich's second motion, filed July 29, 1994, as a Rule 9023 motion to alter or amend the judgment, ⁽⁹⁾ we must still hold that the notice of appeal was untimely. Under Rule 8002(b), if a party makes a timely motion for relief under Rule 9023, the time to file a notice of appeal does not begin to run until the bankruptcy court's order disposing of the motion is entered. See Fed. R. Bankr. P. 8002(b) (1993). ⁽¹⁰⁾

A timely motion to alter or amend under Rule 9023 is one filed within ten days of the entry of judgment. See Fed. R. Bankr. P. 9023; Fed. R. Civ. P. 59(b).

6 ABR 136      Preblich did not file her second motion for return of the escrow proceeds until July 29, 1994, approximately seventeen months after the bankruptcy court entered its order denying her claim of exemption. This motion, filed more "than ten days after the entry of judgment" was therefore not "timely" for purposes of appeal. See Fed. R. Bankr. P. 8002(b).

[ 15] Preblich's failure to file a notice of appeal within ten days of the bankruptcy court's February 24, 1993, order deprived the district court of jurisdiction to consider whether the escrow proceeds were exempt under Alaska state law. See In re Mouradick, 13 F.3d 326, 327 (9th Cir. 1994) ("[ T]he untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court's order.").

2. 6 ABR 127      These escrow accounts contained several deeds of trust on various properties that Preblich had sold. Apparently, while her case was in Chapter 11, Preblich had been allowed to keep the proceeds received from these escrows. It was not until early 1989, a few months after her case was converted to Chapter 7 and a trustee was appointed, that these escrow proceeds were seized by the trustee.

3. 6 ABR 129      Before any attempt can be made to lift the stay on this property, another hearing must be held in which proper notice is given to all parties, including Preblich.

4. 6 ABR 131      It is undisputed that Preblich did not amend her schedule of exemptions. Therefore, the time period for filing objections began to run only upon the trustee receiving actual notice of the claim.See In re Peterson, 929 F.2d at 388.

5. 6 ABR 132      We appointed William Bates III and Kevin M. Epstein of McCutchen, Doyle, Brown & Enersen, LLP, as pro bono amicus curiae to brief the issue of whether immediate appeal from a bankruptcy court's order denying an exemption is mandatory or permissive.

6. 6 ABR 134      At the time of this appeal, Rule 8001 provided: "An appeal from a final judgment, order, or decree of a bankruptcy judge to a district court . . . shall be taken by filing a notice of appeal . . . within the time allowed by Rule 8002." Fed. R. Bankr. P. 8001(a) (1995). Rule 8002 provides that a notice of appeal must be filed "within 10 days of the date of the entry of judgment, order, or decree appealed from." Fed. R. Bankr. P. 8002(a).

7. 6 ABR 134      We recognize that other courts have held that an order that is "final" under § 158 is not subject to mandatory appeal unless it is also "final" under 28 U.S.C. § 1291. See In re Haugen, 998 F.2d 1442, 1447 (8th Cir. 1993); In re Kilgus, 811 F.2d 1112, 1116 (7th Cir. 1987); but seeIn re Gould, 977 F.2d 1038, 1040-41 & n.3 (7th Cir. 1992) (stating that In re Kilgus was merely an exception "disregarding [ the] liberal finality rule `[ t]o avoid inducing parties to take indiscriminate appeals"). These cases effectively interpreted "final" in § 158(a) as different from "final" in Rule 8001. As of 1997, Rule 8001 was amended to read: "An appeal from a judgment, order, or decree of a bankruptcy judge to a district court . . as permitted by 28 U.S.C. § 158(a)(1) or (a)(2) shall be taken by filing a notice of appeal . . . within the time allowed by Rule 8002." Fed. R. Bankr. P. 8001(a) (emphasis added). The history of this amendment clarifies that a "final" § 158(a) order is subject to Rule 8001.

8. 6 ABR 135      "The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from." Fed. R. Bankr. P. 8002(a).

9. 6 ABR 135      Rule 9023 provides the process by which a party can move to alter or amend a judgment. See Fed. R. Bankr. P. 9023 (incorporating Fed. R. Civ. P. 59). Preblich did not label her second motion for return of income as a Rule 9023 motion. However, to give Preblich the benefit of the doubt, we assume, for purposes of this appeal, that the motion was intended to be a Rule 9023 motion.

10. 6 ABR 135      At the time of her second motion, Rule 8002(b) provided: "If a timely motion is filed by any party . . . under Rule 9023 to alter or amend the judgment . . . the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion."